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Cornell University Library 
 KD 196.S79 1915 
 
 Statham's Abridgment of the law 
 
 3 1924 017 854 898 
 
^^^ 
 
 Cornell University 
 Library 
 
 The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924017854898 
 
STATHAM'S 
 
 ABRIDGMENT OF THE LAW 
 
 TRANSLATED BY 
 
 Margaret Center Klingelsmith, LL.B. 
 
 Librarian of the Biddle Law Library 
 University of Pennsylvania 
 
 BOSTON 
 
 THE BOSTON BOOK COMPANY 
 
 1915 
 
FOREWORD 
 
 The work upon this book was done in those hours which 
 could be spared from my duties as Librarian of the Biddle 
 Law Library of the Department of Law of the University 
 of Pennsylvania. In the beginning the inspiration to do the 
 work came from the Dean of the Law Department, William 
 Draper Lewis, and to him I owe a never-failing encourage- 
 ment through the years that have followed. 
 
 To the Faculty of the Law Department I am indebted 
 for a consideration and courtesy which have enabled me 
 to give to the work that detailed attention which it has 
 called for. 
 
 To the University of Pennsylvania I owe all the acquire- 
 ments that have enabled me to do the work at all; the 
 defects in the work — many, and more visible to myself 
 than they will ever be to the keenest critic who may scan it — 
 are wholly my own. I had here the opportunity to remedy 
 all those defects of scholarship which I freely acknowledge ; 
 if I have not so remedied them, it is, to use the language of 
 "the books," "my own folly." 
 
 If I have here failed in giving to the University that 
 which I hoped to give, my regret will be not for myself 
 but for the institution, of which I can say with all my heart, 
 
 "I am glad 
 That here what coUeging was mine, I had." 
 
 M. C. K. 
 
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ABRIDGMENT 
 
 OF THE 
 
 LAW 
 
 By 
 NICHOLAS STATHAM 
 
 Translated by 
 MARGARET CENTER KLINGELSMITH. LL.B. 
 
LIST OF TITLES 
 
 ACCOM PT 
 
 AIELL 
 
 ADDICION 
 
 AMINISTRATOURS 
 
 AGE 
 
 AIDE 
 
 AIDE DE ROY 
 
 ACCIONS SUR LEZ ESTATUTZ 
 
 ACCIONS SUR LE CAS 
 
 ADMESUREMENT 
 
 AMERCIAMENT 
 
 ANNUITE 
 
 ARBITREMENT 
 
 ASSISES 
 
 ASSIGNE 
 
 ATTACHEMENT 
 
 ATTEYNT 
 
 ATTOURNEMENT 
 
 ATTOURNEY 
 
 ANNCIEN DEMESNE 
 
 AUDITA QUERELA 
 
 AVEREMENT 
 
 AVOWRY 
 
 AJOURNEMENT 
 
 AMENDMENTZ 
 
 ATTACHMENT SUR PROHIBI- 
 
 CION 
 ASSETZ PAR DISCENT 
 ACCORDE 
 AMERALTIE 
 AD QUOD DAMPNUM 
 ABBE 
 
 BASTARDIE 
 
 BRIEF 
 
 BRIEF AL EVESQUE 
 
 BILLE 
 
 BARRE 
 
 CONNT 
 CHAMPERTIE 
 CHARGE 
 CHARTRE 
 CHALENGE 
 CONFIRMACION 
 CONTYNUELLE CLAYME 
 CONDICIONS 
 COVENANT 
 CONYSANNCE 
 
 CAUSE DE REMOVER PLEE 
 CESSAVIT 
 CONSPIRACY 
 COLLUSION ET COVYNE 
 CONNTREPLE DE VOUCHER 
 CONNTREPLE DE AIDE 
 CONNTREPLE DE GARANTIE 
 CONNTREPLE DE AIDE 
 CONNTREPLEE DE RECEIPTE 
 COSYNAGE 
 CUI IN VITA 
 CERTIFICAT 
 CONSCIENCE 
 COLOUR 
 CHEMYN 
 CONSULTACION 
 
 CONTRA FORMAM COLLACIONIS 
 CONTYNUANCE 
 CONTRACTE 
 
 COMMISSION ET COMMISSION- 
 ERS 
 CORPUS CUM CAUSA 
 CUSTUME 
 CORODIE 
 CORONE ET PLEEZ DE CORONE 
 
 DAMAGES 
 DEFAUTE 
 
VI 
 
 LIST OF TITLES 
 
 DEFENCE 
 
 DECIES TANTUM 
 
 DISCLAYMER 
 
 DENZINE 
 
 DISCONTINUANCE DIVERSEZ 
 
 DETTE 
 
 DETENU 
 
 DISCEIPTE 
 
 DISTRESSE 
 
 DISCENT 
 
 DEUX PLEEZ LOU UNE VA A 
 
 TOUT 
 DROIT 
 DONN 
 DEVISE 
 DOUBLE FLEE 
 DOWER 
 DURESSE 
 DARREIN PRESENTEMENT 
 
 ESSON 
 
 ESTRAY 
 
 ESTREPPEMENT 
 
 EXCOMENGEMENT 
 
 ESCHETE 
 
 ESCHANNGE 
 
 ENCUMBENT 
 
 ENQUEST 
 
 ESTOPPEL 
 
 ENTRE CONGEABLE 
 
 ENTRE 
 
 EXAMINACION 
 
 ENTREPLEDER 
 
 EXECUTOURS 
 
 ERROUR 
 
 EXECUCION 
 
 EXEMPCION 
 
 EXTENT 
 
 EXTENTISEMENT 
 
 FOURMEDON 
 
 FRANK MARIAGE 
 
 FYNES 
 
 FEOFFEMENTS ET FAITZ 
 
 FOURCHER 
 
 FAUZ JUGEMENT 
 
 FAUX IMPRISONMENT 
 
 FORGER DEZ FAITZ 
 
 FOREST 
 
 FRANKFALD 
 
 FIERI FACIAS 
 
 FALSER DE RECOVERI 
 
 FRAUNCHIS 
 
 GARDE 
 
 GARR. DE CHARTRE 
 
 GARRANTIE 
 
 GRANNT 
 
 GAGER DE DELIVERANCE 
 
 GARR. DATTORNEY 
 
 GARNYSE ET GARNYSMENT 
 
 HERIOT 
 
 HORS DE SON FEE 
 
 JOUR 
 
 INTRUSION 
 
 JOURNE ACCOMPTEZ 
 
 JOYNDRE IN AIDE 
 
 JOYNDRE EN ACCION 
 
 JURIS DUTRUM 
 
 JURISDICCION 
 
 JUGEMENT 
 
 JOINTENANNCY 
 
 JUSTIFICACION 
 
 ISSUE 
 
 ISSUEZ DEZ TERREZ RETOURN 
 
 IMPRISONEMENT 
 
 LEY 
 
 LIBERTATE PROBANDA 
 
 LIVEREE 
 
 LABORERS 
 
 LATITAT 
 
 LACHESSE 
 
 LETE 
 
 LICENCE 
 
 MESNE 
 
 MONSTRAVERUNT 
 
 MAYNPRIS 
 
 MAYNTENNANNCE 
 
 MYSNOSMER 
 
 MOIGNE 
 
LIST OF TITLES 
 
 VU 
 
 MONSTRANZ DEZ FAITZ RECOR- 
 
 DEZ FYNES ET CHARTRES 
 MORTDANNCESTOR 
 MAYNTENER DE BRIEFF 
 M0RTMAY5J 
 
 NONNSUTE 
 
 NISI PRIUS 
 
 NUPER OBIIT 
 
 NOMEN DIGNITATIS 
 
 NONNABILITE 
 
 NONNTENURE 
 
 NUSANNZ 
 
 OFFICE 
 
 ORDINARY 
 
 OBLIGACIOfJ 
 
 OYER & TERMINER 
 
 OFFICE DE COURTE 
 
 PLENERTIE 
 
 PRESCRIPCIOfJ 
 
 PARTICION 
 
 PROTECCION 
 
 PRECE PARCIUM 
 
 PETICI05J I 
 
 PROCLAMACION 
 
 PROHIBICION 
 
 PROCEDENDO 
 
 PROPRIETATE PROBANDA 
 
 PROCESSE 
 
 PRESENTMENT A ESGLISE 
 
 PRIVELAGE 
 
 PLEGGEZ 
 
 PLEYNT 
 
 PER QUE SERVICIA 
 
 PROVISION 
 
 PEYN 
 
 PREBENDE 
 
 PERJURY 
 
 PARDON 
 
 PARLIAMENT 
 
 PROTESTACION 
 
 QUOD PERMITTAT 
 QUID JURIS CLAMAT 
 
 QUARE IMPEDIT 
 QUALE JUS 
 QUOD EI DEFORCEAT 
 QUINZINE 
 
 QUARE INCUMBRAVIT 
 QUARE NON ADMISIT 
 QUARENTYN 
 
 QUARE EJICIT INFRA TERMI- 
 NUM 
 
 REPLICACION ET REJOYNDRE 
 
 REPLEDER 
 
 RESCOUS 
 
 RESPONDRE 
 
 RESCEIPTE 
 
 RETOURNE 
 
 RETOURNE DEZ AVERS 
 
 RELEES 
 
 REMITTERE 
 
 RESOM. ET REATTACHMENT 
 
 REPLEGIARE 
 
 RECAPCION 
 
 REDISSEISIN 
 
 RENT REVYVE 
 
 RETRAXIT ET DEPARTIER EN 
 
 DESPITE 
 RECORDE 
 RECORDARE 
 REPELLE 
 RECONYSANNZ 
 
 SCIRE FACIAS 
 
 SEVERANS 
 
 SAVER DE DEFAUTE 
 
 SUPERSEDEAS 
 
 SUERTIE 
 
 SURRENDRE 
 
 SEVERALLE TENANNCY 
 
 SEQUATUR SUB SUO PERICULO 
 
 SUB PENA 
 
 TRAVERSE 
 
 TRANS 
 
 TITLE 
 
 TRIALL 
 
 TESTMANENT 
 
vni 
 
 LIST OF TITLES 
 
 TOLLE 
 TAILLE 
 TOURNE DE VIC 
 
 WASTE 
 VISNEE 
 VOUCHER 
 
 VIEWE 
 
 VARIANNCE 
 
 WARREN 
 
 WITHERNAM 
 
 VERDIT 
 
 VILLENAGE 
 
 UTLARY 
 
 Per me. R. Pynson 
 
INTRODUCTION 
 
 I 
 
 This Book coming to my hands, which through my own small skill 
 in the Law, perceiving it to be an Ingenious thing, desiring to bring 
 it to the Test, the grave Judgments of such as were profound in the 
 Knowledge of the Law not only approved of it, but highly Commended 
 it, adjudging it a thing worthy to be Published for the good of the whole 
 Nation. Which being done, I represent it to the open View of all 
 men, not doubting that they will find it answer to their desires, to 
 their great Use and Benefit. But knowing on the other side that 
 many will be apt to spurn, if they find the least iota wanting, I crave 
 the favorable construction of all ingenious Persons, and for the Malev- 
 ilous and Caterpillers of our Age, which will not be content with 
 anything, I leave as I find. 
 
 The unknown gentleman whose introduction to the book called The 
 Exact Lawgiver I have ventured thus to paraphrase, added one 
 word more to his introduction. I wish I had his courage and could 
 end with Vale, after as few words as he felt he needed address to his 
 readers. But while I hope for the "favorable construction of all 
 ingenious persons," I have a great fellow feeling for those "Cater- 
 pillers of our Age which will not be content with anything," unless 
 it be well worth their browsing upon it ; and it seems that they should 
 be given a little something upon which to feed beyond the solid matter 
 of the translation itself, even though they should be less content with 
 the fore-word than the word itself. 
 
 When we have an old friend to introduce to a world which knows of 
 him, honors him so far as its knowledge goes, yet knows him not well 
 enough to do him full honor, we begin to withdraw a little from that 
 friend and make an attempt to regard him with less friendly and more 
 observant eyes. So it is with some of us in regard to our old friend 
 Statham and his book. It is true that one should not need to do this 
 with our author and his book ; all know of it. All know that it is the 
 first friend of the bewildered seeker through the maze of precedent: 
 
X INTRODUCTION 
 
 pioneer of that long tine of patient digesters of our common law, who 
 have gone on increasing with the increasing years. Columbus of the 
 common law, pointing his pinnace straight into the uncharted sea of 
 precedent, he is familiar to us all. We have but to look into any 
 bibliography of legal literature to find his name leading all the rest 
 as that of the man who made the "first attempt to methodize our law." 
 But yet it has been for the most part merely a name. He is given 
 credit for being the first to enter the field; for his "originally," for 
 "serving as a model for similar productions." But immediately 
 thereafter we begin to read, "This work had the fate to be of less use 
 than, perhaps, any performance that in the nature of it, assumed to 
 aim at such general utility." [Reeves, Hist, of Eng. Law, Vol. 4, 
 p. 117.] And, still worse : "His book is much esteemed for the antiquity 
 thereof; for, otherwise, lawyers behold him as soldiers do bows and 
 arrows since the invention of guns, rather for sight than service." 
 [Fuller: Worthies, as quoted by Wallace; The Reporters, p. 661.] 
 Wallace has made this verdict familiar to many who would never have 
 sought it in the "Worthies," and the legal world has accepted it without 
 much thought. Indeed we might go further and say that it has 
 accepted it without any thought at all, for had they stopped to think 
 about it they would have found that this work, thus dropped into the 
 limbo of forgotten things, is no archaic engine of a less developed world, 
 fitted only to be thrown aside for the more complete implement of a 
 later day, but that it is indeed the shaped and polished cornerstone 
 of the legal edifice which now shelters us. It seems too true that the 
 "ingenious persons" who have written our legal bibliography and the 
 history of our law have been content to repeat the edict of the early 
 and unknown critic who first set the fashion of calling Statham's 
 Abridgment "ancient and outworn." So it has been left for one more 
 of the "Caterpiller" sort, not quite content to rely upon hearsay, and 
 feeding gropingly upon the sources of the law, to come back to this 
 earliest Abridgment of that law with somewhat, it may be, of the 
 feelings of those into whose hands it was first put — a sense of obligation 
 to the maker of the book, and a realization that such work is not done 
 for one generation only, but that its benefits reach out and down into 
 the whole later life of the law. This feeling and this realization are 
 what have led to the translation of the work. Others far better fitted 
 to the task might have done it, but it seemed that we might wait a 
 long time before the person perfectly fitted for the task could be found. 
 
INTRODUCTION XI 
 
 None knows better than the present editor how much better it could 
 be done if one were given that unlimited time to strive for perfection 
 which is denied to most workers under modern conditions. 
 
 There is apparently an idea among those students who use the older 
 books of the law that Statham has not been very much used since the 
 later abridgments were published, and that such disuse is because 
 of some lack in the book itself, inaccuracies or crudenesses; that it 
 is an older and therefore a ruder piece of work, somewhat carelessly 
 done, and set aside very reasonably when the more skilfully framed 
 and more correct abridgments were offered to the world. With the 
 exception of such remarks as that of Fuller's, which I have jUst quoted, 
 which seems to hint at the rudeness of the performance, I do not know 
 of any statements to such an effect on the part of the earlier writers. 
 But the impression certainly exists, and must have had some excuse, 
 if not reason, for being. There is one very simple explanation. Stat- 
 ham printed his book (or it was printed) before any of the Year Books 
 had been put into type. This means that he could give no reference 
 to the folios of the Year Books, such as Fitzherbert could and did give 
 when he printed his Abridgment in 1514. Wherever Fitzherbert gives 
 references to unprinted Year Books, his references are simply to Years 
 and Terms, exactly like those of Statham. This leaves, of course, the 
 entire term to be searched through in order that the case may be 
 identified. If the term is short this is not so serious a matter, but if 
 the term is long, and many of them are very long, it takes much time 
 and patience to find the desired case. When the student could turn 
 to Fitzherbert and find his reference completed with the folio number, 
 he would naturally do so, and think it was not worth while to attempt 
 to use the work which required the greater time and patience. In 
 this way there would soon grow up some such feeling about the use 
 of Statham's Abridgment as in our days grows up about a book which 
 may be very good, even very excellent, in many ways, but which has 
 an inadequate index or table of cases. We know that there is "good 
 matter" there, but we have neither the time nor the patience to search 
 for it when such data are at hand elsewhere. So the book is cast aside, 
 no new edition appears, and the good matter is lost, or is discredited. 
 This seems a very simple, but is it not a quite adequate, reason for the 
 apparent disuse of the abridgment which bears Statham's name? 
 
 Another reason for this real disuse in later times may very easily 
 be the type and the abbreviations used in the printing of Statham. 
 
xii INTRODUCTION 
 
 These presented no difficulties to the scholars of the time when it was 
 printed; indeed they must have seemed a vast improvement upon 
 the manuscripts then in use. With a type conforming very beautifully 
 to the better written manuscripts, with the abbreviations very 
 generally expanded, with the clear, perfect printing of the pages, the 
 book must have been a boon to the reader of the latter part of the 
 fourteen hundreds. But as printing became more common, as the 
 use of the manuscripts became unusual, as the Year Books expanded 
 the abbreviations and they ceased to be known to the average scholar, 
 the student, when he turned to Statham's Abridgment, would find 
 himself faced with symbols and abbreviations of which he did not 
 know the meaning. Having the cases elsewhere, or thinking that he 
 had them, he would naturally turn to the books he could read with 
 ease, first Fitzherbert, and then Brooke; and gradually the ability 
 to read the abbreviated text became rare, and at last, for a few genera- 
 tions, the ability of the average lawyer to read the crabbed text of 
 the Year Books themselves failed. I know this was only for a short 
 time, and that always there have been "black letter lawyers" ready 
 to give of their stores of knowledge to their less well equipped brothers. 
 Yet there was such a period ; a period in which the actual readers of 
 the Year Books were comparatively few. A period in which we were 
 told that the language of those books was "barbarous"; in which it 
 was said (and this by so learned and earnest a student of the Year 
 Books as Mr. Luke Owen Pike) that they were "repulsive." [Y. B. 
 Rolls Series, 12 & 13 Ed. Ill, Preface, p. xiii.] During that period 
 those who were repelled from the Year Books would naturally not 
 resort to Statham, although his book is beautiful to look upon, for there 
 they would find not only the barbarous language itself, but its still 
 more uncivilized — or what to them would seem so — abbreviations. 
 I believe it to have been very greatly during this period that the use 
 of Statham declined. For there are certain facts that show that for 
 many generations Statham as an authority held his own with the other 
 abridgments. One of the chief of these facts is that while the earlier 
 editions of the Year Books — one might better speak of printings 
 than editions, perhaps — contain marginal references to "Fitzh." 
 only, later printings add references not only to Brooke but to Stat- 
 ham. Had the credit of Statham's work died out between the 
 time of the printing and the date of the Year Books first con- 
 taining these references, such references would surely not have 
 
INTRODUCTION xiil 
 
 been added. I have not been able to definitely decide upon the 
 date of the printing of these first marginal references to Statham 
 in the Year Books. There certainly are none in the earliest 
 editions; it seems that some time between 1556 and 1600 citations 
 to both Brooke and Fitzherbert began to find their way into the mar- 
 gins of the Year Books, to be copied into the margins of the 1679 
 edition. Scattered about among these references we also find notes 
 that "Statham disagrees" or that one is to "see Statham" on a certain 
 point. It is evident from these notes that not only was Statham's 
 Abridgment still in constant use, but that Statham's ideas were still 
 given great credit. And while the Books themselves were in daily 
 use, persons were being constantly referred to the Abridgment by 
 these marginal notes. It would seem, therefore, that only for the 
 comparatively brief period during which the Year Books themselves 
 were less commonly used has Statham's Abridgment been a "curio" 
 merely. For the greater part of four hundred years it has been a 
 necessary part of the equipment of the lawyer as well as the student 
 of the law. And it is evident, now that the revival of the student 
 spirit has brought us back to drink again of the sources of our law, we 
 must naturally turn to this earliest and best of those sources. Again, 
 there are very many who read the Year Books as easily as they do 
 the modern volume ; who find no difficulties in the manuscripts them- 
 selves; who love the abbreviations of the early print for their very 
 shapeliness. We may then declare, and we believe truly, that there 
 was no long period in which the Abridgment of Statham was either 
 unused or discredited ; that our views on this subject have been merely 
 misdirected for a short period by those to whom the early black letter 
 book had become nothing but antiquated law, and that it has in reality 
 been an integral part of the scholar's equipment for the greater part 
 of the time since it appeared in print. 
 
 When did it appear in print? The only positive statement to be 
 made is that no bibliographer dares to make any positive statement 
 at all about it. It does not seem worth while to set down here all the 
 guesses on the subject, since at best they are but guesses without any 
 apparent foundation in fact. The guessers range in their dates from 
 1467 to 1490 ; and Marvin even says we do not know whether it was 
 printed before or after Fitzherbert's Abridgment. He apparently 
 adopts this idea from Reeves [Reeves, Hist, of Eng. Law, Vol. 4, p. 117], 
 but Reeves gives no authority for his statement. For the extreme 
 
xiv INTRODUCTION 
 
 on the other side we have the statement in Merewether and Stephens 
 [Merewether and Stephens, Boroughs and Municipal Corporations, 
 Vol. 2, pp. 686, 691] that Statham's Abridgment was "first published 
 in 1467, 7th Edward IV." We may, however, offset that statement 
 by their further statement on page 691 of the same volume, that 
 Statham was "one of the Barons of the Exchequer in the reign of 
 Edward IV, ... . and his compilation was published at London by 
 Pynson, in the time of Henry VIII. It has no date or title-page. 
 But as it has Pynson's mark, it is supposed to have been printed by 
 William Tailleur, at Rouen, who printed Littleton's Tenures for that 
 publisher." So we get a very early date and a very late date, and 
 from the same hand a number of equally well substantiated items. 
 
 All that can be said for the various bibliographers or writers about 
 the book is that they do not pretend to know much, and that they 
 make no one responsible for their statements. In many cases it is 
 apparent that they have never seen a copy of the book. Many of 
 them speak doubtfully of the colophon of Tailleur, as if it were a mere 
 supposition that the colophon appeared in the volume, and that the 
 idea that he printed the book might have arisen from the fact that 
 he was the printer of Littleton's Tenures. Some write as if the 
 "Printed per me. R. Pynson" might not have actually appeared 
 on the list of titles, but they think if it were a fact it would show the 
 book to have been printed somewhere between 1470 and 1490. It 
 would appear that even those who might very easily have had access 
 to a copy of the book — like Merewether and Stephens — did not 
 take the trouble to look at it; but they were not writing bibliographies 
 and may be forgiven. The bibliographers Brooke and Worrall 
 believe that there were two editions apparently, one a folio, the other 
 a quarto. I have never been able to trace the authority for this belief, 
 and I have never seen more than one impression, but the fact that the 
 volume might class as either a folio or a quarto owing to its size and 
 shape may very probably have led to its being described by some 
 one as a quarto, and by some other one as a folio, thus leading to the 
 belief that it had appeared in both forms. 
 
 Such facts as we have to base any theories upon are these : The book 
 exists. It is very beautifully printed in a type which does not appear 
 to have been used in any other English law book, but which closely 
 resembles a type used in a few other books printed in England at a very 
 early period. It is a small folio, closely approximating a quarto in 
 
INTRODUCTION XV 
 
 shape. It has no title-page, which is a characteristic of the very 
 earliest printed books. The folios are not numbered. It has a list 
 of titles alphabetically arranged and placed before the subject-matter 
 of the book. There is a colophon, which is not on a folio by itself, 
 but appears on the back of the last folio, which if numbered would 
 be folio 187. The colophon is everywhere recognized as that of Tail- 
 leur of Rouen. At the end of the list of titles there is printed "Per me. 
 R. Pynson." This makes Pynson responsible only for the printing 
 of the list of titles. The type, however, is exactly the same as that 
 used in the body of the book. These facts leave us in doubt whether 
 the entire book was printed for Pynson or not. It might have been 
 printed — for Statham or another — in Rouen. It may never have 
 been actually put on the market until Pynson, having an actually 
 established publishing business, took it up, added the list of titles to 
 make it practically more useful to his patrons, and gave it to the world. 
 This, of course, is pure conjecture, but it shows that if Pynson added 
 the list of titles in England, he had the type with which to print it, 
 unless, again, the list was sent to Tailleur. If it was done in England 
 it is the only law book of the period which was so well done ; the law 
 books of the next century were much cruder performances, typo- 
 graphically speaking. 
 
 It has been said, but I do not know that I have ever seen the state- 
 ment printed, that there is internal evidence that the book was printed 
 much later than 1470. The idea was that the cases cited in the 
 Abridgment ran up to a later date than 1470. I have read with care 
 every word in the book at least twice. I have verified so far as has 
 been reasonably possible, every case there cited. I have carefully 
 examined these citations with a view to the testimony as to the date 
 of the book which might be gained from them. The cases run from 
 Edward the Second to the last year of Henry the Sixth (1461). 
 There are only ten cases in this last year of Henry Sixth (39 Hen. VI), 
 eight in 38 Hen. VI (1460), while back of that time the various years 
 of Henry VI are represented many times. There is an apparent 
 citation to a case in 46 Hen. VI (1468), but that is a patent error, as 
 Henry VI only came back to his throne after his 39th year, for that 
 short and troubled period of less than a year, for which year his reign 
 is not counted among the regnal years. Had this been a correct 
 citation it would only have brought the latest citation to 1468, which 
 would have left the possible printing of the book in 1470 still clear. 
 
xvi INTRODUCTION 
 
 However, the case is patently an error in citation and has no value as 
 evidence whatever. The next apparently late date is that of a citation 
 to 43 Ed. IV, and occurs on p. 169, b. of the Abridgment. This would 
 of course bring the printing of the book long after the date assigned 
 to it by those who believe in the earlier date, but on investigation the 
 case proves to be a case reported in 43 Ed. Ill, and the addition of the 
 fourth "I" a printer's error. There is also a "Statute of Primo Ed. 
 IV" which brings the date up to the first year of the reign of Edward IV, 
 but as this first year of Edward IV is also the last year of Henry VI's 
 reign, we have no later date in reality, although it sounds later to say 
 that the internal evidence brings us up to the first year of Edward IV 
 than to say that we can trace the cases no later than the last year of 
 Henry VI. After the most careful search I can find no further 
 evidence, even erroneous evidence, which would bring the printing 
 of the book later than 1470, the earliest assigned date. The latest 
 erroneous date would bring the last date given in the book to 1468; 
 the latest correct date is at the latest 1461. This would seem to 
 put to rest all rumors that there is any internal evidence for the 
 later date, and allows nine years between the last date in the 
 book and the earliest assigned date for printing. 1470 is an early 
 date for printing done in England. The evidence that it was 
 not done in England, or if done in England was done by French 
 type, strengthens the idea that it is very early printing, or else that 
 it was done in England by English printers who were beginning to 
 print law books just before the end of the fourteen hundreds. Mr. 
 Soule believed that the Year Books began to appear in print about 
 1480-82, so that the type and the printers would be ready to print 
 such a law book as this of Statham by that time. The fact that it 
 was not so done is very clear proof that it was because it was too early 
 for the work to be handled in England with success, or without the 
 use of the French type, and shows that it must have been before the 
 regular printing of law books in England, which would place the date 
 before 1480. I doubt if the exact date can ever be established ; I in- 
 cline to an early date, circa 1470-1475, until some evidence is advanced 
 to show that it was not then published, but I should be very greatly 
 surprised if any evidence should ever be advanced showing it to have 
 been published after 1480. 
 
 As to the life history of Statham we have but little data, and what 
 we have is of very little authority. The bibliographies list him as 
 
INTRODUCTION XVll 
 
 "Statham: Nich. Baron of the Exchequer, 7 Ed. IV." But we do 
 not know that "Baron of the Exchequer" has any foundation in fact. 
 We have, to be sure, Dugdale's note after the record of his name as 
 reader at Lincoln's Inn, "postea unusBaronumdeScace." If Dugdale 
 were infalUble this, of course, would be sufficient ; but as it is, this is 
 simply evidence that this was thought to be the fact. We are told 
 by Foss [Foss: Biographical Diet. Statham] that on October 30, 1467, 
 Statham received a patent for the grant of the office of Second Baron 
 of the Exchequer [Dugdale, p. 68, says 1468], in reversion on the death 
 of one John Gierke. It is not known that the office became vacant 
 while Statham lived, but either he or John Gierke died in 1481, and 
 Thomas Whittington was appointed Baron of the Exchequer [Dug- 
 dale: Origines, p. 249]. John Gierke was appointed second Baron of 
 the Exchequer in 1472 [Dugdale, p. 70], but there appears to be no 
 record of his death. As there is no record of the patent being granted 
 to Statham, the proof that he was ever a Baron of the Exchequer 
 seems very inadequate. It is probable that the reversion to the office 
 did not fall in while he was alive, and that the work we are now con- 
 sidering was made while he was in Lincoln's Inn, either prior to the 
 time he was appointed reader, in 1471, or at that time. It is possible that 
 he may have been appointed reader because of the very fact that it was 
 known that he had prepared the work, and because of the learning 
 and industry which he had shown in thus preparing it. It may have 
 been published as an aid to his work as a reader. It is just such work 
 as a lecturer of a law school of to-day finds it necessary to do when 
 he takes up any branch of the law which has not been classified in 
 such a way as to make it teachable. No branch of the law was so 
 classified when Statham became a reader. There were thousands of 
 Year Book cases still in manuscript — ^in many cases most excellent 
 manuscript — and collected into volumes in various ways, and usually 
 without arrangement. I say usually, for I have seen manuscripts 
 divided into subjects, a sort of classified arrangement, which yet are 
 catalogued as Year Books. These seem to have been the first syste- 
 matic attempts at the arrangement of our law, but they seem to be 
 neither abridgments nor digests, unless it be in a very elementary way. 
 It is very probable that Statham began by setting down under certain 
 heads the cases he was using, and the scattered points he found in 
 the cases, without at first having any very definite design for the work, 
 and almost certainly without any idea of printing at that early period 
 
xviii INTRODUCTION 
 
 of the art. But as time went on and he added new subjects, and as 
 he scrutinized the law and verified the statements of his work, finding 
 them useful to himself, a:nd therefore likely to be of use to other students 
 and practisers of the law, it is probable that the idea of publication 
 came to him. But only "probable," for we have no proof that he ever 
 thought of publication or that he lived to know that a book which 
 was to be known by his name was to see the light. There are certain 
 things about the book itself which have led me to believe that the reason 
 that we know so little of Statham, or of his work, is that he died long 
 before 1481, when the reversion to the office of Second Baron of the 
 Exchequer fell in through the death of John Gierke. For the book, 
 careful and complete as it is, with a marvelously small number of errors, 
 yet shows the lack of a master hand in its finish — the sure eye, the 
 fatherly editing, which such a work must surely have secured from a 
 man capable of compiling it. Here is a book, absolutely well done, 
 excellently arranged. A book in which the cases are so well digested 
 that it would be very difficult to make them more brief and at the same 
 time convey more of the content of the case. Cases so concisely done 
 that they bear evidence of the intent that nothing extraneous or useless 
 shall be retained, yet also done with great care that nothing essential 
 shall be omitted, and that the law shall be made as clear as possible 
 on every point considered. Yet in spite of all this we find little loose 
 threads left, like the citation to "blank Fitz." on page 1, which 
 has been printed solemnly as if it were a finished citation instead of a 
 blank left in the author's manuscript to be filled in later. We also 
 find many careless remarks, evidently not intended for publication, 
 which the compiler himself would have smilingly blue-penciled — if 
 they had the equivalent of the blue pencil in those days — but which 
 the printer, careful though he was (in fact it would seem, through his 
 very carefulness, that nothing should be lost), has conscientiously 
 retained, much to our present day gratification. There is also the 
 evidence of cases thrown into a subject after it was apparently com- 
 plete. A title will apparently be ended, and a cross-reference given 
 as usual at the end of a subject, and then there will come more cases, 
 generally of a late date, which have apparently been added after the 
 title was finished. It seems quite sure that so careful a compiler, so 
 keen a digester, so thorough a worker, would not have left these 
 blemishes in his work. Therefore it seems not too much to assume 
 that Statham was dead when the work was going through the press, 
 
INTRODUCTION XIX 
 
 and those who knew the value of the work, and perhaps wished to per- 
 petuate his name, took the manuscript just as it was and getting Pynson 
 to take charge of the publication, left it in his hands to be finally shaped 
 and given to the world. The name of Statham does not appear on the 
 title-page or in any part of the work itself; there is no attempt at any 
 introduction or preface; there is no signature at the end. There is 
 nothing to show the pride or the anxiety of editorship. I feel sure 
 that had Statham lived and had he attained a position equal to his 
 attainments, as we have them exemplified in this work, we should have 
 heard much more about him, much more about his book, and that 
 his book would have shown much surer signs of his workmanship. 
 
 It seems that there must have been very great interest in the work 
 in order that it should get to be printed at all. But most of all that 
 it should get to be printed so well ; in such type, and with an evident 
 idea of making it a beautiful example of the typographical art. The 
 great care and responsibility which must have attended the work, 
 whether the type was sent over to England, or the book sent to Rouen 
 to be printed, all go to prove that persons of responsibility and wealth 
 must have taken the matter in hand. Who and what they were 
 remains a mystery, but we owe a debt of gratitude to those unknown 
 men who did their work so well; who were content to do it and to 
 pay for it, yet never to claim any acknowledgment for all that they 
 did, in title-page, or public statement of any kind. 
 
 Let us look for a moment at the task which this man, evidently still 
 young, undertook for the clearing up of the knowledge of the law of 
 England. Of course he had not all the cases to deal with that we have 
 in the eleven volumes of the Year Books which make up the collection 
 of cases of the edition of 1679. The last case with which Statham 
 deals is, as we have said, in the last year of Henry VI (1461). After 
 that date we have now the Year Books of Edward IV, and such as 
 have been printed of Henry VII and VIII. Statham made very little 
 use of the cases decided in the time of Edward II, now printed in the 
 Maynard, or first volume of the 1679 edition of the Year Books. It 
 is very probable that the manuscript volume from which these cases 
 were afterward printed may not have been accessible to Statham, and 
 he may have taken the few cases he was able to cite from manuscript 
 notes by another hand. This seems to be the more likely, as the 
 citations to these cases usually appear beside very short abridgments, as 
 if they be from notes casually jotted down in court. These cases, 
 
XX INTRODUCTION 
 
 when finally traced in the Maynard, have been so traced only after 
 a good deal of time and pains taken, as the points made are hard to 
 identify. It is very probable that some of the Edward II cases which 
 I have apparently identified are in reality not identical, and that I 
 have been in error; a like case may seem identical when looked at 
 from one point of view, and may, even to the same person, seem quite 
 unlike when looked at from another angle. At all events Statham 
 used some cases from the reign of Edward the Second, but not a large 
 number in proportion to those used of the other reigns. There are 
 also comparatively few cases cited for the early years of Edward III, 
 although I believe that there are more, and probably better, manuscript 
 reports for that reign than for any other, existent even to-day. The 
 citations to the cases for the latter part of that reign are more abundant 
 and the cases are more easily identified ; there is no apparent reason 
 for either fact. 
 
 If Statham had any model for the work he set himself, we do not 
 know. For all that we know to the contrary he made his own analysis 
 and arranged his cases under that analysis entirely according to his 
 own ideas of what was either the most necessary, the most logical, 
 or the most convenient way. At all events we do know that he 
 proceeded very much as makers of abridgments have been proceeding 
 ever since; that his example has been followed by the early makers 
 of abridgments, who in their turn have been followed by the makers 
 of digests even up to the present day. 
 
 There are two hundred and fifty-eight titles in Statham's Abridg- 
 ment. At least seventy-six of these are unknown to our modern law, 
 or rather are obsolete as titles in our modern digests. Yet to these 
 unknown and obscure titles our modern law goes back in an unbroken 
 line. The Aide de Roy, the Voucher, the Cessavit — all sound some- 
 what uncouth, a trifle archaic in our ears, yet in tracing these subjects 
 through their early history and later development we find them all 
 giving to our modern law the features and the tendencies which dis- 
 tinguish it. The ancestral ruff and farthingale have been discarded; 
 the law no longer wears a robe and wig, but the face and figure are 
 those of the remote ancestors who gave it life and meaning. 
 
 We find that in these two hundred and fifty-eight titles Statham 
 succeeded in covering the greater part of the law of his day; that his 
 scheme appears to have been comprehensive, and that he had a system 
 of cross-references which, while not exhaustive, yet was intended to 
 
INTRODUCTION XXI 
 
 do what the cross-reference of to-day does for the modern digest. That 
 this system of cross-references was not carried to its intended com- 
 pleteness we may ascribe to the same factor that prevented the com- 
 plete proofreading of the whole work, the failure of the master hand 
 to hold the reins until the end. As has been noted before, the cross- 
 references often do not come at the end of the title, as it appears in the 
 completed volume. The addition of cases at the end of the title 
 probably was by another hand and does not show Statham's own work. 
 
 The task which Statham set himself was a huge one, as these titles 
 show. That it was completely done in the way of collecting all the 
 cases and printing them in one comprehensive work, we may not claim. 
 It would seem that this was not the intention of the compiler. Rather 
 it would appear that he intended to show under each head a certain 
 class of cases, and show them in a certain way. It may yet be that 
 some student who cares for the task, and can spare the time for the 
 labor, may be able to trace out the system which Statham used, and 
 find the reason why he eliminated cases which he must have known 
 well, and for putting in cases which are of comparatively little value. 
 If the theory be correct that he collected cases for his course as a 
 reader, he would more naturally have collected such cases as bore 
 on his discourse than those on other points, but of this we have no 
 knowledge. 
 
 We have said that Statham did not have to digest all the Year Bouk 
 cases that we now have. But he did have some cases that we have 
 now only in manuscript. Statham took his cases at first hand, and of 
 course from the manuscript. He has references to a good many cases 
 from the reign of Richard II. No cases from the reign were ever 
 printed until, in 1914, the twelfth year of that reign was translated 
 and published. [Y. B. 12 Ric. II, edited and translated by George 
 Deiser. Ames Foundation.] To this year I have been able to give 
 citations, where the cases have been identifiable. To the other years 
 of the reign no citation can be given, although a good many cases from 
 those years appear in the Abridgment. Fitzherbert has printed some 
 of the same cases, looking very much as if they had been copied from 
 Statham. There are other cases which appear in Statham and not 
 in the other Abridgments, and which are not in the printed Year Books. 
 In such cases the law given is known to us only as Statham gives it, 
 and we shall have to go to him for it until all the Year Books now in 
 manuscript are given to the world, and perhaps longer, as some of the 
 
xxii INTRODUCTION 
 
 books to which Statham had access have very probably perished from 
 the earth. He gives us cases from the early years of Edward III. 
 Some of these have been printed in the Rolls Series for those years, 
 and are identifiable; others have not been identified, showing that 
 Statham had access to yet other manuscripts than those from which 
 that series are being printed. There are yet other cases from the 
 later years of Edward III, which have not yet been printed — those 
 between 30 and 38 Edward III. And from the unprinted years 
 of Henry VI we have yet other cases. Brooke does not contain any 
 of these and Fitzherbert rarely has them. All these cases afford what 
 we have every reason to believe are correct digests of cases not elsewhere 
 accessible in any printed book. They are a large addition to our 
 knowledge of the early law, and this added knowledge is surely worth 
 having. 
 
 Much has been said as to the fascination of the early Year Books, 
 and the light their cases shed upon the period, now so dim to us, in 
 which these litigants come to seek justice — or defeat it — in the courts 
 of England. In some the idea of such fascination evokes amusement, 
 the only amusement they think they will derive from Year Book lore. 
 But let them not be deceived ! If they are ever enticed into the pleasur- 
 able pursuit of Year Book cases, they will find that they will join the 
 ranks of those to whom it is high holiday to put down the last case 
 in the United States Supreme Court report, or the latest arrival in 
 the way of decisions in the Court of Appeal in England, and all their 
 modem tribe, and to plunge into a case where my master Martyn and 
 some of his colleagues are matching wits in a long debate. And why 
 should one who can rejoice in the perusal of Froissart, and his pictures 
 of the light and shade of the life of his day — the jousting and the 
 feasting, and the life of the common road — not enjoy as much the 
 picture by a contemporary pen of those people who appear upon 
 the pages of the Year Book of Henry VI [7 Hen. VI. p. 9, pi. 15], 
 where it was asked of the justices why a case was adjourned from 
 Cumberland County to Westminster. And Boynton said that it was 
 a just matter, because the parties in their own counties came with 
 a great rout of armed people, more like coming to battle than to the 
 Assizes; and so for doubt that the power of the King be disturbed, 
 and also because the counsel was in London, they adjourned the 
 Assize. We are back in the times of the strong hand and the armed 
 band, so vividly painted for us by the master hand of Green, the 
 
INTRODUCTION XXUl 
 
 historian. "The violence and anarchy which had always clung like 
 a taint to the baronage had received a new impulse from the war with 
 France. Long before the struggle was over it had done its fatal work 
 on the mood of the English noble. His aim had become little more 
 than a lust for gold, a longing after plunder, after the pillage of farms, 
 the sack of cities, the ransom of captives. The nobles were as lawless 
 and dissolute at home as they were greedy and cruel abroad." [Green : 
 Short History of the English People, p. 274.] But Green, we believe 
 we may say, did not count the Year Books among the sources from 
 which he drew his knowledge of the period. Had he done so, that 
 paragraph in which he arraigns the brutality of the times, and showed 
 that history, poetry and religion had all gone down together, might 
 have held one gleam of light. The reign of Henry VI, that dark pe- 
 riod which Green is painting in such Stygian colors when seen from the 
 point of view of the Year Books, shows that the courts were doing their 
 work, and doing it well, during this period of darkness and confusion 
 elsewhere. We get but such small glimpses, as this case which we have 
 just quoted, of the violence and lawlessness of the times. It is charac- 
 teristic of the placidity of the courts that even this case gives no more 
 time to the episode of the armed men and the rout they made, but the 
 lawyers go on calmly discussing the technical point as to whether 
 the removal of the case was legal ; which point went on to be regularly 
 decided. And it is to be noted that many of the foundation cases in 
 our law to-day, cases of Nuisance, Trespass, Contract and Carriers, 
 find their principles first stated in those desolate years of Henry VI. 
 
 And one finds touches of human sympathy in the courts of the time 
 also. Take this picture, painted for us in the case found in Michaelmas 
 Term [35 Hen. VI, p. 11, pi. 18], where a writ of Trespass was brought 
 against an infant. Wangford declared against the defendant, and 
 Billing came and defended and said, "Sir, you see plainly that this 
 defendant is only four years old, so it is clearly proven that he had 
 not discretion to make a trespass, and does not know malice." Moile 
 said to Wangford : "Can you find it in your conscience to declare against 
 this infant of so tender an age? I think he does not know what malice 
 is ; for he is not a person of great strength, and that you can see with 
 your own eyes." And upon that, Moile lifted up the infant in his hands 
 and put him on the Bar, and said to Wangford, "Here is the very 
 person, and therefore be advised." Wangford was apparently some- 
 what confused, but he felt he must do something for his client, so 
 
XJciv INTRODUCTION 
 
 he said, "I do nothing except what I was told, and here is the party 
 and the trespass clearly upon him, for by this trespass one of his eyes 
 was put out." And then Billing asked for the appointment of a 
 guardian, whom Moile willingly appointed. Justice might have been 
 too blind to see the helplessness of a little child in those days, but not 
 so the justices themselves, fathers most of them probably, and with 
 hearts that beat as warmly under judicial robes as they do now. The 
 case of the Duke of Norfolk against Sir Robert Wingfield shows that 
 the great men of the time did not always assent to the rough methods 
 of the armed camp but submitted themselves to the reign of law, and 
 carried their causes up from lower court to higher court, quite as we 
 do to-day. And this in the midst of that period when, according 
 to Green, those were years of the deepest gloom, no age of our history 
 is more sad and sombre! Among the causes of the sombreness was the 
 most terrible plague the world has ever seen, when we are told half 
 the population of England was swept away in the course of its repeated 
 visits to that country. There is a case of waste of this period, not 
 digested by Statham, in which the trespass is for houses allowed to fall 
 down for want of repair, and the defence is that on account of the pesti- 
 lence there was no one to live in them and keep them up, and that there- 
 fore they fell down. A simple but grim glance into the terrible events 
 that were making up the history of that time; making law, too, for 
 it was as a consequence of this devastation of the population that 
 labor became so scarce and wages so high that the landlord class 
 found it necessary to pass that famous Statute of Laborers [23 Ed. Ill 
 (1349-50), Stats, at Large, Vol. 21, p. 26] upon which there are so many 
 cases in the later years of Ed. Ill and Henry V and VI. Of course 
 there were later cases, but Statham's cases end with the latter reign. 
 
 The cases on this Statute as given by Statham are interesting, as they 
 represent many different points of view in regard to the interpretation of 
 the Statute. A case in 47 Ed. Ill [T. 47 Ed. Ill, Stat. tit. Laborers, 7] 
 says that "no servant shall be compelled to serve except in the occu- 
 pation of husbandman," showing that the idea of the lawmakers in 
 passing such a Statute was evidently thought to have been the forcing 
 of the agricultural laborer to do the work of the landlord, and that 
 it was the general thought that the Statute was not meant to apply 
 to other occupations. As time went on, however, the Statute was 
 invoked in order to compel other classes of persons to labor whether 
 they were agreed to do so or not, and in 9 Hen. VI [Paschal, 9 Hen. VI, 
 
INTRODUCTION XXV 
 
 p. 7, pi. 18] we find a case where the action is brought on the 
 Statute to compel a scrivener to serve who has objected to teaching 
 his trade; and no defence is made as to his occupation being outside 
 the Statute, showing how far the law had gone in widening the limits 
 within which the provisions of the Statute were applicable. 
 
 In 41 Ed. Ill [p. 17, pi. 2], we have a description of the life of the 
 times which is most interesting, as showing the makeshifts to which 
 the people were put when they wished to transfer land so that it should 
 be held, not in the way the law would interpret the ordinary transfer, 
 but as they would have it held. In this case the husband wished to 
 give his wife a share in the property, and the remainder to his daughter 
 in fee; so he "gives" those tenements of his to two priests, who are 
 to re-enfeoff him — the agreement evidently being wholly without 
 witnesses or other formalities — and his wife in tail, the remainder 
 over to his daughter, Agnes, in fee. But before the re-enfeoffment 
 is really made, Richard, apparently thinking that there is no hurry, 
 goes off with his wife for four days, perhaps on a visit to that very 
 Agnes for whom he thought he was providing. But as they are riding 
 home they come to a mill on their own land, and they very naturally 
 stop, and passing the time of day with the miller, ask "what news?" 
 And the miller has news enough and to spare. One of the priests who 
 has been enfeoffed of the property has died. Richard is startled 
 enough and says to his wife, "Let us go home, for we have lost all." 
 So they went home and spent the night there, apparently in thinking 
 what they should do to recover what they had lost. In the morning 
 Richard goes to the other priest and asks what he shall do. The 
 priest apparently does not intend to take advantage of the situation, 
 for he says, "Write a charter and I will seal it." So Richard writes 
 the charter, and puts in all that has been in the feoffment ; and the 
 priest sealed it and gave it back to Richard, saying : "God give you joy 
 of it," which pious wish was not fulfilled, for although it apparently 
 secured Richard in his lands, he had family troubles apart from his land 
 troubles, and finds after a while that "he loves Kate, his niece, better 
 than Agnes, his daughter." The old feoffment no longer satisfies him 
 and he retakes his lands to himself and his wife in tail, the remainder 
 to Kate, his niece, in fee. And having thus provided a very pretty 
 entanglement for those who are to come after him, Richard dies. His 
 wife kept the property during her lifetime, but upon her death it was 
 left to Kate, the niece. Agnes, the daughter, had married, and she 
 
xxvi INTRODUCTION 
 
 and her husband at once took possession of the lands, claimins as 
 heirs under the first "tail." Kate then ousted them, and there was 
 nothing left to do but to "go to law." And so we become possessed 
 of the story as it was told in the Bench. The justices found it a very 
 interesting case and it was "well debated," and after the matter was 
 throughly threshed out between them, it was decided that Agnes, the 
 daughter, should have the land. But through it all we do not hear 
 what was said in regard to the charter written out by Richard and 
 sealed by the priest. 
 
 Then we have what may be called a vivid description of the way 
 land was held in ancient demesne [40 Ed. Ill, p. 22, pi. 23]. Belknap 
 says: "There are in Domesday book different sorts of titles of land 
 which are ancient demesne ; that is to say, of lands which were in the 
 hands of St. Edward, the title is called terra RegisEdwardi, but lands 
 which were in the hands of W. Conqueror, the title is terra Regis, 
 without more, because men know well at what time the book of 
 Domesday was made, that is to say, in the time of W. Conqueror, so 
 in Domesday book it is expressly limited and states certainly the 
 possession of the lords as the possession of the king, so that description 
 is made in this book for ail the kingdom, so that all the demesnes 
 which were in the hands of St. Edward are ancient demesne, although 
 they were alien and strange lands when the book of Domesday was 
 made, as it happened of the Manor of Tottenham, which was in other 
 hands at the time of the making of Domesday, as it is mentioned 
 in the said books, that it was then in the possession of the Count of 
 Chester, but because the book mentioned in its title that the manor 
 was at one time in the possession of the king, it was acknowledged 
 ancient demesne by the whole counsel and your record, which 
 is before us, makes no mention of terra Regis Edwardi, nor of terra 
 Regis, so neither title shall be for you, but your title is terra Sancti 
 Stephani, whidii was after the conquest. And because they could 
 not show the charters made by St. Edward and W. Conqueror, they 
 would not adjudge the land to be in ancient demesne, because ancient 
 demesne shall be adjudged by the book of Domesday, which is of record, 
 and not in any other manner." 
 
 Britton gives us no clear idea of ancient demesne; Bracton gives 
 us nothing. Fitzherbert is very brief, and Blackstone rests what he 
 wrote about entirely upon Fitzherbert. I know of no authority which 
 gives so clear an idea of what the thought of the time was in regard 
 
INTRODUCTION XXVU 
 
 to this matter as does this case from 40 Ed. III. Of course we have 
 the case in the Year Book, but it is the fact of the arrangement here 
 which brings it to our attention. 
 
 When Maitland comes to speak of ancient demesne he says [History 
 of English Law, Vol. 2: p. 383, 2d ed.] : "They are that ancient demesne 
 of the Crown which the conqueror held when the great settlement of 
 the conquest was completed and was registered in Domesday Book." 
 He refers to this case we are speaking of, saying, "In the first place 
 the very name of 'Ancient Demesne' shows that the law supposes 
 itself to be conservative. It is maintaining the Conquest settlement. 
 To decide the question whether a manor be ancient demesne or not, 
 it will go back far beyond all ordinary terms of limitation and pre- 
 scription, far beyond 'the beginning of legal memory' ; it will be content 
 with no evidence save that of the great survey. Nay, in theory the 
 ancient demesne gained its specific quality before Domesday Book 
 was made. The lawyers of the fourteenth century had some doubts 
 as to the exact moment of time at which the manor must have been 
 in the King's hands in order to make it ancient demesne for good and 
 all, and the rule of evidence that they had adopted, namely that no 
 testimony was admissible save that of Domesday Book, must have 
 tended to cause some little confusion; still, on the whole, they think 
 that the privileged manors are 'the manors of St. Edward.' " Mait- 
 land's comment on this case makes us think that he may have relied 
 on Fitzherbert's report of the case, and may not have gone to the 
 original report, being thrown off the right track by the poor report 
 Fitzherbert gives. Certainly he does not make clear what the full 
 report of the case does set forth very plainly. 
 
 Stubbs says of this period of which we are speaking: "There are 
 periods at which the history of its wars is the true history of the people, 
 for they are the description of the national experiences. And this 
 is very much the case with the reign of Edward III. If the glories 
 and sufferings be taken out of the picture, little remains but a dull 
 background of administrative business." [Stubbs: Constitutional 
 History of England, Vol. 2, p. 392.] Stubbs' attitude is that of the 
 historian exclusively occupied with what seems to be the business 
 of government. It has been the attitude of the makers of history 
 for too many years. In the light — or darkness — of that attitude 
 we may find the explanation for the blindness of statesmen, for the 
 mistakes in administration of the rulers of national affairs; they can 
 
xxviii INTRODUCTION 
 
 learn of the past only through the accounts of that past given by 
 historians, and the historian hides that past in a mist of wars and 
 cabals, ignoring the fact that the life of the people was flowing on un- 
 brokenly, not in an uninteresting dullness, but in rising and ebbing 
 floods of national morality, happiness, and intelligence, despite wars, 
 despite evil governments, and leaving behind it records of such vital 
 interest, such fascinating romance, such informing incidents, that 
 no one need turn to the history of wars, or of the makers and wagers 
 of wars, for the true history of a nation. One great record for the 
 writers of history, the one record in which the events were set down 
 as they actually occurred, has been ignored by all historians — the case 
 law of the period. All this time while wars, big and little, took up, 
 according to the historian, all that is worthy of the attention of the 
 historical writer, except that which must be given to the dull details 
 of administrative business, there was going on in the courts, without 
 interruption by war or any other cataclysm, the drama that goes on 
 in every country whenever the legal machinery is working; and in 
 the England of the Third Edward it was working with great smooth- 
 ness. And to its smooth working was added a circumstance unparalleled 
 in any other country at that time. There was being kept and written 
 out for all men to read a detailed account of what was going on. And 
 these detailed contemporary accounts of the legal drama form a vivid 
 picture of the life of the day which the historian has too long ignored. 
 Yet many of the cases then decided and reported in these books have 
 a vital effect on our law to-day; they decided, through the formulation 
 of certain principles which still endure as guiding principles in our 
 law, the cases which are being decided in our courts to-day, while 
 the battles of that far-off time have no effect upon us; they were 
 ephemeral in their effects. France could and did remain France in 
 spite of them; England might win wars on the Continent, she remained 
 insular England and does still. Dynasties might rise to their brief 
 lives and fall, through it all the principles of English life and English 
 government were being formulated, taking firm hold, winning their 
 slow but sure triumphs in the English courts of law. Yet the his- 
 torians have deliberately preferred the physical contests of the battle- 
 field to the mental conflicts of the courts. 
 
 There is not space here to set forth at great length a record of cases 
 which show in detail the facts for which I am contending. Turn 
 at random to any page of Statham, select from that page any case 
 
INTRODUCTION XXIX 
 
 which seems of the slightest interest, and then go to the longer report 
 of the case in the Year Book. It is safe to say that it will prove the 
 contention here made. It will show either that the courts were 
 deciding some point of practice or pleading that could only come up 
 in steadily sitting courts of long established usage; that the interests 
 of the land -holding people were being safeguarded; that the humblest 
 people were coming into court and asking for redress against other 
 humble or great people; that contracts were being enforced, agree- 
 ments being carried out; marriages being entered into; estates being 
 settled and conveyed; children being cared for; and all without so 
 much as a word of war, or pillage, or disturbance of the settled relations 
 of life. The one great matter which disturbs the regular business of 
 the courts seems to be "absence on the service of the King." The 
 King did take the people away from their common life, to the great 
 disturbance of that life; yet the courts looked pretty carefully into 
 the matter and such delays were only allowed in court after due proof. 
 But when the husband was away the wife was allowed to answer, and 
 that saved the day when the question was one of an estate, or such 
 like matter. 
 
 Further it might seem that in days of such deep gloom and national 
 degradation it is surprising that there is so little criminal law reported 
 in these cases. The subjects and the cases themselves are not on 
 criminal matters. We have a few titles like Attaint and Assizes and 
 Corone et Pleas del Corone, but they cover very few pages of the 
 abridgment. It is property, lands and chattels, and the matters of 
 contract and covenant. Hundreds of case arbitration; questions of 
 church law; matters of annuities and corodies, and money given to 
 use in trade. Trespass and replevin and rescous there are, but there 
 seems to be little of the armed band or the disorderly crowd; the 
 cattle are often out in pound, and the legal action is to get them back. 
 The process of getting them back, or of getting back anything, may 
 seem at times rather slow; the essoins and protections and pleas of 
 under age, and everything that can be brought in to delay justice, 
 are shown in full flower, but it merely means that justice goes droning 
 along, not with violence or strong-handness, but in the sleepy way 
 of a quiet time ; we may know that the times were not quiet, but the 
 courts refused to acknowledge that there was anything of outside con- 
 sequence enough to keep them from going on straightening out the 
 tangles into which people then as now got themselves. So they went 
 
XXX INTRODUCTION 
 
 on, and so we know that the quiet Ufe of the countryside went on also. 
 It cannot but be felt that the real story of the times is to be found 
 here rather than in the long story of bloodshed and the gloomy tale 
 of courtly diplomacy, which has been the favorite field of the his- 
 torian. 
 
 II 
 
 It is necessary that some explanation be made of the way in which 
 the annotation of this book has been done; necessary that something 
 be said as to why it was done as it was, and why it was not done in 
 what it might seem was a far better way. It could have been done 
 much better, immensely better, but there were reasons which seemed 
 sufficient for the doing of the thing in just the way it was done. The 
 first question seemed to be the best way to get the book translated, 
 as simply and as strictly in conformance with the original as possible. 
 Then the next necessary thing seemed to be to get the citations to 
 the Year Books verified. If a case was not clearly digested, if there 
 were errors in the digest itself, or in the translation of that digest, the 
 best way in which these errors could be clearly traced and set right 
 would be to get the full report of the case as given in the Year Book. 
 Statham did not, because he could not, refer to page and placitum. 
 It was necessary therefore to take each case, and there are thousands 
 of cases in the entire Abridgment, and trace it in some way to the report 
 in the Year Book. In too many cases this search has been unsuccess- 
 ful. But these unidentified cases represent an expenditure of more 
 time than the many cases which have been successfully traced. A 
 case which could be followed to Brooke or Fitzherbert, and the citation 
 to the page of the Year Book found there, even though it had to be 
 read in both the abridgment and the Year Book, represented a far 
 smaller expenditure of time and labor than a case which, not being 
 found in either of the abridgments, had to be sought for all through the 
 term of the year for which it was cited, and even through the entire 
 year, for cases are often cited for the wrong term in Statham. Then 
 in identifying the cases there was often occasion for doubt; the case 
 would have to be examined carefully for matter not in the abridgment, 
 or for matter which contradicted the abridgment, and even after a 
 thorough reading there was often room for doubt. Of course in some 
 
INTRODUCTION XXXl 
 
 cases the doubt remains. I have not generally indicated the cases 
 where I am doubtful; I have simply let my identification go for what 
 it is worth. I have had to decide; the case is there for comparison ; 
 if I have considered a case identified or identical with the case abridged 
 when it is not so, it seems that the case itself will be a sufficient check 
 on the error, and will do little harm ; it will probably remain a matter 
 for the individual judgment ; some might think it an exact identifi- 
 cation; others might think it folly to deem the case and the abridg- 
 ment similar. In a very few cases I have noted my doubt in the note 
 which in every instance accompanies the case. Many of the points 
 abridged are almost completely buried in long cases upon diametrically 
 different subjects. The marginal notes in the Year Books are of very 
 little value for finding these points, as they fail to note far the greater 
 number. Sometimes, when the point has been a minor one, I have 
 felt it better to let it go as unidentified rather than to spend hours 
 in a futile search ; yet many hours have been spent in just such searches. 
 I am sure that had I attempted to make the work perfect on all the 
 points on which an unwearied patience and an absolutely exhaus- 
 tive search could be brought to bear, it would have been many years 
 before I could have let it go out of my hands. Yet I can truly say 
 that I have spared neither patience nor pains in this part of my work; 
 it required neither great knowledge nor great technical skill, but merely 
 persistence and patience, and these I believe I have given. I have 
 very great hopes that when the book comes into the hands of those 
 with greater knowledge and skill than I can boast, many of these 
 cases which I have had to mark "unidentified" will be identified. I 
 am sure that I shall be able to do some of that identifying myself; 
 there are things which stare at one in print that will not let themselves 
 be seen until it is too late. 
 
 At first it was thought that it might be possible to dissect and digest 
 the different abridgments of Statham, Fitzherbert and Brooke, and 
 when there was a disagreement on a point of law, discuss that dis- 
 agreement, compare them with the case itself, and thus show how the 
 law upon the point stood at that time. That this would have been 
 a most valuable work if done with the ability it would require there 
 can be little doubt, but it would have meant that instead of presenting a 
 complete translation of Statham in the year 1915, in not too bulky a 
 form, there could have been printed in the next few years only a small 
 portion of the book, and the notes would have so far outgrown the text 
 
xxxii INTRODUCTION 
 
 of the translation as to be a commentary upon law of the Year Books 
 rather than merely a translation of a digest thereof. 
 
 It seems on the whole that the translation itself, with as abundant 
 reference to the cases in the Year Books as could be secured, is the 
 matter of the most moment at the present time. If the book is brought 
 within the reach of the average student, he can then go to the different 
 abridgments and to the Year Books and trace for himself that law to 
 which the Abridgment has been a guide post, and the more such guides 
 we find to follow the more intimate knowledge we shall have of the 
 law they set forth. 
 
 There is opportunity for much valuable work in this way to be done 
 in the future, but it seems that it is as well that it should not be made 
 a part of the translation itself. It has not been a light work, or one 
 for an idle hour, and it will not be adopted as light reading by many 
 as it is, but it may seem less forbidding if it goes on its way into the 
 world untrammeled with a burden of modem notes. 
 
 The reason why the two abridgments of Fitzherbert and Brooke 
 are alone used in this system of notation is, of course, plain to all 
 users of the Year Books. They are the two abridgments which are 
 referred to in the Year Books themselves, or, if we count Statham, 
 the three abridgments. I have not been able to decide upon what 
 principle, if any, these citations were made. Some of the Years are 
 thickly annotated, others have very few references of any kind. There 
 are many cases which are abridged in the different abridgments for 
 which there are no citations whatever in the Year Book margins. 
 Sometimes there is a marginal reference to Fitzherbert and none to 
 Brooke or Statham, yet the case will be found to be in both of these 
 abridgments. These references must have been obviously useful to 
 the lawyers of the period, and it is strange that some system of careful 
 annotating was not observed. It was probably another case of getting 
 the work done as well as it could be and not trying for perfection ; 
 for the printing of the Year Books as a whole was a great under- 
 taking, and it would have been too much to ask for even usual correct- 
 ness. We have much to say about the errors and incorrectness of the 
 "vulgate," as Mr. Maitland calls it. Without it we may feel quite 
 sure that even the small amount of knowledge of Year Book lore which 
 lingered with us through the nineteenth century would have been 
 almost eliminated. 
 
INTRODUCTION XXxiii 
 
 Mention has been made of the marginal references to the subjects 
 supposed to be found in the cases of the Year Books. These are very 
 defective. We may find, for example, marginal references to Trespass 
 in a certain number of cases, and infer from that fact that where there 
 is a case of trespass a marginal reference will be found to it. This is 
 far from being the case, however, and we can form no idea of how many 
 cases there are from running down the marginal indices. Neither do the 
 early abridgments — Brooke and Fitzherbert — cover nearly all the cases 
 of Trespass. In the ten years of Edward III, from 40 to 50 of his 
 reign, neither of these abridgments contain within one hundred cases 
 of a full report of the cases of trespass. Statham has ninety-five 
 cases of trespass in those ten years, of which fifty-seven are not iden- 
 tified in the other abridgments, showing that if one went to the abridg- 
 ments for a full view of the law of trespass for that period, one would 
 fall very far short of finding all the cases if one relied only on Brooke 
 and Fitzherbert. Not all of the fifty-seven cases which Statham alone 
 has have been identified in the Year Books. Probably the points are 
 concealed in the long cases upon other points where it has been difficult 
 to identify them. But they are of value just as they stand, and add 
 a large amount of valuable matter to that which has hitherto been 
 easily accessible to the law student. We have seen that Statham 
 is usually correct in his report of a case, and that his abridgments are 
 skillfully made, so that his report may usually stand as correct. 
 
 The matter has not been followed up in regard to other subjects 
 treated by the abridgments, but the mass of matter unabridged in other 
 subjects is probably very much the same as for Trespass. We know, at 
 all events, that even when a subject has been traced up through all the 
 abridgments, and through the indices to the Year Books, we cannot 
 assume that we have practically all the cases which are printed in the 
 Year Books. We probably have but a small proportion of it. It is to 
 be hoped that some day we may have the work of collecting these Year 
 Book cases under the proper heads done for us. It is a needed 
 work, and would have been done long since had it been of profit, 
 which it is probable it never will be. As in the case of the translating 
 of Statham, the doing of the work must be the reward of the worker. 
 
 I shall conclude as I began by borrowing from a modest gentleman 
 of the Middle Temple, who never gave his name to his book, the words 
 in which he presented his translation of the Law Proceedings of the 
 King's Bench and Common Pleas, to the learned in the law of that day: 
 
XXXIV INTRODUCTION 
 
 "I shall think all the Labour and Pains I have taken herein suf- 
 ficiently rewarded, if it shall be thought by the judicious Part of the 
 Profession, that I have translated but tolerably well .... yet as 
 my good intentions may not free the whole from some Faults, I hope 
 the Reader will let my good Will to serve my Country plead in their 
 Excuse." 
 
STATHAM'S ABRIDGMENT 
 
STATHAM'S ABRIDGMENT 
 
 ACCOMPTE 1 
 
 (1) In account, the plaintiff counted upon a receipt in statham i a. 
 another county, and for that reason the writ was abated. Paschal 
 Contrary, 12 Ed. III. And both are good law by reason " "^°- ^^• 
 of the Statute. 
 
 The case has not been identified in Y.B. Paschal, 11 Hen. IV. There Case 1. 
 is a short report of the case referred to as in 12 Ed. Ill, in the Rolls Series 
 11 & 12 Ed. Ill, p. 348. It is not clear that it is "contrary" to this 
 case of 11 Hen. IV; the remarks to the effect that in a certain case 
 such a receipt would be good enough, are merely dicta. 
 
 The Statute is that of 6 Ric. II (1382), cap. 2. "Action of debt, 
 account, etc., shall be commenced in the counties where the contract 
 was made." Stats, at Large, Vol. 2, p. 253. 
 
 (2) In account against two who were adjudged to account, Hilary 
 Capias ad Computandum issued until one was outlawed and 
 
 the other came at the exigent; and it was adjudged that 
 he should account for the whole, because it was his own 
 folly to be a receiver with one who was not sufficient, etc. 
 
 And it was said by Fyncheden, in the same plea, that if 
 at the Sequalur against two, one comes and the other does 
 not, the tenant shall be received to say that he who made 
 default had nothing of value; and then the other shall 
 be charged for the whole warranty, etc. Query? 
 
 Reported at length in Y. B. Hilary, 41 Ed. Ill, p. 3, pi. 8. There are Case 2. 
 further accounts of the case in Y. B. Paschal, 41 Ed. Ill, p. 9, pi. 4; and 
 Y. B. Trinity, 41 Ed. Ill, p. 13, pi. 2. See also Brooke, Accompt, 10; 
 and Fitzh: Accompt, 23. 
 
 (3) If a man delivers certain monies to another upon Paschal 
 conditions which are broken, he who delivers the monies 
 
 shall have a writ of Debt or a writ of Account. 
 
 Reported at length in Y. B. Paschal, 41 Ed. Ill, p. 10, pi. 5. See Case 3. 
 also Brooke, Accompt, 11; and Fitzh: Accompt, 24. 
 
STATHAM 
 
 Trinity 
 45 Ed. III. 
 
 Case 10. 
 
 Trinity 
 47 Ed. III. 
 
 Case 11. 
 
 Paschal 
 31 Ed. III. 
 
 Statham 1 b. 
 
 Case 12. 
 
 (10) In account, the defendant said that he had ac- 
 counted before the plaintiff himself, in such a place; and 
 it was adjudged a good plea, etc., if he made the plea before 
 the Statute. 
 
 Reported in Y. B. Mich, (not Trinity), 45 Ed. Ill, p. 14, pi. 13. See 
 also Brooke, Accompt, 16; and Fitzh: Accompt, 37. 
 
 The Statute referred to is that of Westminster the Second, 13 Ed. I, 
 (1285), cap. 11, Stats, at Large, Vol. 1, p. 163 (188). 
 
 (11) The plaintiff alleged the receipt by the hands of 
 one H. Belknap: This H was your co-monk, not named 
 co-monk; judgment of the writ. And for that reason it 
 was the opinion of the Court that the writ should abate. 
 And the law is the same if a man alleges the receipt by the 
 hands of his wife ; she should be named his wife, etc. 
 
 Reported in Y. B. Mich, (not Trinity), 47 Ed. Ill, p. 16, pi. 25. 
 See also Brooke, Accompt, 19; and Fitzh: Accompt, 41. The case as 
 reported differs from the abridgment of Statham, and Brooke disagrees 
 with the report, and says the case is badly reported. 
 
 (12) If, in account, they are at issue whether the 
 receipt was smaller, etc., and it is found for the defendant, 
 can the plaintiff upon his accounting demand more against 
 him than was found by the verdict? But whatever the 
 inquest found, the defendant can discharge himself upon 
 his account, having regard to the inquest; and so it is 
 peremptory in that case for the plaintiff and not for the 
 defendant. Query, in that case shall the defendant have 
 attaint, since he can discharge himself upon his account? 
 
 And also it was said in the same plea, that notwithstand- 
 ing it was found by the inquest that it was for a smaller 
 sum, yet the writ should not abate, etc. 
 
 There is no printed year for 31 Ed. III. Fitzh: Accompt, 58, has a 
 very short abridgment of the case, but does not seem to have noted the 
 case in Statham. 
 
 Hilary 
 
 30 Ed. III. 
 
 (13) In account brought by the Prior of St. John of 
 Jerusalem, it was counted that he was bailiff of the church 
 of H. And the writ was challenged, inasmuch as he named 
 him bailiff of his church, whereas no one can be bailiff of 
 
ACCOM PTE 5 
 
 the church, inasmuch as the church belongs to the parish- 
 ioners, etc. And also the prior should be named parson, 
 etc. Thorpe : He does not demand anything as parson, etc. 
 And the writ was adjudged good, etc. 
 
 Reported in Y. B. Hilary, 30 Ed. Ill, p. 1, pi. 2. The report and Case 13. 
 Statham differ slightly. 
 
 (14) In account the plaintiff declared his damages, but he HUary 
 did not recover damages, etc. Query, if upon the account ^^ ^'^' ^''' 
 the auditors would award him damages, etc. 
 
 And in the same plea, upon the account, the defendant 
 said that one J was bound to him in a statute merchant for 
 twenty pounds. The plaintiff and himself were agreed 
 that the plaintiff should take the twenty pounds from the 
 said J, in satisfaction, etc. And that was not held a plea, 
 since for that the plaintiff could not have an action, etc. 
 And for the other part, he said that he had delivered one 
 tonel of wine to the plaintiff ; and the plaintiff said he had 
 not: Ready to wage his law, etc. Query, if he should 
 have his law, in that case? etc. 
 
 Reported in Y. B. Hilary, 30 Ed. HI, p. 4, pi. 19. See also Fitzh: Case 14. 
 Accompt, 62. See as to the award of damages in an action of account, 
 case 23 , infra. 
 
 (15) An abbot counted that the defendant was the re- Paschal 
 ceiver for one such, his predecessor. And the writ was 
 adjudged good, etc. Query? 
 
 Reported in Y. B. Paschal, 4 Ed. HI, p. 17, pi. 8. Fitzh: Accompt, Case 15. 
 97, has a good abridgment of the case. 
 
 (16) In account it was alleged that the defendant was Paschal 
 his receiver by the hands of one H. The defendant said, 
 "Never his receiver by his hands." And he was driven 
 
 to say, "Never his receiver," generally. Contrary, Trinity, 
 17, etc. And that is held to be the better law, etc. 
 
 Reported in Y. B. Mich, (not Paschal), 5 Ed. HI, p. 38, pi. 22. See Case 16. 
 also Fitzh: Accompt, 99. 
 
 (17) In account by a woman, the defendant said that Hilary 
 
 R TT/^ TTT 
 
 at the time of the receipt she was a married woman; and 
 
STATHAM 
 
 Case 17. 
 
 he had the plea, because the action is given to the executors 
 of the husband, etc. 
 
 Reported in Y. B. Hilary, 6 Ed. Ill, p. 3, pi. 5. See also Fitzh: 
 Accompt, 101. 
 
 Hilary 
 6 Ed. III. 
 
 Case 18. 
 
 Michaelis 
 7 Ed. III. 
 
 Case 19. 
 
 Michaelis 
 9 Ed. III. 
 
 (18) The plaintiff counted that the defendant was his 
 bailiff of his manor of B, from the feast of St. Michael, 
 the year, etc., until the feast of Easter next, etc., and had 
 the care and administration of certain goods (and he showed 
 what, etc.). And the defendant said that he was his 
 bailiff from the said feast of St. Michael until the feast 
 of Christmas then next ensuing, for which time he was 
 ready to account; and as to the time over, etc., never his 
 bailiff. And the plaintiff showed that he was his bailiff 
 for all the time for which he had counted, etc. And the 
 other alleged the contrary. And the plaintiff prayed that 
 he should account for that which he had acknowledged, 
 and he could not [have his prayer], because the account 
 could not be taken in parts. Query, if it were found for 
 the defendant, should he account for that which he had 
 acknowledged, or would the writ abate? 
 
 Reported in Y. B. Mich, (not Hilary), 6 Ed. HI, p. 40, pi. 18. See 
 also Fitzh: Accompt, 104. 
 
 (19) The plaintiff alleged that the defendant was his 
 bailiff of his house, and his receiver of twenty shillings 
 by the hands of one H; and of twenty shillings by the 
 hands of the plaintiff. The defendant said that as to the 
 house he accounted before such auditors, etc., and he was 
 found in arrears for so much, etc. And as to the twenty 
 shillings by the hand of H, never his receiver by his hands; 
 and as to the other twenty shillings, always ready to wage 
 his law. 
 
 Reported in Y. B. Mich. 7 Ed. HI, p. 46, pi. 13. 
 
 (20) The plaintiff said that the defendant was his 
 receiver for his house in Dale, and had the care and admin- 
 istration of forty sacks of wool: who said, "never his 
 bailiff." And it was found that he was not his bailiff 
 
ACCOM PTE 7 
 
 because the plaintiff had not any such house in Dale. But 
 they found that the defendant had received the sacks of 
 wool from him, to sell and render an account of them. 
 And notwithstanding that part of the plea was found 
 against the plaintiff, still it was adjudged that the defend- 
 ant should account for the wool, because the plaintiff 
 could have no other writ, but to allege him to be his bailiff, 
 etc. And see that he did not answer as to the wool; yet 
 the inquest found it. 
 
 Reported in Mich. 9 Ed. Ill, p. 36, pi. 38. See also Fitzh: Accompt, Case 20. 
 95, where he gives a very good abridgment of the case. 
 
 (21) If a man receives a certain sum of money from me Hilary 
 
 to use in trade, to our common profit, I should have a ^^ ^'^' ^^"^^ 
 special writ of Account, alleging the receipt to the common 
 use, and not a general writ, etc. Query? 
 
 The case has not been identified in Y. B. Hilary, 10 Ed. III. The Case 21. 
 cases of account there reported do not agree with the abridgment of 
 Statham. 
 
 (22) If a stranger occupies as next friend, of his own Trinity 
 tort, still the heir shall have a writ of Account against him, ^^ ^'^- ^'■^' 
 alleging that he was in his wardship; and counting upon 
 
 the Statute, etc. 
 
 There is no early printed year of 13 Ed. III. The case is printed in Case 22. 
 the Rolls Series, 12 & 13 Ed. Ill, pp. 320-21. 
 
 The Statute referred to is that of Marlbridge, 52 Hen. Ill (1267), 
 cap. 17; Stats, at Large, Vol. 1, p. 55 (68). 
 
 (23) Auditors were assigned to one who was adjudged HUary 
 
 to account, and he would not account, wherefore he re- ^* ^'*- ^"• 
 
 mained in the Fleet for two years; and then came the 
 
 plaintiff and prayed judgment according to that which he 
 
 had counted ; and he had it, but he did not recover any of 
 
 the profits for the mean time while he was in prison. And 
 
 that proves clearly that a man shall not recover damages 
 
 in Account at any time. 
 
 There is no early printed year of 14 Ed. III. The case has not been Case 23. 
 identified in the Rolls Series for that year and term. Fitzh: Accompt, 
 109, has a short abridgment of the case. 
 
8 
 
 STATHAM 
 
 Trinity 
 14 Ed. III. 
 
 Case 24. 
 
 (24) In account, the defendant came by the exigent, 
 and he traversed the receipt, and found mainprize to 
 attend the inquest; and then he made default, upon which 
 the inquest was taken for his default. And it was found 
 that he was his receiver, but not for so much as the plain- 
 tiff had alleged. And the Court has no regard to the 
 quantity, because it lies in the answer before the auditors; 
 but it was adjudged that the defendant be put to account, 
 and his mainpernors also, etc. 
 
 There is no early printed year of 14 Ed. III. The case has not been 
 identified in the Rolls Series, or in the early abridgments. 
 
 Trinity 
 14 Ed. III. 
 
 Case 25. 
 
 (25) In account, the plaintiff alleged him to be his receiver 
 of twenty shillings. As to part, the defendant said, "Never 
 his receiver." As to the other part, he waged his law, and 
 made his law immediately; and the inquest was taken for 
 the remainder, without abating the writ, etc. 
 
 There is no early printed year of 14 Ed. III. The case has not been 
 positively identified in the Rolls Series, but there is a similar case in 
 that Series, 14 Ed. Ill, p. 172. 
 
 Paschal 
 16 Ed. III. 
 
 Case 26. 
 
 (26) In account against two, one said that at the time 
 of the receipt he was under age; wherefore the other was 
 made to account for all. 
 
 There is no early printed year of 16 Ed. III. The case is printed in 
 the Rolls Series, 16 Ed. Ill, pp. 190-92. 
 
 Hilary 
 
 16 Ed. III. 
 
 Case 27. 
 
 (27) In account, the defendant was outlawed, and had a 
 charter of pardon, and a Scire Facias against the plaintiff; 
 to which the sheriff returned that he had nothing, neither 
 could he be found. But he came in of his own free will 
 and counted against the other, and was received, etc. 
 
 There is no early printed year of 15 Ed. III. 
 the Rolls Series, 14 & 15 Ed. Ill, p. 280. 
 
 The case is printed in 
 
 Trinity 
 16 Ed. III. 
 
 (28) The defendant said that he received the same 
 monies for a debt that the plaintiff owed him, and not to 
 render an account. And the opinion was that he should 
 have the plea. Query, since it seems that the plea was 
 
ACCOMPTE 9 
 
 [not] good, because it amounted to no more than "Never 
 his receiver, to render an account," etc. 
 
 There is no early printed year of 16 Ed. III. The case has not been Case 28. 
 identified in the Rolls Series. But see Fitzh: Accompt, 53, where the 
 case seems to accord with the opinion of Statham. 
 
 (29) In account, the defendant said that he received the Trinity 
 money by the hands of one H, and not by the hands of the 
 plaintiff, and the plaintiff was made to answer to that, etc. 
 
 There is no early printed year for 16 Ed. III. The case is probably Case 29. 
 that printed in the Rolls Series, 16 Ed. Ill, pp. 262-63. 
 
 (30) The plaintiff alleged that the defendant was his Michaeiis 
 bailiff, etc., and his receiver of twenty pounds. The defend- 
 ant fully admitted the receipt, but said, "Never his bailiff," 
 
 and he was adjudged to account immediately, because he 
 
 had admitted, etc. And so see Account taken by parts. 
 
 (And I believe that the reason is because he had admitted statham 2 a. 
 
 the other things. For if in Account one alleges the defendant 
 
 to be his receiver of twenty pounds, and the defendant 
 
 admits part of the receipt, and as to the other part they 
 
 are at issue, he does not account for any part before the 
 
 issue is tried. But in the case here he has confessed the 
 
 receipt of the whole, and said as to the house, "Never his 
 
 bailiff," which is another thing, etc.). Query? 
 
 There is no early printed year of 19 Ed. III. The case has not been Case 30. 
 identified in the Rolls Series. 
 
 (31) In account, the plaintiff alleged that the defendant Michaeiis 
 was his receiver for so much, etc., from Michaelmas in the 
 
 Year Eight, etc., until the Michaelmas next ensuing. The 
 defendant said that the plaintiff released to him all actions 
 by the deed, etc., which bore date in the Year Six of the 
 same king, without this that he was ever his receiver after 
 that time. And the plea was adjudged good. 
 
 There is no early printed year of 19 Ed. III. The case has not been Case 31. 
 identified in the Rolls Series. 
 
 (32) The defendant was adjudged to account, and Paschal 
 before the auditors he produced a release. And they 
 
10 
 
 STATHAM 
 
 Case 32. 
 
 would not allow it, because no plea to the action will aid 
 him upon the account, or e contra. But if the plaintiff 
 had released to the defendant after the award, it seems 
 that the defendant will have the plea, albeit he pleaded 
 as to all actions. And the action is ended : as well as in a 
 Scire Facias to have execution, a release of all actions is a 
 good bar, although executions are not spoken of, etc. 
 And then the auditors were two days upon the account. 
 And the plaintiff did not come ; and the defendant showed 
 that matter to the Court, and he went quit, etc. 
 
 There is no early printed year of 20 Ed. III. The case has not been 
 identified in the Rolls Series. 
 
 Hilary 
 
 21 Ed. III. 
 
 Case 33. 
 
 (33) The defendant traversed the account, and it was 
 found ; wherefore a Capias ad Computandum issued, return- 
 able, etc., on which day the plaintiff was nonsuited, where- 
 fore the defendant went quit. And the plaintiff had 
 another Capias, upon which he was taken, and the plain- 
 tiff prayed the account. The defendant showed that the 
 plaintiff was nonsuited, as above, and demanded judg- 
 ment, etc. WiLLOUGHBY : When judgment was given that 
 he should account the original suit was ended, since by no 
 nonsuit afterwards upon the Capias after judgment shall 
 the original lose its force. And that was the opinion, etc. 
 But because the year and the day were passed, the plaintiff 
 was made to sue a Scire Facias. Which note, etc. 
 
 Reported in Y. B. Hilary, 21 Ed. Ill, p. 7, pi. 19. See also Brooke, 
 Accompt, 37; Fitzh: Accompt, 65. 
 
 Hilary 
 
 21 Ed. III. 
 
 Case 34. 
 
 (34) If a man be adjudged to account, and a Capias 
 issues against him, he shall not have a writ of Error before 
 he has accounted; because that is part of the judgment, 
 and ought to be fulfilled before they put it upon the record : 
 By Sharshull and Willoughby, in Account. 
 
 Reported in Y. B. Hilary, 21 Ed. Ill, p. 9, pi.. 25. See also Brooke, 
 Accompt, 39. 
 
 Hilary (35) In account against a guardian in socage: he said 
 
 21 Ed. III. tiiat the land of which he demands the account is ancient 
 
ACCOMPTE 11 
 
 demesne, judgment, etc. And it was the opinion that it 
 was a good plea, because the freehold could come in 
 question ; for he can say that he held in Knight's service, 
 etc. It seems that if a man be bailiff of my house in ancient 
 demesne, I shall not have a bill of account in the Court 
 of the lord in ancient demesne, because he cannot award 
 auditors there; then it follows that such a plea to the 
 jurisdiction is of no avail unless I can have an action 
 in ancient demesne, etc. Query? 
 
 Reported in Y. B. Hilary, 21 Ed. Ill, p. 10, pi. 30. Case 35. 
 
 (36) The defendant was adjudged to account, and then Michaeiis 
 the plaintiif died, and his executors prayed a Scire Facias ^^ ^^' ^^^' 
 against the defendant for an account with them, and they 
 
 could not have it, but were estopped and abated by his 
 death, so there was no record by which to award a Scire 
 Facias. Query? Because the contrary was adjudged, 
 Mich. 14 Hen. IV, in Account. 
 
 Reported in Y. B. Mich. 21 Ed. Ill, p. 32, pi. 15. The reference is Case 36. 
 to the case reported in Y. B. Mich. 14 Hen. IV, p. 1, pi. 1. See also 
 Brooke, Accompt, 40. 
 
 (37) In account brought by executors, the defendant Hilary 
 said that he had accounted before their testator. And upon ^ 
 that they were at issue. And because he came by the 
 Capias he found mainprize; and at the day of the Venire 
 Facias he made default, wherefore he was adjudged to 
 account without taking the inquest, because by his plea 
 
 he had confessed the action of the plaintiff, and voided it, 
 and not followed his plea, etc. It is otherwise where his 
 pleading does not confess his action; as where he pleads, 
 "Never his receiver," etc. And the plaintiff had a Capias 
 against him and his mainpernors. And then the king 
 died, wherefore the plaintiff came into Court and prayed 
 process against him. Herle: You cannot have a re- 
 summons, for the original is- terminated : and if we awarded 
 a Venire Facias ad Computandum, if he did not come 
 then would the distress be long delayed; wherefore he 
 awarded a Capias ad Computandum, and a writ against 
 
12 
 
 STATHAM 
 
 Case 37. 
 
 his mainpernors. Stonore: You cannot award a writ 
 against his mainpernors, for it will not be anything but a 
 fine to the king, for by their default judgment was given 
 against the principal, and they cannot make a fine which 
 was due to the other king ; no more than if a man be out- 
 lawed in the time of the other king, the king who now is 
 shall not have his goods, but the executors of the other 
 king, etc. Query? 
 
 Reported in Y. B. Hilary, 1 Ed. Ill, p. 2, pi. 10. The abridgment 
 and the report differ in many points. 
 
 Michaelis 
 30 Ed. III. 
 
 Case 38. 
 
 Hilary 
 31 Ed. III. 
 
 Case 39. 
 
 (38) In account, the defendant showed before auditors 
 that he had delivered a statute merchant to the plaintiff, 
 in which one H was bound to him, etc. To which the 
 plaintiff agreed. And he had the plea without showing 
 a tally, or acquittance, etc. And the plaintiff answered 
 that he had not; etc. 
 
 Reported in Y. B. Mich. 30 Ed. Ill, p. 23, pi. 44. See also Fitzh: 
 Accompt, 64. 
 
 (39) In account against two, who were adjudged to 
 account. And then one of them died before he had 
 accounted; and the Court was of a mind to abate the 
 whole writ, etc. 
 
 There is no printed Year Book for 31 Ed. III. The case has not been 
 identified in the early abridgments. 
 
 Hilary 
 1 Hen. VI. 
 
 Case 40. 
 
 (40) In account because the defendant was his receiver 
 of twenty pounds by the hand of one H. Paston : We made 
 a deed to the plaintiff and to this H, witness this receipt; 
 and we demand judgment if, without showing this deed, 
 you should have an action. Rolff: We pray account. 
 Paston : In debt upon a simple contract it is a good plea 
 to say that the plaintiff had an obligation for the same 
 sum. Martyn: Not the same; for in your case there 
 are two contracts, but the deed in this case has no other 
 effect save as evidence of the receipt, etc. And then they 
 demurred in law. 
 
 Reported in Y. B. Mich, (not Hilary), 1 Hen, VI, p. 7, pi. 31. See 
 also Fitzh: Accompt, 1. 
 
ACCOMPTE 13 
 
 (41) In account, it was alleged that the defendant was Michaeiis 
 bailiff of his house, and had the care and administration of ^ ^°' 
 certain goods. The defendant said, "Never his bailiff." 
 
 And as to the goods he pleaded the other plea. And the statham 2 b. 
 opinion was that the first plea went to all. Well debated, 
 etc. And at last he was driven to hold to the first plea; 
 and upon that they were at issue, etc. 
 
 Reported in Y. B. Hilary (not Mich.), 14 Hen. IV, p. 20, pi. 25. See Case 41. 
 also Brooke, Accompt, 34; and Fitzh: Accompt, 22. 
 
 (42) In account, the defendant said that the plaintiff Jo'Ed^iTi 
 assigned auditors to him on such a day, before whom he 
 accounted for part. And the auditors took his tallies and 
 
 his rolls by which he should account, "and if they would 
 return them to us we are ready to account." And that 
 was adjudged a good plea. Upon which the plaintiff said 
 that he never took them: Ready. And the other alleged 
 the contrary. 
 
 There is no printed year of 32 Ed. III. See also Fitzh: Accompt, 110. Case 42. 
 
 (43) In account against the guardian in socage, the writ Jl'Sj'^^jjj 
 shall specially rehearse the Statute. 
 
 There is no printed year of 32 Ed. III. 
 
 The Statute is that of 51 Hen. Ill (1223), cap. 27. Stats, at Large, Case 43. 
 Vol. 1, p. 55 (68). 
 
 (44) In account against one because he had, with Michaeiis 
 another, received certain monies of the plaintiff. And he ^* ^'^- '^^■ 
 counted that each of them was bound to account for the 
 
 whole. And the writ was adjudged good against him, 
 omitting the other, etc. (It seems that he should show a 
 specialty for that), etc. 
 
 The case has not been identified in Y. B. Mich. 28 Ed. Ill, or in the Case 44. 
 early abridgments. 
 
 (45) One brought a writ of account against his bailiff. Trinity 
 who counted that he has accounted over to his master, 
 
 etc. And the writ was adjudged good, etc. Belknap: 
 One of the vills of which he demands the account is within 
 
14 
 
 STATHAM 
 
 Case 45. 
 
 Hilary 
 11 Ric. II. 
 
 Case 46. 
 
 Trinity 
 2 Ric. II. 
 
 Case 47. 
 
 Michaelis 
 18 Hen. VI. 
 
 the Cinque Ports, judgment, etc. Wade: Then answer 
 to the other. Which note. Query, if a man be bailiff of 
 my manor, of which part is in the Cinque Ports or in ancient 
 demesne, how shall the writ be brought? 
 
 There is no printed Year Book for 11 Ric. II. The case has not 
 been identified in the early abridgments. 
 
 (46) In account, it is a good plea to say that he has 
 accounted before the plaintiff himself. 
 
 There is no printed Year Book for 11 Ric. II. The case has not 
 been identified in the early abridgments. 
 
 (47) The plaintiff counted that the defendant was bailiff 
 of his house, and that he delivered to him an obligation to 
 receive certain monies from a woman who was bound in 
 the said obligation; and to bail the same obligation to the 
 woman, of which he demanded an account. Hankford: 
 He does not show that we have received the monies, so we 
 are not his receiver; in which case he shall have an action 
 of detinue, etc. Wade: That he cannot, for the obliga- 
 tion was not delivered to deliver to the woman, and he has 
 alleged him to be bailiff of his house, wherefore the writ is 
 good. Which the Court conceded, etc. 
 
 There is no printed Year Book for 2 Ric. II. Fitzh: Accompt, 
 46, has the case. 
 
 (48) A writ of account was brought against a woman. 
 Fortescue: This writ does not lie. Newton: A man 
 shall have a writ of Account against a woman as guardian 
 in socage; and a man shall have a writ of Debt upon the 
 arrears of an Account against a woman. Fortescue: 
 So shall a man have against executors, and still he shall not 
 have an action of account against them. Newton: Now 
 it has passed the Chancery there is no question but it lies. 
 And it has often been adjudged good by bill in the King's 
 Bench, and in London, wherefore answer. Fortescue: 
 Whereas he says that he delivered the twenty pounds to us 
 for trade and to render an account, we say that he delivered 
 to us the same sum to deliver to one F. and we have deliv- 
 ered it to him; judgment if action? Portyngton: That 
 
ACCOMPTE 15 
 
 is no plea unless he says, "Without this that he was our 
 receiver to render an account," for otherwise he does not 
 answer us. And also he cannot have the plea upon the 
 account. AscouGH: The plea is good, for she had acknowl- 
 edged that she was accountable to the plaintiff at one 
 time; for before she had delivered the sum to the said F., 
 she was accountable to the plaintiff, but not afterwards. 
 But it is otherwise where one does not acknowledge that the 
 plaintiff ever had a cause of action: as if in account I say 
 that the plaintiff was indebted to me, and delivered to me the 
 same sum for the debt; that is not a plea without a "with- 
 out this that," as above: which Newton conceded, etc. 
 
 The case has not been identified in the Y. B. Mich. 18 Hen. VI. It is Case 48. 
 probably the case reported in Y. B. Mich. 19 Hen. VI, p. 4, pi. 10. 
 See also Brooke, Accompt, 43; and Fitzh: Accompt, 3. 
 
 (49) In account because the defendant was the bailiff Michaeiis 
 of his house, and had the care and administration of cer- ^"' ^^" 
 tain oxen and cows. Prisot: Judgment of the count, for 
 
 he does not put in certain how many oxen and how many 
 cows, etc., and the count was adjudged good, etc. And the 
 writ was that he was his bailiff and his receiver; and he 
 counted that he received certain sums of money by the 
 hands of certain persons, and these same persons were 
 tenants of the manor of which he was alleged to be bailiff. 
 And yet it was said that the writ had been good against him 
 as bailiff solely, for such receipts are incident to his office, 
 inasmuch as that rent is part of the manor, etc. 
 
 Reported in Y. B. Mich. 27 Hen. VI, p. 1, pi. 8. See also Brooke, Case 49. 
 Accompt, 5; and Fitzh: Accompt, 5. 
 
 See as to account, in the title of Process, Paschal, 10 Note. 
 Hen. IV, where process issued against the auditors, where 
 the account was traversed, etc. 
 
 Statham, title of Process, infra, pp. 187 b to 141 a. The case does 
 not appear in that title, however. 
 
 (50) If a man be found in arrears before auditors are Michaeiis 
 assigned in the county, they have no power to commit ^"' 
 him to a jail which is in another county, although it be 
 
 the nearest jail to them; unless it be the jail of the same 
 
16 STATHAM 
 
 county; as in the County of Derby, for the jail of Derby 
 is in the county of Nottingham. For the Statute says, 
 "to the nearest jail in those parts," which shall be inter- 
 preted to mean in the same county. 
 
 And it was said in the same plea, that if after a man is found 
 in arrears he departs from the auditors, and in three or 
 four days the auditors commit him to prison, that com- 
 mitment is void, and he shall have a writ of false imprison- 
 ment against them, etc. 
 
 Case 50. Reported in Y. B. Hilary (not Mich.), 27 Hen. VI, p. 8, pi. 7. See 
 
 also Brooke, Accompt, 6. 
 
 Statute of Westminster the Second, 13 Ed. I (1285), cap. 11, Stats, 
 at Large, Vol. 1, p. 117. 
 
 ™??y VI ^^^^ The Duchess of Somerset brought a writ of Account 
 against W. Enderby, and counted that he was her receiver 
 of forty pounds, to use in trade. Moile, for the defend- 
 ant, acknowledged the receipt, and said that such a day 
 the defendant came to the plaintiff and brought the said 
 forty pounds in a bag, and offered the same bag with the 
 monies to the plaintiff at D, in the county, etc. And the 
 said plaintiff on the same day gave the said bag with the 
 monies to the defendant, in satisfaction of one hundred 
 marks, for which she was indebted to him; which matter, 
 etc. Pole: On his own acknowledgment we pray the 
 
 Statham 3 a. account. And so to judgment, etc. Pole: That matter 
 does not go in bar of the account, for he can show the same 
 matter upon the account. And if he said that he paid the 
 monies to another by our commandment, or that he paid 
 them to us, that is no plea; consequently it is no plea to 
 say that we gave him the monies, since he has acknowl- 
 edged the receipt; for the reason above given. And also 
 he does not say that he has paid the monies to us, but 
 that he offered them to us, which cannot be good on any 
 interpretation. And even if the plea be good for the sum 
 that he received, still he should account for the increase, 
 since we have counted that he received them to use in 
 trade, wherefore, etc. Moile: Contra. Sir, if it be a bar 
 to the principal receipt, it is a bar to all. And it was 
 
ACCOMPTE 17 
 
 adjudged now lately that in account the defendant said 
 that for the sum that he had received, and for the profits 
 arising out of it for all the time since the receipt, he 
 had made an obligation of one hundred pounds. And 
 that was adjudged a good plea. And the reason is because 
 the plaintiff was satisfied, in which case he cannot have 
 the account since it appears that he is satisfied for the 
 same account. Assheton : As to this that if he is barred 
 of the receipt, still he shall account for the increase, that 
 is not so, for that is only the form of the writ; for it is no 
 plea for the defendant to say that he was not his receiver 
 to trade, wherefore, etc. Portyngton : It is not reason- 
 able that he shall be discharged as to the profits, though 
 the plea be good for the principal receipt, but if he had said 
 as above, and that the plaintiff had discharged him as to 
 all the profits promised from the said sum, that could not 
 be pleaded in bar of the account, etc. And then the defend- 
 ant was adjudged to account; and immediately the defend- 
 ant threw a caution in the Court, and a writ of error. 
 And in the King's Bench the opinion of many was that the 
 plea was good, etc. But yet the judgment was affirmed, 
 etc. 
 
 The case has not been identified in V. B. Hilary, 27 Hen. VI, or in Case 61. 
 the abridgments. 
 
 (52) A bailiff upon his account prayed an allowance of HUary 
 twenty pounds, which he had paid for his master, the lord *^ ^'*- ''^' 
 of the fee. Thorpe: For anj^hing that is contingent you 
 
 have no warranty to pay, etc. And then he showed an 
 acquittance from the lord of the fee for the twenty pounds, 
 made to his master; and they allowed it, etc. Query? 
 
 The case has not been identified in Y. B. Hilary, 41 Ed. HI, or in the Case 62. 
 early abridgments. 
 
 (53) In a writ of Ex parte talis, the bailiff denied the Michaelis 
 
 2 FH TIT 
 
 tallies shown by the lord, in the Exchequer. And it was 
 found against him by the inquest. And the judgment was 
 merely that he should account, etc. 
 
18 
 
 STATHAM 
 
 Case 53. The reference may be to the case in Y. B. Mich. 2 Ed. Ill, p. 52, 
 
 pi. 13, but it is not clear. The writ Ex parte talis was brought when the 
 auditors would not allow the reasonable expenses of an account, or if 
 they charged the party with more receipts than they ought, then his 
 next friend could sue for him a writ of Ex parte talis out of the Chan- 
 cery, directed to the sheriff, to take four mainpernors to bring his body 
 before the Barons of the Exchequer at a certain day, and to warn the 
 lord to appear there the same day. See Termes de la Ley, Accompt 
 (1721). 
 
 (54) Account was maintained against the guardian in 
 socage by an infant who was under the age of twenty-one 
 years. And it was adjudged good, etc. And see that 
 such a writ was adjudged good in Hilary Term, in the 
 Year 29 of Edward the Third, in Account; but that was 
 in Gavelkind, etc. 
 
 Case 54. The case has not been identified in Y. B. Hilary, 2 Ed. Ill, or in the 
 
 early abridgments. The case alluded to as in Hilary, 29 Ed. Ill, as in 
 Gavelkind has not been found. 
 
 Hilary 
 2 Ed. III. 
 
 Michaelis 
 32 Ed. III. 
 
 Case 55. 
 
 (55) Account against a guardian in socage, as a receiver, 
 was of no avail ; and that in Account, etc. 
 
 There is no printed year of 32 Ed. III. The case has not been found 
 in the early abridgments. 
 
 Hilary 
 
 22 Ed. III. 
 
 Case 66. 
 
 (56) It is a good plea in Account against a receiver by 
 another hand, to say that he received it to carry, and was 
 robbed of that and of other goods of his, etc. (But it 
 seems that the plea is not good since he did not say that 
 he was a common carrier, etc) 
 
 The case has not been identified in Y. B. Hilary, 22 Ed. Ill, or in the 
 early abridgments. 
 
 Michaelis 
 7 Ed. III. 
 
 Case 67. 
 
 (57) Account is not maintainable against an infant under 
 age. 
 
 The case has not been identified in Y. B. Mich. 7 Ed. Ill, or in the 
 early abridgments. 
 
 Michaelis 
 27 Ed. III. 
 
 (68) In account, it was found that the defendant had 
 paid more, etc. And of that surplusage it was adjudged 
 that he should recover against the plaintiff, but this was a 
 
ACCOMPTE 19 
 
 bailiff, etc. Query, if he should have a Capias ad Satis- 
 faciendum in that case? etc. (And it seems that they 
 erred, etc.) 
 
 There is no early printed year of 27 Ed. III. The case has not Case 58. 
 been elsewhere identified. 
 
 (59) An abbot brought a writ of Account upon a receipt Paschal 
 in the time of his predecessor; and it was adjudged good, ^ ^^' ^^^' 
 etc. 
 
 Reported in Y. B. Paschal, 4 Ed. Ill, p. 17, pi. 8. Case 59. 
 
 (60) In account, it was alleged that the defendant was Michaeiis 
 bailiff of his house, and had administration, etc. The ^ ^'^^ "^• 
 defendant answered both, for although he had no such 
 house, still it might be that the plaintiff could not have 
 
 any other action. And if he brought a writ of Detinue the 
 defendant could wage his law, etc. 
 
 Reported in Y. B. Mich. 9 Ed. Ill, p. 36, pi. 38. See also Fitzh: Case 60. 
 Accompt, 95. 
 
 (61) In account, if the plaintiff shows a deed from the Hilary 
 defendant proving the receipt, the defendant cannot wage ^^ ^^- "^• 
 his law. 
 
 And see, in the same plea, that the plaintiff showed a deed 
 proving the receipt, and the defendant said that it was made 
 by duress of imprisonment. And the issue was taken upon 
 that. (Which is strange, for the action was not conceived 
 upon the deed, etc.) Query, if that issue is peremptory? 
 
 There is no early printed year of 16 Ed. III. The case is reported Case 61. 
 in the Rolls Series, 16 Ed. Ill, pp. 4r-6. 
 
 (62) In account, if the defendant be adjudged to account, Paschal 
 they will not send him to prison, unless he comes by a ' ' 
 Cepi Corpus. But they will award a Capias ad Computandum. 
 
 The case has not been identified in Y. B. 29 Ed. Ill, but a case Case 62. 
 which is decided to the contrary is to be found in Y. B. Paschal, 29 Ed. 
 Ill, p. 36, pi. 63. 
 
 (63) If, before the auditors, the defendant alleges pay- Trinity 
 ment to the plaintiff by another hand, the plaintiff shall ^ ^'*- ^^^- 
 
20 STATHAM 
 
 not wage his law : no more than when in a writ of Account 
 the plaintiff alleges a receipt by another hand, the defendant 
 shall wage his law. 
 
 Case 63. Reported in Y. B. Trinity, 29 Ed. Ill, p. 36, pi. 1. 
 
 Trinity (64) 111 accouut, the plaintiff alleged the receipt by the 
 
 hands of one J, The defendant tendered his law, and 
 said that he was the co-monk of the plaintiff. And he 
 came in by award of the Court, and tendered his law from 
 the beginning, for otherwise he could not have had the 
 plea, etc. 
 
 Case 64. Reported in Y. B. Micii. (not Trinity), 47 Ed. Ill, p. 16, pi. 25. 
 
 ' Tliere would seem to be little necessity for more than a perfunctory 
 note to the writ of Account, showing the concurrence of the abridged 
 cases with the well known principles of the writ or action of Account, 
 or, perhaps, some slight divergence from those principles. We find 
 ourselves, however, immediately confronted by the fact that the prin- 
 ciples do not seem to be well known and that the history of the rise and 
 subsequent use of that writ never has been adequately written. I 
 had come to this conclusion before realizing that Mr. Luke Owen Pike, 
 in his learned prefaces to the Rolls Series of Year Books, had twice 
 touched on this matter, and in an especially illuminating way in his 
 preface to Y. B. (R. S.) 20 Ed. Ill, 2, pp. xxviii-xxxvii, where he 
 shows the importance of the action — contrary to the generally 
 accepted idea — and the extraordinarily wide area of its activities. 
 But in the necessarily restricted limits of the Year Book prefaces Mr. 
 Pike could not do more than show generally the error into which one 
 writer on the subject after another had fallen. It has seemed worth 
 while, in view of these facts, to touch as shortly as possible upon a few 
 of the facts presented by the cases themselves. 
 
 The first question is as to the rise of the action. As usual when we 
 attempt to trace an action to its source, we find the stream difficult to 
 follow; at times we lose all trace of its wanderings, and the guides upon 
 whom we have been taught to depend lead us nowhither. Mr. Pike 
 takes issue, and as it would seem, justly, with Mr. Maitland when the 
 latter says, "the common law action of Account remains at a low level 
 of development"; but before following Mr. Pike's guidance let us see 
 what Mr. Maitland, not thinking about Account specifically, had found 
 to guide us. In his Registry of Original Writs [Harv. L. Rev. 3: 97, 
 167] he has first described a Register of 1227, in which he found no 
 writ of Account. He then proceeds to analyse a Register of circa 1236 - 
 67, and we find that writ No. 83 in his list is a writ of Account. But in 
 
ACCOMPTE 21 
 
 his History of the Common Law [Pollock & Maitland, Hist, of the C. L. 
 Vol. 2, 2d ed., p. 221] he gives us an example of a still earlier writ which 
 is given in Bracton's Note Book [Bracton: Note Book, Vol. 2, pi. 859]. 
 Therefore our first date, so far as present researches go, is 1232. This 
 would be nearly in the middle of the reign of Henry the Third, and prob- 
 ably gave rise to Maitland's remark that "Account appears in Henry 
 ni's reign, but it is very rare and seems only used against bailiffs of 
 manors." It is true that the two early writs of which we have any 
 record as yet are both against bailiffs. Maitland's writ 83 is a "Justi- 
 &cies"v/nt:"Justificies talent quod . . . reddat tali racionabilem com- 
 potum suum de tempore quo fuit balUvus suus," etc. Bracton's writ is: 
 "Theobaldus Hautun petit versus Johannem de Prestona quod reddat ei 
 compotum racionabilem de tempore quo fuit ballivus suus de manerio suo 
 de Mareslet." [Bracton: Note Book, Vol. 2, pi. 859.] The word "bal- 
 livus'' is there in both writs to confirm what Maitland has said above, 
 also another remark of his which has not quite so certain a sound: "We 
 gather that the accountants in question were for the more part 'bail- 
 iffs' in the somewhat narrow sense that this word commonly bore, 
 manorial bailiffs." [l^ollock & Maitland, Hist, of Eng. Law, 2d ed., 
 Vol. 2, p. 221.] It would seem that Maitland's thought had already 
 been modified by his longer research into the sources of the older law, 
 and the "only used" of the earlier remark becomes the "for the more 
 part" of the later writings. If the action in its earliest beginnings was 
 of so narrow a nature, it must have become rapidly enlarged, for 
 although we have no cases for the later part of the reign of Henry III, or 
 the very early years of Edward I, we come, in 1284, to the Statute of 
 Westminster the Second where we have the provisions "concerning 
 Servants, Bailiffs, Chamberlains, and all manner of Receivers, which 
 are bound to yield Accompt." During these fifty years, which for us 
 are void of case law, there had evidently been great progress made in the 
 action. "All manner of Receivers" is a broad statement, and as soon as 
 we get any reported cases we find that they are indeed brought against 
 receivers of all sorts and kinds. We discover that Mr. Pike is entirely 
 right in his contention as to the wide use of the action. [Y. B. (R. S.) 
 20 Ed. Ill, 2. Preface, p. xxviii.] The action not only did not 
 remain at a low state of development, but it apparently became the 
 "common remedy in mercantile transactions, and in almost all cases 
 where there were dealings and an unliquidated demand." [Reeves, 
 Hist, of Eng. Law, Vol. 3: 77, 2d ed., 1787.] 
 
 It became the most widely used, the most convenient and the most 
 equitable of actions. In fact it was in its essence an equitable action, 
 and if we were to follow most of the writers upon the action of Account 
 we should say that it has developed solely on the equitable side, and 
 become the equitable action of Account, because of the greater conven- 
 ience and adaptability of the equitable remedy. [Spence, Eq. Jur. 
 Vol. 1, pp. 649-50.] Maitland agrees with Spence in the idea that 
 
22 STATHAM 
 
 "the common law action of Account remains at a low level of develop- 
 ment because of the fact that it was in practice superseded by the equit- 
 able jurisdiction of the Chancellor, who in the Bill for Account had 
 a more modern remedy operating under a more favorable and con- 
 venient procedure." [Maitland, Equity. Forms of Action, 358.] "In 
 after times the more powerful and convenient jurisdiction of equity 
 superseded the process of Account at common law." [Pollock & Mait- 
 land, Hist, of Eng. Law, 2d ed., Vol. 2, p. 222.] Then we have quite a 
 chorus of agreement — who would not follow such gracious leaders of 
 legal thought? — "The action of Account eventually proved a failure, 
 not because it was badly or defectively constructed, but because it 
 attempted to accomplish what was beyond the powers of common-law 
 courts." [Langdell: Eq. Jur., Harv. L. Rev., Vol. 2: 257.] Holdsworth 
 quotes Maitland both as to the reason for the decrease of the action and 
 as to its having done "little or nothing for the development of the law 
 of contract." [Holdsworth, Hist, of Eng. Law, Vol. 3: 323.] Holds- 
 worth, however, qualifies his statement by saying, "It was no doubt 
 a useful action before the rise of the action of Assumpsit," which shows 
 that he recognized the true trend of the earlier action, not into equity, 
 but into another common-law action, even though he adds, "and before 
 the growth of the Chancellor's equitable jurisdiction." Mr. Pomeroy, 
 resting on all this authority, and also relying on Spence [Spence, Eq. 
 Jur. 1 : 650], goes so far as to rise into an almost passionate denunciation 
 of our action. "This action was so narrow in its operation, so difficult 
 of application, so dilatory and so expensive, that it seems not to have 
 been brought more than a dozen times within the last two centuries." 
 [Pom., Eq. Jur., 3 ed.. Vol 6, § 926.] It might seem that the action had 
 received its final condemnation and should be remanded to oblivion. 
 Yet Mr. Jeremy, who is cited in support of his position by Mr. Pom- 
 eroy, mildly says, "The ground upon which Chancery assumed a con- 
 current jurisdiction with the courts of law on matters of Account has 
 been said to be that the remedy which it is capable of affording is much 
 more complete than that which may be obtained by action. [Jeremy, 
 Eq. Jur., p. 504.] Mr. Jeremy's exposition of the reasons for the devel- 
 opment of the equitable action are so reasonable, and so little support 
 Mr. Pomeroy's contention, and there is so little in common to be found 
 between his clear and calm account and these positive statements of 
 the later writers, that it can only be assumed that not finding the 
 action of Account in common use at a late date, the earlier and calmer 
 statements were first adopted without question, and finally expanded 
 without further research into what may be called the modern attitude 
 on the subject. 
 
 More and more, as one follows the accepted authorities on Account 
 as an equitable action, one is led — perhaps mistakenly — to suspect 
 that the action of Account at the common law ceased to be com- 
 monly used not so much, according to the statements we have 
 
ACCOMPTE 23 
 
 cited, "because of the narrow scope and technical rules of the action" 
 [Pomeroy, Vol. 6, p. 2797], or because of the "difficulty of proceeding 
 to the full extent of justice at the common law," [Mitford, Chan. Plead- 
 ing, pp. 120-41] or even because, as Maitland has it, equity had 
 "the more powerful and convenient jurisdiction" [P. & M. Hist, of 
 Eng. Law, 2d ed.. Vol. 2, p. 122], but because another legal action, 
 founded upon the same principle as that old action, the equitable prin- 
 ciple that one person shall not unjustly enrich himself at the expense 
 of another, which was "the basis of an action of Account, was also the 
 basis of the action of Assumpsit for money had and received." 
 Mr. Ames, in his article on the History of Assumpsit [Harv. L. Rev. 
 2: 66] says: "The most fruitful manifestations of the doctrine in the 
 early law are to be found in the action of Account. One who received 
 money from another to be applied in a particular way was bound to give 
 an account of his stewardship. If he fulfilled his commission, a plea to 
 that effect would be a valid discharge. If he failed for any reason to 
 apply the money in the mode directed, the auditors would find that the 
 amount received was due to the plaintiff, who would have a judgment 
 for its recovery. If, for example, the money was to be applied in pay- 
 ment of a debt erroneously supposed to be due from the plaintiff to the 
 defendant, either because of a mutual mistake, or because of fraudu- 
 lent representations of the defendant, the intended application of the 
 money being impossible, the plaintiff would recover the money in 
 Account. Debt would also lie in such cases, since, at an early period, 
 Debt became concurrent with Account, when the object of the action 
 was to recover the precise amount received by the defendant. By 
 means of the fiction of a promise implied in law. Indebitatus Assumpsit 
 became concurrent with Debt, and thus was established the familiar 
 action of Assumpsit for money had and received to recover money 
 paid to the defendant by mistake. 
 
 "Although Assumpsit for money had and received was in its infancy 
 merely a substitute for Account, it gradually outgrew the limits of that 
 action." 
 
 We have here the great authority of Mr. Ames for the statement 
 that "Assumpsit was in its infancy merely a substitute for Account," 
 which is in effect another way of stating that it is the legal action of 
 Assumpsit rather than the equitable Bill of Account, which took the 
 place of the old action. The Bill of Account has indeed fallen heir to 
 the title and to some of the assets of the old legal action, but the legal 
 action of Asumpsit has continued its principles, and continues to en- 
 force the claims which in the old days were enforced only by the legal 
 action of Account — not in a limited and contracted field, but in the 
 wide and generous scope of that old action. 
 
 The history of the development of the legal action of Account into 
 the action of Assumpsit is an interesting one. I do not know that 
 it has been anywhere written from the viewpoint of the history of the 
 
24 STATHAM 
 
 action of Account, although it has necessarily become a part of the 
 history of the rise of the action of Assumpsit. Mr. Ames has prob- 
 ably done more for that action [History of Assumpsit, Harv. L. 
 Rev. 2: 55] than has been done elsewhere, and he has incidentally 
 done something more for the action of Account, but it has been only 
 incidentally and he did not do more than was absolutely necessary for a 
 complete understanding of the rise of the action of Assumpsit. Yet 
 what he did incidentally was far more enlightening than anything any- 
 one else has done when writing upon the action of Account. 
 
 In the beginning we have the actions of Debt and Account sharing 
 the field together. Reeves [Hist, of Eng. Law, Vol. 4, 388] says: "In 
 the old law this action [debt] had held a sort of divisum imperium over 
 contracts with the action of Accompt, which also in like manner with 
 the former lost ground as the Assumpsit grew more into fashion." He 
 asserts that the "principal inducement to recur to the Assumpsit 
 instead of these writs was to preclude the defendant from his wager of 
 law; when, therefore, a transaction was so circumstanced that the law 
 would not allow this privilege, there was no reason for going out of the 
 ancient track; and if the case was such as to be within the compass of 
 those remedies, it was still usual to bring debt and accompt." There 
 is nothing here about inconvenient and dilatory procedure; nothing at 
 all about "narrow and limited action," we are merely getting away 
 from the wager of law in any way we can, and no blame to any one or 
 any action for doing so sensible a thing. Here we find Reeves treat- 
 ing our much maligned action of Accompt as a reigning sovereign, 
 sharing its "dominium" with the action of Debt. He had already [76., 
 Vol. 2, p. 337 et seg^ spoken of the action of Accompt as having been 
 rendered a "very useful remedy, "by the two Statutes of Marlbridge and 
 Westminster the Second, and he there goes on to give a clear exposition 
 of the process upon a writ of Accompt, and incidentally to show that 
 the limitation of the writ to "bailiffs" in "the narrower sense" was incor- 
 rect; he, in common with the other writers upon the subject, and follow- 
 ing the Year Book cases, states that taking the two statutes together 
 the writ would lie for bailiffs or receivers — that is, the common writ 
 of Accompt, not the writ of Monstraverunt de Compoto, which was 
 specially given by the Statute of Westminster the Second — and that 
 the latter term was interpreted so broadly as to include nearly all those 
 persons who had "received" anything under an obligation, express or 
 otherwise, to return the same or account for it. 
 
 We have seen that the writ of Account was known and used 
 at the common law against bailiffs. In the face of this well- 
 known fact practically all of the writers upon the action of Account 
 assume that the action against bailiffs was "given" by the 
 Statute of Marlbridge. Many of the Year Book cases would 
 seem to assume this also, and this has probably given rise to the 
 general misstatement, but Coke, in his argument on the seventeenth 
 
ACCOMPTE 25 
 
 chapter of that act, which does give the action to guardians in 
 socage, says that it was made in declaration or affirmance of the com- 
 mon law." Bacon [Abridgment, title of Accompt, p. 32] says: "This 
 statute of Marlbridge is usually recited in the writ as if the writ was 
 warranted by statute only . . . but Accompt lay against the guardian 
 in socage at the common law, and the statute was merely in declaration 
 or affirmance of it." It seems that Coke's argument upon the seven- 
 teenth chapter holds equally well for the twenty-third chapter. The 
 very wording of that chapter puts us on notice that it is meant simply 
 in affirmance of the already existing law or custom. In this connection 
 it may be interesting to note Maitland's note upon Coke's statement 
 [P. & M. Hist, of Eng. Law, 2d ed., Vol. 1, p. 323, note] in which he 
 says: "Coke regards the chapter of the Statute of Marlborough touch- 
 ing guardianship in socage as a 'declaration of the common law' ; but 
 he did not know the Provisions of Westminster and has no warrant for 
 his doctrine." But Maitland elsewhere says [P. &. M. Hist, of Eng. 
 Law, 2d ed.. Vol. 1, p. 179]: "From this time of strain and stress we 
 have the Provisions of Westminster to which the king gave reluctant 
 consent in 1259. He did not hold himself bound by them; they never 
 became a well established part of the law of the land . . . almost all 
 of them were re-enacted with the consent of great and small, as the Pro- 
 visions or Statute of Marlborough." This being so, it would seem 
 that the Provisions of Westminster, not being accepted as law, had no 
 effect upon the common law, and the Statute of Marlborough, being 
 the first statute which was accepted as law, would be declaratory of the 
 common law, as stated by Coke. The matter, perhaps, is a mere 
 pebble in the mosaic of the old law, but in the end the placing of a 
 wrong pebble shows in the color scheme, and in the history of the law 
 of Accompt it seems that nearly every pebble has gotten a wrong tint 
 in the course of time. There is as yet nothing to show that receivers 
 were bound to account at the common law; yet we have no direct proof 
 to the contrary. The Statute of Westminster the Second brings in "all 
 manner of receivers" in a very casual way, not at all as if it were opening 
 wide the action of Account to an entirely new and very large class of 
 persons — "All manner of receivers which are bound to yield accompt." 
 (Quibuscungue receptoribus gut ad compotatum reddendum tenentur.) [West. 
 2, Cap. XI .] We have no early writ to show that receivers were bound to 
 accompt in times before the statute. There are indications in the cases 
 that the action was regarded as something new. The action is indeed 
 referred to as new by Bereford, in a case which is not digested by Statham, 
 and for which we have no printed Year Book, so we know it only in Fitz- 
 herbert's Abridgment [Fitzh: Abr. title Accompt, 127] where he cites 
 it as having been brought in 30 Ed. 1 (1301). Bereford was a justice at 
 that time, and might well have been sitting in the Eyre for which it is 
 cited. It is an action against a receiver and Bereford says, "This is a 
 new writ, and in new causes new remedies." It may be that he refers to 
 
26 STATHAM 
 
 the fact that the Statute of Westminster the Second (1285) first gave 
 the writ to receivers, but no mention is made of any Statute. In the 
 few printed Year Books that we have of Ed. I (Rolls Series), the action 
 of Account appears in a very fair proportion among the actions. It 
 seems to be taken as a matter of course, and not as resting upon any 
 Statute. In the time of Edward the Second cases of Account were 
 of common occurrence, the marginal references frequently giving the 
 case as one of Monstraverunt de Compoto, showing those cases to be 
 founded on the Statute of Marlbridge. It might perhaps still be argued 
 that "for the more part" the action was still against bailiffs, but not 
 in "the narrower sense," since it may as well be brought for accounts 
 of "sakes de laine" as "bailiff de mon maison," or of both together. 
 [Mich. 8 Ed. Ill, p. 36, pi. 38. Fitzh: Accompt, 95.] Maitland himself 
 shows that the writ was not of statutory origin, or at all events was not 
 given by the Statute of Marlbridge, as in his History of Original Writs, 
 vol. 2, p. 616, Select Essays in Anglo-American Legal History, he shows 
 that this writ appears on a very early register, which he places between 
 1236 and 1267, but believes is not later than 1257. But there is even 
 earlier authority, as we have the writ given in Bracton [Note Book, 
 pi. 859] asof Michaelmas Term, 16 Hen. Ill (1232). These are both writs 
 against bailiffs ' 'de manerio stw, ' ' and we have no proof that receivers were 
 as yet amenable to the writ. This proves but little, however, as before 
 the discovery of the Note Book, and Maitland's finding of the writ of 
 Account in the register, we had absolutely no proof that the action of 
 Account was of so early an origin. We must have assumed that it was, 
 but the assumption must have been without proof. When the word 
 "bailiff" began to be used to cover the case of anyone who was bound 
 to render an account of the property of another, we have no authority 
 at present to say. Reeves [Hist, of Eng. Law, 2 : 338] mentions the writ of 
 Monstravitde Compoto, asbeing made use of in this [Ed. Ill] reign "prom- 
 iscuously with the common capias." [See also Impey, Modem Pleader, 
 2d ed., 1814, p. 120. It is impossible to know to whom the credit of 
 this statement should belong. The editions of the two books run along 
 almost simultaneously, and neither gives credit to the other.] It seems 
 that it was this writ of Monstravit de Compoto which caused so 
 much confusion in the books. The Monstravit de Compoto was a new 
 writ, and it was "given" by the Statute of Marlbridge. The bailiffs 
 who could be forced to account by the common law were those who 
 had lands or tenements by which they might be distrained; if they had 
 no lands or tenements, there was no remedy against them. The new 
 writ was the Monstravit de Compoto, by which they could be "attached 
 by their bodies." [Reeves, Hist, of Eng. Law, 348, 1st ed.] The pro- 
 cess began with the word by which the writ became known: "Mons- 
 travit." Fleta gives the usual writ of Account, and then goes on: 
 "Si autem hujusmodi ballivi se subtraxerint, nee habeant unde dis- 
 tringantur, tunc succurritur guerentibus per tale breve, etc. Rex Vice- 
 
ACCOMPTE 27 
 
 comiti salutem. Monstravit nobis A. quod cum B. exstitit ballivus 
 suus in N. omnium rerum & bonorum suorum habens administrationem, 
 idem B. compoto suo non soluto, subrefugia guarens, latitat in ballivia 
 tua, nee poterit inveniri nee distringi ad compotum suum reddendum. Et 
 quia de communi consilio Regni nostri provisum est, quod si ballivi qui dom- 
 inis suis compotum reddere tenerentur se subtraxerint, & terras &f tenemen' 
 non habeani per quae distringi valeant, per eorum corpora attachientur: Ita 
 quod Vicecom' in quorum balliviis inveniantur, eos venire faciant ad com- 
 potum suum reddend', iibi praecipimus, quod si praedictus A. fecerit te 
 secur' de clamore suo prosequend' , tunc praedictum B. attachiari fac' : ita 
 quod habeas corpus ejus coram Justiciariis nostris, &c., ad reddend' 
 praedicto A. compotum suum praedictum. Et habeas ibi," etc. [Fleta, 
 cap. 70, p. 155, sec. 8, ed. 1685.] I think we may assume that 
 when the cases say that "this is a new writ," they are alluding to the 
 Monstravit de Compoto as a general thing, and not to the usual writ 
 against bailiffs. We may not be able to go as far as to say the usual 
 writ against receivers, for that indeed may have been new in the early 
 days of Ed. II, although we do not have to yield that much, since there 
 is no positive evidence on the one side or the other. The writers have 
 not paid much attention to this Monstravit de Compoto, but have 
 assumed that it was the usual writ of account, be it either against bail- 
 iffs or receivers, that was spoken of as "new." 
 
 Beside the Monstravit Maitland gives, from a list of writs from the 
 Register, apparently circa Ed. I (MSS.), a "Breve de compoto super Stat- 
 utum de Acton Burnel." This appears to be all that we have to show 
 that writs of Account were ever founded upon that Statute, which, 
 bearing date 11 or 13 Ed. I (1283 or 1285), is nearly contemporary with 
 Westminster the Second. The history of the writ or writs of Account 
 for the reign of Edward the First, and indeed for that of Edward the 
 Second, does not appear to have been fully written. 
 
 When we reach the reign of Edward the Third we find the writ, as 
 Reeves says, "a very useful remedy." [Reeves, Hist, of Eng. Law, 
 2:337.] He also says that: "Receiver . . . was an universal character 
 that suited every one who had received money or profit to the use of 
 another, for which he ought to account." [Reeves, Hist, of Eng. Law, 
 3: 78.] Reeves is not to be credited with having started the theory 
 that the remedy was inconvenient; he evidently had never heard of 
 that theory. He says [Vol. 3: 77]: "This action was the common rem- 
 edy in mercantile transactions, and in almost all cases where there were 
 dealings and an unliquidated demand." This appears to have been true 
 all through that period with which our abridgment has to deal, and in 
 our cases we have a sufficient number of writs brought against bailiffs 
 and receivers of varied kinds to substantiate the statements of Reeves. 
 We have noted that Reeves has said that "in the old law this action 
 [debt] had held a sort of divisum imperium over contracts with the 
 action of accompt." [Vol. 4: 388.] For the learning of "the books" 
 
28 STATHAM 
 
 on the concurrent jurisdiction of debt and account, Core's case [Dyer, 
 20. 28 Hen. VIII] with the marginal cases, gives a sort of bird's-eye view, 
 which, being couched in the language of those books and steeped in their 
 atmosphere, better conveys their meaning and content than the later 
 cases. But one should also consult Earl of Leviton against Topdiff 
 [Cro. Eliz. 644, 1597-8] and the cases there cited. These cases would 
 seem sufficient to prove that the two actions were concurrent until at 
 least the time of Charles 1 (1625-49). We have Pollock's statement 
 to the same effect. "The action of account was a remedy . . . (some- 
 times exclusively, sometimes concurrently with debt) to enforce claims of 
 the kind which in modern times have been the subject of actions oj 
 assumpsit for money had and received or the like." [Pollock, Contract. 
 Wald's ed., p. 153, 1906.] But it is in the article on the Early History 
 of Assumpsit by Mr. Ames [2 Harv. L. Rev. 53] that we find the most 
 light thrown on the development of the action of Account. Nowhere 
 else is the equitable nature of the early action so clearly shown. He 
 says: "Assumpsit for money had and received was in its infancy merely 
 a substitute for Account" [p. 67]. In his further outline of the 
 growth of the action of Assumpsit he shows how hard was the struggle 
 for supremacy between the two actions; how assumpsit first became 
 "concurrent with account" [p. 69] and finally superseded it. All this 
 without showing any of the desire of the writers upon the equitable 
 action of account to throw contempt upon the parent action. At first 
 the new remedy was scarcely more liberal than the old, and for a long 
 time the struggle was nearly equal. Mr. Ames gives us the case of 
 Bonnel v. Fowke [2 Sid. 4, 1657] as perhaps the first case where by 
 the fiction of a promise implied in law Indebitatus assumpsit 
 became concurrent with debt. In 1676, in Arris v. Ames against 
 Stukely [2 Mod. 260], the encroachment of assumpsit upon account 
 had gone so far as to enable the Court to say, " in disregard of 
 all precedents of account" [Ames, supra, 67] that "an Indebitatus 
 assumpsit will lie for rent received by one who pretends a title, 
 for in such case an account will lie. Wherever the plaintiff may have 
 an account, an Indebitatus will lie." It may have been this case 
 which led Lord Holt to say that "Indebitatus assumpsit has been 
 carried too far." [Comb. 447, 1697.] He proceeds to cite instances 
 where it has been properly allowed; practically all cases where one 
 had received from another money not justly due him, and he continues, 
 "but where there is a bargain, tho' a corrupt one, or where one sells 
 goods that were not his own, I will never allow an Indebitatus." [Comb. 
 447, 1697.] He was unable to stem the fast flowing tide; the action of 
 Assumpsit was undoubtedly popular; it gave relief in cases in which it 
 could less easily be given by any other action — or at least it apparently 
 seemed to do so — and it checked the tendency to throw all such 
 actions into the Chancery. It was a logical outgrowth of the former 
 action of Account, far more so than the equitable action, which has so 
 
ACCOMPTE 29 
 
 long boasted of its greater convenience and celerity. In regard to the 
 development of the legal action of Account into the equitable action 
 there was a constant protest going on against turning the "action at 
 law into a suit in equity." [Tilly v. Bridges, 1705, Finch: Pre. in 
 Chan. 252, 1753.] 
 
 In a case in 1737 [Morton v. Frecker, 1 Atk. 524], and another in 1749 
 [Sayer v. Pierce, 1 Ves. Sr., 233] the Court refused the equitable action 
 in an apparent attempt to retain the legal action in use. Here and 
 there in the course of time the equitable action of account received from 
 a thoughtful judge or able commentator less honorable mention than 
 we find given it in these latter days. Mr. Henry Gwillim, the learned 
 editor of the fifth edition of Bacon's Abridgment (1798), on page 31 of 
 that edition, after citing the usual statement that "proceedings in this 
 action being difficult, dilatory, and expensive, it is now seldom used," 
 says with a gleam of deserved sarcasm: "From the experiment made 
 of this action in the case of Godfrey v. Saunders [3 Wilson, 73], its 
 proceedings seem not to deserve the character here given of them. A 
 matter which had been fruitlessly depending in Chancery upwards of 
 twelve years was thoroughly examined, and finally determined in this 
 form of action in the course of two years." This action of Godfrey v. 
 Saunders [3 Wils. C. P. Repts. 73] seemed to have all the elements which 
 rendered the action of account so "impossible" in a court of law, and 
 yet to have been settled in such a court with comparative ease and cel- 
 erity. It was in this case that Lord Wilmot said, "I am glad to see 
 this action of account is revived in this Court" [p. 117]. In fact, so far 
 as the older cases reveal the action, it seems to have been an 
 action admirably adapted to the ends the litigants had in view, well 
 adapted to doing justice between party and party; elastic in its 
 inclusion of all classes of litigants, and giving relief in a satisfactory 
 way to parties who had afterwards to select an action of Debt, a bill 
 in Chancery — always a dilatory court — or the action of Indebitatus 
 assumpsit. As has been suggested, the latter was of all the actions 
 most kindred in spirit, most closely allied in purpose, and best adapted 
 to the purposes for which the legal action of Account had been used in 
 its better days. Impey, in his "Modern Pleader," writing about 1794, 
 quotes this remark of Lord Wilmot [Impey, Modern Pleader, 121] 
 and says further, "And I heard Lord Kenyon say, in a cause before him, 
 wherein a very long and intricate account was to be gone through (after 
 the party refused a reference): 'Why did you not bring an action of 
 account? We cannot go through this at Nisi Prius.'" 
 
 The disuse of this action is laid down to be on account of the great 
 delay in process, which was by "summons, attachment and distress 
 infinite." [2 Inst. 280.] "But as it may now be brought by Bill of Middle- 
 sex, latitat, or capias, in the first instance, I can see no reason why it 
 should not come into use again, especially where the matter is clear, and 
 not very intricate." [Impey, Modem Pleader, pp. 121-22.] It is evident 
 
30 
 
 STATHAM 
 
 the writers of a hundred years ago were not convinced that the reasons 
 for the discontinuance of the use of the action were well founded, and the 
 resurrection of something of the old feeling, in the words of Mr. Pike, 
 shows a recurrence of the desire that justice be done to the "old common 
 law action of Account." He says our forefathers "were familiar with 
 the Court of Common Pleas, whither they came as plaintiffs in Account 
 when their ventures had not succeeded according to their expectations, 
 just as their descendants are familiar with the Chancery Division, 
 where petitions are made for the winding up of Companies." It is not 
 a new thought to suggest that in this old action are found the beginnings 
 of the law of partnership; many of the actions are really for an account- 
 ing between persons who were acting in the relation of partners in 
 mercantile proceedings. The money was very often lent "A marchan- 
 der," and the merchandizing was to be for the mutual benefit, and 
 although we cannot show that the transactions were continuous, there 
 can be little doubt that such transactions, when successful, would be 
 repeated, and would therefore come to be practical and actual joint 
 proceedings over a long period, which would amount to what is now 
 known as a partnership, or what was known as a partnership up to the 
 more modem period of statutory enactments upon such combinations. 
 There is very much of interest in the law of account which has not 
 even been touched upon in this fragmentary note. The procedure in 
 the older times has been elaborately set forth in many of the old writers 
 upon Pleading. The date of the extension of the action to executors 
 and administrators, to the executor of executors, and against executors 
 and administrators, are all also plainly set forth in the same way. The 
 intention of the note has not been so much to repeat all this knowledge 
 which is plainly set forth and findable by all who have access to a 
 library, but to suggest to others better fitted for the task the interest, 
 there is in getting at the real facts and setting forth the true history of 
 the action of Account. 
 
 AIELL* 
 
 Statham 3 b. 
 Michaelia 
 13 Ed. II. 
 
 Case 1. 
 
 (1) In a writ of aiel, the release of the ancestor himself, 
 although it be with warranty, is no bar. 
 
 There is but one writ of Aiel in the printed term of Mich. 13 Ed. II. 
 The case does not report the point as given by Statham. 
 
 HUary (2) In a writ of aiel on the possession of his grand- 
 
 mother, it is no plea to say that the grandfather of the 
 demandant, husband to the grandmother, is alive, and 
 
AIELL 31 
 
 that it belongs to him to have the land by the curtesy. 
 (I believe the plea is good, etc.) Query? 
 
 Reported in Y. B. Hilary, 10 Ed. Ill, p. 10, pi. 29. See also Fitzh: Case 2. 
 Aiel, 3. 
 
 (3) In a writ of aiel, the writ was "Command that he Hilary 
 render Bastium to the keeping of Pobtis, Abbot of B." lO Ed. III. 
 And it was adjudged good. 
 
 The case has not been identified in Y. B. 10 Ed. Ill, or in the early Case 3. 
 abridgments. 
 
 (4) A writ of aiel brought by two ; where he was grand- Michaeiis 
 father to one and great-grandfather to the other. And it ^^ '^'*' ^'• 
 was adjudged good. See the Statute. 
 
 Reported in Y. B. Mich. 18 Ed. II, p. 560. Case 4. 
 
 The Statute referred to is that of 6 Ed. I (1278), cap. 6, Stats, at 
 Large, Vol. 1, p. 123. The Statute provided that the writ of Mort 
 d'Ancestor should be used in such cases. 
 
 ' The Writ of Aiel was one of those writs that were provided to carry 
 further the action given in the Assize of Mort d'Ancestor, and there- 
 fore follows that writ in its nature. The Year Books are full of these 
 writs, and our Abridgment gives us but a narrow view of what it seems 
 should have been, at the time of the compilation of the work, an inter- 
 esting science. Glanville takes no notice of this action. He enlarges 
 upon the writ of Mort d'Ancestor, which was an ancient action. Mait- 
 land in his Registry of Original Writs [Harv. L. Rev. 3 : 170-75] gives 
 us two cases of Mort d'Ancestor, none of Aiel, in the Register of 
 1236-37. One case of Mort d'Ancestor is there given as in an Irish 
 Register [lb., p. Ill] and one apparently of the time of Henry III 
 [p. 1 14] (the writ de consanguinitate) . Nuper Obiit and Cosinage appear to 
 come before the writ of Aiel. Maitland makes the birth date of the 
 writ of Mort d'Ancestor 1176 [P. & M. Hist, of Eng. Law, 2: 57] and 
 says, "After a dispute between the justices and the magnates, the former 
 succeeded in instituting the actions of Aiel, Besaiel, Tresaiel, and Cos- 
 inage" (De Avo, de Proavo, de Tritavo, de Consanguinitate), as supplements 
 for the Assize of Mort d'Ancestor." This, he says, was "about half 
 a century later than the beginning of the Mort d'Ancestor," which he 
 believes to have been instituted by the council held at Northampton in 
 1176. This would bring the first use of the writ of Aiel about the year 
 1226. This is a date slightly earlier than that which Maitland gives 
 to the earliest register he was able to find, but it is to be expected that 
 still earlier registers may yet be found, and we cannot found too many 
 
32 
 
 STATHAM 
 
 theories upon what we now know since they may so easily be over- 
 turned by newer discoveries. At all events we find this writ to be an 
 early one, and that it was in very frequent use by the litigants 
 whose cases come to us through the Year Book reports. 
 
 Britten gives a full account of the writ and its use. Later writers 
 like Reeves and Holdsworth ignore it entirely, although it seems that 
 it has its clearly defined part in the development of the actions and the 
 history of the law. Fitzherbert in the Natura Brevium sheds no light 
 upon the history of the writ. 
 
 ADDICION* 
 
 Trinity 
 3 Hen. VI. 
 
 Case 1. 
 
 Paschal 
 7 Hen. IV. 
 
 Case 2. 
 
 Michaelis 
 27 Hen. VI. 
 
 (1) It is a good addition, "Command such a one of the 
 county, etc., yeoman," without naming him as of such a 
 vill. 
 
 And it was said in the same plea, that if one be bound 
 by the name of J of B, of F, in the county of B, it is no 
 plea to say, "no such vill as F within the same county," 
 because he is bound by such a name. 
 
 The point here abridged is found, imbedded, as it were, in a very 
 long case of debt in Y. B. Hilary (not Trinity), 3 Hen. VI, p. 23, pi. 2. 
 See also Brooke, Addicions de Hommes et Villes, 3. 
 
 (2) See that the father does not change his name for 
 his son, for although his son has the same name, yet the 
 writ is good against the father, without naming him senior; 
 but against the son he shall be named junior, or otherwise 
 the writ shall abate. In Trespass. 
 
 Reported in Y. B. Paschal, 7 Hen. IV, p. 11, pi. 5. In a writ of 
 Trespass. See also Brooke, Addicions de Hommes et Villes, 18. See 
 also Y. B. Hilary, 21 Hen. VI, p. 26, pi. 9. 
 
 (3) In trespass against J de B , of the Parish of S. Danb Y : 
 The defendant, the day the writ was purchased, was 
 dwelling in the vill of B, within the same parish; the vill 
 of H is not named, judgment of the writ. Assheton: 
 Every parish has a vill, wherefore the writ is good, etc. 
 Portyngton: That is not so, for in the parish of Saint 
 Clemant there is no vill, and in such a parish which has no 
 vill within the parish the addition is good, as above; but 
 if a vill be within the parish and he be of the vill he shall 
 
ADDICION 33 
 
 be named of the vill, for the Statute is that he shall be 
 named of the vill, or a place known to be out of the vill. 
 And they adjourned. See the Statute, etc. 
 
 The case does not appear in Mich. 27 Hen. VI, but is found in Case 3. 
 Y. B. Hilary, 22 Hen. VI, p. 41, pi. 18. See also Brooke, Addicions de 
 Hommes et Villes, 38. 
 
 The Statute is that of 1 Hen. V (1413). Stats, at Large, Vol. 3, p. 3. 
 
 (4) In a recordare, the defendant demanded judgment Paschal 
 
 of the writ because it did not state of what vill, nor of what ^^ ^^°' ^^' 
 trade, the defendant was, inasmuch as [process of out- 
 lawry does not lie except on the original writ].^ Prisot: 
 That is not an exception in the county [Court], and the writ 
 should agree with the complaint, and upon the complaint 
 shall the plea be held, wherefore answer, etc. Query? In 
 Replevin, if, etc. 
 
 There is no Paschal Term in the printed year of 27 Hen. VI, but a Case 4. 
 short report of the case is found in Y. B. Hilary, 3 Hen. VI, p. 30, pi. 17. 
 See also Brooke, Addicions de Hommes et Villes, 4. 
 
 (5) Sawdeour is a good addition. And yet a knight, an Trinity 
 esquire, and a valet cannot have the same name, etc. ^' ^^°- ^^■ 
 
 And it was said in the same plea that "Chopchurch" is 
 a good addition, and "Broggarre," etc., for such occupa- 
 tions are not forbidden by the law. But "thief" or such 
 like thing, which is forbidden by the law, is no addition. 
 
 The case has not been identified in Y. B. Hilary, 27 Hen. VI. Brooke, Case 5. 
 Addicions, etc., 8, and Fitzh: Addicions, 4, have a version of the case, 
 as in Hilary, 9 Hen. VI, p. 65, pi. 19. Sawdeour is apparently from the 
 old French Saudoier, a soldier attached to the king. See La Curne de 
 St. Pelaye, Dictionnaire Historique, tome neuvieme, 1881. "Chop- 
 church" is a middle-English word for a man who sold a benefice in a 
 church. The practice was not considered illegal, hence the addition 
 could be upheld, but it was not considered to be morally defensible. 
 
 (6) A man is not allowed to give diversity to a name Hilary 
 except of those who are [not] parties to the writ. And that "^ ^'^- ^"• 
 in a writ of Intrusion, etc. 
 
 The point so badly digested here is found in the end of a case on a Case 6. 
 writ of Intrusion, in Y. B. Hilary, 7 Ed. Ill, p. 3, pi. 7. The obscure 
 
 'These words are taken from the report of the case in the Year Book. 
 
34 
 
 STATHAM 
 
 Trinity 
 
 15 Hen. VI. 
 
 Case 7. 
 
 Trinity 
 
 38 Hen. VI. 
 
 Case 8. 
 
 digest of Statham has had to be reinforced by a word taken from the 
 report of the case, which has been placed within brackets. 
 
 (7) "Praecipe such a one of B, husbandman"; who 
 demanded judgment of the writ because he was a "gentle- 
 man, being of the occupation of a husbandman." And it 
 was adjudged a good plea without saying, "not husband- 
 man," etc. 
 
 There is no printed Year Book of 16 Hen. VI, but the case appears 
 in a very interesting form in Y. B. 14 Hen. VI, p. 15, pi. 51. See also 
 Brooke, Addicions, etc., 44. 
 
 (8) The writ was, "Command the aforesaid John F de 
 B, otherwise called J. F. de C, in the county of Notting- 
 ham, gentleman." And because there was no addition to 
 the first name, but [there was] in the "otherwise called," it 
 was reversed by a writ of Error ; and that Coram Rege, etc. 
 
 Probably the case reported in Y. B. Mich. 28 Hen. VI, p. 26, pi. 10. 
 Brooke, Addicions, 46, has a like case, cited as in 36 Hen. VI, 18. 
 
 ' Addicion is one of the more ancient titles which have ceased to appear 
 in modem digests. It is very easy to see why the "addition" was a 
 most necessary part of the writ in those early times when other means 
 of identification were lacking. The cases are innumerable in which the 
 pleas that the writ is void because the vill is named — let us say — 
 Lynn, and "there is no vill in thecounty without an addition," that is 
 to say. East Lynn, West Lynn, Upper Lynn. This Lynn in the writ, 
 therefore, is not identified. Writs are frequently abated for this cause. 
 Then there is the case of the gentleman who finds himself with the addi- 
 tion of "husbandman" because he occasionally puts his hand to the 
 plough. He objects to this addition, and is sustained in the objection. 
 The addition of "Chopchurch" is allowable, because it is a legal, although 
 an objectionable, practice to farm out a benefice, but to say "thief" 
 or such like is not allowable, because that is an illegal occupation. The 
 points seem trivial now, but they were sufficiently important in the 
 pleading of the time. The fact that many of these apparently smaller 
 points of the pleading of that period are now scarcely alluded to in even 
 the best and most profound of the histories of the English law shows 
 that it is important that these cases such as are found in the Abridg- 
 ment, unimportant as they seem in themselves, should be brought to 
 the attention of the modern scholar. The dryness — the apparent 
 technicality, perhaps one might say the pettiness — of the older pleading 
 has repelled the legal historian from the minuteness necessary to a proper 
 investigation of the subject. The law itself is so involved with these 
 technicalities, so wrapped up in the pleadings, that unless we know what 
 
ADDICION 35 
 
 those pleadings meant we are in danger of not knowing what the law 
 itself, which those pleaders are so earnestly striving to get straight, ulti- 
 mately was decided to be. Unimportant indeed it was if we do not rest 
 the law of to-day upon the principles which they were all the time evolving 
 from those seemingly tangled skeins of their endless disputations. 
 Most important if we do so rest the law of to-day. It is disappointing 
 to go to the histories of the law and find no reference to the very points 
 upon which an awakened interest is awaiting instruction. The real 
 history of the old actions would be not a dull and uninteresting one, 
 but one full of a very vivid and real interest to the modern student. 
 For these slender links keep the whole chain from breaking; they link 
 together the heavier and more important parts, which would be dis- 
 connected without them. 
 
 ADMINISTRATOURS * 
 
 (1) In debt against one as administrator, he said HUary 
 that he administered to the use of one H, to whom the 
 ordinary, etc., and not in any other manner. And the 
 plea was adjudged good. 
 
 And it was said in the same plea, that in an action 
 against two administrators, who pleaded, "never, etc.," 
 the plaintiff said that [if] one administered in such a place statham 4 a. 
 and the other in another place, and the one is found for 
 the plaintiff and the other against him, he against whom 
 the issue is found shall be charged for all, and he shall not 
 have judgment until both issues be tried, etc. But in an 
 action brought against one as administrator when he is not, 
 etc., he should traverse the commission; that is to say, 
 that the ordinary did not commit, etc. 
 
 The case has not been identified in Y. B. Hilary, 50 Ed. III. Statham Case 1. 
 may have had reference to the case in Y. B. Hilary, 50 Ed. Ill, p. 9, 
 pi. 18, referred to by Brooke, Administrators, 15, but if so his report 
 of the case was different from that which we have in the printed Year 
 Book. See also Fitzh: Administrators, 19. 
 
 (2) In debt, the plaintiffs showed how one A made his Michaeiis 
 administrators and died; after whose death the will was 
 approved before the ordinary of B, etc. Newton: Action 
 
 you should not have, for we say that the metropolitan was 
 
36 STATHAM 
 
 assured that the testator had goods in different dioceses, 
 wherefore he discharged the plea, and committed the 
 administration to the defendant by his letters — which he 
 showed — for the reason aforesaid, judgment. Channt : 
 That is no plea, unless he shows what goods, etc. And 
 that was not allowed; wherefore he said that the testator 
 made them his executors as they had said, "without 
 this that the said testator had goods in different dioceses 
 at the time of his death ^r Ready." Paston: You could 
 have demurred in law ; for where a man dies and has goods 
 in different dioceses, and dies intestate, there it belongs 
 to the metropolitan to commit the administration. But 
 when a man has made his executors, and the testament is 
 proved, it is hard to discharge them, etc. Query? 
 
 Case 2. Reported in Y. B. Anno 14 Hen. VI, p. 21, pi. 61. The terms are 
 
 not distinguished from each other in the printed Year Book of 14 Hen. 
 VI. Statham was probably living at that time, and may have taken 
 the case from his own notes. 
 
 Michaeiis (3) In debt against administrators. Hulthorpe: He 
 does not show how the administration was committed to 
 all by the ordinary. Judgment of the count. And it was 
 not allowed; wherefore he said that he was never adminis- 
 trator. Paston : Inasmuch as you do not deny that the 
 ordinary committed, etc. Hankford : The ordinary him- 
 self will not be charged unless the goods come into his 
 possession. For the Statute which gives the action is, 
 "If the goods of the deceased come to the hands of the 
 ordinary to dispose of." Consequently, if the defendant 
 did not get the goods he shall not be charged. Westbourn : 
 The taking of the letters of the ordinary is administra- 
 tion, etc. Which CoKAYN conceded. 
 
 Case 3. Reported in Y. B. Paschal (not Mich.), 9 Hen. V, p. 6, pi. 20. 
 
 The Statute is that of Westminster the Second, 13 Ed. I (1285) , cap. 
 19, Stats, at Large, Vol. 1, p. 163 (194). The meaning of the words 
 is fairly well given in the text, but the words themselves are misquoted. 
 See also Fitzh: Administrators, 10. 
 
 '"Vivant" is an error in Statham for "mourant." 
 
ADMINISTRATOURS 37 
 
 (4) In debt against a man as administrator, who said ^""° ,„ 
 
 , , .... . , , . , 8 Hen. VI. 
 
 that the admmistration was committed to him and to one 
 B ; and because he did not say that the said B administered, 
 the opinion was that it was no plea. And as it seems there 
 is a difference where the administration is committed to 
 two, and where it is committed to one; for where it is com- 
 mitted to one, the acceptance of the letters is administra- 
 tion, but when it is committed to two, although one 
 receives the letters, the other can refuse, wherefore query? 
 etc. 
 
 And see, in the same plea, that the letters of the ordinary 
 are traversable; that is to say, "he did not commit them," 
 but it is otherwise as to a will. But yet a man shall have 
 the averment that he died intestate, although the testa- 
 ment be approved by the ordinary, etc. Query? 
 
 The case has not been identified in Y. B. Anno 8 Hen. VI. Brooke Case 4. 
 has two cases (Administrators, 24; 27) of Debt against administrators, 
 in 8 Hen. VI, but they do not agree with Statham's abridgment. 
 
 (5) In debt brought by administrators, who showed the Paschal 
 letters of the deputy of the ordinary. And it was adjudged 
 clearly sufficient. But it is otherwise if one alleges excom- 
 munication, etc., but it was said that is by Statute. 
 (Query? For I have not seen such a Statute.) 
 
 Reported in Y. B. Paschal, 11 Hen. IV, p. 64, pi. 16. The "Statute" Case 5. 
 seems, from the report of the case, to have been merely an opinion 
 taken in Parliament. See also Brooke, Administrators, 18; and 
 Fitzh: Administrators, 12. 
 
 (6) In debt against administrators, the opinion of the Trinity 
 Court was that the plaintiff should show in his count how 
 
 the administration was committed to the defendant, etc. 
 Contrary above. 
 
 Reported at great length in Y. B. Trinity, 11 Hen. IV (not Hen. VI), Case 6. 
 p. 72, pi. 11. 
 
 "Above" is probably case 3, supra. 
 
 (7) In debt against the executors of one J. Fortescue: Trinity 
 This J. died intestate, and the ordinary committed the 
 administration to us. Judgment of the writ. AscouGH: 
 
38 
 
 STATHAM 
 
 Case 7. 
 
 Trinity 
 
 18 Hen. VI. 
 
 Case 8. 
 
 Michaelis 
 18 Hen. VI. 
 
 Case 9. 
 
 Note. 
 
 If they are administrators by their own tort, the commission 
 lies against them as executors. Newton : If the adminis- 
 tration was committed to them, it shall have relation and 
 shall be understood to be [of the time of] the death of the 
 intestate, etc. Query, if it be committed to them pending 
 the writ? 
 
 Reported in Y. B. Hilary (not Trinity), 18 Hen. VI, p. 29, pi. 1. 
 
 (8) Administrators shall have an action of trespass for 
 a trespass made before the administration was committed 
 to them ; and after the death of the testator, although the 
 ordinary has released the action, for no action is given to 
 the ordinary, and consequently he can [not] release any 
 action. And that was well argued. 
 
 And it was said in the same plea, that if a villein brings 
 a writ of Trespass for goods carried away, or a writ of 
 Debt, the release of his lord is a good bar. (Which I do 
 not believe, inasmuch as no property is in the lord before 
 he is seised, etc. But peradventure he can take them, etc.) 
 
 Reported in Y. B. Mich. 18 Hen. VI, p. 22, pi. 7. See also Fitzh: 
 Administrators, 2. 
 
 (9) In debt against one J, as executor of B, who said 
 that the said B made him his executor, and that he refused 
 before the ordinary. And a long time afterwards the ordi- 
 nary committed the administration to us, etc., in which 
 case, etc., judgment of the writ. Portyngton: To that 
 we say that after the death of the testator, and before 
 the administration was committed to him, that he admin- 
 istered. Markham: He does not say that he adminis- 
 tered before the ordinary discharged him, etc. Newton : 
 If he administered at any time before the administration 
 was committed to him, the action lies against him as 
 executor and the commission is void. Markham : Emparle. 
 Query? etc. 
 
 The case has not been identified in Y. B. Mich. 18 Hen. VI, or in 
 the early abridgments. 
 
 See as to administrators, in the title of Executors. 
 Statham, title of Executors, infra, pp. 86 a, to 87 b. 
 
ADMINISTRATOURS 39 
 
 • Statham gives us no early cases of Administration, and therefore 
 does not reach the interesting questions which arise in regard to the use 
 of the terms executor and adminstrator in the discussions of the earlier 
 law. That these terms were used exchangeably seems certain, although 
 the case that Maitland gives [Hist, of Eng. Law, Vol. 2, p. 361, note 2] 
 as in Y. B. 38 Ed. Ill [21] does not seem as exactly on that point 
 as the note would indicate. The Statute of Ed. Ill [Stat. 1, cap. 3, 
 Stats, at Large, Vol. 2, p. 108 (113)] may possibly deserve, as he 
 has said, the distinction of having introduced the name administrator 
 as a technical term into our law. That takes us back to 1357; none of 
 our cases go back as far as that case of 38 Ed. III. For some reason, 
 never to be known by us in all probability, all our cases of Administra- 
 tors save one are in the reign of Henry the Sixth, and the one case not in 
 his reign is in the fiftieth year of Edward the Third. Thus our most 
 satisfactory period in the development of this law is not illustrated by 
 these cases. 
 
 Our first case is evidently under the Statute passed only thirteen 
 years before, but no reference is made to it. A reference is made to a 
 statute in case 3, but it is to the Statute of Westminster the Second, 
 in which the creditor of the testator was given the right to claim his 
 debt. The king's court had begun to give the creditor of the testator 
 rights against the executor; the Statute gives an action against the ordi- 
 nary. Jenks [Hist, of Eng. Law, p. 64] calls the executor a "new 
 person" to the English law of the early thirteenth century; that is to 
 say, a person introduced by no less an instrument than Magna Charta. 
 [Magna Charta of 1215, cap. 26.] It can hardly be supposed, however, 
 that Magna Charta invented the executor; it must have found him 
 ready and waiting to be used. However this may be, the theory that 
 it was the desire of the Church to be represented in the distribution of 
 the goods of the deceased, which led to the legislation which invented 
 first the executor and then the administrator, with the powers which 
 we find them exercising in the reported cases, has some force. Jenks — 
 and he seems to have been the first to do so — traces through the pro- 
 visions of these statutes the rise of the distinction between real and per- 
 sonal property in that the land goes to the heir, the personal property 
 to the executor. 
 
 Of course we have nothing to do with all that in these cases of the 
 Abridgment, but they do bring out the points in regard to the statutes, 
 and, as in so many other cases, we find that the principle which con- 
 trolled the law of the executor and the administrator has never been 
 thoroughly worked out. Most of the learning on the point seems to 
 rest on Selden's statement. [Selden's Collected Works, Vol. 3, p. 1677. 
 On the Disposition of Intestates' Goods.] He thinks that up to the time 
 of Henry First all administration of an intestate's goods was by 
 the friends or kindred, and he seems to be the first to claim that it was 
 after the Statute of 31 Ed. Ill that the "name of administrator was as 
 
40 STATHAM 
 
 common as their office." What we seem to need is an independent exam- 
 ination of the early cases in order to determine just how much of that 
 Statute was a new departure, and just how far it was declaratory of the 
 common law. The statements made by the best and most responsible 
 of our writers — Reeves, Maitland, Holdsworth, and Jenks — are sup- 
 ported by the statutes, of course, and Maitland gives us one case; 
 elsewhere we have none. There is another case which supports Mait- 
 land's in 43 Ed. Ill, 1. [Fitzh: Abr. Administrators, 14.] But it does 
 not appear that administrator, even as a "technical term," was unknown 
 to our law before the Statute of 31 Ed. Ill, as it is used frequently in the 
 earlier cases, unless Maitland means more by the word "technical" than 
 appears on the surface. There is one case in 4 Ed. Ill [Y. B. Mich. 4 Ed. 
 Ill, p. 43, pi. 19] where the administrator and the administration is 
 spoken of, although the term there seems to be interchangeable with that 
 of executor. The earliest use seems to be in very much that way; the 
 phrase is "executor and administrator" or "executor or administrator." 
 In Y. B. Mich. 17 Ed. II, 502, 603, it is "administered as ordinary." 
 "Those who have administration." [Y. B. Paschal, 18 Ed. II, 607.] "To 
 have the administration of all the goods." [Y. B. Mich. 10 Ed. II, 303.] 
 The administrator as we know him to-day may be argued out of all these 
 cases, yet administrator he is, and known to the law as such; there may 
 be a will, and he seems to have rights under a will as a modern adminis- 
 trator has not, but neither was the executor of the day an exact dupli- 
 cate of our modern executor. The administrator was known; the 
 question is just what his duties were and his powers, and how was he 
 differentiated from the executor. Was he at first the same, and how, if 
 so, did they gradually get to be two persons? The answer is as yet not 
 known. 
 
 The figure of the administrator, his rise and progress through the 
 early years, in spite of the thin threads of learning about him running 
 through all the books, and to be traced through Glanville, Britton, 
 Lyndhurst, Perkins, Selden and the modern writers, seems still dim, 
 vague, unformed. The Year Books hold his portrait in fragments, 
 some time, it is to be hoped, to be pieced together and made a complete 
 figure in the perfected portraiture of the time in which he now moves 
 only as a shadow. 
 
 AGE'S 
 
 atham 4 b. (1) A man sliall not have his age in a Contra Formam 
 nary Collatiofiis at the Scire Facias, etc. By the opinion of the 
 
 «^°- ^v- Court, etc. 
 
 ise 1. Reported at length in Y. B. Hilary, 2 Hen. IV, p. 16, pi. 24. See also 
 
 Brooke, Age, 11. 
 
AGE 41 
 
 The Contra Formam CoUationis was a writ granted when a man had 
 given alms to any of the House to support the poor, or to do some 
 religious service; if they alienated the lands the donor or his heir had 
 the rent. 
 
 (2) If a man enfeoffs his heir, who is under age, of land in Michaeiis 
 fee simple, and dies, the issue shall have his age, and the para- 
 mount warranty. And this by Fyncheden, in a Formedon. 
 
 Reported in Mich. 40 Ed. Ill, p. 43, pi. 27. And see Y. B. Mich. Case 2. 
 43 Ed. Ill, p. 23, pi. 17. See also Brooke, Age, 56; and Fitzh: Age, 31. 
 
 (3) The father and the son, under age, purchase lands Paschal 
 to them and to the heirs of the father; then the father dies 
 
 and the son is empleaded; he shall have his age, because 
 the action lies against him by reason of the freehold which 
 he had in the lifetime of his father, etc. By Fyncheden, 
 in a Dum fuit infra Mtatem, etc. 
 
 Reported in Y. B. Mich, (not Paschal), 30 (not 43), Ed. Ill, p. 17, Case 3. 
 pi. 20. Fitzh: Age, 58. 
 
 (4) In a praecipe quod reddat, the tenant said that Trinity 
 his father died seised and he was in as heir, under age, 
 
 and he prayed his age. Belknap : Your father did not die 
 seised: Ready, etc. Fyncheden: That is no plea, for it 
 may be that his father was disseised and that the heir 
 entered after his death, etc. Upon which it was adjudged 
 that he should have his age, etc. 
 
 Reported in Y. B. Trinity, 43 Ed. Ill, p. 18, pi. 2. See also Brooke, Case 4. 
 Age, 7; and Fitzh: Age, 35. 
 
 (5) In a quod ei deforceat, the tenant vouched one Michaeiia 
 under age to warranty, upon which the plea was stayed, etc. 
 Fyncheden : The writ is that she claims to hold in dower, 
 
 in which case the woman should be in the same condition 
 in which she would be in a writ of Dower. Which Thorpe 
 conceded. Query, if he shall show cause for the voucher, 
 as he shall, in a writ of Dower? 
 
 Reported in Y. B. Mich. 44 Ed. Ill, p. 42, pi. 49. The report of Case 6. 
 the case omits the claim of the woman to hold in dower, but in the 
 margin "Statham 5" is cited. See also Fitzh: Age, 38. 
 
42 
 
 STATHAM 
 
 Trinity 
 47 Ed. III. 
 
 Case 6. 
 
 (6) In a writ of error against two, one was under age 
 and prayed his age, and because he was not tenant and the 
 other was tenant, he was ousted of his age, etc. 
 
 Reported at great length in Y. B. Mich, (not Trinity), 47 Ed. Ill, 
 p. 7, pi. 4. The report refers to "Statham, Age, 6." See also Brooke, 
 Age, 9; and Fitzh: Age, 43. The latter gives a very long digest of the 
 
 Hilary 
 
 50 Ed. III. 
 
 Case 7. 
 
 Paschal 
 3l;Ed. III. 
 
 Case 8. 
 
 Hilary 
 6'Ed. III. 
 
 Case 9. 
 
 (7) In formedon, for default of the tenant one prayed 
 to be received, and he said that he was under age, and 
 that the reversion descended to him, arid he prayed his 
 age. And the opinion of Willoughby was that he should 
 not have it, etc. 
 
 The case has not been identified in Y. B. Hilary, 50 Ed. Ill, or in the 
 early abridgments. 
 
 (8) In a per que servicia, or in a Quid Juris Clamat, 
 the tenant shall not have his age, because the land is 
 demanded against him. But yet, query as to the Quid 
 Juris Clamat, inasmuch as he can claim a fee and so lose the 
 land. 
 
 And it was said in the same plea that a man shall not 
 have his age in Cessavit of his own cesser; nor in a writ of 
 Admeasurement of Dower. And that well debated in a 
 Per que Servicia, etc. 
 
 There is no printed year for 31 Ed. III. The case has not been 
 identified in the early abridgments. 
 
 (9) In a writ of entry in which he had no entry except 
 by one H, who disseised the father of the demandant, the 
 tenant said that the demandant was under age, and de- 
 manded judgment if, during the nonage, he shall be received 
 to this writ, which is in the right. And it was adjudged 
 that the plea should stay, for the Statute is not intended to 
 apply except to the entry of the heir of the disseisor, and 
 the heir of the disseisee. 
 
 Reported in Y. B. Hilary, 6 Ed. Ill, p. 3, pi. 4. See also Fitzh: Age, 
 62. 
 
 The Statute is that of 13 Ed. I (1275), cap. 49, Westminster the 
 First, Stats, at Large, Vol. 1, p. 74 (105). 
 
AGE 43 
 
 (10) In a cui in vita, the tenant vouched the heir of ^g^^^'ji 
 the husband of the demandant to warranty. And because 
 
 he was under age, etc., it was adjudged that the plea should 
 stay, because the Statute is, "Let the purchaser tarry," which 
 is only to be understood as for the alienee of the husband, 
 and he who now holds was the heir of the alienee ; so out of 
 the purview of the Statute. 
 
 Reported in Y. B. Mich. 6 Ed. Ill, p. 46, pi. 36. See also Fitzh: Case 10. 
 Age, 46. 
 
 The Statute is that of Westminister the Second, 13 Ed. I (1285), 
 cap. 40, Stats, at Large, Vol. 1, p. 163, (218). 
 
 (11) In a nuper obiit on the seisin of one A, grandfather Paschal 
 of the demandant, and mother of the tenant, the tenant 
 
 was ousted of his age; for Herle said that in this writ the 
 tenant shall not have his age, nor bind the voucher to 
 warranty, etc. Query? 
 
 Reported in Y. B. Paschal, 7 Ed. Ill, p. 13, pi. 6. See also Fitzh: Case 11. 
 Age, 111. 
 
 (12) In a writ of Particione Facienda, the tenant shall have J"^*^**^' 
 his age : By Herle, because when he makes partition by 
 judgment that will bind him. It is otherwise if it be by 
 agreement without judgment, etc. 
 
 Reported in Y. B. Paschal, 8 Ed. Ill, p. 24, pi. 17. Case 12. 
 
 (13) In a scire facias out of a recovery limited against Michaeiis 
 the father of the tenant, for rent, the tenant was ousted 
 
 of his age, etc. 
 
 Reported in Y. B. Mich. 9 Ed. Ill, p. 30, pi. 21. Case 13. 
 
 (14) In a writ of entry against a woman, she said that Michaeiis 
 she was tenant in dower of the heritage of one J, who is 
 under age, of whom she prayed aid, and that the case be 
 stayed. The demandant said that the land was in Gavel- 
 kind, where a man can alienate at the age of fifteen years; 
 
 and we say that the heir is fifteen years, etc. But notwith- 
 standing it was adjudged that the case be stayed, since a 
 custom shall be taken strictly, and he did not say that 
 
44 
 
 STATHAM 
 
 Case 14. 
 
 Paschal 
 10 Ed. III. 
 
 Case 15. 
 
 Trinity 
 10 Ed. III. 
 
 Case 16. 
 
 Paschal 
 11 Ed. III. 
 
 Case 17. 
 
 the custom was that a man shall not have his age if he be 
 past fifteen years. 
 
 Reported in Y. B. Mich. 9 Ed. Ill, p. 38, pi. 44. 
 
 (15) In a cessavit, the tenant bound seisin in his ances- 
 tor. The tenant said that the demandant was under age, 
 and prayed that the cause be stayed. Herle : This writ 
 is in lieu of an avowry, therefore, etc. The tenant passed 
 over of his own free will. 
 
 Reported at length in Y. B. Paschal, 10 Ed. Ill, p. 18, pi. 13. 
 
 (16) In a writ of entry upon a disseisin against a woman, 
 by the heir of the disseisee, the woman prayed the dis- 
 seisor in aid, because she was tenant in dower of his heri- 
 tage. And because he was under age it was adjudged that 
 he should have his age, for the Statute is not applicable 
 except where the writ is brought against the heir of the 
 disseisor. 
 
 Reported in Y. B. Trinity, 10 Ed. Ill, p. 31, pi. 8. See also Fitzh: 
 Age, 92. 
 
 The Statute is that of 3 Ed. I (1275), cap. 47, Westminster the First, 
 Stats, at Large, Vol. 1, p. 105. 
 
 (17) In a scire facias out of a recognisance against the 
 heir of the recognisor, he shall have his age, by award of 
 the Court. The contrary was seen in a Scire Facias out 
 of a recognisance; wherefore, query as to the difference? 
 The law seems to be the same in debt against the heir 
 who is under age, since he shall not have his age, etc., for 
 by the recognisance his right is disproved. But for the 
 recognisor in a Statute Merchant by which his land shall 
 be put in execution, the heir cannot make a recognisance 
 while under age, as to what land is liable and what is 
 not. 
 
 There is no early printed year of 11 Ed. III. It may be the case 
 reported in the Rolls Series, 11-12 Ed. Ill, p. 48. It begins, "In a 
 note," and is a case of a Scire Facias. A man died leaving an infant 
 heir against whom the Scire Facias was brought. The heir claimed his 
 age and had it. Nothing of the remaining matter which is in Statham 
 appears in this report of the case. See also Fitzh: Age, 4. 
 
AGE 45 
 
 (18) In a writ of entry on a disseisin made on the Michaeiia 
 grandfather of the demandant, the tenant said that the ^° ^'^' ^^^' 
 demandant was under age. Stonore (for the demandant) : 
 
 Our grandfather brought an Assize against you for the 
 same land and died while pleading, and our father brought 
 a writ of Entry, and died while pleading, wherefore, etc. And 
 for that reason the tenant was put to answer immediately, 
 etc. Query? 
 
 Reported in Y. B. Mich. 10 Ed. Ill, p. 58, pi. 58. See also Fitzh: Case 18. 
 Age, 94. 
 
 (19) In an assize the plaintiff appeared by guardian. Michaeiis 
 The tenant said that the plaintiff was of full age the day ^^ ^'*- "'• 
 the writ was purchased, and prayed that he be viewed. 
 
 To which the justices said that the plaintiff should not be 
 delayed by such an allegation, unless he showed matter that 
 would bind him [if he were of full age]^; wherefore the 
 tenant pleaded the release of the plaintiff, of all actions, 
 and prayed that he might be viewed. Sharshull : It is 
 of record that we were guardian. And it was not allowed, 
 but a day was given for him to be viewed. 
 
 There is no early printed year of 12 Ed. III. The case is to be found Case 19. 
 in the Rolls Series, Y. B. 12 Ed. Ill, pp. 21-25. The judge there 
 appears as Shardelowe, not Sharshull. 
 
 (20) In a juris utrum against one under age; who said Paschal 
 that one A, who was a bastard, held certain lands (which 
 
 were put in view) of his father, whose heir he is, and that 
 
 the seignory descended to him, and that he was seised of statham 5 a. 
 
 the services by the hand of the said A; and then A died 
 
 without issue, wherefore he entered as in his escheat, by 
 
 reason of the seignory which had descended to him, and 
 
 he prayed his age. To which the demandant said that he 
 
 did not claim anything in the services,^ but he prayed a 
 
 jury for the demesne which your ancestor never had, 
 
 etc. And it was adjudged that the defendant should have 
 
 his age, because the land had come in lieu of the services 
 
 which had come to him by descent, etc. 
 
 'Words not in Statham, taken from the report of the case. 
 "Seignory, in Statham. See also Fitzh : Age, 46. 
 
46 
 
 STATHAM 
 
 Case 20. 
 
 Hilary 
 
 19 Ed. III. 
 
 Case 21. 
 
 There is no early printed year of 16 Ed. III. The case is printed in 
 the Rolls Series, 16 Ed. Ill, Pt. 1, pp. 245-49. As usual it would appear 
 that Statham had access to some report of the case not known to the 
 editors of this series. 
 
 (21) In a cui in vita, the tenant vouched one J, who was 
 the feoffee of the husband, who entered into the warranty 
 and vouched the heir of the husband, who was under 
 age, and he prayed that the case be stayed. And the 
 demandant prayed seisin of the land, but he could not 
 have it, because the Statute only extends to cases where 
 the tenant in demesne vouches the heir. 
 
 And in the same term, in a writ of Entry brought by the 
 heir of the disseisee against one A, who vouched to war- 
 ranty the heir of the disseisor, he prayed that the case be 
 stayed because he was under age; and so it was adjudged, 
 since the Statute extends only to cases where the writ is 
 brought against the heir of the disseisor by the heir of 
 the disseisee, etc. And so see that these statutes are taken 
 strictly. (And I believe that the reason is because they are 
 in restraint of the common law, etc.). 
 
 There is no early printed year of 19 Ed. III. The case has not been 
 identified in the Rolls Series. 
 
 The Statute is that of Westminster the First, 1 Ed. I (1275), cap. 47, 
 Stats, at Large, Vol. 1, p. 105. 
 
 15 Ed^iii ^^^^ ^** ^ scire facias against one under age, out of a 
 recovery limited against his father, he was ousted of his 
 age, because by the recovery the right of his father was 
 defeated and disproved. But it is otherwise as to a fine 
 or recognisance. By Willoughby and Sharshull, etc. 
 
 Case 22. There is no early printed year of 16 Ed. III. What appears to be a 
 
 long report of the case, from which this very short abridgment of 
 Statham's is taken, appears in the Rolls Series, Trinity, 15 Ed. Ill, 
 pp. 236-42. See also Fitzh: Age, 95, where a long report of the case 
 is given. 
 
 19 Ed^iii ^^^^ '** ^ *^"^ "* ^*^^ against the alienee of the husband 
 of the heir, the husband was under age, and he prayed 
 that the case be stayed. And the demandant had judg- 
 ment to recover immediately. Which note. Thorpe: 
 
AGE 47 
 
 How shall we get to our warranty when the heir comes of 
 age? Stonore: The tenant shall have a Scire Facias 
 against the vouchee when he comes to his age, and the 
 vouchee shall show such matter to the tenant as he should 
 against the demandant if the demandant were in Court. 
 And if the Court sees that he shows sufficient matter to 
 bar the demandant, a Scire Facias shall issue against the 
 demandant, and he shall answer to the bar; and if he is not 
 able to do that, the tenant shall recover his land, etc. 
 Thorpe said, "That is marvelous!" 
 
 There is no early printed year of 19 Ed. III. No case of a Cut in Case 23. 
 Vita appears in that year and term in the Rolls Series. 
 
 (24) In a writ of Entry in consimili casu, the tenant said Trinity 
 that the demandant was under age, etc. And it was not 
 allowed, and yet the lease was made by his father, etc. 
 
 (I believe that was because of the Statute, etc.) 
 
 Reported in Y. B. Hilary, 18 Ed. Ill, p. 2, pi. 9. See also Fitzh: Case 24. 
 Age, 10. 
 
 The Statute is apparently that of 6 Ed. I (1278), Stats, at Large, 
 Vol. 1, p. 120. 
 
 (25) A woman was received to bring a writ of Mesne, Trinity 
 
 -18 Ed III 
 
 with her husband, during his nonage, although that is a 
 writ of right, etc. 
 
 See report of the case in Y. B. Hilary (not Trinity), 18 Ed. Ill, p. 2, Case 25. 
 pi. 9. Case 24, supra. This point appears on p. 3 of the report of 
 the case. 
 
 (26) In formedon in the descender, the tenant said that Trinity 
 
 1ft TTH TTT 
 
 the plaintiff was under age, judgment, etc. Sharshull: 
 This writ is given in place of the Assize of Mort d'Ancestor, 
 wherefore answer. Wherefore he pleaded a recovery against 
 a stranger and a mesne gift. The demandant answered 
 that the gift was before the title of the writ, wherefore the 
 tenant should answer: Ready, etc. Thorpe now prayed 
 that the case be stayed, inasmuch as the plaintiff could 
 not acknowledge, etc. Sharshull: That plea comes from 
 his part, but if the deed of his ancestor had been pleaded 
 in bar, then the case would be stayed ; wherefore answer, etc. 
 
48 
 
 STATHAM 
 
 Case 26, There is no early printed year of 16 Ed. III. The case has not been 
 
 identified in the Rolls Series. Fitzh: Age, 45, has what may be an 
 abridgment of the case. 
 
 Paschal 
 24 Ed. III. 
 
 Case 27. 
 
 (27) If a writ of entry upon a disseisin be brought by the 
 heir of the disseisee against the heir of the disseisor, under 
 age, the opinion is that he shall have his age, because the 
 demandant did not make fresh suit, but suffered him to 
 continue in possession years and days; for the Statute is 
 that by the nonage of the one nor the other shall the plea 
 be delayed, but as much as a man can without offending 
 the law, the plea shall be hastened by fresh suit after 
 the disseisin, etc. 
 
 Reported in Y. B. Paschal, 24 Ed. Ill, p. 25, pi. 12. The last part 
 of the case is a quotation from the Statute of 3 Ed. I, cap. 47, West- 
 minster the First (1275), Stats, at Large, Vol. 1, p. 105. The case as 
 reported in the Year Book, and the digests as given by Fitzherbert, 
 Age, 101, and Brooke, Age, 22, do not sustain Statham's abridgment 
 of the case. The age is distinctly refused. Fitzherbert gives the case as 
 in Trinity Term ; Brooke makes an error in the chapter of the Statute, 
 making it chapter 46. 
 
 Trinity 
 24 Ed. III. 
 
 Case 28. 
 
 (28) One H recovered damages against one F, in a suit 
 of intrusion of wardship. And the executors of H sued a 
 Scire Facias against F, and the sheriff returned that he was 
 dead, wherefore he had a Scire Facias against one M, who 
 was terre-tenant; who said that one S, his father, died 
 seised of the same land, and he was his heir, and under age, 
 and he prayed his age and had it, because his father was 
 a stranger to the recovery. But if the recovery had been 
 tailed against his ancestor it had been otherwise. WiL- 
 LOUGHBY: The reason is, as it seems, inasmuch as the 
 recovery was for another thing, etc. Query also, if the land 
 be executory in this case, for it seems that he shall not 
 have execution except of the goods and chattels of F, etc., 
 or by elegit? 
 
 What appears to be a very poor report of this case is found in Y. B. 
 Trinity, 24 Ed. Ill, p. 28, pi. 11. The same report appears to have 
 been used by Fitzh: Age, 102, and Brooke, Age, 24. See also Y. B. 
 Trinity, 24 Ed. Ill, p. 56, pi. 43, where there is a longer report of the 
 
AGE 49 
 
 (29) In f ormedon, the tenant made default after default. Michaeiis 
 Came one F, and said that one H was seised and leased ^ ^'^' ^^^' 
 to the tenant for life, remainder to the father of F, and his 
 
 heirs in fee; and F is dead, and he prays to be received 
 as his heir. And because he was under age, etc. Newton : 
 He is in as purchaser, for he has shown the gift which is 
 his title; and his father never had possession, wherefore 
 he is a purchaser, etc. Thorpe: He is seised of the same 
 thing by descent, wherefore he prays to be received, that is 
 to say, of the reversion and of the right, etc. And they 
 adjourned, etc. Query? 
 
 The reports of this case as printed in the Year Books are long and Case 29. 
 confused. See Y. B. Mich. 24 Ed. Ill, p. 32, pi. 16; and Y. B. Mich. 
 24 Ed. Ill, p. 76, pi. 101. No decision was come to in either case, but 
 there was apparently a further report in 25 Ed. Ill, which is not found 
 in the printed Year Books. 
 
 (30) In a scire facias one prayed to be received upon Hilary 
 default of the tenant, and he prayed his age, and was ^^ ^^- ^^^^ 
 ousted, etc. (And I believe that that was because of the 
 Statute which ousts delays in a Scire Facias. Distinguen- 
 
 dum est, etc.) 
 
 There is no early printed year of 19 Ed. III. The case has not been Case 30. 
 identified in the Rolls Series for that year, or in the early abridgments. 
 
 The Statute is probably that of Westminster the First, 3 Ed. I (1275), 
 cap. 45, Stats, at Large, Vol. 1, p. 104. 
 
 (31) In attaint against the heir of the tenant he shall Michaeiis 
 not have his age, because before he comes to his age all ^ ^'^' ^^'' 
 the jurors might be dead, in which case he will lose the 
 attaint, etc. But it is otherwise in a writ of Error. And 
 
 yet, all the same, if a writ of Error is brought against him 
 who is a party he shall not have his age; and in deceit 
 against the heir of the tenant, he shall not have his 
 age, because the gamishers or summoners may be dead 
 before he comes to his age, etc. By WiLLOUGHBY and 
 Sharshull. 
 
 The case has not been identified in Y. B. Mich. 24 Ed. Ill, or in the Case 31. 
 early abridgments. 
 
50 
 
 STATHAM 
 
 Trinity 
 24 Ed (II. 
 
 Case 32. 
 
 Hilary 
 
 43 Ed. III. 
 
 (32) Land descends to a woman was under age, who 
 takes a husband of full age; they are empleaded; she 
 shall not have her age ; by the opinion of Sharshull, in a 
 ProRcipe quod Reddat. 
 
 The case has not been identified in Y. B. Trinity 24 Ed. III. Fitzh: 
 Age, 134, has practically the same abridgment of the case, but an 
 incomplete citation. He gives Hilary as the Term. 
 
 (33) In a quid juris clamat by one under age, against 
 one who said that the ancestor of the plaintiff leased the 
 land to him for life, without impeachment of waste, by 
 this deed (which he showed), and, saving the advantage 
 to him, he is Ready. And because the plaintiff could not 
 acknowledge the deed of his ancestor during, etc., it was 
 adjudged that the case stay, etc. But yet, query? And 
 inasmuch as he demanded only an attornment [he should 
 answer]. And also it seems that in that case he should 
 answer to the deed of his ancestor, for if it was the deed 
 of a stranger he should answer in that case, etc. 
 
 Case 33. 
 
 Paschal 
 60 Ed. III. 
 
 Statham 5 b. 
 
 Case 34. 
 
 Hilary 
 8 Ed. III. 
 
 Reported in Y. B. Hilary, 43 Ed. HI, p. 5, pi. 11. A short case, 
 also Brooke, Age, 57, and Fitzh: Age, 34. 
 
 oec 
 
 Case 35. 
 
 (34) The youngest son in Borough English shall not 
 have his age: By Thorpe. And the law is the same for 
 the youngest son in Gavelkind, etc. In Formedon, etc. 
 Then, query? If the action be brought against him and 
 his elder brother, who is heir at the common law? 
 
 The case has not been identified in Y. B. Paschal, 50 Ed. HI. There 
 is no Paschal Term for 50 Ed. II in the printed years, and the case 
 has not been identified in Brooke or Fitzherbert. 
 
 (35) If one under age makes a recognisance, if he wishes 
 to avoid it by a plea, when he comes to his age, or while 
 he is under age, and he cannot, etc., shall he have a writ of 
 Error while he is under age, as he would have on a fine? 
 See [this case] for it was well debated, in an Audita Querela, 
 etc. Query, if the recognisance was in the Chancery, how 
 would the error be sued, etc.? 
 
 The case has not been identified in Y. B. Hilary, 8 Ed. Ill, or in the 
 early abridgments. 
 
AGE 51 
 
 (36) Shall one under age be forced to make partition? g ^'^''^yj 
 See the title of Partition. Well debated. And see also 
 
 in the same term, as to those who are under age, in the 
 title of Laborers. 
 
 The point abridged by Statham appears at the end of a very long Case 36. 
 case which is printed in Y. B. Paschal, 9 Hen. VI, pp. 5-7, pi. 13. The 
 point in question is printed on page 7. 
 
 (37) Where the remainder is limited to the right heirs J"'^^^ 
 of one B, which B is dead at the time of the grant, so that 
 
 the remainder can take effect, the heir of B shall not have 
 his age, for he is a purchaser (as if it came to him in his 
 own name). But where land is given to one for the term 
 of his life, the remainder over in tail, and the remainder 
 to the right heirs of the tenant for life; and then the 
 tenant for life dies, and the tenant in tail dies without 
 issue, the issue of the tenant for life shall have his age, by 
 the possession which his father had at one time. Query? 
 etc. And, by the opinion of Hankford, where his father 
 might have had possession by any possibility, he shall 
 have his age, as if land be given for life, the remainder to 
 one D and his heirs. D dies and the tenant for life dies, and 
 the issue of B enters under age ; he shall have his age, because 
 it is possible his father could have had [possession]. And 
 his father also had the fee and the reversion, for he could 
 have had an action of waste and a writ of Intrusion. And 
 see the year 40 Ed. Ill, in the case the Provost of Beulay. 
 
 Case of a Scire Facias. Printed in Y. B. Trinity, 11 Hen. IV, p. 74, Case 37. 
 pi. 14. See also Brooke, Age, 15; and Fitzh: Age, 25. They vary 
 much in their matter. 
 
 (38) In a writ of entry in the Per, it was alleged that Michaeiis 
 the tenant had no entry except by one H, who disseised the ^ ^^"' ^^" 
 father of the demandant. Danby — by way of protes- 
 tation — said that the said H did not disseise your father ; 
 
 but we say that the said H had us as issue, and then he 
 enfeoffed us of this same land in tail, and died; so we 
 vouch ourselves as heir of this H to save the tail. And 
 because we are under age we pray that the case be 
 stayed. Moile: That cannot be, for you are yourself the 
 
52 
 
 STATHAM 
 
 Case 38. 
 
 person against whom the writ is brought, and by your 
 own confession you are heir of the disseisor, wherefore you 
 are within the purview of the Statute. Newton : That is 
 not so, for although he be his heir the writ is brought 
 against him as purchaser ; and inasmuch as he has vouched 
 himself as heir, he is now in as tenant by the warranty, 
 and the Statute does not apply except where the writ is 
 brought against him as tenant of the land and heir to the 
 disseisor at the commencement, etc. For if in such a 
 writ the tenant vouches to warranty the heir of the dis- 
 seisor, who is under age, the case will stay, for the above 
 reason: so here. And they adjourned, etc. 
 
 The case has not been identified in Y. B. Mich. 27 Hen. VI, or in 
 the early abridgments. 
 
 The Statute is that of Westminster the First, 3 Ed. I (1275), Stats, 
 at Large, Vol. 1, p. 105. 
 
 Paschal 
 42 Ed. III. 
 
 Case 39. 
 
 (39) In formedon by one under age, the case will not 
 stay by reason of nonage, because the action is given in 
 lieu of an Assize of Mort d'Ancestor. But if the deed of 
 his ancestor be pleaded in bar, the case will stay, although 
 the deed be enrolled. 
 
 Reported in Y. B. Paschal, 42 Ed. Ill, p. 13, pi. 23, where a reference 
 is given to this case in Statham. The placita in Statham are not num- 
 bered, but the Year Book cites the case as "Statham, 39," which is 
 correct. See also Fitzh : Age, 32. 
 
 Trinity (40) In 3 WTit of dower, the case will not stay because of 
 
 the nonage of any person, for if so she might die before 
 the [coming of] age, etc. 
 
 The case has not been identified in Y. B. Trinity, 47 Ed. Ill, or in 
 the early abridgments. 
 
 Case 40. 
 
 Hilary 
 
 24 Ed. III. 
 
 (41) In a scire facias by one under age, a deed of the 
 ancestor was pleaded in bar, and "assets by descent." The 
 demandant said that "nothing, etc." The defendant 
 prayed that the case be stayed. Nottingham: You 
 come too late, for you should have said that in your 
 plea, but now that you have suffered the plaintiff to reply 
 to you, it will be in his election whether, etc. 
 
AGE 53 
 
 And it was said in the same plea, that in a writ of Mort 
 d'Ancestor or of Cosinage, if the deed of another ancestor 
 be produced the case will stay, notwithstanding the Statute, 
 etc. Query? etc. 
 
 The case has not been identified in Y. B. Hilary, 24 Ed. III. Fitzh: Case 41. 
 Age, 100, reports a similar case as in Y. B. Mich. 23 Ed. Ill, p. 22, 
 pi. 16, but the two abridgments and the case as reported all differ in 
 essential points. 
 
 (42) If an idiot be vouched, and bound by the deed of Michaeiis 
 his ancestor, and his lands are seised into the hands of the ^ ^^' ^"' 
 king, the case will stay until, etc. Query, if he shall answer 
 without the king, in that case? And if so, shall he answer 
 
 by his next friend, to whom the land is committed, etc? 
 See as to this matter in a note. 
 
 The case has not been identified in Y. B. Mich. 9 Ed. Ill, or in the case 42. 
 early abridgments. 
 
 (43) Two brought a Dum fuit infra Mtatem. And Trinity 
 because one was under age it was adjudged that the case ^^ ^^- '"• 
 should stay against both : and Willoughby gave as his 
 reason that if the release of their ancestor were pleaded in 
 
 bar, he who was under age could not answer that, and 
 consequently the other could not, because the deed was 
 entire, etc. Query? 
 
 A short report of the case is printed in Y. B. Trinity, 30 Ed. Ill, Case 43. 
 p. 7, pi. 2. See also Fitzh : Age, 82. Neither the reports of Fitzherbert 
 mention WiLLOUGHBY. 
 
 (44) The heir of the disseisee brought a writ of Entry Hilary 
 upon a disseisin against the wife of the disseisor, who was ^ ^^- "'■ 
 tenant in dower of the inheritance of the heir. She vouched 
 
 the heir and the case was stayed, because it is not within 
 the purview of the Statute, unless the action be brought 
 against the heir, etc. 
 
 There is no printed Year for 34 Ed. III. The case has not been Case 44. 
 identified in the early abridgments. 
 
 The Statute is that of Westminster the First, 3 Ed. I (1275), Stats, 
 at Large, Vol. 1, p. 105. 
 
54 
 
 STATHAM 
 
 Michaelis 
 11 Hen. IV. 
 
 Case 45. 
 
 Note. 
 
 (45) In a scire facias, the tenant prayed aid of one J, 
 as son and heir of one B, and because he was under age 
 he prayed that the case should stay and so it was adjudged. 
 But that was a Scire Facias out of a fine, etc. And the 
 law seems to be the same in a Scire Facias out of a recogni- 
 sance, inasmuch as it is not brought against the heir of 
 him against whom the recovery was made. But if the heir 
 of him against whom the recovery was limited be prayed 
 in aid, and is under age, query if the case would stay, 
 inasmuch as the action is not brought against him? 
 
 The case has not been identified in Y. B. Mich. 11 Hen. IV, or in 
 the early abridgments. 
 
 Query, if the king brought an action against one who 
 was under age, should he have his age in any case? 
 
 Michaelis 
 13 Hen. VI. 
 
 Case 46. 
 
 (46) In a writ of annuity against a parson of a church, 
 who prayed in aid the heir of his patron, who was under 
 age, and that the case should stay. And he could not 
 have it, etc. 
 
 The case has not been identified in Y. B. Mich. 13 Hen. VI, or in the 
 early abridgments. 
 
 Anno 
 1 Ed. 11. 
 
 Case 47. 
 
 (47) In an assize of Mort d'Ancestor, the tenant shall 
 have his age. In an Iter of Northampton. 
 
 The case has not been identified in the Year Book of Ed. II, or in 
 the early abridgments. 
 
 Paschal 
 8 Ed. III. 
 
 Case 48. 
 
 (48) In a writ of Particione Facienda, the tenant shall have 
 his age. 
 
 This appears to be a second abridgment of Paschal, 8 Ed. Ill, p. 24, 
 pi. 17. See case 12, supra. 
 
 Michaelis 
 3 Ed. II. 
 
 Case 49. 
 
 (49) In waste against a tenant pro indiviso, for waste 
 made by his father, he was ousted of his age. See the 
 Statute. 
 
 Reported in Y. B. Mich. 3 Ed. II, p. 54, pi. 1. 
 
 The Statute is that of Westminster the Second, 13 Ed. I (1285), 
 cap. 22, Stats, at Large, Vol. 1, p. 196. 
 
AGE 65 
 
 (50) In a writ of entry upon a disseisin, by the heir of Michaeiis 
 the disseisee, albeit he was not the immediate heir, but 
 was heir to another who was heir to the disseisee and 
 under age, still the case will not stay, for he is in the case of 
 the Statute, if he makes himself heir to the disseisee. 
 
 The case has not been identified in Y. B. Mich. 12 Ed. II. Case 50. 
 
 The Statute is that of Westminster the First, 3 Ed. I (1275), cap. 47, 
 Stats, at Large, Vol. 1, p. 105. 
 
 ' This is another title which has dropped out of our abridgments and 
 digests. Necessarily the matter treated of is as much a part of the law 
 as ever. The minor is still protected and still used as a shield in our 
 modern law, even as he was of old. The particular kind of "age" we 
 have in these cases is the "age prier," in which an infant shows to the 
 Court that he is under the legal age and prays that the action may stay — 
 the parole may demur — until he comes of age. This is the reason 
 why some authorities say that the plea is called "parole demur.'' The 
 difficulty lies in the translation of "parole" which means plea, cause, or 
 action, yet which is a little different from any one of them. The word 
 has split up into remnants of meaning, none of which cover the whole 
 content of the old word. 
 
 And we are to "note well" that there are many diversities of ages. 
 "For the lord shall have aid of his tenant in socage to marry his daughter 
 when the daughter is of the age of seven years, and aid to make his son 
 and heir a knight when he is of the age of seven years . . . also that 
 is the age of male and female to sue and be sued for lands which they 
 have or claim by descent," which is the chief point of all these cases here 
 collected. The idea, of course, was to protect the infant; in too many 
 cases it is evident that the plea was made to delay justice. The infant 
 is often "demanded" and "viewed," and sometimes seen clearly to be of 
 age, and sometimes not. That the plea was often used for delay is 
 shown by the fact that it was not allowed to be made in writs of dower 
 to keep the widow out of her portion. But Bracton gives an exception to 
 this [Bracton, 422, b.] in the special case "where the grandfather of a 
 minor has endowed his wife, and she after the death of her husband has 
 not claimed dower for a long time, to wit, ten, twenty, or thirty years, in 
 the lifetime of the heir of her husband, and upon the death of that heir 
 before the assignment of dower, his heir having been left a minor, if the 
 wife can then claim on account of dower, such an heir shall not answer 
 to her before he is of age." "Likewise he shall answer under age some- 
 times if the answer touches the king. " [Twiss : Bracton VI, 335, f . 422, b.] 
 It was not allowed in an Assize. In our case 11 the aid prayer is refused 
 in the case of a nuper obiit. The age is also refused in case 31, in an 
 attaint, "because before he comes to his age all the jurors might be dead, 
 in which case he will lose the attaint, etc." This reason — that all the 
 
56 
 
 STATHAM 
 
 jurors or the widow might be dead before the heir can reach his full 
 age — is often given where the Statute cannot be made to apply. 
 Through all the cases the fact that this had come to be a plea for delay 
 becomes more and more plain, and that the Statute was made to "oust 
 delays" as our case 30 has it. The youngest son in borough English is 
 denied his age in our case 34, but of course this is the special customary 
 law of Kent. The plea was not allowed in a Formedon, since this writ 
 was in the place of a Mort d'Ancestor, and the exception was not 
 allowed in that writ. However, our case 47 is contrary to this. Brac- 
 ton treats of this plea as one of the exceptions which are available to the 
 tenant against the person of the claimant, and which were dilatory 
 and temporary. [Bracton, f. 421.] The exception did not abate the 
 writ but delayed it until the heir reached his majority. Our case 32, 
 where the woman under age marrying a man of full age is denied the 
 exception, is directly contrary to Bracton [Bracton, f. 423, b. Twiss, 
 Brae. VI, pp. 341-42], who says: "Likewise a person may have an 
 exception by reason of an adjunct person, which he would have of him- 
 self, as between husband and wife, as if the husband, being of full age, 
 should take to wife someone with an inheritance who was under age, 
 and they should be impleaded concerning a tenement of the wife's, on 
 account of the minority of the wife the trial shall be stayed without 
 day, until the wife, whose right should be at stake, has attained full 
 age." 
 
 Bracton [ff. 424, b, 425, a] goes very elaborately into the manner of 
 proving age. The detail with which he treats the subject is in itself 
 sufficient to show its importance at that time, and, as a matter of that 
 older procedure out of which has grown our own procedure, is a matter 
 of interest to us to-day. 
 
 AIDE 
 
 statham6a. (1) A man shall have aid in a Scire Facias out of a 
 Hilary Coutra Formam Collationis : By the opinion of the Court, etc. 
 
 Tenant in tail after possibility [of issue extinct] was ousted 
 
 of the aid in the same term. 
 
 2 Hen. IV. 
 
 Case 1. The case of the Scire Facias has not been identified in Y. B. Hilary, 
 
 2 Hen. IV. The case of a tenant in tail after possibility, etc., is 
 reported in Y. B. Paschal, 2 Hen. IV, p. 17, pi. 2. See also Brooke, 
 Aide, 37. 
 
 Hilary 
 40 Ed. III. 
 
 (2) In debt upon a penal sum granted by the predecessor 
 of the defendant upon an annuity which was ratified by 
 the patron and the ordinary, the defendant prayed aid, 
 
AIDE 57 
 
 etc. Belknap: This is only a penal sum, etc., wherefore, 
 etc. Canndish : The plaintiff has a writ of Annuity for the 
 same annuity pending against us in the Court Christian, 
 in which it might be that he will be barred, and so this 
 action would not lie, etc. And by this action our church is 
 to be charged, wherefore, etc. Thorpe: It is reasonable 
 that you have the aid, or else that the plaintiff demur on 
 his action until the writ of Annuity be ended. And they 
 adjourned, etc. 
 
 Reported in Y. B. Hilary,- 40 Ed. Ill, p. 3, pi. 8. See also Brooke, Case 2. 
 Aide, 18; and Fitzh: Aide, 109. 
 
 (3) In a praecipe quod reddat, the tenant said that Hilary 
 one J was seised and leased to him for the term of his life, *° ^'^- "^■ 
 the remainder to K in tail, the remainder to H and S, his 
 
 wife, in the tail; and he prayed aid of K, and of H and 
 S; and of this same S, because she is heir to the donor 
 and under age, and he prayed that the case be stayed. The 
 aid was granted, as above, but it was adjudged that he 
 sue a summons immediately because of the mesne estate, 
 etc. Well debated. 
 
 Reported in Y. B. Hilary, 40 Ed. Ill, p. 13, pi. 29. See also Brooke, Case 3. 
 Aide, 19. 
 
 (4) In a scire facias out of a fine, the tenant showed Paschai 
 how she was tenant in dower of other lands, and that these '^^ ^'^- ^^^■ 
 lands in demand were given to her in exchange for the 
 
 other, by one W, and she prayed aid of the said W, and had it. 
 
 And see in the same plea, a protection was allowed to 
 the party, etc., for which see the Statute of his qucB recordata 
 sunt. 
 
 Reported in Y. B. Hilary (not Paschal), 40 Ed. Ill, p. 18, pi. 9. Case 4. 
 See also Brooke, Aide, 20. 
 
 The Statute is that of Westminster the Second; see case 49, supra. 
 The words are the first words of chapter 45, p. 224, "Quia de Mis qum 
 recordata sunt." 
 
 (5) A man shall have aid in a Scire Facias, but he shall Michaeiis 
 
 . , 41 Ed. III. 
 
 not vouch. 
 
 Reported in Y. B. Trinity (not Mich.), 41 Ed. Ill, p. 16, pi. 10. See Case 5. 
 also Brooke, Aide, 23; and Fitzh: Aide, 111. 
 
58 
 
 STATHAM 
 
 Michaelis 
 41 Ed. III. 
 
 Case 6. 
 
 (6) In a scire facias against a parson on a judgment 
 limited against his predecessor, in a writ of Annuity, he 
 shall have aid of the patron and of the ordinary, notwith- 
 standing he had had the aid in the writ of Annuity, etc. 
 
 Reported in Y. B. Mich. 41 Ed. Ill, p. 20, pi. 5. See also Brooke, 
 Aide, 24, who says "Contrarium, Ed. 3, titel de Scire Facias in Fitzh: 
 152." See also Fitzh: Aide, 112. 
 
 Paschal 
 42 Ed. III. 
 
 Case 7. 
 
 (7) The aid was granted in a writ of Attaint, notwith- 
 standing it was on a judgment given in an Assize, in which 
 none shall have the aid, except he who is named in the Assize. 
 And consequently not in an Attaint. 
 
 Reported in Y. B. Mich, (not Paschal), 42 Ed. Ill, p. 26, pi. 13. See 
 also Brooke, Aide, 25. 
 
 Paschal 
 42 Ed. III. 
 
 Cases. 
 
 (8) Land was given to one G for the term of his life, the 
 remainder to H in tail, the remainder to the right heirs of 
 G; and G had aid of H, notwithstanding the fee was in 
 himself, but it was not executed, etc. And some said 
 that he should have prayed aid of H and of himself by a 
 feigned name, because one should have aid of all in the 
 remainder, etc. 
 
 Reported in Y. B. Paschal, 42 Ed. Ill, p. 8, pi. 4. See also Fitzh: 
 Aide, 113. 
 
 Paschal 
 43 Ed. III. 
 
 Case 9. 
 
 (9) In replevin, the tenant avowed upon the plaintiff as 
 tenant by the curtesy; who prayed aid and had it. 
 
 Reported in Y. B. Paschal, 43 Ed. Ill, p. 13, pi. 5. See also Brooke, 
 Aide, 26. 
 
 Paschal 
 43 Ed. III. 
 
 Case 10. 
 
 (10) In trespass where the plea of the defendant amounts 
 to no more in substance than "not guilty," although they are 
 at issue, he shall have the aid. 
 
 The case has not been identified in Y. B. Paschal, 43 Ed. Ill, or in 
 the early abridgments. 
 
 Paschal 
 44 Ed. III. 
 
 Case 11. 
 
 (11) A master of a hospital, if there is no common seal, 
 shall have aid, as well as a parson of a church. In a Jure 
 d'Utrum also. 
 
 Reported in Y. B. Paschal, 44 Ed. Ill, p. 11, pi. 13. See also Brooke, 
 Aide del Roy, 15; and Fitzh: Ayde de Roy, 64. 
 
AIDE 59 
 
 (12) In trespass against two, one said that the plaintiff ™5f 
 was villein regardant to the manor of D, which the defend- 
 ant held for the term of his life of the lease of one H. The 
 plaintiff said "free," etc., and the defendant had the aid. 
 
 The other defendant said that he came in aid of the other 
 as bailiff, and the plaintiff said "free," and the defendant 
 prayed aid of his master. Fyncheden : The other, of whom 
 he prays aid, is named in the writ, and he has pleaded with 
 the plaintiff, etc. And if in Replevin against two, i.e., 
 the master and his bailiff, if the master makes an avowry, 
 the other is discharged: so here. Wherefore he was 
 ousted of the aid, and had the same day until the inquest 
 was passed between the plaintiff and the other, because 
 that shall make an end of all, etc. 
 
 Reported ia Y. B. Hilary, 45 Ed. Ill, p. 46, pi. 1. See also Brooke, Case 12. 
 Aide, 32; and Fitzh: Ayde, 116, where the citation is incorrect. 
 
 (13) In a scire facias upon a recovery in a writ of Hilary 
 Annuity against a parson, he was ousted of the aid because 
 
 his predecessor had the aid in the writ of Annuity, etc. 
 Contrary 39, in the case of Lira. 
 
 Reported in Y. B. Hilary, 46 Ed. HI, p. 6, pi. 19. See also Fitzh: Case 13. 
 Ayde de Roy, 57. See also case 6, supra. 
 
 (14) A man shall have aid in a writ of Error, of one who Trinity 
 was named in the writ. Query, if he shall have aid of a 
 stranger, etc.? 
 
 The point is embedded in the very long case found in Y. B. Mich. Case 14. 
 (not Trinity), 47 Ed. HI, p. 7, pi. 4. 
 
 (15) In a writ of annuity brought by an abbot against Hilary 
 a vicar, demanding one hundred pounds of wax, on an 
 annual rent of twenty pounds of wax; and he prescribed, 
 
 etc. BURCH : The abbot who is plaintiff is parson of the 
 same church, and holds it to his own use, and that of 
 the bishop and the ordinary; and he found his church 
 discharged ; and he prayed aid of them and had it. Not- 
 withstanding the abbot was plaintiff, and notwithstanding 
 the plaintiff alleged the seisin by the hand of the defend- 
 
60 
 
 STATHAM 
 
 Case 16. 
 
 Hilary 
 
 60 Ed. III. 
 
 Case 16. 
 
 ant. As to which, query? For in a Cessavit against a 
 tenant for hfe, of his own cesser, he shall not have the aid, 
 etc. And so see in that case he shall have the aid of the 
 plaintiff, for otherwise he cannot have the aid of the ordi- 
 nary. But of the plaintiff alone it is wrong to have the 
 aid. And one can also vouch the demandant with another, 
 but not alone, etc. 
 
 The case has not been identified in Y. B. Hilary, 50 Ed. Ill, or in 
 the early abridgments. 
 
 (16) In trespass against two, one justified as "estray," 
 etc., and the other said that he came in aid of him as his 
 servant. The plaintiff said, "Of their tort," etc. The 
 servant prayed aid of his master, and could not have it, 
 because his master had justified that he might make an 
 end of all. But if his master had pleaded "not guilty," 
 etc., and the servant had justified, then he should have had 
 the aid, notwithstanding his master was named. And 
 the law is the same in Replevin. 
 
 The case has not been identified in Y. B. Hilary, 50 Ed. HI, or in the 
 early abridgments. 
 
 Trinity 
 7 Ed. III. 
 
 Case 17. 
 
 (17) A chaplain of a chantry shall have aid of the 
 patron and the bishop, in Avowry, etc. 
 
 The case has not been identified in Y. B. Trinity, 7 Ed. Ill, or in the 
 early abridgments. 
 
 Michaelis 
 30 Ed. III. 
 
 (18) One R. Gillibrond brought a Scire Facias against 
 one H and one Alice, out of a fine to execute a remainder. 
 And he showed how one R was seised. And for the fine 
 it was recited that whereas one T held the same lands 
 for the term of his life, the reversion regardant to R, 
 with remainder to this G, now demandant. Pulton : One 
 R was seised of these same tenements, to him and to the 
 heirs of his body begotten; and he had issue K and M, 
 and died, after whose death the reversion descended to 
 them because their father had leased these same lands 
 to one T for the term of his life, and T died and they 
 entered. And K married H, against whom this writ is 
 brought, and had issue one P. And M took for a hus- 
 
AIDE 61 
 
 band one J, and had issue the said A, against whom, 
 etc. And then K, M and J died, so H holds by the law of 
 England ; the reversion regardant to P, of whom he prays 
 aid. And because he was under age he prayed that the Statham6b. 
 case be stayed. And Alice said that she held in parcenry 
 with H, tenant by the curtesy, and prayed aid of P, as 
 above, and that the case be stayed, etc. Skipwith: 
 You see clearly that they never could have had any parti- 
 tion, wherefore, etc. Willoughby: The tenant by the 
 curtesy de mero jure should have the aid of his issue, then 
 that is in a manner a partition, for he has put another to 
 answer for his portion, then it is reasonable that Alice 
 shall have the aid for the severance aforesaid, where- 
 fore the aid will be granted if you will not say anything 
 else. Skipwith: This R is the same person who granted 
 us the reversion of T, and we brought our action to defeat 
 the descent from R to them, in which case we hold that 
 the aid is not grantable. Willoughby : If K and M had 
 been in, etc., peradventure they would not have the aid, 
 because by your suit you are to defeat the same reversion 
 which descended, etc. But when K married H, and they 
 had issue, then H is in by another title; that is to say, 
 by the law, etc. And also Alice, who is issue of M, is in 
 by another descent, wherefore it is reasonable that they 
 have the aid. Skipwith: We say that the wife of H had 
 nothing in the land after the marriage, in demesne or in 
 reversion: Ready. And inasmuch as Alice tells us that 
 M, her mother, had nothing at the time of her death, in 
 demesne or in reversion, etc. Pulton: Inasmuch as you 
 do not deny the disseisin in common at one time, judg- 
 ment, etc., for although M had nothing at the time, etc., 
 it may be that she was disseised, and that after her death, 
 Alice entered, in which case she is adjudged in by descent. 
 And the law is the same as to the tenant by the curtesy, 
 etc., wherefore your counterplea of is no value. And 
 such was the opinion of the Court, wherefore he said that 
 K nor M never had anything: Ready. And the others 
 alleged the contrary. Well debated [by] Herle, etc. 
 
 The citation should be Paschal, 21 Ed. Ill, p. 14, pi. 17. See also Case 18. 
 Brooke, Aide, 65; and Fitzh: Ayde, 21. 
 
62 
 
 STATHAM 
 
 Trinity 
 7 Ed. III. 
 
 Case 19. 
 
 (19) Herle said that when a bailiff makes a conusance 
 and has aid of his master he can amend his conusance, etc. 
 Query? 
 
 And in the same plea [it was said] that he shall have the 
 aid of his master before the issue is joined (which note) 
 on the part of the defendant in Replevin. And the bailiff 
 shall also have aid of his master where he makes a conu- 
 sance in his own right, before the issue is joined. Paschal, 
 21. 
 
 The case has not been identified in Y. B. Trinity, 7 Ed. III. 
 
 Paschal 
 21 Ed. III. 
 
 Case 20. 
 
 (20) In a scire facias where his father gave to one H, sav- 
 ing the reversion. And the gift to H was in the tail, etc. ; 
 and H died without issue; and he brought Scire Facias 
 out of the fine, etc. Which query? For it was executed, 
 etc. The tenant said that she was the wife of this same H, 
 and after his death one J, his son, endowed her, and that the 
 reversion is in one F, of whom she prayed aid. Fyncheden : 
 You should show how the reversion is to F. Darr : If the 
 reversion be granted to him by a fine, we are a stranger to 
 it, and we show you how we came to the land. Wherefore 
 Sharshull said, if it be a fine that is matter of record, 
 of which you should take notice. And if it be by 
 deed nothing passed, unless you attorned, which you 
 should show, etc. And they adjourned. Query, if the 
 plaintiff were granted the aid in that case, if he were 
 precluded afterward, inasmuch as the matter of his aid 
 prayer goes in bar of the action, etc? 
 
 Reported in Y. B. Paschal, 21 Ed. Ill, p. 12, pi. 6. See also Brooke, 
 Aide, 64; and Fitzh: Ayde, 46. 
 
 Trinity 
 21 Ed. III. 
 
 (21) In a writ of ejectment from wardship, the defend- 
 ant said that the ancestor of the infant held for the term of 
 his life, of the lease of one H, the remainder to one F, and 
 that after his decease he entered as bailiff of F, etc. And 
 the plaintiff said that he had a fee: Ready, etc. The 
 defendant prayed aid of F, and because nothing was to be 
 tried except whether the tenant had a fee or not, which 
 
AIDE 63 
 
 trial would not be prejudicial to the right of F, it was 
 moved that he should not have the aid; but yet the aid 
 was granted, etc. Contrary 46, in the case of Dassing- 
 bourne, etc. 
 
 Reported in Y. B. Trinity, 21 Ed. Ill, p. 22, pi. 13. See also Brooke, Case 21. 
 Aide, 66. 
 
 (22) In trespass for trees cut, the defendant said that Michaeiis 
 
 21 "Pd TTT 
 
 one H was seised of a house in the same vill, to which he 
 had a common of estovers appendant in the place where, 
 etc. And he leased us the same house for a term of six 
 years, which still lasts; and we cut, for our reasonable 
 estovers, etc. And the plaintiff said "of his own tort, 
 without such cause: Ready," etc. And the other alleged 
 the contrary. The defendant prayed aid of H. Sharshull : 
 If the right to the estovers were to be tried you should have 
 the aid, but since the issue is taken on your tort it is other- 
 wise, wherefore answer without the aid. And the law is 
 the same if the plaintiff traverses the aid of the lessee, 
 inasmuch as it is all one issue, since the lease will be tried. 
 But in this case the right of the lessor does not come in 
 question, for the plaintiff had not denied the title of the 
 lessor, wherefore, etc. 
 
 Reported briefly at end of case in Y. B. Mich. 21 Ed. Ill, p. 40, pi. 43. Case 22. 
 
 (23) One shall have aid by reason of a lease made to Michaeiis 
 
 21 Ed TTT 
 
 him pending the writ: By Sharshull. And also if one 
 purchases a reversion pending the writ, he will be received. 
 And that in a Pracipe quod Reddat, etc. 
 
 The case has not been identified in Y. B. Mich. 21 Ed. Ill, or in Case 23. 
 the early abridgments. 
 
 (24) In an avowry the plaintiff, who was a stranger Hilary 
 to the avowry, prayed aid of another than him upon 
 whom the avowry was made, and he was ousted, etc. 
 And he pleaded "out of his fee"; and the other said 
 "within," etc. And then he prayed aid, as above, and was 
 ousted, etc. 
 
 Reported briefly in Y. B. Hilary, 18 Ed. Ill, p. 7, pi. 22. See also Case 24. 
 Fitzh: Ayde, 139. 
 
64 
 
 STATHAM 
 
 Hilary 
 
 18 Ed. III. 
 
 Case 25. 
 
 Paschal 
 24 Ed. III. 
 
 Case 26. 
 
 (25) In a writ of annuity against the Bishop of D, for 
 an annuity granted by his predecessor to the defendant, 
 he showed a confirmation of the chapter to the bishop, and 
 he prayed aid of the chapter. Sharshull: He is their 
 sovereign, and he can traverse the confirmation without 
 them. Kelsay : That annuity was granted by his predeces- 
 sor, which is of no value without the confirmation of the 
 chapter after his death. Wherefore the aid was granted, 
 etc. 
 
 Reported in Y. B. Hilary 18 Ed. Ill, p. 7, pi. 23. See also Fitzh: 
 Ayde, 138. It has not been identified in the early abridgments. 
 
 (26) One made a conusance as bailiff to his master 
 upon the plaintiff, who said that the master of the bailiff, 
 who made the conusance, had leased his seignory to one 
 D for a term of ten years, which still lasts, judgment, etc. 
 And the other prayed aid of his master. Willoughby : 
 Where one pleads "out of his fee," the bailiff shall not 
 have the aid, etc. ; and this plea amounts to no more, 
 wherefore stand ousted of the aid, etc. Query, if he shall 
 have the aid after issue joined, where he pleaded "out of 
 his fee," etc.? 
 
 The case has not been identified in Y. B. Paschal, 24 Ed. Ill, or in 
 the early abridgments. 
 
 Trinity 
 
 14 Hen. VI. 
 
 Case 27. 
 
 (27) In a writ of entry in the nature of an Assize, the 
 tenant prayed aid. Newton: He shall not have aid of 
 another who is not named in the writ : no more than in an 
 Assize. Martyn: One who is a stranger to the writ shall 
 be received to defend his right, wherefore let him have 
 the aid, etc. 
 
 Reported briefly in Y. B. 14 Hen. VI, p. 22, pi. 65. See also Brooke, 
 Aide, 100. 
 
 Hilary 
 6 Ric. 11. 
 
 (28) In a cui in vita, the tenant was ousted of the aid 
 of the heir of the husband of the demandant, because he 
 could vouch him, etc. Query, as to the reason? And 
 see in Hilary Term, 11 of the same king, in Dower, the aid 
 was granted conditionally; that is that he would not 
 
AIDE 65 
 
 vouch afterwards, but the aid was prayed of one who 
 was in the wardship of the king. 
 
 There is no printed Year Book for Ric. II. The case has not been Case 28. 
 identified in the early abridgments. 
 
 (29) In a writ of Admeasurement of Pasture, against a Michaeiia 
 parson of a church, he shall have the aid of the patron and ^^ ^^' ^^' 
 of the ordinary, before any plea pleaded, although the sur- ^'^'•^™ ^*- 
 charge were of his own tort. And the reason is because 
 
 the admeasurement shall be for all time. 
 
 The case has not been identified in Y. B. Mich. 10 Exi. II, or in the Case 29. 
 early abridgments, which contain very few cases of the reign of Ed. II, 
 as the years of that reign were not printed until after Brooke and Fitz- 
 herbert had made their compilations. 
 
 (30) In a dum fuit infra aetatem, in the per and que, Hilary 
 the tenant prayed aid out of the line, and had it; and yet * ^^' '^'" 
 that is contrary to the writ, for he prayed aid of another 
 
 than of him by whom his entry was alleged. But the 
 Court granted the aid, etc. And the Statute speaks only 
 of a voucher. 
 
 There is no printed year for 34 Ed. III. The case has not been Case 30. 
 identified in the early abridgments. 
 
 The Statute may be that of 3 Ed. I, Westminster the First (1275), 
 cap. 40. "None shall vouch out of the line." Stats, at Large, Vol. 1, 
 p. 100. 
 
 (31) A man shall [not] have aid in Avowry for a part, Michaeiis 
 unless he agrees with the avowant, or it is consistent with "*' 
 the avowry : as if a man avows that a stranger holds twenty 
 
 acres of land of him, and the plaintiff says that the stranger 
 leased a part of it to him ; then he shall have the aid, but 
 otherwise not, for he cannot admit the avowry to be good 
 in part, and show anything as to the other part contrary 
 to that, etc. 
 
 There is no printed year of 15 Hen. VI. The case has not been iden- Case 31. 
 tified in the early abridgments. 
 
 (32) Tenant at will was ousted of the aid in Trespass, Trinity 
 etc. And see that Hankford held in the same plea, that ^^ ^^°- '^- 
 
66 
 
 STATHAM 
 
 Case 32. 
 
 in a writ of false imprisonment brought against me, if I 
 justify because the plaintiff was villein to my wife, and he 
 would not be justified, but said, "free," upon which we 
 were at issue, although I had no issue by my wife and my 
 wife was dead, still I shall have aid of her heir, etc. Query? 
 
 Reported in Y. B. Trinity, 11 Hen. IV, p. 90, pi. 46. See also Brooke, 
 Aide, 53; and Fitzh: Ayde, 105. The errors in the text of the abridg- 
 ment have been corrected by the aid of the reported case. 
 
 Trinity 
 32 Ed. III. 
 
 Case 33. 
 
 (33) In replevin, the plaintiff prayed aid of one H. And 
 because this H was a stranger to the avowry the opinion 
 was that he should not have the aid, unless he were ready 
 to join. 
 
 There is no printed year of 32 Ed. III. The case has not been iden- 
 tified in the early abridgments. 
 
 Trinity 
 38 Ed. III. 
 
 Case 34. 
 
 (34) In formedon, the tenant showed how the land 
 descended to him and to one K, which K enfeoffed one H, of 
 that which belonged to her, so in law a partition was made, 
 and we pray aid of K. Fyncheden : There was no partition 
 in fact. And where you cannot have the aid you can have 
 the paramount warranty only. And also she had nothing 
 that could be recovered pro rata, wherefore the aid is not 
 grantable, etc. And that was the opinion of the Court, 
 etc. Query, if they were coparceners by descent, and an 
 action was brought against one of them, if she could have 
 the aid? For otherwise she could not recover pro rata. 
 And the action does not lie against them jointly, because 
 they are in by separate titles, etc. Query? 
 
 Reported in Y. B. Trinity, 38 Ed. Ill, p. 20, pi. 39. See also Brooke, 
 Aide, 61; and Fitzh: Ayde, 107. 
 
 Hilary 
 11 Ric. II. 
 
 (35) In trespass, the defendant said that the plaintiff 
 was villein regardant to the manor of which the defendant 
 is seised, as in right of his wife, etc. And the plaintiff 
 said, "free," etc. The defendant prayed aid of his wife 
 and had it. And it was said that if he had prayed in aid of 
 his wife, although the plaintiff had been found free, that 
 would not have concluded the wife. And yet when she 
 
AIDE 67 
 
 came in aid she could not vary from the plea of her hus- 
 band. Query, if she shall have Attaint? 
 
 There is no printed Year Book for 11 Ric. II. The case has not Case 35. 
 been identified in the early abridgments. 
 
 (36) In trespass, if the defendant justifies as his free- Trinity 
 hold, and the plaintiff entitles himself to the freehold, '" 
 and they are at issue, he shall not have aid of him in the 
 reversion, as he shall have in case he justifies in another's 
 right, or by reason of a lease for a term of years. By 
 RiKHILL, etc. 
 
 There is no early printed Year Book for the reign of Ric. II. It is Case 36. 
 probable that the case is that printed in Y. B. Trinity, 12 Ric. II, 
 pp. 29-30. Ames Foundation, ed. Deiser. 
 
 (37) In a writ of entry for rent, the tenant prayed aid Hilary 
 because one H leased him of lands of which, etc. 
 Hankford: He prays aid of another thing than that 
 which is in demand: and it is not like a voucher, where 
 
 one is to charge the land. Charlton: If the plaintiff 
 recovers the rent, he in whom the reversion is is discharged 
 forever, wherefore have the aid, etc. 
 
 There is no early printed Year Book for the reign of Ric. II. The Case 37. 
 case is printed in Y. B. Hilary, 12 Ric. II, pp. 127-8. 
 
 (38) J. G., executor of the will of a parson of the church Paschal 
 of D, brought a writ of Debt upon the arrears of an annuity, 
 
 and he counted that his predecessor was parson of the 
 church of D, and that he and his predecessors had been 
 seised of the same annuity time, etc., and for so much in 
 arrear, in the lifetime of their testator, he brought this 
 action. The defendant, who was parson of the church of 
 F, prayed aid of the patron, and of the ordinary. 
 Rolff: By this action for the arrears, the church shall 
 not be charged. And if I lease land for a term of life, 
 rendering a certain rent, and die, and my executors bring 
 a writ of Debt for the arrears, against the tenant for life, 
 he shall not have aid of my heir, etc. And then the aid 
 was granted, etc. And, query, if that action lies for the 
 executor? For it seems that he shall not have the arrear- 
 
68 
 
 STATHAM 
 
 Case 38. 
 
 Trinity 
 OiHen. Vi. 
 
 Case 39. 
 
 ages of an annuity, when the annuity is granted in fee: no 
 more than executors shall have arrears of a rent service, 
 etc. But yet some say that executors shall have an action 
 for a rent service accruing in the lifetime of their testator, 
 for otherwise no one shall have it, etc. 
 
 Reported in Y. B. Paschal, 12 Hen. VI, p. 8, pi. 4. See also Brooke, 
 Aide, 4; and Fitzh: Ayde, 48. 
 
 (39) In replevin, the defendant who has a seignory for a 
 term of life, or for years, if he makes an avowry, shall pray 
 aid of his lessor upon the avowry, and shall have it. And 
 the law is the same if one avows upon the husband and 
 his wife, as in right of the wife, upon the showing of the 
 avowant, the plaintiff shall have aid of his wife, etc. 
 Reported in Y. B. Trinity, 9 Hen. VI, p. 27, pi. 29. 
 
 Michaelis 
 11 Hen. IV. 
 
 Case 40. 
 
 Paschal 
 11 Hen. IV. 
 
 (40) If between two parceners there is a partition, and 
 afterward one alienates her part, and retakes an estate, 
 she shall not have aid of the other, because it is not in the 
 course of the parcenry. But if she took an estate for the 
 term of her life, and was empleaded and prayed aid of 
 her feoffor, who came and vouched her to warranty; now, 
 inasmuch as she had entered into the warranty, she shall 
 have aid, because she has come in the same course in which 
 she was before she made the alienation. But if one co- 
 parcener alienates, still the other coparcener shall have 
 aid of her, for her deed does not injure her coparcener. 
 Query, if, in that case, she should recover other lands pro 
 ratal Or if the same lands are liable into whatsoever 
 hands they have come, etc.? Well argued, in a Cui in 
 Vita. 
 
 The case may be that reported in Y. B. Mich. 11 Hen. IV, p. 22, 
 pi. 45. If it is the case the parceners were in Gavelkind, and were not 
 women as Statham has them. See also Brooke, Aide, 46. 
 
 (41) In replevin, the defendant avowed upon one H. 
 The plaintiff said that the said H leased the same lands 
 to one D, for a term of ten years, which still lasts. Which 
 D made us and F his executors, and we pray aid of F. 
 
AIDE 69 
 
 Hankford : You have an equal estate, for which the aid statham 7 b. 
 does not lie. Skrene: Otherwise we can not have the 
 aid of the lessor of our testator. Wherefore the aid was 
 granted, etc. 
 
 Reported in Y. B. Paschal, 11 Hen. IV, p. 63, pi. 15. See also Brooke, Case 41. 
 Aide, 49; and Fitzh: Ayde, 104. 
 
 (42) A prior who is presentable, if he is conventual^ and Trinity 
 has a convent and a common seal, shall not have aid, for ^^ ^*"' '^• 
 his founder shall have a Contra Formam Collationis against 
 
 him. And his successor shall have the Sine Assensu Capi- 
 talis, albeit he has not come in by election but by present- 
 ment. But where a parsonage is appropriated to an abbot 
 he shall have a Jure d' Utrum as a parson, etc. Query, if he 
 shall have aid of the ordinary, inasmuch as he himself 
 is a patron? Trinity 11, in a Scire Facias brought against 
 the Prior of Delbu trough, which is a monastery of the Abbey 
 of Saint Osa; and on every vacancy the abbot names one 
 of his canons to the patron, and he presents him to the 
 ordinary. And this same prior could charge his church 
 without the assent of the abbot of Saint Osa, and without 
 the assent of the patron or of the ordinary; and that 
 charge will bind his successor, as appeared in the same 
 plea. But yet it shall be under the common seal, etc. 
 
 Reported at very great length in Y. B. Paschal, 11 Hen. IV, p. 68, Case 42. 
 pi. 3. See also Brooke, Aide, 50. 
 
 (43) In trespass a tenant at will had aid, after issue Paschal 
 [joined], of the Archbishop of Canterbury. And on another ^^ ^™" ^^• 
 day he showed how the Archbishop had died after the 
 
 last continuance, and that such a one was created, etc. 
 And he prayed aid of him. And because there was no 
 privity between him and the successor of the lessor, he 
 was ousted of the aid. See as to this, for it is contrary 
 to the opinion of many that a tenant at will shall have 
 aid, etc. 
 
 Reported in Y. B. Paschal, 21 Hen. VI, pp. 36-39, pi. 4. The dis- Case 43. 
 cussion is very long and learned. See also Brooke, Aide, 82. 
 
 '"Perpetual," in the report of the case. 
 
70 
 
 STATHAM 
 
 Trinity 
 7 Hen. IV. 
 
 Case 44. 
 
 (44) In replevin, the defendant avowed upon one W. 
 The plaintiff said that one H was seised and leased to 
 him for his life; and he prayed aid of him. Tyrwhit: 
 He shall not have aid of any other than upon him whom 
 our avowry is made. Hankford: It is not so, for per- 
 adventure this H can force you to avow upon him. Where- 
 fore the aid was granted, etc. 
 
 Reported in Y. B. Trinity 7 Hen. IV, p. 18, pi. 21. See also Brooke, 
 Aide, 42. 
 
 Michaelis 
 27 Hen. VI. 
 
 (45) In a scire facias, the tenant showed how one W 
 gave the land to one A and E, his wife, in tail; and A 
 died without issue, which estate of E we have; and we 
 pray aid of W. Danby : He cannot have aid, for he is but 
 the tenant after possibility, etc., who could not have had 
 aid. And also he does not show how he had his estate, 
 for if he disseised him he had a fee. And also he cannot 
 have his estate, because it is an estate tail. And if I lease 
 land to a man for the term of his life, without impeach- 
 ment of waste, who leases his estate to another, his lessee 
 shall not be impeached for waste, for he shall be of the same 
 condition, as he through whom he claims. AscouGH : Your 
 case of waste is not law, unless the grant be to him and to 
 his assignees. And even if it be so, still I doubt. Moile: 
 If I grant the reversion of my tenant after possibility, 
 who has leased over his estate, and a Quid Juris Clamat is 
 brought against the lessee to the use, he shall be forced to 
 attoum, for he is in another course, etc. And if I grant 
 the services of my tenant in tail, he shall be forced to 
 attoum. Prisot: So shall your tenant in fee simple, 
 for it is for another thing, etc. And as to that, query? 
 For if I grant the reversion of my tenant in tail, he shall 
 not be forced to attoum, and yet my services pass with 
 the reversion, etc. (Query, as to the diversity?) Pole 
 (for the plaintiff) : Sir, we will deliver him. And we say 
 that he was seised in his demesne as of fee. Danby: 
 That is no plea unless you say, "without this that we held," 
 as above. Portyngton: He has said enough, and you 
 
AIDE 71 
 
 should answer him. Danby: I will not answer him. 
 Portyngton: Then respond without the aid, etc. 
 
 The case has not been identified in Y. B. Mich. 27 Hen. VI, or in Case 45. 
 the early abridgments. 
 
 See as to aid, in the title of Voucher, Trinity, 21 Ed. Note. 
 III. In the title of Dower, Trinity, 15 Hen. VI. 
 
 See Statham, title of Voucher, p. 182 b, case 20, infra; and title of 
 Dower, infra, 73 a to 75 b. No case of Trinity, 15 Hen. VI, appears 
 there, however. 
 
 (46) A parson shall have aid of the patron and of the Trinity 
 ordinary, on a grant by himself. And that in Annuity. ^ ^^°' ^^• 
 
 Reported in Y. B. Trinity, 2 Hen. VI, p. 12, pi. 3. See also Fitzh: case 46. 
 Ayde, 52; and Brooke, Aide, 5. 
 
 (47) In annuity against a parson on a deed made by Michaeiis 
 himself, the patron and the ordinary, he shall have aid of ^^ ^^' '^^' 
 the patron and of the ordinary, notwithstanding he was a 
 
 party to the deed. 
 
 Probably this is the short case reported in Y. B. Trinity (not Mich.), Case 47. 
 25 Ed. Ill, p. 82, pi. 23. See also Fitzh: Ayde, 7. 
 
 (48) In a writ against an abbot who was parson HUary 
 imparson6, he shall have aid of himself as patron, and of ^ ^^' ^'^' 
 the ordinary. 
 
 Reported in Y. B. Mich, (not Hilary), 25 Ed. Ill, p. 97, pi. 19. Case 48. 
 See also Fitzh: Ayde, 10. 
 
 (49) Tenant by the curtesy was ousted of the aid of the Paschal 
 
 ri.- -t 19 Ed. III. 
 
 parcener of his wife. 
 
 There is no early printed year of 19 Ed. III. The point appears in a Case 49. 
 long case in the Rolls Series, 19 Ed. Ill, pp. 50-56. 
 
 (50) Aid was granted to the husband and his wife on a Michaeiis 
 lease made to them by a deed in pais, in a Scire Facias. ^ ^^' ^^'' 
 
 There is no early printed year of 19 Ed. III. The case is printed in Case 50. 
 the Rolls Series, 19 Ed. Ill, p. 304. 
 
72 
 
 STATHAM 
 
 Trinity 
 21 Ed. III. 
 
 Case 51. 
 
 Trinity 
 
 12 Hen. IV. 
 
 Case 62. 
 
 Trinity 
 3 Ed. III. 
 
 Case 53. 
 
 Trinity 
 6 Ed. III. 
 
 Case 64. 
 
 Michaelis 
 22 Ed. III. 
 
 Case 56. 
 
 Trinity 
 13 Ric. II. 
 
 Case 56. 
 
 (51) Aid was granted after issue, in a writ of Ejectment of 
 Wardship; contrary Michaelis, 16 Ed. III. 
 
 Reported in Y. B. Trinity, 21 Ed. Ill, p. 22, pi. 13. See also Brooke, 
 Aide, 68; and Fitzh: Ayde, 54. 
 
 (52) A man shall not have aid of him who is in the remain- 
 der, unless he shows a deed, but it is otherwise if the rever- 
 sion be granted, because the deed does not belong to him. 
 
 The case has not been identified in Y. B. Trinity, 12 Hen. IV, or in 
 the early abridgments. 
 
 (53) Aid shall not be granted upon a plea in abatement 
 of the writ; and that in Dower. 
 
 The case has not been identified in Y. B. Trinity, 3 Ed. Ill, or in the 
 early abridgments. 
 
 (54) The defendant shall have aid of his wife in Trespass, 
 before issue joined, where the deed of the ancestor of the 
 same woman was pleaded by the plaintiff in his replication. 
 
 The case has not been identified in Y. B. Trinity, 5 Ed. Ill, or in the 
 early abridgments. 
 
 (55) In a praecipe quod reddat, the tenant was ousted 
 of the aid of him who had purchased the reversion pending 
 the writ, etc. 
 
 The case has not been identified in Y. B. Mich. 22 Ed. Ill, or in the 
 early abridgments. 
 
 (56) Aid shall not be granted for services; and that 
 in a Scire Facias. Query, if he prays aid of the tenant? etc. 
 
 There is no printed Year Book for the reign of Ric. II. 
 has not been identified in the early abridgments. 
 
 The case 
 
 Michaelis 
 13 Hen. VI. 
 
 Case 67. 
 
 (57) An abbess brought a writ of Annuity against a vicar 
 and he made his title by prescription. And the vicar 
 prayed aid of the abbot, who was plaintiff, and of the ordi- 
 nary, and had it, notwithstanding the abbot was plaintiff. 
 See the judgment in the case of the Prioress of Sheen. 
 
 There is no printed year for 13 Hen. VI. There is a similar case 
 reported in Y. B. Mich. 21 Hen. VI, p. 2, pi. 3. See also Brooke, 
 Aide, 29. 
 
AIDE DE ROY 73 
 
 AIDE DE ROY" 
 
 44 Ed. III. 
 
 (1) In a formedon in London, the tenant vouched a statham 8 ; 
 foreigner to warranty, wherefore the record came into ^}^^ 
 the Bench, and process was awarded against the vouchee. 
 And at the summons the tenant said that while the process 
 
 was pending against the vouchee, it was found before the 
 Mayor of London, that one J, in the time of the grand- 
 father of the king who now is, and a long time before 
 the gift, died seised of these same tenements, and held 
 them of the king, wherefore he was seised, and committed 
 to us, etc. And we pray aid of the king. And the jus- 
 tices recorded his prayer, and sent back the plea, etc. 
 
 Reported in Y. B. Hilary, 44 Ed. Ill, p. 2, pi. 10. Case 1. 
 
 (2) In a writ of entry, the tenant said that the king Trinity 
 leased to him for the term of his life ; and he prayed aid ^^ ^^ ^^^' 
 and produced a patent which told how one H was indebted 
 
 to the king, wherefore he was seised of these same lands 
 under a distress, until, etc., and he committed these same 
 lands to the defendant until, etc. Pershay: Now, judg- 
 ment, inasmuch as he has affirmed the plea to be good 
 against him as tenant of the freehold, and now shows the 
 contrary. But yet the aid was granted, etc. Query? 
 For the king had not lost in that case, although the land 
 were recovered. 
 
 There is no printed year of 31 Ed. III. The case has not been iden- Case 2. 
 tified in the early abridgments. 
 
 (3) The Prior of M brought a writ of Trespass upon the Trinity 
 Case against the mayor of Windsor, and other burgesses *°' 
 of the same town, reciting that whereas there had been a 
 
 leet within the said town, time, etc., and he put one H 
 there to hold his leet three days, etc., and they disturbed 
 him and beat him. To which they said that the town of 
 W is an ancient borough of which the King Edward the 
 First was seised, and had the view of Frankpledge for all 
 the inhabitants of this same town, time, etc., and by his 
 
74 
 
 STATHAM 
 
 Case 3. 
 
 letters-patent he granted to all the men of this same town, 
 this same town with the appurtenances, rendering to him 
 a fee farm, etc., judgment, if without the counsel of the 
 king, etc. Fortescue: They are seised of the town of 
 their demesne and not in the right of the king ; and although 
 a fee farm be reserved to the king he cannot lose, for we 
 claim the leet from time, etc. And it may be that we 
 had a leet and the king also, and if the tenant of the Idng 
 came to our leet, still it does not pass with such words as 
 "with the appurtenances, etc." But yet the aid was 
 granted. And this case was well argued. 
 
 Reported in Y. B. Trinity, 18 Hen. VI, pp. 11-13, pi. 1. The case 
 as it appears in Statham is confused, probably by the attempt to put 
 into a few lines the gist of a long case. The last two lines attempt to 
 outline a discussion as to whether the rights passed by the words "cum 
 pertinences" or "Burgum cum pertinences," or "Burgum et visum." 
 
 Trinity 
 48 Ed. III. 
 
 Case 4. 
 
 (4) The mayor and commonalty of Lincoln brought a 
 writ of Covenant against the bailiffs and commonalty of 
 Derby, and they showed a composition made between 
 their predecessors, that they of Lincoln should not pay 
 toll, etc. And they told how one such and one such of D 
 had taken, etc. The defendants said that the king H had 
 granted to them this same vill for a certain fee farm, so 
 they could not charge this vill without the king; and 
 they prayed aid of him. And because the composition 
 was after the charter, it was their own deed, and they 
 were ousted of the aid. 
 
 Reported in Y. B. Trinity, 48 Ed. Ill, p. 17, pi. 2. 
 Ayde de Roy, 59. 
 
 See also Fitzh: 
 
 Hilary 
 50 Ed. III. 
 
 Case 5. 
 
 (5) Where the king had seised by force of an office 
 and committed the patent to one J, came one who was 
 ousted from the office and traversed it, and had a Scire 
 Facias against J, and prayed aid of the king, and had it, 
 although the king was a party to the trespass, etc. 
 
 The case has not been identified in Y. B. Hilary, 50 Ed. Ill, or in 
 the early abridgments. 
 
AIDE DE ROY 75 
 
 (6) In a scire facias, the tenant said that he was tenant Hilary 
 for life of the lease of the king, and he prayed aid of him. 
 And he did not show any deed of the lease. Thorpe: 
 
 One cannot say that he did not lease; wherefore you 
 must show your deed. Willoughby: If he does not 
 show a deed, one shall not have anything on the lease, 
 as it seems. And then a writ came from the Chancery 
 witnessing the lease; then the aid was granted. 
 
 And it was said in the same plea, that one shall have 
 aid of the king in a Scire Facias where his aid is prayed in 
 place of a voucher, albeit he cannot vouch anyone else. 
 In a Scire Facias. 
 
 There is a very short report of this case in Y. B. Hilary, 24 Ed. Ill, Case 0. 
 p. 23, pi. 6. See also Brooke, Aide del Roy, 48; and Fitzh: Ayde de 
 Roy, 58. 
 
 (7) In trespass, the defendant justified as servant of the Hilary 
 patent of the king, and prayed aid of the king, and was ^ ^^- ^^• 
 ousted, because he was a stranger. 
 
 Reported in Y. B. Hilary, 4 Hen. VI, p. 10, pi. 4. See also Brooke, Case 7. 
 Aide del Roy, 55; and Fitzh: Ayde de Roy, 9. 
 
 (8) In trespass for a close broken, the defendant said paschai 
 that the king was seised and leased to him for the term of * ^™- ^^■ 
 his life, and he showed how the plaintiff had lands adjoin- 
 ing. And the plaintiff alleged that part of the land leased 
 
 to us was part of his land, etc., and he entered, upon whom 
 we entered and made the trespass, and we pray aid of the 
 king. Martyn : After a procedendo, if he shall have the aid 
 in this case he can plead not guilty, and also no damage to 
 the king, for he did not demand anything which was leased : 
 for it is not like the case which was just put, to wit : where 
 the defendant justified because such a one who held of the 
 king died, his heir under age, and the king seised and com- 
 mitted the guardianship to us during, etc. And the plaintiff 
 claimed to have a common there and there put in his cattle, 
 and we took them, etc., for there the king remained ten- 
 ant, and livery shall be sued at the full age of the heir. 
 And if the patentee be ousted he shall have an action in 
 
76 
 
 STATHAM 
 
 Case 8. 
 
 Michaelis 
 32 Ed. III. 
 
 Case 9. 
 
 the name of the king, because he has intruded upon the 
 possession of the king. But it is otherwise where a man is 
 tenant for life of the lease of the king, for if one says that 
 the king leased to him for the term of his life, and prays 
 aid, it is not to the purpose, for nothing is taken away 
 from the king. Wherefore the Court would not grant 
 the aid until the issue was taken upon the freehold, so 
 that the Court could understand that the king was [not] 
 to lose, etc. Wherefore it was adjudged that he be 
 ousted of the aid, etc. 
 
 Reported in Y. B. Hilary (not Paschal), 4 Hen. VI, p. 12, pi. 8. See 
 also Brooke, Aide del Roy, 57; and Fitzh: Ayde de Roy, 11. 
 
 (9) In a writ of entry upon a disseisin, the tenant said 
 that the king by his charter enfeoffed one H, who enfeoffed 
 us, and we pray aid of the king; and because he was a 
 stranger to the charter he was ousted. But yet some say 
 that any one who is tenant immediate to the king shall 
 have aid of him, etc. 
 
 There is no printed year for 32 Ed. III. The case has not been iden- 
 tified in the early abridgments. 
 
 Trinity 
 38 Ed. III. 
 
 Case 10. 
 
 (10) If one prays aid of the king because of a warranty 
 and the king be adjudged to warrant him in the Chan- 
 cery, the tenant shall plead to the action in the Chan- 
 cery, because no fraud shall be done to the king, to wit : 
 between the demandant and the tenant. And when they 
 are at issue they shall be sent into the Bench to be tried, 
 etc. Query, how shall the demandant have a day in that 
 case? For no day is given to the demandant when the 
 Court tells the tenant that he shall have the aid, etc. 
 
 Reported in Y. B. Trinity, 38 Ed. Ill, p. 18, pi. 32. 
 
 HUajy 
 9 Hen. VI. 
 
 StathamSb. 
 
 (11) In a quare impedit, the tenant showed how 
 the king granted to him by his patent a manor to 
 whom, etc., in recompense; and he alleged possession 
 in the king by his title, and he prayed aid of the king. 
 Paston: This is only a personal action, for in this action 
 one does not recover the advowson, and he has also shown 
 
AIDE DE ROY 77 
 
 a feoffment in fee from the king, so by reason of the rever- 
 sion he cannot have the aid, but his aid prayer is in 
 place of a voucher; and in this action he shall not vouch 
 another person, wherefore, etc. But in a writ of right 
 of an advowson one shall vouch, etc. And here he has 
 also made a title which is in place of a declaration, so he 
 has become an actor, in which case he can vouch, etc. 
 Martyn: He cannot have warranty of charter against 
 another person, but it is not so against the king, wherefore 
 it is reasonable that he have the aid. And to this that he 
 is an actor, so is the avowant in Replevin, and yet after 
 avowry he shall have the aid. Paston : That is when he 
 avows in the right of another, but it is not so here, etc. 
 
 And it was said in the same plea, that if in an Assize 
 the tenant acknowledges the disseisin, and says that he 
 enfeoffed the king and the king re-enfeoffed him, and he 
 prays aid of the king, he shall have the aid, because it 
 may be that the king had a release from the plaintiff, or 
 some other bar, etc. Cottingham: To this that is said 
 that he does not recover the possession, I say that when 
 he recovered and had a writ, etc. Which was conceded. 
 Rolff: Yet he does not recover the advowson, for his 
 heir shall not have a writ of Execution. Babyngton: 
 Sue to the king. Which note, etc. And then the incum- 
 bent pleaded the same plea. Well debated, etc. 
 
 Reported in Y. B. Hilary, 9 Hen. VI, p. 56, pi. 1. See also Brooke, Case 11. 
 Aide del Roy, 6; and Fitzh: Ayde de Roy, 15. The case and the three 
 abridgments all differ from each other. Statham's account is again 
 much confused by reason of a desire to shorten the abridgment too 
 much. It is difficult to translate the case intelligently without import- 
 ing into it much which is not in the abridgment, but which is in the 
 case itself. 
 
 (12) In an action upon the case against an escheator, Hilary 
 because he returned a false office, he prayed aid of the ^°' " 
 king and was ousted, etc. 
 
 Reported in V. B. Hilary, 9 Hen. VI, p. 60, pi. 9. See also Fitzh: Case 12. 
 Ayde de Roy, 16. 
 
 (13) In trespass for cattle taken. Canndish: One A Hilary 
 was seised of the manor of B, and held it of the king. ^ "^"- ^^- 
 
78 STATHAM 
 
 And one B was seised of an acre of land in the place where, 
 etc., and held it of the said A, as of the said manor by 
 one penny of rent. A died, and the manor and the penny 
 of rent descended to one C, within age, and the king seized 
 and committed it to us by his patents until, etc. And for 
 one penny rent after the grant was made to us, we took the 
 beasts, etc., and we pray the aid of the king. (Query, if 
 the plea be good, for it does not say that the infant was 
 under age at the taking of possession; and he did not show 
 the letters patent, etc.) Fulthorpe: We say that the 
 trespass was made in another place within the same vill, 
 which is not part of the manor, etc. Paston: That is 
 not to the purpose in ousting him of the aid, for "part" 
 and "not part" shall not be in issue, inasmuch as he alleges 
 the charter of the king in witness that the lands in this 
 vill were in his hands, and the "not comprised" is not to 
 the purpose. But if the tenant in an Assize says that the 
 tenements are seised into the hands of the king, and does 
 not show any charter which witnesses that, the plaintiff 
 can say that they are not seised: Ready, and upon that 
 the escheator shall inquire if they are present, and if they 
 are not there it shall be tried by the Assize. To which 
 the Court agreed. (See a similar matter well debated, 
 Anno 21 and Anno 28 Liber Assisarum.) Fulthorpe: 
 We say that C had livery out of the hand of the king, 
 and was of full age, judgment. And we pray that he 
 be ousted, etc. Query, if that be a plea? For he did not 
 say that he had sued livery before the possession. And 
 since the defendant could not deny that no rent was 
 reserved upon the patent to the king, so nothing would 
 injure the king; and he was ousted of the aid. 
 
 Case 13. Reported in Y. B. Hilary, 9 Hen. VI, p. 61, pi. 15. See also Brooke, 
 
 Aide del Roy, 7; and Fitzh: Counterplea del Ayde, 9. 
 
 Trinity (14) An undet collector shall not have aid of the 
 
 9 Hen. VI. king because a collector has a commission and cannot 
 
 lease his estate, etc. But the committee of the king 
 
 shall have aid of the king because the committee 
 
AIDE DE ROY 79 
 
 of the king can lease his estate, etc.: By Martyn, in 
 Trespass, etc. 
 
 Reported in Y. B. Trinity, 9 Hen. VI, p. 20, pi. 15. See also Brooke, Case 14. 
 Aide del Roy, 4; and Fitzh: Ayde de Roy, 17. 
 
 (15) See as to trespass, by Martyn, where one prayed Michaeiis 
 aid of the king for a certain cause, and the Court put him 
 
 over, etc., he could pray aid for another cause; but if 
 it be adjourned until another term it is otherwise, etc. 
 See [this case] for it was well debated. 
 
 Reported in Y. B. Mich. 3 Hen. VI, p. 5, pi. 5. See also Fitzh: Ayde Case 15. 
 de Roy, 8. 
 
 (16) In debt, the plaintiff counted that the defendant Michaeiis 
 was clerk of the works of the king, and bought of us cer- 
 tain gravel, etc., and for ten shillings, which the defendant 
 
 was allowed in the Exchequer. Skrene : We pray aid of 
 the king upon this matter shown, etc. Hankford: It is 
 on your own contract, and you were also allowed [on account] 
 so the king cannot lose. HoRTON: A purveyor shall have 
 aid where the action is brought against him in such a case. 
 Hankford: Not the same, for in your case he can take 
 cattle for the king, against his will, by his commission; 
 and not so here, etc. Skrene : We were not paid by the 
 king: Ready, etc., and we pray the aid. Thirning: It 
 may be that the plaintiff has released to the king, where- 
 fore when he avers that he is not paid by the king it is 
 reasonable that he should have the aid. And then the aid 
 was granted. 
 
 The citation in Statham is defective, the name of the king being Case 16. 
 left blank. The case is reported in Y. B. Mich. 11 Hen. IV, p. 28, 
 pi. 53. See also Brooke, Aide del Roy, 29; and Fitzh: Aydede Roy, 44. 
 
 (17) In trespass for cattle taken, the defendant justified Michaeiis 
 because he was a collector, and that the plaintiff was ^"^ 
 assessed for a certain sum, etc. And the plaintiff said that 
 
 he was assessed for his cattle in another vill, and not there, 
 etc. And the defendant prayed aid of the king. In that 
 case he shall be ousted of the aid, because it shall be under- 
 
80 
 
 STATHAM 
 
 Stood that he took them of his own wrong. (See this case, 
 for many good cases of aid prayer are put in the same 
 plea.) 
 
 Case 17. The citation to this case in Statham is evidently an error. The case 
 
 is reported in Y. B. Mich. 11 Hen. IV, pp. 34r-37, pi. 66. It is a very 
 long case, and as Statham says there are "many good cases of aid 
 prayer" in it. See also Brooke, Aide del Roy, 30; and Fitzh: Ayde da 
 Roy, 45. 
 
 Trinity 
 11 Hen 
 
 IV. 
 
 (18) In an assize, the tenant said that he held for the 
 term of his life, the reversion regardant to the king; and 
 he prayed aid of the king. And it was held a good plea to 
 secure the aid without showing how the reversion was 
 to the king, because immediately through his prayer the 
 reversion came to the king. (But yet, query, etc.) 
 And the plaintiff, to oust him of the aid, said that he him- 
 self was seised in his demesne as of fee, of this same land, 
 and the defendant put in his cattle, claiming pasture, and 
 because of that he had brought the Assize. Hankford : 
 You should say, "And so he was disseised," according to 
 the form of the Statute. But yet the aid was granted. 
 (And I believe that the reason was that the tenant was a 
 disseisor in fact, inasmuch as he took the tenancy upon 
 him; for he could have said that the freehold was in the 
 plaintiff, and have demanded judgment of the writ, etc. 
 Query?) And then in the Chancery, the plaintiff prayed 
 a procedendo. And it was shown, for the king, that the 
 land was held of the manor of K, which manor is ancient 
 demesne of the king, as of his Duchy of Lancaster. And 
 he showed the record of Domesday, proving that the said 
 manor was ancient demesne, etc. Skrene: Although 
 the said manor be ancient demesne, still it does not prove 
 that the land is held of the manor, and the king shall not 
 have that averment upon us ; for if it be so he could have an 
 action of deceit. And also the tenant who has prayed 
 aid of the king has affirmed the jurisdiction, wherefore 
 Statham 9 a. the king cannot disaffirm. Thirning: The king is not 
 like another person, but it seems that you should have 
 the procedendo, for it is said by the tenant for the king 
 
AIDE DE ROY 81 
 
 that the land is of the Duchy of Lancaster, in which case 
 the king shall answer like any other person. For if any- 
 one prays aid of the king, and shows a patent of the Duchy 
 of Lancaster, he shall not have aid ; no more than he would 
 have it of the Duke if he were alive. Which Hankford 
 denied. And so, inasmuch as the defendant has not 
 shown how the reversion was in the king, we think that 
 it is not in the king, unless by his aid prayer. And if I 
 bring a writ against one who enfeoffs the king while my 
 writ is pending, my writ shall not abate; consequently 
 not when any matter is in question. And if we were 
 informed immediately afterwards, we could be advised 
 to grant a procedendo ad judicium. And also since he 
 has not shown how the reversion is in the king, we shall 
 not have any basis for making a search for the king; but 
 if it was of record here in the Chancery that the rever- 
 sion was in the king, then he should not have a procedendo, 
 etc. (Query as to that?) And if the reversion is in the 
 king, if they plead in the Chancery, and if they are at 
 issue there, it shall be tried by the Assize in Court. Other- 
 wise when the king has made a search, if he informed the 
 tenant of such matter as he had to bar the demandant, 
 and upon that to take the procedendo, then the plaintiff 
 would sue by petition to the king. Hankford: It would 
 be bad pleading to pray aid of the king and not show how 
 the reversion was in him, for if the king was seised of the 
 land and leased to him, etc., then the land is a free fee. 
 And afterwards all the justices were agreed that the alle- 
 gation of ancient demesne was not to the purpose, inas- 
 much as the king could have a writ of Deceit, etc. Query 
 as to this matter? 
 
 Reported in Y. B. Trinity, 11 Hen. IV, p. 85, pi. 36. See also Brooke, Case 18. 
 Aide del Roy, 32; and Fitzh: Counterplea del Ayde, 16. 
 
 (19) In annuity against a parson of a church. He prayed Michaeiis 
 aid of the king as patron, and he also prayed aid of the *^ ^^"- ^^• 
 ordinary and had it, wherefore it was said to him that 
 he should sue to the king. Markham: We pray a sum- 
 mons ad auxiUandum against the ordinary. Newton: It 
 
82 STATHAM 
 
 seems that he can have it, for there is no difference between 
 an aid prayer and "the king not counseled," for the entry 
 of the king not counseled is, "et petit judicium si rege 
 inconsulto uUerium procedere debet." And so he cannot 
 restrain the procedure. But the entry in the other case 
 is "petit auxilium de rege," in which case our power can- 
 not be restrained, but we can make a process against 
 another, etc. (And this has been done in Trespass, etc.) 
 AscouGH : It may well be in Trespass, etc., for there pleas 
 are several, but in this case I do not know to what effect 
 process shall issue against the ordinary, for although the 
 ordinary came, he could not do any thing before the proce- 
 dendo came. And it may be that the plaintiff had released 
 to the king, in which case no procedendo shall issue. New- 
 ton: Although he had released to the king, that does not 
 come into question in a debate in the Chancery, for they 
 do not plead upon this aid prayer there, etc. But it is 
 otherwise where the aid prayer is in place of a voucher to 
 have recompense, for they do not plead in the Chancery, 
 except where the king was to have lost, and in this 
 case he is not to have lost, wherefore, etc. Query as to 
 that, etc. ? Broun said that if the defendant wished that, 
 the entry in the aid prayer shall be "et petit judicium 
 si rege inconsulto" etc. And they adjourned. See the 
 plea, for it was well argued. 
 
 Case 19. The citation in Statham is an obvious error. The case has not been 
 
 identified in either of the early abridgments. 
 
 Michaeiis (20) In trespass for the king against the bailiffs of Not- 
 tingham. And he counted that he was Lord of Leicester, 
 and that those of Leicester should not pay toll, etc., and 
 that they had taken toll, etc. The bailiffs said that they 
 held the vill of Nottingham of the King by a fee farm, and 
 they prayed aid of him. ThirninG: The king is plaintiff 
 in this action; how can you have the aid? Frisby: We 
 do not know how to plead without him. And they ad- 
 journed, etc. 
 
 Hankford said in the same plea, that if a man who is 
 in ancient demesne brings such an action, it is hard for 
 
AIDE DE ROY 83 
 
 the bailiffs to have aid of the king, because it is the inherit- 
 ance of the king that his tenant in ancient demesne shall 
 not pay toll, etc. 
 
 Reported in Y. B. Mich. 7 Hen. IV, p. 2, pi. 13. See also Brooke, Case 20. 
 Aide del Roy, 24. 
 
 (21) If land be given to a man for the term of his life. Trinity 
 the remainder over in tail, the remainder over to the king 
 
 in fee, the tenant for life shall not have aid of him in the 
 remainder, and of the king also, as if the remainder was 
 in another person, but he shall have aid of him in the 
 remainder, and he shall have aid over, because the processes 
 do hot agree, etc. But yet, query? For the Court was 
 in doubt, etc. 
 
 The case seems to be that reported in Y. B. Trinity, 7 Hen. IV, p. 18, Case 21. 
 pi. 23. But the case as abridged in Statham differs considerably from 
 the report in the Year Book, and also from the abridgment of the case 
 by Brooke. See Brooke, Aide del Roy, 27. 
 
 (22) In an assize against two, one answered as tenant, Hilary 
 and showed how such a one leased to him for the term of 
 
 his life, the remainder to the king; and he prayed aid of 
 the king. The other said that he was tenant, without 
 this that the other had anj^hing, and he pleaded a like 
 plea. And the plaintiff said that one of them was tenant 
 and to the plea pleaded by the other, or no law, etc. 
 JuvN: We cannot award the Assize upon that point, for 
 their tenancy cannot be tried without the king. Where- 
 fore, for the advantage of the king, the aid was granted to 
 both, etc. Query, if the justices would give a day to the 
 parties when they granted the aid of the king, where 
 the tenant said that the tenements were seised in the hand 
 of the king. And if they adjudged that the plaintiff sue to 
 the king, they will not give a day to the parties, but the 
 plaintiff shall sue by a procedendo, etc. Query? 
 
 And see in the same plea, that an Assize may be awarded 
 three times; for where one of the defendants said that the 
 tenements were seised into the hand of the king, and 
 because the escheator was not present, they awarded an 
 
84 
 
 STATHAM 
 
 Case 22. 
 
 Assize to inquire into it, which found it was so, etc. And 
 then the procedendo came, and one of the defendants said 
 that he was tenant, and pleaded a plea in bar; and the 
 other said that he was tenant, without this that, etc., and 
 pleaded a foreign release, then the Assize shall be awarded 
 to inquire which of them is tenant. And if it be found 
 that he who pleaded a foreign release is tenant, the Assize 
 shall be adjourned to try it; and if it be found not the 
 deed of the plaintiff, the Assize shall be remanded and 
 adjudged to inquire as to the seisin and disseisin, etc. 
 Query, in that case, when one of the defendants said 
 that the tenements were seised into the hands of the 
 king or prayed aid of the king for another reason, if the 
 other could plead any plea in bar before the procedendo 
 came? etc. 
 
 The case has not been identified in Y. B. Hilary, 12 Hen. IV, or in 
 the early abridgments. 
 
 Michaelis 
 22 Hen. VI. 
 
 Statham 9 b. 
 
 (23) If one prays aid of the king in an Assize, the justices 
 will give a day to the parties at the next sessions. But if 
 the procedendo does not come on that day, then it is dis- 
 continued, and the plaintiff shall have an attachment or 
 another day afterward : By Newton, etc. 
 
 Note. See as to aid of the king, in the title of Petition, Mich. 
 
 21 Ed. Ill; in the title of Monstrans, Mich. 11 Hen. IV; 
 and in the title of Error, Mich. 8 Hen. IV; and in the title 
 of Procedendo, etc. 
 
 Case 23. The case has not been identified in Y. B. Mich. 22 Hen. VI, or in the 
 
 early abridgments. For the references to the other titles see Statham, 
 title of Peticion, infra, p. 137 b, case 1; title of Monstranz de Faitz, 
 etc., infra, p. 126 b, case 33; title of Errour, infra, p. 93 a, case 34; 
 title of Procedendo, infra, p. 136 b. 
 
 Trinity 
 7 Hen. IV. 
 
 Case 24. 
 
 (24) In a scire facias, the tenant for life shall have aid 
 of the king, where the reversion is to the king by way of 
 forfeiture. 
 
 Briefly reported in Y. B. Trinity, 7 Hen. IV, p. 18, pi. 23. 
 Brooke, Aide del Roy, 27. See supra, case 21. 
 
 See also 
 
AIDE DE ROY 85 
 
 (25) In formedon, the tenant shall have aid of the Michaeiis 
 king by reason of a confirmation made by the king with- 
 out warranty, to the grantee of the queen. And see a like 
 
 case Hilary, 15 Ed. Ill, in a note, etc. 
 
 The case has not been identified in Y. B. Mich. 9 Ed. Ill, or in the Case 26. 
 early abridgments. 
 
 (26) Aid was granted by the king by reason of a feoff- f^^jj 
 ment in fee simple without warranty. In a note. 
 
 The citation in Statham is an error; the case is briefly reported in Case 26. 
 Y. B. Paschal, 10 Ed. Ill, p. 26, pi. 47. As Statham says, it is merely 
 a note. 
 
 (27) In right of an advowson, the tenant shall have Trinity 
 aid of the king, because he gave the same advowson to the 
 abbot of B, his predecessor, in free alms, without war- 
 ranty, etc. 
 
 The case has not been identified in Y. B. Trinity, 7 Ed. Ill, or in the Case 27. 
 early abridgments. 
 
 (28) In a scire facias, the tenant shall have aid of the Hilary 
 king by reason of a lease made to him by the king. And ^* ^'^' '"■ 
 he did not show the lease, but a writ came to the justices 
 witnessing the lease. 
 
 Briefly reported in Y. B. Hilary, 24 Ed. Ill, p. 23, pi. 6; and at Case 28. 
 much greater length in the "Residuum'' of the same year and term, 
 p. 39, pi. 18. See also Fitzh: Ayde de Roy, 58. 
 
 (29) The plaintiff was ousted of the aid of the king Michaeiis 
 by a collector of fifteenths, who avowed the taking in ^ ^™- '^• 
 another place than was counted in the plea. And they 
 
 were at issue as to the place. And that in Replevin. 
 
 Briefly reported in Y. B. Mich. 7 Hen. IV, p. 6, pi. 35. See also Case 29. 
 Brooke, Aide del Roy, 25; and Fitzh: Ayde de Roy, 42. 
 
 (30) If the king grants a patent of a thing to a man, and Paschal 
 then he grants the same thing to another by another ^"" " 
 patent, and the first patentee brings a Scire Facias against 
 
 the second patentee in the Chancery, to revoke it, and 
 they interplead in the Chancery, neither of them shall 
 
86 
 
 STATHAM 
 
 Case 30. 
 
 Trinity 
 
 35 Hen. VI. 
 
 Case 31. 
 
 Anno 
 
 36 Hen. VI. 
 
 Case 32. 
 
 have aid of the king, for the king is to suffer no loss. 
 By the opinion of the Court, clearly. In Trespass Coram 
 Rege. 
 
 Reported in Y. B. Paschal, 35 Hen. VI, p. 56, pi. 2. See also Brooke, 
 Aide de Roy, 13; and Fitzh: Ayde del Roy, 28; both at much greater 
 length than Statham. 
 
 (31) An escheator shall not have aid of the king in 
 Trespass, as a collector shall have, because he is not charged 
 by matter of record certified, as the collector is, etc. By 
 Yelverton, in Trespass Coram Rege. But yet that may be 
 distinguished, etc. 
 
 The case has not been identified in Y. B. Trinity, 35 Hen. VI, or in 
 the early abridgments. 
 
 (32) Query as to the case of the Lord of Grammont, 
 where a Scire Facias was brought against him by the Duke 
 of York, to repeal letters patent made to him by the king 
 for the term of his life. And the said Lord of Grammont 
 showed how the king leased to him for a term of years 
 which still lasts, rendering to him more rent than the duke 
 paid; and he prayed aid of the king. And that was in 
 the Chancery. 
 
 The case has not been identified in Y. B. Anno 36 Hen. VI, or in the 
 early abridgments. 
 
 ' It is almost as necessary to add to this title of Aide the word "Prier," 
 as it is in the title of Age, since the aid which is still familiar to us in 
 our own law is that aid which was given to the king or other lord to 
 marry their daughters, make their sons knights, and the like. This 
 word, as applied to subsidies of various kinds, has survived, while we 
 find nothing whatever as to this praying of aid in the later historians of 
 our law. Pollock and Maitland, Holdsworth or Jenks, give us nothing, 
 although the first two both mention the aid prayer once. Reeves, how- 
 ever, does give us something valuable. [Reeves, Hist, of Eng. Law, 
 3: 443.] He says it "bears some affinity with vouching to warranty, 
 and probably was first suggested by it. When an action was brought 
 against a person who, though in possession of the thing in question, 
 had not the complete and entire property, and if judgment passed 
 against him another person who had a right would be injured, the ten- 
 ant or defendant might pray to have the aid of such person to defend 
 the suit." What is a more simple and probably a better definition is 
 
AIDE DE ROY 87 
 
 given us by the Termes de la Ley [Ed. 1721, p. 34]: "Aid pryer is the 
 justification of a Title by the Assistance of others in joining with him." 
 It is better, for as we read the cases we find it difficult to limit and define 
 the instances where it may be called for; doubtless there are definite 
 limitations, but our modern knowledge of the old pleading is not suffi- 
 cient to enable us to draw any very strict lines of limitation. Reeves 
 gives us the entry of the Aid Prier: "Et praedictus tenens per attornatum 
 suum venit, et dicit quod, &c. (Then the cause of aid prayer was alleged.) 
 Et sic praedictus tenens dicit quod ipse tenet, et die impetrationis brevis 
 originalis praedicti querentis tenuit tenementum praedictum pro termino 
 vitae suae remanere cuidem praefato B, et haeredibus masculis de corpore 
 suo exeuntibus, sine quo idem tenens non potest tenementum praedictum 
 cum pertinentiis in placitum deducere, neque praefcUo querenti inde re- 
 spondere. Et petit Auxilium de ipso B. Et ei conceditur, &fc. Idea 
 Praeceptum est vicecomiti quod summoneat per bonos summonitores 
 praedictum B, quod sic a die Paschae, &c. ad jungendum cum praefato ten- 
 ente simul, Sfc. in respondendo praefato querenti de praefato placito si, &rc. 
 idem dies datus est partibus praedictis, &c." This is taken from Rast- 
 all's Entries, Aid Prier. When the aid was granted, the tenant sued out 
 a judicial writ called a summons ad auxiliandum, and if the person did 
 not essoin himself, or appear on the return of the writ, or if he defaulted 
 afterward, judgment was entered against him. So that it was a very 
 important matter for the person in interest that he should appear or 
 give some sufficient reason for not doing so. 
 
 But it was not only in real actions that the aid was granted, although 
 there seems to be an impression that this was the case. Even in our 
 not over long list of cases we find many personal actions in which the 
 aid was asked; for example, in Attaint, Replevin, Trespass, many 
 cases of Scire Farias and Annuity, Ejectment from a Wardship, and 
 Debt. Reeves cites several of our cases, our case 12 apparently being 
 contrary to his comment on it. The difference is merely that the 
 Abridgment leaves out the later steps of the case which led to the final 
 decision that a parson shall have aid of the patron and of the ordinary 
 on a grant by himself. The production of the deeds finally led to a 
 grant of the aid which was denied until they produced the deeds, as 
 Reeves says. 
 
 Yet we have cases like that in the ninth yesir of Henry Sixth [Y. B. 
 9 Hen. VI, 56, pi. I.] where Paston says, "He shall not have aid of the 
 king, for this is merely a personal action, and every aid is by reason of 
 some title in reversion of which the king shall be disinherited if he be 
 not made patron, or else the aid is to such an effect as to have recom- 
 pense and to be in place of a voucher. CoTT: In many cases one shall 
 have aid in personal actions, as has been adjudged here lately in debt 
 brought for the payment of an annuity.'' The argument in this case is 
 long and involved and the point for which we have here cited it remains 
 undecided. Ithadbeendecided, however, in other cases. Reeves [Eng. 
 
88 STATHAM 
 
 Law, 3 : 445] states that it was granted in Ravishment of Ward as well as 
 in the actions given above, and so far as I have been able to trace it the 
 action was personal as well as real. [See the cases in Fitzh: Ayde, 178; 
 32 Ed. I, 179; 30 Ed. 1, 180; 29 Ed. 1, 184; 34 Ed. I.] These are cases 
 of Cm in Vita, Admeasurement of Pasture, Formedon, and Wardship of 
 the Body. Also a case of Quod Permittat [Y. B. (R. S.) 32- 33 Ed. I, 
 116]; Escheat [76., 30]; Formedon [lb., 124]; Replevin [lb., 182]; Quare 
 Impedit [lb., 243] and many others. An examination of these cases 
 seems to make it plain that there was no question as to the granting of the 
 aid in personal actions. Just what was the aide prier which looks at us 
 with its thousand eyes through the Year Book cases? Does anybody 
 tell us? If Reeves [Hist, of Eng. Law, 2:143] is right the "aid prier was 
 . . . the name now given [period of Ed. I] to the cause mentioned 
 by Bracton [Bracton, f. 382] as a substitution for vouching. Later he 
 says [Reeves, Hist, of E. Law, 3: 443] that it bears some affinity with 
 vouching to warranty, and probably was first suggested by it." No one 
 else has anything of importance to say about it; everyone knows that 
 it exists and gives cases when it was or when it was not allowed, but no 
 one has anjrthing to say as to when or where it first appeared, or how 
 it grew to be of so much importance, or to what branch of the law it 
 belongs. Crabbe [Hist, of E. Law, 407] says: "Praying aid is an old 
 piece of law, mentioned by Bracton, and commonly known in this day 
 by the name of Aide prier. It is spoken of by that author in the case 
 where the tenant, instead of vouching the king to warranty, which by 
 law he could not do, prayed aid of the king in this form: 'Sine rege res- 
 pondere non potest, eo quod habet chartam suam de donatione, per guam 
 si amitteret, rex ei teneretur ad excambium.' In this day aide prier was 
 a frequent proceeding between common persons. Thus a tenant for 
 life by the curtesy, and the like, might pray aid of him in reversion or 
 remainder, to plead for him and defend his inheritance." 
 
 As a matter of fact there seems to have been very little similarity 
 between vouching to warranty and praying in aid. As the books which 
 touch on it at all (and they are few) give us very little light on the sub- 
 ject, we may with profit, perhaps, give a cursory examination of some 
 of the cases in which an aid prayer occurs and see if they throw any 
 light upon the proceeding. The cases abridged by Fitzherbert, and 
 which are in the reign of Ed. I, are the earliest, but except for one case 
 of a Formedon they are very short. This case [Fitzh : Aide, 180] is fairly 
 long, but sheds little light upon the proceeding. The earliest reported 
 cases which have been printed we find in the Rolls Series, and of these 
 the first is in the Year Book of 32 Ed. I [R. S. 24]. It is a writ of Escheat 
 against a woman, one Margaret, who asks aid of one T, in whom the 
 right "reposes, without whom she cannot answer, and she prays aid of 
 him." The Statute is invoked [West. 2, c. 3] by HULL who shows that the 
 provisions of the statute apply to the prayer to be received and not to the 
 "prier eyde ^esta lacomuneley, e chief en avoytnent de delays." [lb., p. 31.] 
 
AIDE DE ROY 89 
 
 So we get here the thought that the proceeding was of the common law 
 and the Statute intended to avoid delays. There does not seem to be 
 any trace of vouching to warranty here. The next case [30 Ed. I, p. 58, 
 R. S.] is one of trespass. The defendant acknowledges the cutting and 
 carrying away of the trees, as bailiff of one E de C, and by his orders. 
 He cannot bring this matter to judgment without her, and he prays aid 
 of her. It was objected that the writ of Trespass must be pleaded as a 
 personal matter. Apparently the pleading is held to turn the plea into 
 a real plea. But we do not know if the plea was granted on that ground. 
 The case shows, however, that the objection was made to the grant of 
 aid in personal matters, and it would seem as if such an objection must 
 have been upheld at an earlier time, and thus became a decided point 
 in law or we should not have it occurring and re-curring in these later 
 cases. The next case is in Easter Term [Y. B. 32 - 33 Ed. I, R. S. 
 p. 116] and is a Quod Permittat by a parson. Aid is not asked in the 
 report of the case, but Hengham says,"He shall have aid of the patron 
 and of the bishop." We get nothing here except that a parson in such 
 cases was granted the aid. A writ of Formedon comes next. [Y. B. 32- 
 33 Ed. I, R. S. p. 124.] Tenements are demanded against a chaplain who 
 asks aid of the patron. It is granted and he comes into Court, and joins 
 with John in answering, and says that the tenements were aliened 
 before the Statute [De Donis]. The patron thus becomes a witness and 
 gives evidence (as we should say now) on a most important point. In 
 the same term and year [supra, p. 182], "one avowed for damage in 
 his property," and the defendant said, "Not his separate property." 
 The aid of the wife was asked "in whose right the soil is," and was 
 granted, but as she did not come we cannot tell if she was joined and 
 gave her evidence or aid. A writ of Quare Impedit was brought in the 
 same year and term [supra, p. 200] against a widow who asked aid of her 
 husband's heir. She, having only a freehold, and the right reposing in 
 the person who has prayed in aid, the aid was granted. Here again the 
 aid is most important evidence. In a case in Trinity Term [Y. B. 32 
 Ed. I, p. 228, R. S.] we have a writ of Admeasurement of Pasture against 
 Robert de R and others, who said that he held the tenement by a lease, 
 and asked aid of the reversioner and had it. Beauford later seemed to 
 think that there was not sufficient privity shown and denied the aid. 
 Still later in the case, the aid was claimed for tenant in tail of the heir. 
 Beiauford said, "Robert and Eve, to whom the tenements were given in 
 tail, are still alive, so it is impossible to know who will be their heir; 
 therefore answer; you shall not have aid of him." [lb., p. 236.] This 
 estate being uncertain, the aid was refused. In a writ of Wardship the 
 aid of a parcener was prayed. [76., p. 244.] "SCROPE: You ought not to 
 have aid, for this is a plea of trespass where we are demanding only a 
 chattel, and there is nothing savoring of the realty, and it concludes in 
 damages, judgment, etc. HULL declared that it was a writ of Right of 
 Wardship, and that 'in this writ one may vouch to warranty.' " After 
 
90 STATHAM 
 
 securing testimony to show that he was a parcener, the aid was granted. 
 Here we have the assumption that aid must only be granted in a writ 
 "savoring of the realty," and that if one can vouch to warranty one can 
 have aid, but there is no argument on these points, in fact no notice at 
 all is taken of them, and the aid is granted without question. The aid 
 of the reversioner was granted [supra, p. 316] to a tenant for a life term, 
 in a writ of right. They said he should not have it because he could 
 vouch, and yet the aid was granted. Evidently here it was not granted 
 because of the lack of power to vouch. The next case, one of replevin, 
 [supra, p. 366] finds the defendant praying aid of his wife and two 
 others, which was granted; the wife came and asked aid of the other 
 two, but they having been summoned did not come and she was ousted 
 of their aid, so we get little from the case. The remaining cases in 
 the Year Book of 32 Edward I yield us too little to be worth repeating 
 and we may pass on to the Year Book of 33-34 Ed. I, p. 568 (of course of 
 the Rolls Series). Here we find but one case that appears to be useful 
 for our purpose. This is an entry sur disseisin in which the aid is asked 
 of the reversioner. Staitnton wished that it might be refused and 
 TOUDEBY said, "And if we plead without him in whose person the fee 
 and the right are, to his disinheritance, he will perchance oust us, and 
 thatisallourdoubt" [p. 570]. Hengham: "If you doubt of that, goto 
 the Chancery and purchase for yourself against them a writ of warranty 
 of charter. And he was ousted of the aid." This shows why the aid was 
 asked in many cases, and also that it was, as was said by Herle in 
 Y. B. 32 Ed. I [R. S. 24], "chief in avoyment de delays." [p. 30.] It was a 
 swift and valuable method of producing the evidence not to be obtained 
 otherwise than by suing a writ out of the Chancery. One point comes 
 clearly to light as we plod through the dimness of the cases; if they 
 could get the aid it was a great gain. It cannot be claimed that these 
 cases throw any great light upon the point as to whether the aid could 
 be granted in personal actions or not; we can only infer that it could 
 be so used, as the arguments against its use are passed by without 
 remark, and the aid is also granted in such cases without remark. 
 The argument against its use seems to be treated as some remnant 
 of an older law, which survived in the mouths of those not as yet learned 
 enough in the law to be aware that the theory had been long over- 
 turned. The point cannot be resolved by the later cases, as it had 
 already been settled by the time we have reached the period of Ed. III. 
 The cases cited by the authorities are nearly all of the reign of Hen. VI, 
 too late for our purpose — too late even to be authority for the points 
 for which they are cited, as the cases which settled the law were a 
 hundred or more years behind, and the later cases do not cite them. 
 Although we often meet the statement in the later cases that "this is 
 a personal action, and therefore you should not have the aid," the 
 number of cases in which aid was granted in personal actions is 
 nearly as great as those in which it is granted in real actions. Trespass 
 
AIDE DE ROY 91 
 
 follows closely on replevin, and annuity has nearly as many as the writ 
 of entry, in Fitzherbert. He gives many cases of Scire Facias; some of 
 attaint and debt. The cases of aid in the Maynard [Ed. II] show 
 very little deviation from the few in the time of Ed. I. The points 
 regarding the granting of the aid are generally concealed in the midst 
 of the cases, which are often very long. Many points must necessarily 
 be missed in running over the nearly seven hundred pages of the May- 
 nard. I believe they have never been examined for these points; 
 there are no marginal references to aid, and therefore the matter is 
 bound up in a great mass of pleading, through which it has to be care- 
 fully sought. 
 
 Of course when we come to the reign of Ed. Ill we have more aid from 
 the notes and marginal references, but the law on the subject becomes 
 no clearer. Aid is granted or not granted for reasons which in many 
 cases rest on grounds which had been argued and settled long before 
 we have any printed decisions. We do find, as time goes on, that it is 
 more often asked for and granted in personal actions than in real. Fitz- 
 herbert has 136 cases, 84 of which are personal. 
 
 The question of what aid is, and to what branch of the law it properly 
 belongs, presents itself as we read of the prolonged struggle of counsel 
 to gain the aid of A or B, or to prevent the opposing counsel from secur- 
 ing it. Frequently it is granted ' 'because of the feebleness of the estate, ' ' 
 or "case" of the client. When we read such pleas, as when we read over 
 and over again the plea made by counsel that if they are not admitted 
 to plead in this, that, or the other way, "it will be a great mischief, for 
 we have no other remedy," we get a side-light on the pleading of that 
 day. Technical it might be, an art it certainly was, but it was not a 
 ruthless mechanism crushing indiscriminately all that came in its way, 
 as we might think from the criticisms constantly leveled against it. On 
 the whole we gather that justice was greatly favored, and intended to 
 be done. Not exactly our modern justice, perhaps, but if the rules, 
 interpreted too strictly, made for injustice, why, let down the bars a little 
 and let in the needed proof — aid, evidence, and the like. For, after all, 
 was it not evidence that they asked for in the aid prayer? What is calling 
 in a witness to attest the truth of a certain state of facts, but securing 
 evidence? The aid prayer is evidently a part of the pleadings, but plead- 
 ing and evidence at this period had not been differentiated. The law 
 of evidence is old. The law of evidence, as thought of by twentieth cen- 
 tury minds, is new. Thayer tells us so. "Sir James Stephen, writing 
 in 1888 (Nuncomar and Impey 1, 121, n.) remarks, 'After much study 
 of the law of evidence, my opinion is that the greater part of the present 
 law came into definite existence, after being for an unascertainable pe- 
 riod the practice of the courts (differing by the way to some extent on 
 different circuits), just about one hundred years ago.' "... "To be 
 sure we find Lord Kenyon saying in 1790 [R. v. Eniswell, 3 T. R. 707] 
 that "the rules of evidence . . . have been matured by the wisdom 
 
92 
 
 STATHAM 
 
 of the ages, and are now revered from their antiquity." [Thayer, Evi- 
 dence, p. 493, note.] But in comparing that statement with Stephen's, 
 made a century later, we find that all depends upon what is meant 
 when you speak of the rules, or law, of evidence. Lord Kenyon doubt- 
 less included those numerous exclusions of evidence running far back 
 into the Year Books, which "go upon grounds of substantive law and 
 Pleading." He also quotes Finch's "Nomotechnia" [Thayer, Ev. p. 181] 
 "L' evidence aljurie, est quecungue chose que serve le partie a prover lissue 
 perluy." [Finch: Nomotechnia, 61, b.] The only possible way the "par- 
 tie"' could "prover lissue per luy" was by calling in the other party in 
 issue to join him in the action. It was pleading, but it seems, if the 
 history of evidence is to be taken back into the Year Books, where it 
 most assuredly had its being along with the remainder of our law, we 
 shall have to seek it, not under the name of evidence, where we equally 
 assuredly will not find it, but under the various technical terms not now 
 known to our law, and spoken of as the aide prier is now spoken of by 
 our text writers, as "an old piece of the law.'' Hidden in these old 
 pieces of the law are the germs of whatever in our law seems new. 
 
 I grant that the case for this specific "old piece" is not completely 
 made out; there is much room for argument left. Nevertheless there 
 would seem to be a leading and a dim light, which, if followed, might 
 bring a clearer conception of some points now left, if not in darkness, at 
 least in an exceeding great dimness. 
 
 ACCIONS SUR LEZ ESTATUTZ" 
 
 statham 10 a. (1) See actions upon the Statutes of Jurors and Em- 
 Paschai bracers, brought against the jurors and against the 
 
 embracers all in one writ, etc. 
 
 Case 1. 
 
 Paschal 
 42 Ed. III. 
 
 Case 2. 
 
 Reported in Y. B. Paschal, 41 Ed. HI, p. 9, pi. 3. See also Brooke, 
 Decies Tantum, 5, in which he says that the Year Book report is bad. 
 See also Fitzh: Decies Tantum, 9. See also the Statutes of Jurors, 
 34 Ed. HI, cap. 8, Stats, at Large, Vol. 2, p. 139; and the Statute of 
 Jurors and Embracers, 38 Ed. Ill, Stat. 1, cap. 12. Stats, at Large, 
 Vol. 2, p. 172. 
 
 (2) A man shall have an action of debt against the 
 warden of the Fleet by a bill, where he let the prisoner 
 go, albeit the Statute gives the action by writ. And 
 simile, 7 Hen. VI, in the case oiH. Somerset. 
 
 Reported in Y. B. Paschal, 42 Ed. Ill, p. 13, pi. 20. See also Brooke, 
 Bills, 3; and Fitzh: Bills, 10. 
 
 The Statute Merchant for the recovery of debts, is that of 11 or 13 
 Ed. I (Statute of Acton Bumel), Stats, at Large, Vol. 1, p. 141. 
 
ACCIONS SUR LEZ ESTATUTZ 93 
 
 (3) In a writ against the husband and his wife, etc. Paschal 
 The husband and his wife brought an action upon the ^^ ^^' ^''' 
 Statute of Jurors and Embracers; and because it should 
 
 have been brought in the name of the husband alone, it 
 was abated. 
 
 Very briefly reported in Y. B. Paschal, 43 Ed. Ill, p. 16, pi. 18. See Case 3. 
 also Brooke, Baron and Feme, 17; and Fitzh: Joynder in Action, 21. 
 For the Statute of Jurors, see supra, case 1. 
 
 (4) Trespass was brought against the Abbot of W, Hilary 
 because by the same Statute of Marlborough it is not 
 allowed to anyone to drive the cattle which he took in one 
 county into another county. And the defendant said 
 that the place where, etc., was held of the manor of F, 
 which is in another county, and that he, for rent in arrears, 
 
 etc. But yet it was adjudged that the plaintiff should re- 
 cover his damages. And it is against the opinion of many 
 that he should recover damages, for the Statute does not 
 give any other remedy against the sheriff, except that he 
 shall be amerced, etc. 
 
 Reported in the Liber Assisarum, Anno 30 Ed. Ill, p. 179, pi. 38, Case 4. 
 See also Brooke, Actions sur le Statute, 42. Statute of Marlbridge, 
 52 Hen. Ill (1267), cap. IV: "A distress shall not be driven out of 
 the county." Stats, at Large, Vol. 1, p. 58. 
 
 (5) If a lord of court, or a bailiff, procures any man to Trinity 
 certify any complaint against another, although his plea 
 
 be true, yet he shall have an action upon the Statute 
 because of the procurement; which was conceded by all 
 the Court. And that in Trespass. But the action is a 
 replevin by the Statute. And if the defendant justifies 
 by reason of such a plaint he shall have the [plea of fraud], 
 etc. 
 
 The case has not been identified in Y. B. Trinity, 11 Hen. IV. The Case 5. 
 Statute appears to be that of 28 Ed. I, cap. II. Stats, at Large, Vol. 1, 
 p. 298. 
 
 (6) One sued a writ upon the Statute that [whereas] Michaeiis 
 none should be impleaded in the Marshalsea unless one ^°' 
 party be of the household of the king, etc., that the 
 
94 
 
 STATHAM 
 
 Case 6. 
 
 Paschal 
 11 Hen. IV. 
 
 Case 7. 
 
 Note. 
 
 Michaelis 
 44 Ed. III. 
 
 Cases. 
 
 defendant had, etc., and the action was maintained, etc. 
 And that was reasonable, because in the Marshalsea they 
 will not admit such an exception, etc. 
 
 Reported in Y. B. Paschal (not Mich.), 7 Hen. VI, p. 30, pi. 23. The 
 Statute is that of 28 Ed. Ill (1300), cap. 3. Stats, at Lai^e, Vol. 1, 
 p. 294. 
 
 (7) A writ Upon the Statute of Liveries was brought 
 against him who gave the robes, and against him who 
 took them, etc. Skrene: They should have had separate 
 writs, for the tort of one is not the tort of the other. And 
 the writ was adjudged good, etc. Query, if it could be 
 brought against several, alleging that they had separately 
 given livery? etc. 
 
 Reported in Y. B. Paschal, 11 Hen. IV, p. 65, pi. 23. See also 
 Brooke, Joinder in Action, 27; and Fitzh: Brief e, 238. 
 
 The Statute is that of 1 Hen. IV (1399), cap. 7, Stats, at Large, Vol. 
 2, p. 391. 
 
 See as to actions upon the Statutes, in the title of Decies 
 Tantum, and in the title of Laborers, and in the title of 
 Provisors, in the title of Maintenance, and in the title of 
 Champerty. 
 
 Statham, title of Decies Tantum, infra, p. 63 a; title of Labourers, 
 infra, pp. 117 b to 122 a; title of Provisors, infra, p. 144 a; title of 
 Mayntenannce, infra, pp. 124 a to 125 a ; title of Champertie, infra, p. 40 a. 
 
 (8) In a decies tantum it was alleged that they took 
 from both parties, and so it was found. Kirton demanded 
 judgment against them both, and also according to the 
 Statute, etc. Fyncheden : The Statute of ' 'ambidextrous" 
 was intended to apply where they are indicted for this at 
 the suit of the king, wherefore as to that we do not wish 
 to do anything. Wherefore as to that of which they were 
 attainted, it was adjudged that the king should recover 
 the half, and the party the other half. 
 
 Reported in Y. B. Mich. 44 Ed. Ill, p. 36, pi. 28. See also Brooke, 
 Decies Tantum, 8. 
 
 The Statute is 5 Ed. I (1331), cap. 10, Stats, at Large, Vol. 1, p. 445, 
 and is entitled, "The punishment of a juror that is ambidexter." It 
 is known in the Year Books as the "Statute of Ambidexter." 
 
ACCIONS SUR LEZ ESTATUTZ 95 
 
 (9) In an action upon the Statute the defendant said, Hilary 
 
 7 Ed III 
 
 "No such Statute," and he had the plea, etc. Query, how 
 shall it be tried? etc. (That is not the law, unless the 
 action be brought upon a special act, etc. The reason 
 appears, etc.) 
 
 The case has not been identified in Y. B. Hilary, 7 Ed. III. The Case 9. 
 Statute is necessarily left unidentified; it is apparently meant to be 
 applicable as a general plea against any Statute which cannot be proved. 
 
 Forestalling nor Regrating; as it appears in an Iter of Note. 
 London. In a note. 
 
 This appears to be a mere fragment, left among the notes by accident, 
 probably a note that was to have been looked up further. 
 
 (10) One brought an action upon the Statute which Anno 
 says that no forester shall arrest any man in the forest 
 unless he found him with the stolen goods, or that he was 
 trespassing within the forest; or that he be indicted for a 
 trespass made within the forest; whereas the defendant 
 took and imprisoned one A, servant to the plaintiff at such 
 
 a place, etc. Young: It does not appear by his bill that 
 the place where he was taken was within the forest; for 
 if it be out he shall have his action at the common law, 
 and not recover the double damages which are given by the 
 Statute. And the Statute also provides that the parties 
 damaged by this arrest shall recover; by which is not 
 meant the master of him who was damaged, etc. And 
 upon these two points they demurred in law. And that 
 was in the King's Bench, etc. 
 
 There is no printed Year Book for the very short last year of Ed. II. Case 10. 
 The Maynard, or Year Book of Ed. II, only contains years 1-19. 
 
 The Statute may be that of 3 Ed. I (1278), cap. 20. Stats, at Large, 
 Vol. 1, p. 90. 
 
 ' This title, so short in Statham, was afterwards expanded by Fitz- 
 herbert and Brooke, but after that period seems to have been abandoned 
 as a title in the abridgments. Rolle has left it out entirely. The 
 title does not fall in readily with the plans of the later abridgments or 
 commentaries which were founded upon the writs, probably as the 
 easier or the more practicable plan. Where there are no writs the learn- 
 ing of the law is apt to fail us. Under this head we get in Statham a 
 miscellaneous assortment of cases, none of them apparently of great 
 
96 
 
 STATHAM 
 
 importance, yet every one of them was of value in the pleading of 
 the day. That they were held to be so is evidenced by the 
 expansion we find in the abridgments following Statham. This value 
 evidently grew less as time passed and the formal pleadings under the 
 Statutes became crystallized, so that there was no longer any doubt as 
 to the manner of proceeding. Naturally, as the Statutes covered di- 
 verse subjects, the decisions upon them would fall under many classifica- 
 tions, and the classification under this separate head would not be used 
 after many cases had been brought together in an abridgment. The 
 labor of hunting up the cases under such a broad classification would 
 be too much, and it would then cease to be useful, as it evidently did. 
 Yet these cases, not especially those in the abridgment before us, but 
 the many which we find throughout the Year Books, could be made very 
 useful in any exhaustive or critical study of the old pleading that might 
 be made — indeed that some day will doubtless be made. They speak to 
 us out of the old pages, but we do not know their language; they have 
 much meaning, but we cannot as yet translate it into modern terms. 
 Yet to do so would doubtless solve many questions now without an 
 answer. 
 
 ACCIONS SUR LE CAS' 
 
 2 Hen. IV. 
 
 Statham 10 b. (1) One brought an action upon the case, and the writ 
 MichaeKs told how he stood seised of a road over the land of the 
 defendant as far as his meadow, etc., and the defendant 
 had ploughed his road there wrongfully, and to the dam- 
 age, etc. And it was adjudged that he should take nothing 
 by his writ, because he could have an Assize, etc. But if he 
 claimed the road to his fish pond it would be otherwise, etc. 
 
 Reported in Y. B. Mich. 2 Hen. IV, p. 11, pi. 48. See also Brooke, 
 Action sur le Case, 29; and Fitzh: Accion sur le Cas, 24. As to the 
 remark of Statham at the end of the case, Skrene says, "That way 
 still remains, but it is not so easy as it was before." 
 
 Case. 1. 
 
 Hilary 
 
 2 Hen. IV. 
 
 (2) A man brought an action upon the case, because 
 the common custom of the realm was that every one 
 should carefully guard his fire, and how by the negligence 
 of the defendant in guarding his fire, his house was burned. 
 And they were at issue that the house was not burned by 
 his fire, etc. 
 
 And it was said in the same plea, that if my servant 
 bums my house, so that the house of my neighbor is burned, 
 I shall answer for it, etc. (Which I do not believe.) 
 
ACCIONS SUR LE CAS 97 
 
 Reported in Y. B. Paschal (not Hilary), 2 Hen. IV, p. 18, pi. 6. A Case 2. 
 much quoted and well-known early case in the law of negligence. See 
 also Brooke, Action sur le Case, 30; and Fitzh: Accion sur le Cas, 25. 
 
 (3) One brought an action against a miller because he Michaeiis 
 and his ancestors had been used to mill without toll, ^^ ^'*' ^"' 
 whereas the defendant took a bushel of grain, etc., vi et 
 
 armis. Thorpe: You shall not have anything against 
 the miller except a general writ of Trespass, and a Quod 
 Permittat against the tenant of the soil, etc. Which Fynch- 
 EDEN conceded. Simile, Trinity 44, in Trespass, well 
 debated, and there the writ was adjudged good. 
 
 Reported in Y. B. Mich. 41 Ed. HI, p. 24, pi. 17. See also Brooke, Case 3. 
 Action sur le Case, 14; and Fitzh: Accion sur le Cas, 31. 
 
 (4) Onte brought a writ of Conspiracy against one T Trinity 
 and W, alleging that they had procured the said W to 
 
 oust the plaintiff from certain lands, and to enfeoff one B, 
 against whom the said T brought a Scire Facias to have 
 execution of an elder title, so that the plaintiff lost his 
 warranty. And the writ was challenged because he 
 alleged that the defendants "procured" the said W, whereas 
 W could not "procure" himself. And then the defendants 
 pleaded "not guilty," etc. 
 
 Reported in Y. B. Hilary (not Trinity), 42 Ed. Ill, p. 1, pi. 2. The Case 4. 
 report of the case is continued in Y. B. Hilary, 43 Ed. Ill, p. 10, pi. 29, 
 where they are at issue on "not guilty.'' See also Brooke, Conspiracy, 6. 
 
 (5) One brought a writ of Arrest, alleging that the Hilary 
 defendant had arrested his wools and detained them, and ^^ ^'^' '■"" 
 would not permit them to be delivered according to the 
 agreement, etc. And the opinion was that the writ could 
 
 not be maintained upon such an allegation, etc. 
 
 The case has not been identified in Y. B. Hilary, 42 Ed. Ill, or in the Case 5. 
 early abridgments. 
 
 (6) One brought an action against an innkeeper, and Paschal 
 he counted the common custom, etc., that every inn- 
 keeper should keep [safely], etc. And he had a writ upon 
 
 all his matter, etc. The defendant demanded judgment 
 
98 
 
 STATHAM 
 
 Case 6. 
 
 inasmuch as he did not count upon any delivery made to 
 him, but that he left the goods in the chamber, etc. And it 
 was adjudged that the plaintiff should recover his damages, 
 etc. 
 
 Reported in Y. B. Paschal, 42 Ed. Ill, p. 11, pi. 13. See also Brooke, 
 Action sur le Case, 15. 
 
 Paschal 
 42 Ed. III. 
 
 Case 7. 
 
 (7) A writ of Conspiracy upon the Case was brought 
 against an abbot and others. And the abbot died, and 
 they brought a new writ against his successor and the 
 others, comprising the same matter; which matter was 
 debated for a long time. Which see, etc. 
 
 Reported in Y. B. Paschal, 42 Ed. Ill, p. 14, pi. 27. See also Brooke, 
 Action sur le Case, 16. 
 
 Hilary 
 
 43 Ed. III. 
 
 Case 8. 
 
 (8) One brought a writ of Trespass because the defend- 
 ant had taken toll of his tenants of the manor of B, who 
 have been used of time, etc., to go to every market and 
 ferry, etc., which usage the king had confirmed, etc. And 
 because the defendant could not deny this, the plaintiff 
 had judgment to recover his franchise and his damages, 
 etc. 
 
 Reported in Y. B. Mich, (not Hilary), 43 Ed. Ill, p. 29, pi. 14, under 
 the head of "Certaine cases prises hors d'un veil written copy de 
 43 nient imprimfe devant." A quaint mixture of French and English. 
 
 Hilary 
 48 Ed. III. 
 
 (9) A woman brought a writ of Trespass against one B, 
 surgeon of London, and the writ said that her right hand 
 was wounded by one F, and the defendant undertook to 
 cure her, whereas by the negligence of the defendant her 
 hand was injured so that it was lost, to the wrong and to 
 the damage, etc. (And note that no place where he under- 
 took was put in the writ, but he declared it in his count, 
 to wit: at Strand Cross.) Hasty: He did not take upon 
 himself to save it: Ready to wage his law. Pershay: 
 This is an action of Trespass which lies in the notice of the 
 country, so the law does not lie. Fyncheden : But it is not 
 law to answer, "ne contra pacem," wherefore it seems the 
 law lies. But it seems that the action does not lie, for 
 
ACCIONS SUR LE CAS 99 
 
 she was not maimed by the defendant, but by him who 
 hurt her, and if she recovers damages now against us she 
 will recover another time against him who maimed her, 
 and so twice, etc. But yet, Ready, etc. And the other 
 alleged the contrary. Hasty: Now, judgment of the 
 writ, because the place is not made certain. Pershay: 
 You affirm the writ to be good by the tender of the issue. 
 But yet the writ was abated, etc. 
 
 Reported in Y. B. Hilary, 48 Ed. Ill, p. 6, pi. 11, where it is said to Case 9. 
 have been a man who brought the writ. See also Brooke, Action sur 
 le Case, 24. 
 
 (10) One made his complaint to the king by bill, that Hilary 
 
 in a plea for the taking of cattle by himself and one H, ^* ^^' ^^^' 
 a Nisi Prius was granted in Essex before Kelshull, on 
 which day the inquest was charged, and because they 
 could not agree on that same day, the inquest was delivered 
 to the sheriff to keep safely, etc. And the next day Kel- 
 shull could have taken the verdict, but because of the 
 procurement of certain people of the vill (whom he named), 
 he suffered them to go at large and eat and drink, etc., 
 for which reason Kelshull would not take the inquest, so 
 it was delayed, to the damage: and we prayed a remedy, and 
 the king endorsed a certain bill, and sent it to the justices 
 of the Bench, commanding them to do right to him, etc. 
 Wherefore they awarded a Venire Facias against the jurors 
 and the procurors, who came and were at issue upon the 
 matter, upon which a Venire Facias was issued to the 
 coroners. 
 
 Reported in Y. B. Hilary, 24 Ed. HI, p. 24, pi. 10. case 10. 
 
 (11) One brought an action of Trespass on the Case Trinity 
 because the defendant had bargained with him to enfeoff ^^ ^^"^ ^^• 
 him of certain lands, and that the same defendant before 
 
 such a day, etc., should make one H release to him all 
 his right in the same land, and that he did not make 
 the release. Newton: That sounds merely in covenant, 
 wherefore, etc. Paston: It seems that the action well 
 lies, for if a blacksmith makes a covenant with me to shoe 
 
100 
 
 STATHAM 
 
 Case 11. 
 
 Trinity 
 
 14 Hen. VI. 
 
 Statham 11 a. 
 
 Case 12. 
 
 my horse, and he does it negligently, so that the horse is hurt 
 by a nail, I shall have an action on the case. And I say 
 that if he will not shoe my horse, that still I have an 
 action on the case, for by his default peradventure his 
 horse is injured by lack of a shoe, so that both cases are 
 dependent upon covenant. Which Juyn conceded, etc. 
 
 Reported in Y. B. Anno 14 Hen. VI, p. 18, pi. 58. A very good case 
 for the example it contains. See also Brooke, Action sur le Case, 69, 
 and Fitzh: Accion sur le Cas, 8. 
 
 (12) One brought a writ of Trespass on the Case because 
 the defendant sold him certain wood at F for twenty pounds, 
 and he showed him a certain portion of the wood which 
 was good and marketable, and he warranted the remainder 
 of the wood to be as good, etc., and he [showed] that the 
 remainder was defective, etc. Newton said that he sold 
 him certain wood for the same sum at G, which was good 
 and marketable, without this that he sold it at F, as he has 
 alleged, etc. And it was held a good plea. So note that 
 in this action the place shall be made a part of the issue. 
 Query, if the place be in another county? etc. 
 Reported in Y. B. Anno 14 Hen. VI, p. 22, pi. 66. 
 
 Hilary 
 
 1 Hen. VI. 
 
 Case 13. 
 
 (13) If a man recovers by default against me in a Prmcipe 
 quod Reddat and the summoners and the viewers are dead, 
 I shall have an action on the case against the sheriff. By 
 Juyn. Which was conceded, etc. 
 
 Reported in Y. B. Mich, (not Hilary), 1 Hen. VI, p. 1, pi. 4. See also 
 Brooke, Action sur le Case, 73; and Fitzh: Accion sur le Cas, 1. 
 
 Trinity 
 39 Ed. III. 
 
 Case 14. 
 
 (14) One brought a writ on the case because the defend- 
 ant had forged a release, and put it in evidence in an 
 inquest between the plaintiff and one B, in a writ of Ward- 
 ship, which passed against him by reason of that release. 
 Thorpe: You cannot have an action for that, for it is 
 not in evidence that any judgment was given upon it; 
 and you can have an Attaint, wherefore you will not take 
 anything by your writ, etc. 
 
 Reported in Y. B. Paschal (not Trinity), 39 Ed. Ill, p. 13, pi. 23 
 (writ of Conspiracy). See also Brooke, Action sur le Cas, 68. 
 
ACCIONS SUR L^ CAS ' 'J ' <-* / , V 101 
 
 (15) One brought an action because tbe^efendant sold ™^*y 
 him a horse and warranted the horse to be sound and well 
 
 and that the defendant knew the horse to be sick, and 
 that the horse died within a week afterwards. And the 
 defendant said that he sold him the horse sound and well, 
 without this that he warranted him, etc. Ready. And the 
 other side alleged the contrary. (It seems that the action 
 is double.) 
 
 There is no printed Year Book for 11 Ric. II. The case has not Case 15. 
 been identified in the early abridgments. 
 
 (16) One brought an action because the defendant Hilary 
 
 1 1 1 1 • -rr /• • • I . 11 Ric. II. 
 
 undertook to cure the plamtm oi a certain sickness, m 
 London, in such a ward ; and he [told] how he came to the 
 plaintiff in the Strand, and there gave him the wrong 
 medicine for his infirmity (and he told what the infirmity 
 was); and the writ was brought in London. Rikhill: 
 He alleges the tort to be done in another county than the 
 writ does; and also the action sounds in covenant, which 
 should be brought in the same county, etc. And the writ 
 was adjudged good, etc. 
 
 There is no printed Year Book for 11 Ric. II. The case, however, Case 16. 
 is abridged in Fitzh : Accion sur le Cas, 37. He give a much longer 
 digest than that of Statham. 
 
 (17) The wardens of a church brought an action against Michaeiis 
 one A for certain things belonging to the church, which 
 
 were carried out of their keeping. The defendant said 
 that he was one of the parishioners of the said church, 
 and the plaintiff also, so the goods are in them in common ; 
 judgment if such an action lies against us. And it was the 
 opinion that the action would well lie, etc. 
 
 Reported in Y. B. Mich. 11 (not 10) Hen. IV, p. 12, pi. 25. Case 17. 
 
 (18) If I buy a horse of a man, and the horse is in another Hilary 
 place at the time of the purchase, so that I cannot see 
 him, and he warrants me that the horse is sound and well, 
 
 and the horse has a visible malady like "splint and spalen," 
 I shall have an action upon the case, etc. By Thirning: 
 
102 
 
 STATHAM 
 
 Case 18. 
 
 Hilary 
 9 Hen. VI. 
 
 Case 19. 
 
 Michaelis 
 3 Hen. VI. 
 
 Case 20. 
 
 Hilary 
 
 11 Hen. IV. 
 
 Case 21. 
 
 It is otherwise if I see the horse at the time of the pur- 
 chase, etc. 
 
 The case has not been identified in Y. B. Hilary, 13 Hen. IV, or in 
 the early abridgments. 
 
 (19) One brought an action against an escheator because 
 he had taken an office by an inquest, and returned other 
 names, etc., and other things which were not found, and the 
 action was good. And the law is the same against a 
 sheriff, if he returns "four actions" when there are five. 
 
 Reported in Y. B. Hilary, 9 Hen. VI, p. 60, pi. 9. See supra, title 
 Aide de Roy, case 12. See also Brooke, Action sur le Case, 9, and 
 Fitzh: Accion sur le Cas, 6. 
 
 (20) One brought an action against one because the 
 defendant undertook to make a mill by a certain day, 
 and he did not do it, etc. The defendant answered that, 
 but not "rigore juris" for Martyn said clearly that the 
 action does not lie, because it sounds in covenant. And 
 it was also said that the writ was not good because it 
 did not state that the defendant should have anything for 
 the making of it; for it should be for a certain sum, etc. 
 (And it is good enough without putting how much in cer- 
 tain, etc.) 
 
 Reported in Y. B. Hilary (not Mich.), 3 Hen. VI, p. 36, pi. 33. See 
 also Brooke, Action sur le Case, 7. 
 
 (21) In trespass against a common innkeeper, etc., the 
 defendant said that he went to the sheriff to be at the 
 hundred the same day, etc., and he loaned the key of 
 the house to the plaintiff, who took it at his peril, etc., and 
 before he returned, the horse of the plaintiff was stolen, 
 etc., judgment if action? And the opinion was that the 
 plaintiff should recover his damages. Norton: He does 
 not say in his count that we were a common innkeeper. 
 Skrene: We have rehearsed the custom by which it is to 
 be understood that he is a common innkeeper. And also 
 you have passed that matter. Thirning: It appeared [of 
 record], wherefore take nothing by your writ, etc. 
 
 Reported in Y. B. Hilary, 11 Hen. IV, p. 45, pi. 18. See also Brooke, 
 Action sur le Case, 41. 
 
ACCIONS SUR LE CAS 103 
 
 (22) A schoolmaster brought an action on the case Hilary 
 [showing] how the collation to the school of B belonged 
 
 to the Prior of B, from time, etc., and that he was in by 
 his collation, and that the defendant had set up a school, 
 so that where I was accustomed to take twenty pence 
 every quarter for scholars, I have only twelve pence, etc. 
 Hankford : One can have Damnum absque Injuria, where- 
 fore you take nothing by your writ. 
 
 Reported in Y. B. Hilary, 11 Hen. IV, p. 47, pi. 21. A well-known Case 22. 
 and much cited case. See also Brooke, Action sur le Case, 42; and 
 Fitzh: Accion sur le Cas, 28. 
 
 (23) Pelham brought a writ of Trespass against the Hilary 
 Prior of B, inasmuch as the said prior, by reason of his 
 water mill in S, should repair a bridge over the water 
 which ran to the said mill, by which bridge the plaintiff, 
 
 by reason of his manor of F, and all those whose estate, etc., 
 were accustomed to pass with their provisions and their 
 cattle, etc. And he showed how the said prior and his 
 predecessors, and all those whose estate they had in the 
 said mill, had repaired the same bridge for time, etc., 
 and that the said defendant suffered the said bridge to be 
 out of repair, so that the plaintiff could not pass for a 
 long time, to the damage, etc. Skrene : Judgment of the 
 writ, for the plaintiff has claimed the road appendant to 
 the manor of F, and he has not claimed the road to go to 
 his freehold ; and no place, etc. And that was not allowed. 
 Skrene: Still you should have an assize of nuisance, and 
 not this action. Hankpord: That cannot be, for nothing 
 was raised as a nuisance, or torn down, but he has suffered 
 the bridge to fall, wherefore answer. 
 
 Reported in Y. B. Trinity (not Hilary), 11 Hen. IV, p. 82, pi. 28. Case 23. 
 See also Brooke, Action sur le Case, 44; and Fitzh: Accion sur le Cas, 30. 
 
 (24) One brought an action of deceit on the case, and JJ'^^^j 
 he counted that he brought a writ of Entry against the 
 defendant. And he produced a protection "quia moria- 
 
 tur," which was allowed. And the case was put without 
 day, and he remained in B, in the county of E, to the 
 
104 STATHAM 
 
 damage, etc. And the writ was brought in the county 
 of E, etc. FoRTESCUE: The writ should be brought in 
 the county of Middlesex, where the protection was thrown, 
 etc., for that is the cause of his action. Newton: The writ 
 is good, for it shall be tried whether he remained there or 
 not. Fulthorpe: On a protection, "quia profecturus," 
 no such action lies, for he who throws the protection can 
 go when he will; but in this case the action lies, and it is 
 because of the throwing of the protection, which was 
 statham 11 b. brought in Middlesex. Newton: Answer. Fortescue: 
 He did not say in his writ by what writ we are impleaded. 
 Portyngton: We have said it in our count. Fortescue: 
 This is a special writ in which all the matter should be 
 comprehended. Newton: Answer, etc. 
 
 Case 24. The case has not been identified in Y. B. Trinity, 19 Hen. VI, or in 
 
 the early abridgments. 
 
 Trinity (25) One brought an action upon the case because he 
 
 27 Hen. VI. delivered to the defendant nine sacks of wool, to take care 
 of; and the defendant, for six shillings, which the plaintiff 
 paid him, took upon himself to keep them safely. And 
 because the defendant [did not] keep them safely they were 
 taken and carried away. Danby: This action does not 
 lie, for it appears clearly that he could have a writ of 
 Detinue; and also in his count he does not show by whom 
 they were carried away. Portyngton: If he said that 
 they were carried away by one unknown it were enough; 
 but it seems that the action does not lie, for the above 
 reason. Prisot: The action well lies, to my mind. (But 
 he did not say why.) And then Danby answered to the 
 action. And I believe the reason the action lies is because 
 the defendant took six shillings to take care of them; 
 which six shillings could not be recovered by a writ of 
 Detinue, etc. Query? 
 
 Case 25. '^^^ "^^ ^^^ '^°*- ''^^^ identified in Y. B. Trinity, 27 Hen. VI, or in 
 
 the early abridgments. 
 
 Note. See as to actions on the case, in the title of Deceit, 
 
 and in the title of Justification, Hilary, 19 Hen. VI ; and 
 also in the title of Conspiracy. 
 
ACCIONS SUR LE CAS 105 
 
 Statham, title of Disceipte, infra, pp. 69 a to 69 b; title of Justificacion, 
 infra, p. 116 a, case 1 ; title of Conspiracy, infra, pp. 48 a to 48 b. The 
 only case appearing in this title after this note is a case in 36 Hen. 
 VI, one of the very latest cases in the book. It may be that the case 
 was added just before the book went to press, and not by Statham. 
 
 (26) One brought an action on the case because the Michaeiis 
 defendant sold him a horse at Southwark, knowing him to ^^ ^^°' ^^" 
 be infirm in body through various diseases, and warranting 
 him to be a sound horse. And it was challenged for double- 
 ness, and it was adjudged good, for it was said that the action 
 does not lie in this case unless there had been a warranty, 
 also he cannot have an action on that warranty unless he 
 shows the deceit ; for upon the warranty by itself the action 
 does not lie without a specialty, because it sounds in cove- 
 nant, and therefore it is necessary that he show a deceit 
 precedent, etc. Moile: We sold him a horse in such a place 
 in London, which was sound and well, for this same sum, 
 without this that we sold him any horse at Southwark in the 
 manner, etc. Pole : That is no plea, for it amounts to no more 
 than that he did not sell to you the horse at Southwark. 
 Moile: In Detinue it is a good plea to say that the plaintiff 
 bailed him the same thing in another county upon condi- 
 tion, without this, etc. And if we had pleaded that we sold 
 the horse to him in another county upon condition, etc., it 
 had been a good plea, consequently, since he has pleaded 
 without conditions, the plea is good, for in neither case can 
 it be understood to be the same contract, etc., for nothing 
 will be tried except whether we sold the horse in South- 
 wark in either case. Portyngton : It seems to me that 
 one shall not have the plea in either case. Assheton: 
 There are such pleas in London, where they can have a 
 venue of two parishes. But when such a condition is 
 pleaded in another county it is wrong, etc. But in Lon- 
 don there are many venues, and yet there is but one county, 
 and the law is the same, it seems, in each county, [so] that 
 defendant can allege such a matter in another venue 
 within the same county. 
 
 The case has not been identified in Y. B. Mich. 31 Hen. VI, or in Case 26. 
 the early abridgments. 
 
106 STATHAM 
 
 ' This action, being a favorite of legal writers of the present day, has had 
 a most adequate treatment, so that it is not necessary here to go into the 
 difficulties of the early litigants and eulogize the benefits that came to 
 them through the Statute of Westminster the Second. The immortal 
 case of the overloaded boat on the Humber [Y. B. 22 Ed. Ill, Liber 
 Assisarum, p. 94, pi. 41] and the drowning of the horse "a tort et a 
 damage," has come down through all the ages, and one might well stop 
 to pity — not the poor horse thus cut short in his career, — but the long 
 ranks of burden bearers who have become overladen with the learning 
 of actions in consimiK casu. Statham, however, was not so overwhelmed 
 with cases on the subject; we have in the Abridgment only twenty-six 
 cases ; Fitzherbert has only fifty -two. Naturally many of these cases are 
 in the reigns of the two Henrys, and comparatively few in the time of 
 Edward the Third. We have one case in 24 Ed. Ill [10] which is very 
 early for Accion sur le cas, being only two years after the cases in the 
 Liber Assisarum. It is noticeable that this case, unlike the other 
 cases cited by Statham, begins "One brought his complaint to the king 
 by bill," whereas all our other cases are "One brought an action of 
 trespass" or "Trespass on the Case," or "an Action on the Case," or 
 "A writ of Conspiracy" or "A writ of Arrest." It is evident that 
 the form of the action at this period was as yet unevolved and that 
 they were feeling after the best method of framing the action. How- 
 ever full the books may be of learning about the action on the case, they 
 are very chary of that learning when it comes to speak of the bill. We 
 are told that "actions were brought in this way during all the reign 
 [Ed. Ill] and the books are full of them" [Reeves, Hist, of Eng. Law, 
 3 : 93]. Crabb paraphrases Reeves. This bill is not the bill in equity, as 
 action was commenced in either of the three courts, King's Bench, Com- 
 mon Pleas and Exchequer. More will be said as to the bill under that 
 title. It is enough to note it here. 
 
 AlMESUREMENTs 
 
 Paschal, (1) In a WTit of Admeasurement of Dower against a 
 
 woman, who came in and said tliat she was ready to be 
 admeasured. And the demandant counted that she 
 had received more than her dower, etc., by twenty 
 pounds. And then a writ issued to the sheriff, for him to 
 admeasure, who returned that he had admeasured and 
 that she had more than, etc., by forty shillings. And 
 because he did not return the extent for the two parts, 
 and for each part, etc., he was amerced, and a Sicui Alias 
 issued. And then there was an argument on the Statute, 
 
AMESUREMENT 107 
 
 to wit: if the admeasurement should be before justices or 
 before the sheriff. And it should not be made before the 
 sheriff unless it is viscontiel. But in this case, although 
 it was sent to the sheriff it was before justices, etc. 
 
 Reported in Y. B. Paschal, 44 Ed. Ill, p. 10, pi. 12. The Statute Case 1. 
 upon which there was an argument is that of Westminster the Second, 
 13 Ed. I (1286), caps. 7 and 8. Stats, at Large, Vol. 1, p. 115 (180, 
 181). 
 
 (2) If a man has common in two vills by reason of his MichaeUs 
 freehold in one of the vills, a writ of Admeasurement should ^^ ^^- ^^■ 
 be brought against him in the two vills, for otherwise he 
 
 will be admeasured in the one vill according to his free- 
 hold, so he will lose his common in the other vill. And 
 that in Admeasurement. 
 
 Reported in Y. B. Mich. 11 Ed. II (Maynard), p. 330, pi. 1. Case 2. 
 
 (3) In a writ of Admeasurement of Dower, all the lands Trinity 
 which she had in dower within the same county shall be '^' ' 
 admeasured, to wit: all the lands that she had in her 
 endowment as of the endowment of the heir when the 
 guardian brought the action, etc. And although she be 
 endowed in the Chancery before the heir sues livery, yet 
 
 the heir shall have a writ of Admeasurement. (In the 
 same plea.) 
 
 There is no printed Year Book for 7 Ric. II. The case has not been Case 3. 
 identified in the early abridgments. 
 
 (4) A writ of Admeasurement of Dower is maintainable Anno 
 against a woman who is endowed in the Chancery; as i2Hen. vi. 
 appeared in the case of the Count of Devonshire. 
 
 The case has not been identified in Y. B. 12 Hen. VI. Fitzh: Ad- Case 4, 
 measurement, 9, has a very short abridgment of the case, which he may 
 very well have taken from Statham. 
 
 ' Under this title we have three cases of admeasurement of dower and 
 one of admeasurement of pasture. These were both viscontiel, direc- 
 ted to the sheriff. [Fitzherbert, Nat. Brevium, 125, 148.] The writ of 
 admeasurement of dower lay where the heir when under age had endowed 
 the widow with more than her lawful share, or the guardian had endowed 
 her with more than the third part of the land; then the heir at his 
 
108 
 
 STATHAM 
 
 coming of age could have the writ. The admeasurement of pasture was 
 a writ between tenants in common, where common was appendant to 
 their freeholds, and one of the commoners "surcharged" the common; 
 that is, put in more cattle than he was entitled to. The "admeasure- 
 ment" seems to have been made sometimes by the sheriff, sometimes 
 before the justices. [Reeves, Hist of Eng. Law, 2d ed., Vol. 1, p. 343.] 
 The process is given by Fleta [Book 4, cap. 23, De Admensur Pasiurce.] 
 The writ, probably in a somewhat more ancient form, figures in Mait- 
 land's Register of Original Writs, as No. 107. He attributes this Regis- 
 ter to the middle part of the reign of Henry III (1236-37). [Sel. Essays 
 in Anglo-American Legal History, Vol. 2, p. 572.] He gives the writ 
 there as "Surcharge of Pasture ; summone . . . ^, quod sit . . . quod sit 
 . astensuras guare super honerat pasturum." [Supra, p. Z77\. Bohun 
 [Eng. Lawyer, p. 130] says,"This writ was formed to bring those to equity 
 and moderation who usurp more than their shares or part, and to that end 
 it formerly lay in divers cases, though the Precedents of the Register and 
 Fitz., Nat. Brev., have given us the forms thereof only of two kinds, viz: 
 Writs of Admeasurement of Dower [and] of Pasture." We should 
 like to know what were the "divers cases" Bohun had in mind. He 
 was apparently unprepared to give these instances which we should 
 like so much to have. It might be that a patient search of the cases 
 with this object in mind might show us some traces of these lost prece- 
 dents. I have, however, been unable to make the exhaustive search 
 necessary for the purpose. 
 
 A]VIERCIA]MENT " 
 
 Paschal (1) In a scire facias, Quid Juris Clamat, and such like 
 
 actions, wliich are founded upon a record, unless the plain- 
 tiff be named he shall not be amerced. 
 
 Case 1. The case has not been identified in Y. B. Paschal, 48 Ed. III. Brooke 
 
 and Fitzherbert have one case of Amercement in 48 Ed. Ill (Mich. 
 48 Ed. Ill, p. 22, pi. 4), Brooke, Amerciament, 12, and Fitzherbert, 
 Amerciament, 13, but it does not appear to be the case here abridged 
 by Statham, unless the latter had access to a different report of the 
 case. 
 
 Hilary 
 
 28 Ed. III. 
 
 (2) In replevin, the issue was taken that the place 
 where, etc., was out of his fee; and it was found for the 
 plaintiff, and yet the avowant was not amerced, because 
 the action was not founded upon the Statute which says 
 that a man shall not distrain out [of his fee, or place where 
 he has jurisdiction.] 
 
AMERCIAMENT 109 
 
 The case has not been identified in Y. B. Hilary, 28 Ed. III. Fitz- Case 2. 
 herbert apparently took the case from Statham, as he gives the same 
 citation without the folio number. See Fitzh: Amerciament, 24. The 
 Statute is that of Marlbridge, 52 Hen. HI (1267), cap. 2. Stats, at 
 Large, Vol. 1, p. 57. 
 
 See as to amercement, in the title of Return. Note. 
 
 See Statham, title of Retourne, p. 157 a to 158 b, infra. 
 
 (3) In a writ of Aiel, one was summoned and severed and ^'^^^ 
 died, and the other was amerced. Query, why? 
 
 The case has not been identified in Y. B. Hilary, 5 Ed. HI, or in the Case 3. 
 early abridgments. 
 
 (4) The sheriff returned, upon a Fieri Facias, that he had Trinity 
 deHvered the monies to the party. And for that reason he 
 
 was amerced. In Debt, etc. 
 
 The case has not been identified in Y. B. Trinity, 2 Ed. Ill, or in the Case 4. 
 early abridgments. 
 
 Anno 38 
 
 (5) The sheriff was amerced because he returned people Liber Assis- 
 who were not sufficient, upon an indictment of felony, etc. i^^ctmeat 
 
 The case has not been identified in Y. B. 38 Liber Assisarum, or in Case 5. 
 the early abridgments. 
 
 (6) If the jurors in an Assize make default on the first Paschal 
 day, they shall not be amerced, etc. (But yet the contrary 13 Ed. in. 
 has been adjudged since that time, etc.) But at the Venire 
 
 Facias they shall not be amerced, etc., because the defend- 
 ant can be essoined or make default, and because they did 
 not use to demand the tenant on that day, etc. But in a 
 Scire Facias if the jurors do not appear at the Venire Facias 
 they shall be amerced, because such delays for the defend- 
 ant are ousted by the Statute, etc. Query? 
 
 There is no early printed Year Book for 13 Ed. III. The case has Case 6. 
 not been identified in that year and term in the Rolls Series. 
 
 The Statute is 13 Ed. Ill (1285), cap. 28, Stats, at Large, Vol. 1, 
 p. 163 (202). 
 
 1° Here we have a fragmentary title, expanded to somewhat greater 
 lengths in the later digests or abridgments. The collected cases wher- 
 ever found could scarcely be representative of the whole subject, for 
 the penalty of the unsuccessful suitor was to be amerced, and the 
 
110 STATHAM 
 
 amerciament was, as Coke called it, " Miserecordia, for that it ought to be 
 assessed mercifully." [Coke, 1st Inst., 126, b.] Those familiar with 
 the cases may judge for themselves if this were always remembered. 
 Reeves says that in the reign of Henry III, "It was endeavored, by 
 declaring the law more fully on that subject, to prevent all abuse of 
 the miserecordia, or amerciament." Magna Charta — the Magna 
 Charta of the English Statutes at Large, "made in the ninth year of 
 King Henry the Third" — used the following language as an effort 
 toward securing this object: "A free man shall not be amerced for a 
 small fault, but after the manner of the fault; and for a great fault after 
 the greatness thereof, saving to him his contenement (contenemento sua) ; 
 and a merchant likewise, saving to him his merchandise; and any other 
 villain than ours shall be likewise amerced, saving his wainage, if he 
 fall into our mercy. And none of the said amerciaments shall be 
 assessed, but by the oath of honest and lawful men of the vicinage. 
 Earls and barons shall not be amerced but by their peers, and after the 
 manner of their offense. No man of the church shall be amerced after 
 the quantity of his spiritual benefice but after his lay tenement, and 
 after the quantity of his offense." [Magna Charta, chap. 14, Stats, at 
 Large, Vol. 1, p. 6.] But it seems that this did not have the required 
 effect, for there arose a writ founded upon the unmerciful mercies of the 
 miserecordia, or the writ of Moderata miserecordia, which was given for 
 "a case where a man is amerced in a Court Baron, or other Court which 
 is not a court of record, outrageously for Trespass or other offense." 
 [Fitzh: Nat. Brev., Moderata Miserecordia, 75.] This appears, however, 
 to have been available only in cases of trespass, as a matter of fact. But 
 trespass in the thirteenth century and even somewhat later "will cover 
 all or almost all wrongful acts and defaults." [P. & M. Hist, of Eng. 
 Law, 2d ed., Vol. 2, p. 512.] "Thousands of amerciaments are being 
 inflicted (note the word!) by courts of all kinds." [Supra, p. 513.] The 
 amerciament was imposed in civil actions as in criminal: "Every tort, 
 nay, every cause of civil action, was a punishable offense. Every van- 
 quished defendant, even though the action was 'real,' or was contract- 
 ual, had earned punishment. . . . Every defeated plaintiff could be 
 amerced for a false claim. . . . Then again, every default in appearance 
 brought an amerciament on the defaulter and his pledges. Every 
 mistake in pleading, every miskenning or stvltiloguium, brought an 
 amerciament on the pleader if the suit was to be retrieved. A litigant 
 who hoped to get to the end of his suit without an amerciament must 
 have been a sanguine man." [Supra, p. 519.] The Note Book [Brac- 
 ton: Note Book, pi. 187, 206, 342, note 3] is given by Maitland as 
 his authority for all this, and the cases cited bear him out. But the 
 Year Books are filled with cases showing the infinite variety of ways in 
 which the litigant found himself to be in mercy; sometimes, to the 
 satisfaction of the reader, when he was evidently planning to throw the 
 burden on the other party in the case. There is a case in the Ancien Cou- 
 tumier, given by Maitland in a note, which illuminates this side of the 
 
AMERCIAMENT 111 
 
 matter: "the person against whom the jury is demanded is represented 
 as some comes vel baro vel aliguis potens homo,' who desires to grab land 
 from his tenants, or nfeighbors, while the plaintiff is an 'impotens homo.' " 
 Potens vero . . . in miserecordia remanebit et impotens suam habebit 
 terram.'' So justice appears to be done. Bracton in his Note Book 
 gives a number of cases in which one of the litigants was in miserecor- 
 dia, the earliest being in 1219 [Bracton: N. B. 213]. There is one 
 case [supra, 214] in 1224, one in 1228 [supra, 120]. In 1229 we have 
 one where both litigants were in mercy [supra, 360]. In 1230 Thomas, 
 Bishop of Norwich, prays for the amerciaments throughout his liberty, 
 in the County as well as in the Eyres. He claims to have them by a 
 royal charter [supra, 391]. There is but one case given as in 1230, the 
 case of an advowson [supra, 427]. In 1231 we have the case of the upper 
 chamber, decided by all the hustings [supra, 489]. In 1233 we have 
 one case of trespass [supra, 770] and one of an advowson [supra, 981]. 
 In 1235 there are three cases [supra, 1149, 1159, 1170]. In 1236 there 
 is but one [supra, 1191]. In 1238 we have two [supra, 1239, 1249]. 
 There is more to be said of the "Amerciament in a plea real" as is said 
 by Coke. He also notes a relation of the Amerciament to the Saxon 
 "bote." [Coke, 1st Inst., 127, a.] 
 
 ANNUITE 
 
 (1) In a writ of annuity, the defendant said that he had Michaeiis 
 been at all times ready to pay, etc., and still is. Gas- 
 coigne: You now come in by distress; wherefore it was 
 adjudged that the plaintiff should recover, etc., and his 
 damages were taxed by the Court. 
 
 Reported in Y. B. Mich. 2 Hen. IV, p. 3, pi. 8. This was the year Case 1. 
 in which Gascoigne was appointed judge of the Common Pleas. He 
 appears in the report, however, as counsel. See also Brooke, Annuitie, 12. 
 
 (2) "Nothing in arrears" is no plea in a suit of Annuity ; Trinity 
 by the opinion of the Court in a Scire Facias. And the 
 same law was adjudged in a Scire Facias on the arrears of 
 
 an annuity, Hilary, 46 Ed. III. And in the same plea it 
 was the opinion of the Court that it is no plea to say that 
 the money to him, unless he shows an acquittance, etc., 
 for it is not under his distress, etc. 
 
 Reported in Y. B. Trinity, 44 Ed. Ill, p. 18, pi. 9. See also Brooke, Case 2. 
 Annuitie, 9. 
 
112 
 
 STATHAM 
 
 Paschal 
 19 Ed. III. 
 
 Cases. 
 
 Michaelis 
 30 Ed. III. 
 
 Case 4. 
 
 Paschal 
 2 Hen. VI. 
 
 Case 5. 
 
 (3) In a writ of annuity against one H, as heir to his 
 father, he said that he had nothing by descent, and it was 
 found that he had ten shillings by descent, and because 
 the issue was found against him the plaintiff had judgment 
 to recover all the annuity; that is to say, twenty pounds, 
 etc. Thorpe said that he should have pleaded "nothing 
 by descent, except so much," etc. Query, all the same, as 
 to this matter, for the plaintiff had no land in execution 
 which had descended, and consequently the action did not 
 lie against the heir, etc. 
 
 There is no early printed year of 19 Ed. III. 
 identified in the Rolls Series. 
 
 The case has not been 
 
 (4) In a writ of annuity, if the defendant shows an 
 acquittance for the arrears, still the plaintiff shall have 
 judgment to recover the annuity, as in a writ of Mesne, 
 where the defendant says that he was never disturbed by 
 his default, the plaintiff shall not have an acquittance 
 immediately. And this in Mesne, etc. 
 
 Reported in Y. B. Mich. 30 Ed. Ill, p. 21, pi. 37. 
 
 (5) Executors brought a writ of Debt for the arrears of 
 an annuity accrued in the life of their testator, and showed 
 how their testator and all his predecessors had been seised 
 of this same annuity, from time, etc. No exception was 
 taken to the writ. Query, if the action lies, for it seems 
 that it should not, no more than for the arrears of a rent 
 service, etc. And see the Registrum, for it seems that this 
 action of debt for the arrears of an annuity does not lie, 
 except where the annuity is recovered, and for those arrears 
 the action lies and not for the arrears accrued after the 
 recovery ; and the plaintiff should declare upon the recovery, 
 etc. Query? 
 
 Reported in V. B. Paschal, 2 Hen. VI, p. 8, pi. 4. The "Registrum," 
 "Register of Writs," a register of writs originally written in the reign 
 of Henry II. Statham probably had a manuscript copy of this book, to 
 which he often refers. It is said to have contained the original writs 
 "long before the Conquest." It was printed as early as 1581, and has 
 passed into four editions, 1531, 1634, 1681, 1687. It is in Latin and 
 has never been translated. 
 
ANNUITE 113 
 
 (6) One A brought a writ of Annuity for ten pounds ^Hen^vi 
 against the queen, and he showed the letters-patent from the 
 
 same queen, showing the Abbot of Bury paid annually to 
 the king, Henry the Fifth, forty pounds, which he assigned 
 to the queen in lieu of dower, and how she had granted 
 to the said plaintiff an annuity of ten pounds to receive 
 of the said abbot. And the opinion was that the queen 
 would be charged with the said annuity, inasmuch as she, 
 etc., granted it. And though it was uncertain yet it 
 charged the person, etc. As if I grant an annuity to the 
 parceners of the manor of B, although I have no such 
 manor, still my person is charged. And although I have 
 such a manor and grant the annuity with distress, still it 
 is in his election if he will charge my person or the land. 
 And if I say that such a one held of me for twenty shillings 
 of rent, and I grant to you twelve pence of this rent, that 
 is not an annuity, for that grant was to no purpose unless 
 the tenant attorned to him in whom this rent was before. 
 But if I say (as above) when I have not any such rent, 
 then that charges my person for the annuity. And if I 
 recite that such a one held of me by twenty shillings of 
 rent and I have granted to you twelve pence of the said 
 twenty shillings, my person is charged, for in that case the 
 twelve pence are not part of the twenty shillings; and 
 also rent cannot issue from a rent . And they ad j our ned , etc . 
 
 Reported in Y. B. Mich. 9 Hen. VI, p. 53, pi. 36. See also Brooke, Case 6. 
 Annuitie, 3; and Fitzh: Annuitie, 4. 
 
 (7) And afterwards in Trinity Term one Margery Trinity 
 Parker brought a writ of Annuity against the same queen, 
 
 and showed the letters-patent of the same queen for an 
 
 annual rent of twenty pounds, which sum was assigned 
 
 to her in dower, according to the great custom of London, 
 
 to be received by the hands of the collectors of this same Statham 12 b. 
 
 custom. And it was adjudged that she should recover the 
 
 annuity for the above reason; and still the custom is not 
 
 a thing certain. But yet, query, etc.? 
 
 Reported in Y. B. Trinity, 9 Hen. VI, p. 12, pi. 1. See also Brooke, Case 7. 
 Annuitie, 3; and Fitzh: Annuitie, 5. 
 
114 
 
 STATHAM 
 
 Michaelis 
 9 Hen. VI. 
 
 Case 8. 
 
 Paschal 
 7 Hen. IV. 
 
 Case 9. 
 
 Paschal 
 
 12 Hen. IV. 
 
 Case 10. 
 
 Paschal 
 27 Hen. VI. 
 
 (8) See by Paston, that generally a writ of right does not 
 lie upon the arrears of an annuity, no more than for a rent 
 service, unless the freehold be ended, etc. 
 
 The words of Paston have not been identified in the cases of Annuity 
 in 9 Hen. VI. 
 
 See of annuity, in the title of Grant. 
 
 See reference to the title of Grannte, infra, Grannte, 3 (Mich. 2 Hen. IV). 
 
 (9) If a parson of a church has a license from the patron 
 and from the ordinary to grant an annuity, that grant 
 of an annuity with such a license shall charge his successor 
 forever, without any other grant or confirmation from the 
 patron or from the ordinary, for in that case the grant of 
 the annuity shows the license, etc. 
 
 The case has not been identified in Y. B. Paschal, 7 Hen. IV, or in the 
 later abridgments. 
 
 (10) If one brought a writ of Annuity against an abbot, 
 and upon this the abbot levied a fine, that will bind his 
 successor, for it shall be understood that this was the same 
 annuity as before, and this fine shall have no other effect, 
 etc. Query? But see in the same plea that it is clearly 
 held that if one recovers an annuity against an abbot for 
 default, this will bind his house forever, etc. 
 
 This may be the case reported in Y. B. Paschal, 12 Hen. IV, p. 21, 
 pi. 13, but the identification is not clear. It has not been identified 
 elsewhere. 
 
 (11) W. Rous brought a writ of Annuity against an 
 abbot, and showed a deed for the annuity made by the 
 predecessor of this same abbot, and sealed with the seal of 
 the convent, which annuity was for certain bread, and ale, 
 and robes, and other things, etc. Pole: The Statute of 
 Carlisle says that Cistercienses and Premonstratenses and 
 others who have a convent and a common seal; that the 
 common seal shall be in the keeping of the prior, who is 
 under the abbot, etc., and four others, the wisest of the 
 house, and that any deed sealed with the common seal 
 which is not thus in their keeping shall be void. And we 
 say that at the time this deed was sealed the seal was out 
 of their keeping. And the opinion of the Court was that 
 
ANNUITE 115 
 
 the Statute was void, since it is impossible to be observed, 
 for when the seal was in their keeping the abbot could not 
 seal anything with it, for when it was in the hands of the 
 abbot it would be out of their keeping, ipso facto. And if 
 the Statute shall be observed every common seal will be 
 defeated by a simple allegation which cannot be tried, etc. 
 See [the case] for it was well debated, and many exceptions 
 were taken to the plea, etc. 
 
 Those who have not access to the manuscripts cannot take the advice Case 11. 
 of Statham and "See this case," for we have no printed Paschal Term 
 for 27 Hen. VI. The "Statute of Carlisle" would seem to be "Aspor- 
 tatis Religiosum," Anno 35 Ed. I, Stat. 1, cap. IV, Stats, at Large, 
 Vol. 1, p. 329, which has the provisions quoted by Statham. 
 
 (12) In [a writ] of annuity (title of Prescription), releas- Paschal 
 ing all actions, real and personal, ratione debiti compoH seu 
 ratione alterius contractus, is not a bar against the plaintiff's 
 recovery, etc. 
 
 There is no early printed Year Book for 12 Ric. II. The con- Case 12. 
 fused text of Statham is, however, made clear by the abridgment of 
 the case in Brooke, Annuitie, 42, and in Fitzh: Reless, 29, where 
 there is a clear abridgment of the case from the report. There is also 
 a report of this, or a similar case, in Y. B. 12 Ric. II, in Hilary Term, 
 p. 135. Ames Foundation, ed. Deiser. 
 
 (13) If a man grants an annuity for him and his heirs Hilary 
 to another in fee, although it be with warranty, it will not 
 bind his heir, etc. Query, if he had assets by descent, if 
 then, etc.? But that was not decided in the opinion of the 
 Court, in Annuity. 
 
 Reported in Y. B. Mich, (not Hilary), 2 Hen. IV, p. 13, pi. 54. The Case 13. 
 case as there reported seems scarcely to justify Statham's statement. 
 See also Brooke, Annuitie, 13; and Fitzh: Annuitie, 16. 
 
 (14) If an annuity be granted to a man until he be Trinity 
 advanced to a benefice of holy church, and the grantee 
 marries, the annuity is extinguished. 
 
 The case has not been identified in Y. B. Trinity, 5 Ed. Ill, but the Case 14. 
 same facts and decision appear in Y. B. Trinity, 7 Hen. IV, p. 16, pi. 4. 
 
 In a writ, the plaintiff recovered the arrears as well pend- Note. 
 ing the writ as before, etc.* 
 
 ' This statement is found in the same case. 
 
116 
 
 STATHAM 
 
 Trinity 
 7 Hen. IV. 
 
 Case 15. 
 
 Hilary 
 
 45 Ed. III. 
 
 Case 16. 
 
 Paschal 
 19 Ed. III. 
 
 Case 17. 
 
 Michaelis 
 16 Ed. III. 
 
 Case IS. 
 
 Michaelis 
 16 Ed. III. 
 
 Case 19. 
 
 (15) [An] annuity granted to man of religion without a 
 license is good, although it be forever and ever. 
 
 Reported in Y. B. Trinity, 7 Hen. IV, p. 15, pi. 3. See also Fitzh: 
 Annuitie, 17. 
 
 (16) An annuity granted pro consilio stio, impenso et 
 impendende, the grantee is not bound to go to the grantor, 
 but may advise him where he is, etc. 
 
 The case has not been identified in Y. B. 45 Ed. Ill, but it is found 
 reported at length in Y. B. Hilary, 41 Ed. Ill, p. 6, pi. 14, and con- 
 tinued in Y. B. Mich. 41 Ed. Ill, p. 19, pi. 3. See also Brooke, 
 Annuitie, 7. 
 
 (17) Annuity lies against the heir, if he had assets by 
 descent; and this in Annuity. 
 
 There is no early printed Year Book for 19 Ed. III. The case is to be 
 found in the Rolls Series, Y. B. Paschal, 19 Ed. Ill, p. 107, sec. 37. 
 See also Fitzh: Annuitie, 26. 
 
 (18) A man shall have a writ of Annuity in whatever 
 county he will. That is, where the writ bears date, etc. 
 (But yet it seems that it follows the person, etc.) 
 
 There is no early printed Year Book for 16 Ed. III. The case has 
 not been identified in the Rolls Series, or in the later abridgments. 
 
 (19) A parson can grant an annuity without the ordi- 
 nary, and this will bind his successor, if he had "quid pro 
 quo J' (But this is not the law, as I believe.) 
 
 There is no early printed Year Book for 16 Ed. III. The case has not 
 been identified in the Rolls Series, Y. B. Mich. 16 Ed. Ill; pp. 586-87, 
 sec. 90. See also Fitzh: Annuitie, 24. Statham seems to have mis- 
 understood the case, the ordinary gave his assent, but there was nothing 
 to show the consent of the patron. 
 
 Statham 13 a. 
 
 Trinity 
 46 Ed. III. 
 
 ARBITREMENT " 
 
 (1) In trespass, the defendant said that they put them- 
 selves upon an arbitration, etc., which awarded that "if 
 we should wage our law, that we were not guilty, etc., that 
 then we should go quit, etc. We waged our law by our 
 
ARBITREMENT 117 
 
 oath, etc., wherefore they adjudged that we should go 
 quit, etc." This was not held a plea because they did not 
 award anything to be paid, etc. Query? 
 
 Reported in Y. B. Trinity, 46 Ed. Ill, p. 17, pi. 14. See also Brooke, Case 1. 
 Arbitrement, 8; and Fitzh: Arbitrement, 21. 
 
 (2) If the parties put themselves into an arbitration ""^"^y 
 without a deed, they can discharge the arbitrators without 
 
 a deed before the day, etc., or they can put off the day 
 by the assent of both, without a deed. But if the submis- 
 sion be by deed it is otherwise: by Fyncheden, in Debt, 
 etc., for he should be discharged by both parties by deed, 
 etc. Query? 
 
 Reported in Y. B. Hilary, 49 Ed. Ill, p. 8, pi. 14. See also Fitzh: Case 2. 
 Arbitrement, 22. 
 
 (3) In debt upon arrears of an account, the defendant Paschal 
 told how he and the plaintiff put themselves into an arbi- ^ ^^"" ^^' 
 tration as to this debt and other transactions, etc., which 
 awarded, etc. Newton: That is no plea, for our action 
 
 is founded upon matter of record, etc. Cotesmore: It is 
 not so, for the auditors are not judges except by the Statute, 
 and that is not in point, to wit: that they could commit 
 him to prison; and now they have not committed him to 
 prison, and albeit the defendant cannot wage his law, still 
 he shall plead an arbitration as well as in debt on the 
 arrears of a lease. Martyn: In debt on arrears on a 
 lease it is a good plea, as you say, because that is not 
 founded on any specialty, but in every case where the 
 action is founded upon a specialty, as in debt on an obliga- 
 tion, or upon matter of record as it is here, it is otherwise, 
 etc. Wherefore it was adjudged that the plaintiff should 
 recover, etc. Query, if in debt upon an obligation the 
 defendant pleaded an arbitration and showed a deed of 
 the plaintiff of the submission? For that is as strong as 
 an acquittance. 
 
 The citation in Statham is probably a misprint for Paschal, 11 Hen. Case 3. 
 IV, where the first part of the case is printed on p. 64, pi. 17. The 
 continuation of the case is on p. 91, pi. 48, in Trinity Term of the 
 same year. The other abridgments have the same case under other 
 heads, but not under that of arbitration. 
 
118 
 
 STATHAM 
 
 Trinity 
 
 18 Hen. VI. 
 
 Case 4. 
 
 Michaelis 
 14 Hen. IV. 
 
 Case 5. 
 
 Paschal 
 2 Hen. V. 
 
 Case 6. 
 
 Hilary 
 
 13 Hen. IV. 
 
 The Statute referred to is that of 5 Hen. IV, cap. 8. Stats, at Large, 
 Vol. 2, p. 449 (1403). 
 
 (4) If one pleads an arbitrement, and shows that because 
 of certain controversies they had put themselves into an 
 arbitration, he should show the cause of the controversy; 
 as to say that "the defendant was indebted to us, etc. 
 And for this reason and for other reasons there was a con- 
 troversy between us," etc. By the opinion of Newton, 
 in Debt, etc. 
 
 The case has not been identified in Y. B. Trinity, 18 Hen. VI, or in 
 the later abridgments. 
 
 (5) A man may plead an arbitrement in bar, in an Assize 
 of Novel Disseisin, although he show no deed of the sub- 
 mission; by the opinion of Hankford, etc., as to say 
 that they put themselves upon the arbitration of certain 
 persons who awarded that the plaintiff should surrender 
 to us certain lands, etc., by force of which he surrendered, 
 etc. But yet in that case the surrender is a good bar by 
 itself, whether he made it by force of the arbitrement or 
 not, etc. In Ravishment of Wardship. 
 
 The case has not been identified in Y. B. Mich. 14 Hen. IV, but the 
 matter is rather meagerly stated in the last part of a case in Y. B. 
 Hilary, 14 Hen. IV, p. 24, pi. 31. It may have been taken from the 
 original case known to Statham, as the report we have seems to refer 
 to another case. See also Brooke, Arbitrement, 16; andFitzh: Arbitre- 
 ment, 18. 
 
 (6) In account, the defendant pleaded an arbitration 
 in bar, and by advice of the justices the plea was adjudged 
 good. And because it was uncertain, to wit : the increase, 
 for in Debt where the demand is certain, an arbitration of 
 that same thing by itself is no plea; unless he says that 
 as to the debt and the other trespasses, "we put it into 
 arbitration," that is good. Query if it be not "for trade" 
 but only to render an account? 
 
 The case has not been identified in Y. B. Paschal, 2 Hen. V, or in the 
 later abridgments. 
 
 (7) In trespass, the defendant pleaded an arbitrement, 
 and the plaintiff said that at the time of the submission he 
 was under age. Hankford: Inasmuch as you do not 
 
ARBITREMENT 119 
 
 deny that you were of full age at the time the arbitre- 
 ment was made, judgment. And so to judgment, etc. 
 And it seems that the plaintiff shall be barred because he 
 could have discharged the said arbitrators when he came 
 to his age. 
 
 The case has not been identified in Y. B. Hilary, 13 Hen. IV. Brooke, Case 7. 
 Arbitrement, 43; and Fitzh: Arbitrement, 4, have a case to the same 
 effect taken from Y. B. Mich. 10 Hen. VI, p. 14, pi. 46, but do not 
 abridge the case cited by Statham. 
 
 (8) In detinue for a charter concerning land in fee simple, ^^^ ^. 
 the defendant pleaded an arbitrement as to that and other 
 disputes, etc., as it would appear, inasmuch as the demand 
 
 [does not lie in] certain actions. BabyngtoN: That is no 
 plea in this case, for it is in a manner real. And in a writ 
 of Annuity arbitrement is no plea. Paston: A man shall 
 have an action of trespass on such a deed, wherefore, etc. 
 COTESMORE : There is a difference between a deed concern- 
 ing land in fee simple, and a deed concerning land in tail, 
 for if I have a deed concerning land in fee simple, I can give 
 it, and my heir shall have no action of detinue for it ; it 
 is otherwise if it concerns land in tail. 
 
 Reported in Y. B. Hilary, 9 Hen. VI, p. 60, pi. 10. See also Brookei Case 8. 
 Arbitrement, 2, and Fitzh: Arbitrement, 3. 
 
 See by Hankford that if the tenant in an assize shows Note, 
 a deed indented which the plaintiff and himself have put Michaeiis 
 themselvesin arbitration, etc., that is a good bar in Debt, etc. ^^' ^^' ^" 
 
 (9) In a writ of Forgery of Deeds, they were at issue. Trinity 
 Markham : After the last continuance the plaintiff and ^^ ^^°' ^'' 
 defendant put themselves in the arbitrement of D and B 
 
 for all trespasses, etc., who, because the defendant had an 
 assize pending against the plaintiff, awarded that he should 
 be nonsuited in the assize, and that the plaintiff should not 
 sue his action further, etc., which award the defendant should 
 be ready to perform at the next assize, etc, Fortescue 
 demurred to this plea and said: That is no plea, since 
 they have awarded that the defendant shall have a thing 
 for which the plaintiff cannot have an action; nor can the 
 arbitrators themselves, or the plaintiff, compel him to do it. 
 
120 STATHAM 
 
 for it is for the Court to award a nonsuit, so there is no 
 satisfaction to the plaintiff. And also, although he be non- 
 suited, still he can bring a new assize, etc. Newton, to 
 the same effect: If Markham owes me twenty pounds on 
 an obligation, and I owe him twenty pounds by contract, 
 and we put ourselves on an arbitration, etc., which awards 
 that one shall go quit as against the other, etc.; that is 
 good, because the annulling of the debt of one is the satis- 
 faction of the other. But when one demands a debt and 
 the other land, it is not so, for although he awards that 
 one shall enfeoff the other of the lands, and that he shall 
 pay him a certain sum of money, that arbitration is of no 
 value, because such an arbitration does not give an estate 
 in the land, nor can they force him to make a feoffment, 
 nor can I myself any more. So here. And then by 
 advice, etc., it was adjudged that the plaintiff should have 
 a writ to inquire as to the damages, etc. 
 Case 9. Reported at length in Y. B. Mich, (not Trinity), 19 Hen. VI, p. 36, 
 
 pi. 80. See also Brooke, Arbitrement, 21; and Fitz: Arbitrement, 6. 
 
 Hilary (10) In trespass, the defendant said by Portyngton: 
 
 That they had put themselves into the arbitration of cer- 
 tain persons, who awarded that the plaintiff should pay 
 to the defendant twenty marks, and also release to him all 
 actions of trespass. And afterwards the defendant should 
 release to the plaintiff all trespasses; which sum the 
 plaintiff had not paid, nor had he released; which if he 
 will perform we are ready to release, etc. Fortescue: 
 That is no plea, for although the plaintiff shall have paid 
 
 statham 13 b. ^q j^Jj^ [^j^g g^jji awarded], and also released, still he cannot 
 force the defendant to release, for he cannot have an 
 action to compel him, etc. In which case when he has 
 paid to you, you can have an action on the first trespass, 
 and yet he be barred of his action. Then this arbitration 
 is of no value, no more than if the arbitrators awarded 
 that the one party shall be quit against the other, and 
 say nothing at all as to the other being quit as to him, etc. 
 But yet it has been adjudged a good arbitrement that 
 the one shall go quit against the other, without anything 
 adjudged to be paid, wherefore, etc. But, Sir, our matter 
 
ARBITREMENT 121 
 
 is clear, wherefore we say that "no such arbitrement," 
 Ready. And the other alleged the contrary, etc. 
 
 Reported in Y. B. Hilary, 20 Hen. VI, p. 18, pi. 12. See also Brooke. Case 10. 
 Arbitrement, 3; and Fitzh: Arbitrement, 8. 
 
 (11) The Duke of Norfolk brought a writ of. Account ^'^^^^1 
 against Sir Robert Wingfield, because he was his receiver, 
 etc. Who said that they put themselves into the arbitre- 
 ment of certain persons for the sum aforesaid, and of all 
 other trespasses, providing that their award should 
 be given before a certain day, etc. The arbitrators 
 before the said day awarded that the said Sir Robert should 
 account for the same receipt, before such auditors as the 
 said arbitrators should assign; and that if it be found in 
 arrears before them that he should pay the same arrears 
 to the said duke, and ipso facto each of them should be 
 acquitted as to the other of all quarrels, etc. And that 
 in the meanwhile neither should implead the other for 
 any matter occurring before the aforesaid day of the arbi- 
 tration, etc., which award he is and at all times has been 
 ready to perform, judgment, etc. And the duke demurred 
 upon the plea, and then in the Exchequer chamber, Danby 
 [said] that is no plea for various reasons. For, first, that 
 cannot be a sufficient award, inasmuch as he does not 
 prove any satisfaction to him, for they have awarded 
 nothing to him but that which was due to him before. 
 As, perchance, the arbitrators might say that whereas you 
 owe me twenty pounds, you shall pay me the same twenty 
 pounds, that is nothing to the purpose, for the above 
 reason. And also the award is uncertain, for it provides 
 that the defendant shall account before such auditors as 
 they shall assign, and it might happen that they would 
 never assign them. And when they are assigned, it does 
 not follow that he will be found in arrear, so by this award 
 no action is given to the duke. And as to this that each 
 shall go quit against the other, that is not a good award 
 unless it be recited what offense one had done to the 
 other, and upon that it be adjudged that one shall go quit 
 against the other, as above. And also it appears that 
 this award is void, for the submission is, "provided that the 
 
122 STATHAM 
 
 award shall be given," etc., which day is now passed, so 
 their power to assign auditors has expired, etc. Pole: 
 Contra. As to this that you say, that there was no satisfaction, 
 that is not so, for he was satisfied in various ways; one, 
 that he shall pay such things as to which he was found in 
 arrears, which was the chief cause of the controversy, etc. ; 
 another, that each shall go quit against the other, for it 
 may be that the duke has done many trespasses to him, 
 and although they are not rehearsed, the award is not 
 harmed. And to this that you say that their power is 
 ended, inasmuch as the day is passed, that is not so, for 
 they may have given the same power to other persons 
 to have auditors assigned them, consequently to them- 
 selves, etc. PoRTYNGTON, to the same effect: For if 
 you and I put ourselves into an arbitrement before Moile, 
 and when we are before him, I say that you took my horse 
 worth one hundred shillings, and you say that he is worth 
 only twenty shillings; and Moile awards that if Choke 
 can say that the horse is worth one hundred shillings then 
 he will award that I shall pay you one hundred shillings; 
 and if he says that he is worth only twenty shillings, then 
 he will award that I shall pay you twenty shillings, that is a 
 good award. And yet it puts the power of the award in 
 another person, who can make an end of it after the day 
 which is limited in the proviso, for that is only to execute 
 the first award, and not a new award, etc. FoRTESctiE, 
 to the same effect: To that which is said, that it is uncer- 
 tain because it may be that they will never assign auditors; 
 suppose that they have assigned the names of the auditors 
 immediately, still it may be that the auditors will never hear 
 the account which is also uncertain; and yet such an 
 award is good, and many awards are made conditionally, 
 and yet they are good enough, etc. 
 
 Case 11. Not identified in Mich. 30 Hen. VI. This is a very short term in the 
 
 printed Year Book, with very few cases. Statham doubtless had access 
 to a longer manuscript Year Book. 
 
 Note. See of arbitrement, in the title of Trial, etc., Mich. 30 
 
 Hen. VI. 
 
ARBITREMENT 123 
 
 The note apparently has reference to the title of Triall in Statham's 
 own book, but he has there no reference to any case in 30 Hen. VI. 
 
 (12) Arbitrement is a good plea in an action upon the ?^'^^^|i 
 Statute of Laborers. 
 
 There is no early printed Year Book for 12 Ric. II. The case is ^^^ '■^■ 
 printed in Y. B. Mich. 12 Ric. II, p. 37, Ames Foundation, ed. Deiser. 
 Fitzh: Arbitrement, 24, has apparently copied from Statham. 
 
 (13) Arbitrement was held a good plea in a writ of Annu- MichaeUs 
 ity if the submission be made by deed, etc. 
 
 Reported in Y. B. Hilary (not Mich.), 14 Hen. IV, p. 18, pi. 20. See Case 13. 
 also Brooke, Arbitrement, 15; and Fitzh: Arbitrement, 25. 
 
 (14) It is a good plea that they have put themselves Hilary 
 upon an arbitration which is not yet made; and this in 
 Trespass. 
 
 There is no printed Year Book for 13 Ric. II. Fitzh: Arbitrement, 26, Case 14. 
 has nearly the same abridgment of the case. 
 
 " That there was an early custom for litigants, or prospective liti- 
 gants, to agree to arbitrate the matters in dispute between them, is 
 shown by some very early cases. Bracton [Note Book, f. 649] has a 
 case of a very early date (1231), another in 1233 [732], and another in 
 1224 [983] ; all rather uninteresting cases, which in no way indicate that 
 there was anything novel about the proceeding. These cases show us 
 nothing in regard to the procedure at that time. It was probably 
 entirely informal, and yet it was necessary to prove the "conventione" 
 or whatever it was by which they "put themselves upon an arbitre- 
 ment." In the second case in Bracton [N. B. 732] (1233), one "profert 
 quoddam scripium quod hoc testatur," and his opponent also offered 
 another writing which showed a later agreement, changing the condi- 
 tons, and the latter writing was apparently accepted. The first case in 
 Bracton [N. B. 649] (1231), shows both parties producing their secta, 
 which proves sufficient, but the defendant produces also "literas peten- 
 tes"; they do not seem to have any effect upon his cause, however. 
 The third case is an entirely different proceeding [N. B. 984] in which 
 the final agreement seems to be put into the hands of arbitrators, two 
 of whom were justices sitting on the case. 
 
 West [Symbolography, title Compromise and Arbitration, Pt. 2, 
 p. 164, §21] says that an "Arbitration is an extraordinary judge, which 
 is chosen, and hath power to judge given to him by thonly mutual 
 consent ... to the end they may decide their controversies." 
 
 Kyd [Awards, p. 2, 2d ed., 1799] says, "After the multiplied concerns, 
 and the complicated rights of men, had rendered the exercise of the 
 law a distinct profession, and courts with a regular course of proceeding 
 
124 STATHAM 
 
 were established, many reasons concurred, in many cases, to induce 
 contending parties still to have recourse to the original mode of refer- 
 ence to a domestic j udge chosen by their mutual consent, . . . accord- 
 ingly we find that the title of award makes no inconsiderable figure in 
 almost every system of law with which we are acquainted." [3, 4.] 
 The submission to an arbitrator could be without deed, as see our case 2. 
 Bacon [Abridgment, Arbitration and Award, 204] says that at first there 
 was no remedy to force the party to perform the award, but in the later 
 cases an action was sustained. [Supra, p. 204, and cases there cited.] The 
 "deed" was probably the mutual bond which afterwards became usual, 
 given by the parties to each other on conditions, to be void when the 
 award was performed. [Kyd: Award, p. 12.] The early cases in the Note 
 Book show us nothing of the process, except that it seemed to be a well 
 established method of settling disputes between two persons. The early 
 history of the law of arbitrations does not seem to have greatly troubled 
 anyone. Kyd, our earliest writer on the subject, after crediting the 
 principles of the English law to the influence of Roman law, says that it 
 is not "easy to say at what precise period they were adopted here, or 
 whether they were admitted at once, or by degrees, as a component part 
 of our practical system. In the most ancient repositories of the decisions 
 of our courts [the Year Books] the greater part of them are mentioned as 
 known and uncontroverted vested law" [lb., pp. 3, 4]. Here is a tool 
 of the law, a convenient and much used tool; one which in various 
 altered forms has come down to, and become a part of, our modern law, 
 but we have no history of its rise, its growth, its permutations and re- 
 incarnations. It is in the "most ancient repositories of our law" full- 
 grown and attired in correct costume. Of what nature was the form 
 within the costume at the time of these our adjudged cases and earlier? 
 It would seem that it behooves to us to know. 
 
 ASSIZES 12 
 
 stathaini4a (1) In g^ assize for tenements in Gloucester, the com- 
 ™Ed plaint was for rent. The tenant pleaded "out," etc. The 
 
 plaintiff said "within," etc. The tenant said, "To that 
 he shall never come, for all the tenements in Gloucester 
 are held of the king in chief," and he produced a record 
 proving it, to wit : a charter which said so. And notwith- 
 standing, the assise was awarded to inquire into it; etc. 
 Case 1. -pjjg j^gg jj^g jjQ^. ijggj^ identified in Y. B. Hilary, 41 Ed. Ill, or in the 
 
 .ater abridgments. 
 
 MidiaeUs^ (2) John and Alicc, his Wife, brought an assize against K. 
 And it was found by verdict that one R was seised and 
 
ASSIZES 125 
 
 gave the same lands to two priests to re-enfeoff him and 
 A his wife in tail, the remainder to Alice, his daughter, 
 who is plaintiff. And then R went out of the village, and 
 came back four days after, by a mill which was part, etc. 
 And he asked of the miller, "What news?" Who said 
 that one of the priests was dead. And R said to his wife, 
 "Let us go to our own house." And so they went there and 
 remained there all the night, and the next day R wrote a 
 charter to himself and to his wife in the tail, with the 
 remainder to Alice, his daughter, as above. And he went 
 to the other priest, who sealed it, and said, "God give you 
 joy of this." And then R enfeoffed other persons in this 
 same land, and re-took an estate to him and to his wife in 
 tail, the remainder to his niece, who is now tenant in fee. 
 And then R died and his wife remained in, and then by a 
 deed — which was put in evidence — she told how the 
 reversion was to K; and by the same deed she surrendered 
 her estate to her, and then died. And the plaintiff claimed 
 by force of the first entry, and K ousted them; and we 
 pray your counsel. Belknap: It seems that they shall be 
 barred, for when the miller told him that one of the priests 
 was dead, and he said, "Let us go," as above, and they 
 stayed there, that was an entry which should be under- 
 stood one of two ways; one, that he entered, because 
 one of the priests was dead, so the other could not fulfill 
 the conditions, etc. ; or else that he entered of his own tort. 
 And whether it be one way or the other he shall have a 
 fee simple; then the deed made in his possession is but a 
 confirmation which cannot change his estate, then the 
 feoffment and the retaking of the second estate was good, 
 and consequently the remainder is to K, who is tenant 
 and not to the plaintiff, etc., wherefore, etc. Thorpe: 
 Contra. For inasmuch as he came to the priest with the 
 deed of feoffment it proves clearly that he claimed no 
 estate, but renounced all estates. And it is not found 
 that he claimed any estate, etc. Then, when the 
 priest sealed the deed and he entered by force of it, that 
 is a good feoffment since that is found by verdict. Then 
 when R made the second feoffment and took an estate. 
 
126 
 
 STATHAM 
 
 Case 2. 
 
 Trinity 
 43 Ed. III. 
 
 Case 3. 
 
 as before, the remainder to K, and then he died and his 
 wife survived him, she shall be adjudged immediately 
 in her better estate, and the remainder to Alice who is the 
 plaintiff. Then his surrender after to K did not change 
 the first remainder which was once vested, wherefore we 
 award that the plaintiff shall recover seisin of the lands, etc. 
 (See, because it was well argued, etc.) And the plaintiff 
 prayed her damages for the issues after verdict given, 
 inasmuch as by their verdict they said, "To the value of 
 the land," and it is now a year since the verdict was given, 
 etc. Thorpe: We will take counsel, etc. 
 
 Reported in Y. B. Mich. 41 Ed. Ill, p. 17, pi. 2. It is a long and 
 interesting case which is not made over-clear in the abridgment. 
 
 (3) In an assize against several, one undertook the ten- 
 ancy for all, and pleaded that such a one died seised and 
 the lands descended to him as cousin and heir, and he 
 showed how. And the plaintiff claimed the same lands 
 as son and heir, whereas he was a bastard ; and he entered 
 and he ousted him. And the plaintiff said that he was 
 legitimate, etc. And all the others pleaded to the assise. 
 And on the next day no justice came; and on the next 
 day after that the bishop certified that he was legitimate. 
 Thorpe : The writ that issued to the bishop for certification 
 was returned on the next day, after which day no jus- 
 tices came, wherefore he comes now without a warranty, 
 etc. But yet it was adjudged good. And because the 
 tenant had confessed an ouster, the plaintiff prayed seisin 
 of the land, and release of his damages against the other. 
 Fyncheden : The others have pleaded to the assize and it 
 may be that they are tenants, in which case this recovery will 
 bind them. Thorpe: If they are tenants and are ousted 
 by this judgment they shall have the assize, wherefore it 
 was adjudged that the plaintiff should recover, etc. 
 
 The case has not been identified in Y. B. Trinity, 43 Ed. Ill, or in the 
 later abridgments. 
 
 Trinity (4) In an assize after the verdict had passed for the 
 
 plaintiff, Luddington demanded the tenant. Belknap: 
 He is not demandable. Luddington: He is so, for he 
 
ASSIZES 127 
 
 can plead the release of the plaintiff made after the verdict. 
 Belknap : That is not so, for if it were so his plea would 
 be tried by the assize, who are discharged, etc. And if 
 the plaintiff sues execution against such a release, the 
 tenant shall have an assize. Query, etc.? 
 
 The case has not been identified in Y. B. 43 Ed. Ill, or in the later Case 4. 
 abridgments. 
 
 (5) In an assize the tenant said that the panel was not Michaeiis 
 arraigned for four days before the assize as the Statute 
 
 says. Thorpe: That is only a penalty for the sheriff 
 which shall be levied by suit; wherefore he had the assize 
 sworn, etc. 
 
 The case has not been identified in Y. B. Mich. 43 Ed. Ill, or in the Case 5. 
 later abridgments. 
 
 The Statute is that of 13 Ed. Ill (1285), cap. 30, Stats, at Large, 
 Vol. 1, p. 203 (4). 
 
 (6) In an assize for lands in S, the tenant said that he Hilary 
 brought the assize against the plaintiff for tenements in B, 
 within the same county ; and he showed that the lands which 
 were now put in view were then put in view; and he recov- 
 ered judgment, etc. And the plaintiff demanded judg- 
 ment because they were in another vill. And it was not 
 allowed. Wherefore he said, "Not put in view, so not 
 comprised," and the other alleged the contrary. And the 
 plaintiff prayed a process against the first jurors and had 
 
 it, notwithstanding he had a process against them in 
 another assize for this same land, to which the sheriff 
 returned that they were dead. But in that case he was 
 nonsuited; thus nothing done pending the writ should 
 conclude him. 
 
 Reported in Y. B. Mich, (not Hilary), 44 Ed. Ill, p. 45, pi. 60. See Case 6. 
 also Brooke, Assize, 28; and Fitzh: Assize, 55. The references to 
 Fitzherbert in Brooke appear to be erroneous. Statham's abridgment 
 of this case is not complete. 
 
 (7) A prior brought an assize and made complaint as to ^''^7 jj, 
 profits d prendre, that is tithes parted from all kinds of 
 growing grain in ten acres of meadow mowed, and this 
 after the tithes were assigned to the parson and delivered. 
 
128 STATHAM 
 
 And judgment was asked inasmuch as the plaintiff was 
 a man of religion, so the law assumes tithes, judgment if 
 the Court will take jurisdiction. And the plaintiff said 
 that one B was parson, etc., and he was seised of the 
 tithes, and we and our predecessors have been seised of 
 the tithes parted as above, that is, after the tithes are 
 delivered to the parson. And then the assize was awarded. 
 
 Case 7. The case has not been identified in Y. B. Hilary, 44 Ed. Ill, but may 
 
 be the case reported in Y. B. Mich. 42 Ed. Ill, p. 25, pi. 9, although 
 some points in the reported case and the abridgment are not identical. 
 This, however, is often the case when the report is fully identified. 
 
 Paschal (g) If the tenant pleads a plea in bar and the plaintiff 
 
 makes title to himself, traversing the bar, although it be 
 that the title of the plaintiff was false, still the tenant 
 shall not have the advantage of praying the assize upon 
 the title, but he will be driven to maintain his bar, etc. 
 It is otherwise where the plaintiff himself makes title to 
 himself and does not answer the bar. And this in an 
 Assize, etc. 
 
 Case 8. The case has not been identified in Y. B. Paschal, 43 Ed. Ill, or in 
 
 the later abridgments. 
 
 (9) See an assize against one under age, who pleaded a 
 plea upon which they were adjourned; and after the 
 adjournment he would have enforced his bar. And the 
 opinion clearly was that he could not get to that. But the 
 opinion of THORPE and Fyncheden was that the Assize 
 should inquire as to that matter by which he would have 
 enforced his bar, because he was under age. 
 Case 9. Reported in Y. B. Paschal, 44 Ed. Ill, p. 10, pi. 11. See also Brooke, 
 
 Assize, 21; and Fitzh: Assize, 56. 
 
 Trinity (10) 111 aiiasslze against two, one pleaded a release of 
 
 44 Ed. III. ^j^g plaintiff, and the other pleaded joint tenancy of him 
 who pleaded the release with one who was not named, etc. 
 The assize was taken, which said that he held jointly as 
 above, and that the release was not the deed of the plain- 
 tiff, for the plaintiff said that it was not his deed. And 
 then the plaintiff prayed seisin of the land for the part, 
 etc., but could not have it. But the whole writ was 
 
 Statham 14 b. 
 
 Paschal 
 44 Ed. III. 
 
ASSIZES 129 
 
 abated because one who was tenant "per me et per tout" 
 was not named, etc. 
 
 Reported in Y. B. Trinity, 44 Ed. Ill, p. 22, pi. 28. See also Brooke, Case 10. 
 Assize, 23. 
 
 (11) In an assize against a husband and his wife, who ^"g^^'ui 
 pleaded a plea in bar and confessed an ouster, the plain- 
 tiff traversed the bar, and then the husband made default ; 
 
 and the wife was received and pleaded the same plea, 
 and it was found for the plaintiff. But it was found 
 that there was no disseisor named in the writ, and the 
 opinion was that the writ should abate because the hus- 
 band was out of Court and a feme covert could not be a 
 disseissor by her plea, albeit she was received as a feme 
 sole, etc. 
 
 Reported in Y. B. Trinity, 44 Ed. Ill, p. 23, pi. 29. See also Brooke, Case 11. 
 Assize, 24; andFitzh: Assize, 58. 
 
 (12) In an assize against two, one pleaded joint tenure Trinity 
 by deed with a stranger; the other pleaded in bar. And **^*^- 
 the plaintiff said that he who pleaded in bar was tenant. 
 
 And to the plea pleaded by the other "no law" [com- 
 pelled him to answer]. And the assize was taken and said 
 that he who pleaded joint tenure was tenant, without 
 inquiring anything as to the joint tenure. Thorpe: It 
 seems that the writ should abate, because the plaintiff has 
 badly chosen his tenant, so the joint tenancy is not denied 
 by the plaintiff. Fyncheden: It seems not, since such a 
 dilatory plea is not so peremptory as if he had pleaded a plea 
 in bar to which the tenant must answer. But it seems that 
 process shall issue by the Statute, etc. Upon which it 
 was asked of the plaintiff if he would reply to the joint 
 tenure, who said "no," whereupon the writ was abated. 
 But formerly they would have awarded process upon the 
 Statute, etc., in which case the assize would have been 
 twice awarded, etc. 
 
 Reported in Y. B. Trinity, 44 Ed. Ill, p. 23, pi. 30. See also Brooke, Case 12. 
 Assize, 25; and Fitzh: Assize, 59. 
 
 The Statute is that of De Conjunctim Feoffatis, 34 Ed. I, Stat. 1, 
 Stats, at Large, Vol. 1, p. 313 (1306). 
 
130 
 
 STATHAM 
 
 Trinity 
 44 Ed. III. 
 
 Case 13. 
 
 Michaelis 
 46 Ed. III. 
 
 Case 14. 
 
 HUary 
 SO Ed. III. 
 
 (13) In an assize upon a rent charge it is a good 
 plea to say that the tenant of part of the land of which, 
 etc., is not named, but it is no plea in a rent service, 
 etc. But in neither case is it a plea if he be parcener of 
 the rent named in the writ, for a parcener shall plead in bar 
 for both rents, and not the tenant, although the tenant be 
 named, etc. And the law is the same in an assize for 
 estovers, and other profits d prendre; if parceners of the 
 same profits are named they shall plead in bar and not the 
 tenant of the soil. 
 
 And see in the same plea, that if a man plead in bar 
 in an assize of rent and gives color to the plaintiff by the 
 grant of a reversion where the tenant did not attorn, 
 and that after the death of the tenant the plaintiff came 
 upon the land and took distress as above, etc. Query, if 
 it be color to say that the plaintiff claimed by deed or grant 
 of the reversion, where nothing passed by the deed, etc.? 
 
 The case has not been identified in Y. B. Trinity, 44 Ed. Ill, or in 
 the early abridgments. 
 
 (14) Assize against one A and others, and it was found 
 that A was tenant although he had named no disseisor, 
 etc., wherefore the writ was abated, and then he brought 
 another writ against A and others, and A pleaded in bar 
 because he was formerly acquitted of the disseisin, and 
 upon that they adjourned, etc. 
 
 The case has not been identified in Y. B. Mich. 46 Ed. Ill, or in the 
 early abridgments. 
 
 (15) In an assize for estovers the plaintiff made his 
 complaint, and rehearsed the substance of the deed by 
 which he had the estovers, in his complaint, as he ought, 
 etc. And the defendant asked what he had to show for 
 the estovers. And because the assize was brought against 
 two it was the opinion he should not have the plea, unless 
 he answered as tenant, for a disseisor shall not have this 
 plea, no more than he shall plead "out of his fee," etc. 
 Wherefore he took the tenancy, and said (as above), etc. 
 And the plaintiff showed a deed. And then the tenant 
 would have pleaded in abatement of the writ and could 
 
ASSIZES 131 
 
 not, because that plea that he had pleaded before was a 
 plea in bar, etc., wherefore it was said that he should not 
 plead anything to the writ, except such matter as appeared, 
 etc. And see this [case] for the plaintiff showed a deed of 
 the Bishop of Coventry and Lichfield, predecessor of the 
 defendant, for his title, and he showed a ratification by the 
 Prior and Chapter of Coventry. And because the bishop 
 was chosen by the Dean and Chapter of Coventry as well 
 as by the Dean and Chapter of Lichfield, it was the 
 opinion that his title was of no value, etc. 
 
 The case has not been identified in Y. B. Hilary, 60 Ed. Ill, or in Case 15. 
 the early abridgments. 
 
 (16) In an assize the tenant pleaded a release from the Trinity 
 plaintiff of all his right, etc. The plaintiff showed a 
 defeasance that, if he would pay certain monies on a 
 certain day and certain place to the defendant, then, etc. 
 
 And he showed how he paid the monies to the defendant 
 at another place where the defendant received them, etc. 
 And the defendant demurred upon the plea, inasmuch as 
 the payment was at another place. And because the 
 tenant had received them, be it at one place or another, 
 that would not change the case, wherefore the assize was 
 awarded in right of the damages. And query as to 
 this, inasmuch as no ouster was confessed in the bar, etc. 
 And Sharshxjll also noted a difference where the plaintiff 
 demurs on the plea at bar, and where the tenant demurs 
 upon the title (which I do not understand, etc.). 
 
 Unless this is the case in Y. B. Mich. 30 Ed. Ill, p. 12, pi. 10, abridged Case 16. 
 by Fitzherbert, Assize, 100, it has not been identified. It is a very 
 poorly reported case in the printed Year Book of 30 Ed. III. 
 
 (17) In an assize the tenant pleaded the deed of the Trinity 
 
 ^1 TTH TTT 
 
 ancestor of the plaintiff, with warranty, in bar. The 
 plaintiff said that he was a bastard; and the next day the 
 tenant pleaded to the assize by bailiff; and to this he was 
 received, etc. 
 
 There is no printed Year Book for 31 Ed. III. There is a case very Case 17. 
 like the case abridged in the Rolls Series, 14 Ed. Ill, Easter Term, 
 pp. 48-62. 
 
132 
 
 STATHAM 
 
 Paschal 
 14 Ed. III. 
 
 Case 18. 
 
 Trinity 
 19 Ed. III. 
 
 Case 19. 
 
 Statham 15 a. 
 
 Paschal 
 21 Ed. III. 
 
 Case 20. 
 
 Paschal 
 18 Ed. III. 
 
 Case 21. 
 
 Michaelis 
 24 Ed. III. 
 
 Case 22. 
 
 (18) In an assize it is no plea to say that the plaintiff 
 has another assize pending against him for the same lands, 
 unless he has appeared [in that assize], and the plaintiff 
 has made his complaint etc. 
 
 There is no early printed Year Book for 14 Ed. III. The case has 
 not been identified in the Roils Series. 
 
 (19) A man can distrain the tenant for rent for his 
 disseisin, because he raised the rent of his tenants by 
 coercion of distress. But if the tenant pays him the rent 
 of his free will, that shall not be understood to be the rent 
 which I should have had, but another rent, for by such a 
 payment I shall have the assize, etc. 
 
 There is no early printed year for 19 Ed. III. The case has not been 
 identified in the Rolls Series. 
 
 (20) In an assize certain persons were summoned who 
 were not empanelled, and they showed this to the Court, 
 upon which the sheriff was amerced; but yet the Court 
 empanelled them and had them sworn, etc. 
 
 The case has not been identified in Year Book 21 Ed. Ill, or in the 
 early abridgments. 
 
 (21) In an assize the tenant pleaded the deed of the 
 ancestor of the plaintiff, with warranty. The plaintiff 
 said that a long time after this, etc., this same ancestor 
 was seised and died seised, and the tenant demurred upon 
 the plea, inasmuch as he did not show how this ancestor 
 came to the land after the release, etc. Thorpe awarded 
 the assize, but he said that if the title had been traversed, 
 and the assize found the title to be true, they should 
 not inquire as to the disseisin, as they would where the 
 bar is traversed, etc. With which Willoughby concurred. 
 (But yet the law is not so, as I believe, for if the bar or the 
 title be traversed on any point, if no ouster be in the bar, 
 they shall not inquire as to the disseisin, etc.) 
 
 Reported in Y. B. Paschal, 18 Ed. Ill, p. 13, pi. 8. 
 
 (22) In replevin the defendant had returned, "irre- 
 pleviable," and the opinion of Willoughby and Sharshull 
 was that he should not have the assize by reason of that 
 return unless he had possession of the rent in fact. 
 
 Reported in Y. B. Mich. 24 Ed. Ill, p. 33, pi. 22. 
 
ASSIZES 133 
 
 (23) In an assize against an infant under age and two Paschal 
 others of full age, each one took the tenancy severally and ^ ^^"' '^' 
 pleaded in bar. The plaintiff said that he who was under 
 
 age was his tenant, and he made title to himself and tra- 
 versed his bar; and as to the pleas pleaded by the others, 
 "no law." And the justices commanded the jurors first 
 to inquire which of them was tenant; who said that the 
 infant was tenant the day the writ was purchased, and 
 besides this they found the title for the plaintiff. And the 
 justices inquired who were the disseisors, and they said 
 that the two disseised the plaintiff, to the use of him who 
 was under age, and that he was, at the time of the dis- 
 seisin, of the age of two years, and that he was still under 
 age. And upon this the justices awarded that the plain- 
 tiff should recover seisin of the land. And in this they 
 erred, inasmuch as they should have barred the plaintiff, 
 because the disseisin by the two to his use could not 
 give him possession or title while he was under age, etc. 
 But yet it was said that they should inquire as far as 
 necessary upon this point, etc. Well debated, etc. Query? 
 
 Reported in Y. B. Paschal, 3 Hen. IV, p. 16, pi. 12. See also Brooke- Case 23. 
 Assize, 46. 
 
 (24) "Never attached" is no plea where the franchise Trinity 
 was granted, etc. In an assize, etc. '^' ' 
 
 There is no printed Year Book for Ric. II. The case has not been Case 24. 
 identified in the early abridgments. 
 
 (25) "Never attached for fifteen days" was tried by the Trinity 
 bailiff who made the attachment, by examination, etc. "^' ' 
 And it was found against the tenant, and yet the tenant 
 pleaded in bar, etc. But where "never attached" is tried 
 
 by the assize and found against the tenant it is otherwise, 
 etc. And where the tenant says "never attached," the 
 plaintiff should show by whom the attachment was made, ^ 
 in the same plea, etc. (And all the same "never attached" 
 generally is no plea, because it is contrary to the return of 
 the sheriff, etc.) 
 
 There is no printed Year Book for Ric. II. The case is abridged by Case 26. 
 Fitzh: Assize, 452. 
 
134 
 
 STATHAM 
 
 Paschal 
 49 Ed. III. 
 
 Case 26. 
 
 Note. 
 
 Case 27. 
 
 Trinity 
 8 Ed. III. 
 
 (26) If rent descend to me after the death of my father, 
 and before the day for the payment of the rent the tenant 
 puts me in seisin by [payment of] an ox, that seisin is not 
 sufficient to have the assize. But if he pays me one penny 
 as part of my rent, although it be before the day the rent 
 is due, on that possession I shall have the assize. But if I 
 recover rent, and before the day of payment the sheriff 
 puts me in seisin of the rent by an ox, for that possession 
 I shall have the assize: By Thorpe, in the same plea, etc. 
 And it was said that if he held of me by fealty and rent, 
 and although he performs the fealty, that does not put me 
 in possession so that I can have the assize for the rent, 
 nor enable me to make an avowry, etc. Well debated, etc. 
 But in all the cases before mentioned such seisin is sufficient 
 to enable me to maintain an avowry, etc. Query? 
 
 The case may be that in Paschal, 49 Ed. Ill, p. 15, pi. 9. The same 
 matters are discussed in the long debate, but they are not put as Statham 
 puts them. They come as dicta and could hardly substantiate the 
 points made by Statham. 
 
 (27) Note that a good point in an assize for rent is to 
 compel the plaintiff to make title and not to plead "out 
 of his fee," for then the plaintiff will say "within his fee," 
 and not show title, but he shall have the assize, and he will 
 say in that, that the land of which, etc., was one carucate 
 of land for which he answers as tenant; and that he granted 
 to the plaintiff an annual rent issuing from it for the term 
 of the life of one A, which A is dead, and he can show 
 such a one, who is dead in fact, in which case the plaintiff 
 shall be entitled to all. Note well, for this case is of great 
 value. 
 
 This is apparently merely a note from the notebook of the reporter. 
 Whoever he may have been he is noting a valuable point in practice. 
 
 (28) If he who is in the reversion is received in an assize 
 because he was named, etc., he can plead that the plaintiff 
 had a writ of a higher nature pending against his tenant 
 for life, who made default, albeit he was a stranger to that. 
 And because the plaintiff recovered by the first writ, his 
 right is gone. 
 
ASSIZES 135 
 
 And it was said by Herle, in the same plea, that if he who 
 is in the reversion be named in the assize, that if the tenant 
 for life will plead to the assize, or another plea which is not 
 good, he who is in the reversion may plead in bar well 
 enough, etc. Yet I believe that this is not law, for then 
 the Statute of Richard, which gave the recovery upon a 
 feigned plea, did not need to be made; and yet this case 
 of an assize differs from other writs in regard to that evil, 
 therefore, query, etc., for if the law be so there is no need 
 that he who is in the reversion shall be received upon a 
 feigned plea, where he is not named, etc. Query, if he will 
 be received upon a feigned plea where he is not named, 
 when he would not have been received upon default of his 
 tenant for life, in an assize, unless he be named in the 
 assize? 
 
 The case has not been identified in V. B. 8 Ed. Ill, or in the early Case 28. 
 abridgments. 
 
 (29) In an assize for a rent service, if the tenant for Trinity 
 
 33 Ed III 
 
 part of the land be not named, that shall not abate the 
 writ, except for the part. It is otherwise in a rent charge, 
 unless parceners of the rent are named. And it was said 
 in the same plea, that if there are no takers of the rent who 
 are not named, the writ shall abate for so much. Query, 
 if such an exception lies in the mouth of him who is not 
 tenant, etc. And it was said in the same plea that the 
 assize is properly brought against the parcener, leaving 
 out the tenant, as well for a rent charge as for a rent ser- 
 vice. Query, if the law be thus for a rent seek? etc. 
 
 And it was said by Sharshull, in the same plea, if the 
 husband and his wife purchase jointly, and the husband 
 alienates all and dies, she shall have the assize for all, etc. 
 (which I do not believe, etc.). 
 
 There is no printed Year Book for 33 Ed. III. Cas? 29. 
 
 (30) In an assize against one who pleaded "nul tort," Hilary 
 the assize found that he disseised the plaintiff, but he said 
 that he held the land jointly with one who was not named ; 
 wherefore it was adjudged that the writ should abate, etc. 
 
136 
 
 STATHAM 
 
 Case 30. 
 
 Hilary 
 1 Hen. VI. 
 
 Case 31. 
 
 From this it follows that the assize can inquire ex officio 
 of such matters, etc. 
 
 There is no printed Year Book for 33 of Ed. III. 
 
 (31) An assize was brought in the King's Bench; and 
 it was returnable "15 of the same," and because no certain 
 day was given the writ was abated, etc. 
 
 The case has not been identified in the short report of Y. B. Mich. 
 1 Hen. VI. There is no other term in the printed Year Book. 
 
 HUary 
 1 Hen. VI. 
 
 (32) In an assize the tenant pleaded joint tenure with 
 one A, of the feoffment of one B. Rolff: We were seised 
 until disseised by the tenant, upon whom B entered and 
 enfeoffed them, and we entered and were seised until dis- 
 seised by you alone. ASKAM : To the plea pleaded in the 
 
 Statham 15 b. manner. And so to judgment. Cheyne: The plea is 
 good. And if we award the assize it will be awarded in 
 right of the damages, because the plaintiff has alleged an 
 ouster in fact of the tenant, which he has not denied, etc. 
 With which the Court concurred. 
 
 And so see where the tenant traversed the title, or de- 
 murred in law upon the title, and it was found, or adjudged, 
 for the plaintiff, that he shall have the assize in right of 
 the damages, etc., because when it is found for the 
 plaintiff, it shall be held as admitted by the defendant, etc. 
 
 Case 32. The case has not been identified in Y. B. 1 Hen. VI. 
 
 Hilary 
 
 10 Hen. IV. 
 
 Case 33. 
 
 Paschal 
 33 Ed. III. 
 
 Case .34. 
 
 (33) A man was seised of land in the right of his wife, 
 and the land was recovered against him alone. And it 
 was said that after his death his wife should have the 
 assize : by Hankford, in an Assize, etc. But yet this is a 
 hard case [to depend on] for the reason that her husband 
 was never disseised, therefore the wife was not; no more 
 than if the husband had made a feoffment, etc. 
 
 The case has not been identified in the short Hilary Term of Y. B. 
 10 Hen. IV. 
 
 (34) In an assize the patent shall be awarded to the 
 plaintiff, but as soon as the record is engrossed he shall 
 deliver his patent to the clerk of the assize, for otherwise 
 he will have no warranty, etc. 
 
 There is no printed Year of 33 Ed. III. 
 
ASSIZES 137 
 
 (35) In an assize the tenant said that he was not attached 
 for fifteen days. And the bailiff who made the attachment 
 was not present, wherefore Willoughby awarded the 
 assize to inquire of it. (And so see that an assize can be 
 twice awarded.) 
 
 And see in the title of Aide de Roy, Hilary, 12 Hen. VI, 
 an assize can be three or four times awarded; and contra 
 in the [title of] Trial, Hilary, 50 Ed. HI. Query as to this? 
 
 Statham gives no citation for this case; neither is there any citation Case 35. 
 of Hilary, 12 Hen. VI, in his title of Aide de Roy, or to 50 Ed. Ill, in 
 the title of Triall. Apparently the compiler had notes not incorporated 
 in the printed text. 
 
 (36) In an assize if the tenant pleads a plea in bar that Michaeiis 
 is triable by the assize, he shall not say "which matter he ^^ ^^°' ^'' 
 is ready to aver," etc. But if he pleads a foreign plea, or 
 
 matter of record which is not traversable by the assize, it 
 is otherwise, as I believe, etc. By Fortescue, in the assize 
 of Wenlock. 
 
 The case has not been identified in the very short term of Michaelmas Case 36. 
 in the printed Year Book of 30 Hen. VI, or in the later abridgments. 
 There is but one case of an assize reported for this year and term. 
 Brooke and Fitzherbert both cite that case, but do not cite the case 
 abridged by Statham. 
 
 (37) In an assize against three, one pleaded to the assize, Michaeiis 
 and two pleaded a release of all actions. The plaintiff 
 
 said he was seised until disseised by the three, to the use 
 of him who had pleaded to the assize; and he took the 
 profits of this land. And many feoffments had been made 
 which he did not acknowledge, and as to the plea pleaded 
 by them, "no law," etc. And upon this the assize was 
 adjourned, and it was adjudged that the plaintiff should not 
 take anything by his writ, for HuLS said that if there 
 was anyone within the writ who pleaded in bar, or to the 
 writ, the plaintiff ought to answer him; he was not 
 in the case of the Statute when there was a tenant in the 
 writ who pleaded in bar, etc. (I believe that it was his 
 folly to name the two in the writ, unless he would aver 
 that all three were parceners of the profits, for the third, 
 to whose use the disseisin was made, was a disseisor, and 
 
138 STATHAM 
 
 the writ had been well brought against him, etc.) And 
 see also that a disseisor can plead such a release of all 
 actions to excuse himself from damages. 
 
 And it was said in the same plea that the Statute is to 
 be understood as well as applying to joint as non-tenancy, 
 etc. And also, since neither of the two pleaded in abate- 
 ment of the writ, as to say that there was no tenant of the 
 freehold named in the writ, it seems he should not take 
 advantage of the Statute, since the Statute is not meant 
 to apply except where he cannot have a good writ, because 
 he does not acknowledge his tenant, etc. Query? 
 Case 37. Reported in Y. B. Paschal (not. Mich.), 1 Hen. V, p. 4, pi. 4. See also 
 
 Brooke, Assize, 403; and Fitzh: Assize, 41. The Statute is West. 11, 
 13 Ed. Ill, cap. 25 (1285). Stats, at Large, vol. 1, p. 163 (198). 
 
 Michaeiis (38) In an assize for tenements in Dale and Dover, etc., 
 the tenant said that the tenements were in Dover, etc. And 
 upon that plea the assize was adjourned. Radford: It 
 seems that the plea is of no value, for although none of the 
 tenements are in Dale, yet he should answer over for the 
 tenements in Dover, so his plea does not go to the assize as 
 to any tenements in Dale ; but if he will say that part of the 
 tenements are in another vill that will go in abatement of 
 the writ, for then the writ does not give any warrant to 
 the Court to hold the plea in another vill which is not 
 named, etc., but in this case it is only a safeguarding, 
 wherefore, etc. Martyn: In an assize for tenements in 
 two vills and the plaintiff abridged his complaint for all that 
 which was in one vill, the writ was abated. So here. And 
 then the plaintiff was nonsuited. Query, if it be a plea 
 if the plaintiff shall be forced to answer it? Or if it does 
 not go to the assize, etc? And it seems it shall be inquired 
 into, for if all the tenements are in the one vill it is not 
 reasonable that the people of the other vill, which shall be 
 understood to have another venue, shall try this, but the 
 writ should abate, for otherwise the plaintiff could put 
 many vills in the writ with the intent to have the venue 
 at his will, which is not reasonable. 
 
 Case 38. Reported in Y. B. Mich. 8 Hen. VI, p. 12, pi. 31. The principal 
 
 case is given by the citators as on p. 9, pi. 17, but only a few lines are 
 
ASaZES 139 
 
 there reported. See Fitzh: Assize, 4. "Dale and Dover" become 
 magna and parva Dunmore in the report. These changes of proper 
 names are very frequent. It seems of no use to note them in each case 
 as they are of value as to the point of law. The names would doubt- 
 less be changed again in the Rolls. 
 
 (39) In an assize the tenant said that one A was seised, Hilary 
 etc., and held of him, etc., and A was outlawed for felony, ^^ ^^"" ''" 
 and after the year the defendant entered as in his escheat, 
 
 and the plaintiff, claiming as sister and heir, entered, upon 
 which, etc. And the [plaintiff] demurred upon the plea 
 inasmuch as the plaintiff had no color of claim during the 
 natural life of A, etc. 
 
 The case has not been identified. The citation in Statham is to Case 39. 
 Hilary, 11 Hen. II, which is probably a misprint, possibly for 11 Hen. 
 IV, or VI, but the case has not been found in Hilary Term for the year 
 eleven of either of those reigns. 
 
 (40) In an assize by a man and his wife, the tenant said Michaeiis 
 that the uncle of his wife enfeoffed one B, and died, and 
 
 you, alleging that this uncle had died seised, entered and B 
 ousted you and enfeoffed us. Cheyne: He does not give 
 any color to the plaintiff, for his ancestor could not enter 
 against his feoffment. Hankford: He has admitted posses- 
 sion in your ancestor, and it is a good plea to say that the 
 ancestor of the plaintiff disseised the tenant, upon whom 
 a stranger entered, upon whom the tenant entered, and 
 the plaintiff as heir entered, and the tenant ousted him. 
 Tyrwhit : There the possession of the ancestor was not 
 defeated by his deed. Gascoigne and Huls held the 
 plea good, and the others did not. But yet the plaintiff 
 made title, etc. But if the tenant had shown that the 
 feoffee had suffered the ancestor of the plaintiff to occupy 
 at his will and died, and the plaintiff had alleged [it], the 
 plea had been good without question, etc. And so see 
 here that this plea is a bar against both the plaintiffs, 
 because it will be understood prima facie that the land 
 is in right of the woman plaintiff, etc. 
 
 Reported in Y. B. Mich. 11 Hen. IV, p. 2, pi. 6. See Fitzh: Assize, Case 40. 
 46. A very poor abridgment of the case. 
 
140 
 
 STATHAM 
 
 Michaelis 
 9 Hen. IV. 
 
 Case 41. 
 
 Anno 
 
 26 Hen. VI. 
 
 Case 42. 
 Note. 
 
 Statham 16 a. 
 Paschal 
 9 Ed. III. 
 
 Case 43. 
 
 (41) In an assize if the tenant says that he was not 
 attached for fifteen days, if the bailiff who made the 
 attachment is not present they will not inquire into it, 
 for they will not award the assize upon that point, etc. 
 
 The point abridged is to be found at the end of the case reported in 
 Y. B. Mich. 9 Hen. IV, p. 1, pi. 6. See also Brooke, Assize, 53. 
 
 (42) In an assize held in York, the bailiffs of a franchise 
 asked as to their jurisdiction, and the plaintiff said that 
 the land was out of their franchise, etc. And the justices 
 said to the tenant that he should keep to one part or the 
 other, and so he did; and he pleaded in bar immediately, 
 and when they were at the assize they inquired first if the 
 lands were within the franchise, etc. Query, if the plaintiff 
 had demurred in law upon the bar, etc., and if the tenant had 
 demurred upon the title, etc., what would have been done? 
 
 And in the same year, in an assize in Southwark, the 
 jurors were examined as to the view, and they had not 
 had the view, wherefore a day was given to have the view, 
 but the tenant was driven to plead in bar immediately. 
 And the law is the same where the assize remains for default 
 of the jurors, etc., and the tenant appears by guardian, 
 and they will not admit his appearance unless he comes 
 in his own person. It is otherwise in other actions than 
 an assize. 
 
 The case has not been identified in Anno 26 Hen. VI, or in the early 
 abridgments. 
 
 See as to assize, in the title of Repleader, Mich. 30 Hen. 
 VI. ^ In the assize of Wenlock, how there could be a 
 jeofail in an assize, etc. And see of assize in the title of 
 Plaint and also in the title of Title, many matters. 
 
 (43) The bailiff said that the lands were ancient demesne, 
 and he had the plea, but not to such an effect that the plain- 
 tiff should answer it, but to the effect that the assize should 
 inquire as to it, etc. (But yet it seems that it is not 
 triable by the assize.) 
 
 Reported in Y. B. Paschal, 9 Ed. Ill, p. 13, pi. 14. 
 
 > See infra, Repleder, p. 153 b, Case 6. Title of Pleynt, p. 143 a. 
 Title of Title, infra, pp. 174 a to 175 b. 
 
ASSIZES 141 
 
 (44) An assize of rent was taken by default, and the Anno 
 assize said that the plaintiff was seised and disseised; for ^"' 
 they said that the plaintiff distrained and the defendant 
 sued a replevin, and it was a rent charge. And upon that 
 
 the plaintiff recovered before Cokayn and Strange, at 
 Warwick, etc. 
 
 There is no printed Year Book for 6 Hen. VI. Case 44. 
 
 (45) A man shall have an assize for a rent charge in Anno 
 confinis comitatus, but he shall [not] distrain, for the assize 
 
 in confinis comitatus is not given except at common law. 
 As appeared in an assize, by the opinion of the Court. 
 (But yet it is given by the Statute of Ric. Anno VII.) 
 
 The case has not been identified in Y. B. 22 Ed. Ill, or in the early Case 45. 
 abridgments, although Paschal, 22 Ed. Ill, p. 4, pi. 7, or Mich. 22 
 Ed. Ill, p. 12, pi. 20, might, if we had a better report, prove to be the 
 case abridged here. 
 
 The note is apparently made by a reporter — Statham or another — 
 who forgets that the case was decided before the date of the Statute of 
 7 Ric. II. See Stats, at Large, Vol. 2, p. 267, cap. 10 (1383). 
 
 (46) If the king grants my land by patent to another who Michaeiis 
 enters by force of that grant, I shall have an assize against 
 
 him: By the opinion of the Court in an assize in the 
 Common Bench, etc. 
 
 There is no printed Year Book for 20 Ric. II. See Fitzh: Assize, Case 46. 
 467, where much there is the same abridgment of the case. He 
 refers to the "Statute of Hen. IV." See 1 Hen. IV, cap. 8, Stats, 
 at Large, Vol. 2, p. 391 (1399), which covers the point in the case, 
 but is later than the case digested. 
 
 (47) If the plaintifi cannot show his patent, in an assize, Anno 
 still the justices will call the jurors, and if it remains ^^ ^^°- '^• 
 for default of the jurors, they will give a day to them until 
 
 the next assize, for if he brings his patent before the assize 
 be awarded it is time enough. And so Hankford said 
 twice at Exeter, etc. 
 
 The case may be that in Y. B. Mich. 13 Hen. IV, p. 10, pi. 31, Case 47. 
 although it cannot be fully identified. Fitzh: Assize, 165, has a long 
 abridgment of the case. 
 
 (48) In an assize against several, if one answers as tenant Anno 
 and pleads a plea in bar, and the others plead in abate- ^ ^^"- ^'- 
 
142 STATHAM 
 
 ment of the writ, the pleas in abatement of the writ shall 
 not be inquired into. By the opinion of Hankford, at 
 the assizes at Southwark, etc. 
 Case 48. The case has not been identified in Y. B. 8 Hen. VI, or in the later 
 
 abridgments. 
 
 26^en VI ('*^) "^^^ tenant in an assize said, "Not attached for 
 fifteen days." And the Court demanded of the plaintiff 
 who made the attachment. And the plaintiff replied, one 
 such, his servant. And he was demanded and he did not 
 come, whereupon a new attachment was awarded, without 
 any inquiry into this by the assize, because it was the folly 
 of the plaintiff that he did not bring him with him. But 
 it were otherwise if the bailiff had wrongly made the attach- 
 ment, and had been demanded and had not come; the 
 assize should have inquired as to that. By the opinion of 
 Newton, in the same plea, and this he took for a diversity, 
 etc., at the assizes at Exeter. And he also said that if 
 the servant of the plaintiff, who made the attachment, had 
 been present he would have examined the sheriff as to 
 whether he gave him a warrant to make the attachment or 
 not. 
 
 Case 49. There is no 26 Hen. VI in the printed Year Books. Brooke, Attach- 
 
 ment in Assize, 1, gives the case as in 27 Hen. VI (Mich. 27 Hen. VI, p. 2. 
 pi. 18), although the facts are different from those given by Statham. 
 See also Fitzh: Assize, 14, who gives both citations. 
 
 ''To speak of the Assize generally, even in the manner of a digest, 
 would be an absurdity in a short note. The learning in regard to the 
 Assize is voluminous and accessible in the books on the history of the 
 English law. To say that it is all to be found within the compass of 
 any one work would be greatly to exaggerate; that comprehensive 
 task is yet to be undertaken. Our abridgment, in its reported cases, 
 does not in any way cover the field, does not even give us what might be 
 called representative cases. Statham abridges twenty-nine cases; 
 Fitzherbert, finding the title ready made, expanded the twenty-nine 
 cases into four hundred and seventy-two, and might have gone on and 
 on. Brooke went a little further with an exact five hundred cases; 
 probably because he found it time to stop, not because he had exhausted 
 his cases. Exactly why Statham chose the cases he did from the super- 
 abundant material at his command does not clearly appear in the cases 
 themselves. They appear to be of the ordinary type, and there are 
 hundreds like them in the books. We have in case 2, however, one of 
 
ASSIZES 143 
 
 the most picturesque and interesting cases within the whole compass 
 of the Year Books. As an example of the Assize, or as authority upon 
 the law of the Assize, it does aot appear remarkable, but as a picture 
 of the period it is invaluable. It is probable that Statham had very 
 little to do with Assizes; his own career appears to have been that 
 of the student and of the scholar; first the acquiring of the law, 
 and then the imparting of that which he had acquired; all within the 
 cloistered spaces of the Inns of Court. One almost feels sure that it 
 was the story of this case that appealed to him; the vivid human 
 nature of it, even perhaps the literary quality of it. Yet this may be 
 an entire misjudgment; it may be that the legal principles involved 
 were in some way peculiarly those which he wished to inculcate; to 
 set before those who would use his book. Some day it may be that we 
 shall be able to take his book and find from it just what were the most 
 needed doctrines in the practice and the teaching of the law of his time. 
 It would be a most interesting task. 
 
 ASSIGNE " 
 
 (1) A man vouched one to warranty as assignee, without Paschal 
 showing what he had for the assignment, for it could be 
 assigned without a deed, but he ought to show the first 
 
 deed in the warranty was to be taken for all. And this by 
 the opinion of Thorpe and Fyncheden. And he who 
 vouched in this case was the heir of the assignee. (So 
 see that the [heir of the assignee] shall have the voucher.) 
 
 Reported in Y. B. Paschal, 40 Ed. Ill, p. 22, pi. 22. There is an Case 1. 
 apparent misprint in the case which makes BELKNAP show a deed, 
 and the index gives the point in that way, thus making the case contra- 
 dict Statham. The error in the text is obvious, however. 
 
 (2) A man brought a writ of Annuity as assignee, and Michaeiis 
 this was adjudged good, which note. ^^ d. i . 
 
 Reported in Y. B. Mich. 41 Ed. Ill, p. 27, pi. 24. Case 2. 
 
 (3) It was found at Exeter, before Newton, that one Anno 
 had leased land for a term of life, rendering a certain rent, ^^ ^^"" ^^' 
 and for default of payment it well belonged to him and 
 
144 STATHAM 
 
 to his heirs and assigns to enter; and that afterwards 
 the feoffor granted the reversion to one B, and the tenant 
 attorned. And for the rent in arrear after the attorn- 
 ment, B entered, and the other brought the assize. And 
 the opinion of Newton clearly was that his entry was not 
 lawful, etc. 
 
 Case 3. The case has not been identified in Y. B. 26 Hen. VI. 
 
 Hilary (4) A man shall have Warranty of Charter. By the 
 
 no TJ-J TTT 
 
 opinion of Thorpe and Fyncheden, as assignee, if he has 
 a deed, etc. In a writ of Warranty of Charter, etc., by 
 Newton, the contrary was held; and by Ascough in a 
 writ of Covenant. Hilary, 26 Hen. VI. 
 
 Case 4. There is no printed Year Book for the year 36 Ed. III. 
 
 '^ Little as we have in regard to the assignee in this collection, it had 
 very recently become possible to make a gift to a donee and his heirs 
 and assigns. [P. & M. Hist, of Eng. Law, 2d ed.. Vol. 2, p. 14] 
 
 Bracton speaks of assignments [Bracton, f. 176] of lands De Legihus 
 Ang. Maitland gives the appearance of the word in the charters as 
 soon after the year 1200 [P. & M. Hist, of Eng. Law, 2d ed., Vol. 2, p. 14]. 
 From that time forward it seems to have had its settled place in the law. 
 Britton [f. 122] says that it "was in favor of bastards that the word 
 assigns was first devised to be inserted in feoffments," and Cowell adds 
 [Cowell: Assigne]: "because they cannot pass under the name of heirs, 
 and therefore were and are comprised under the name of assignees." 
 
 ATTACHEMENT 
 
 Michaeiis (1) A. man shall be attached for goods which are in his 
 
 21 Hen. VI. . „ . , .... , 
 
 possession, albeit the property m them is in another per- 
 son. By the opinion of Newton, in Trespass. Query? 
 For if he did not come on the day of the attachment, 
 the attachment would be forfeited. And if one borrows 
 my horse and he is arrested for his debt, it is not reason- 
 able that I lose my horse. 
 
 Case 1. The case has not been identified in Y. B. Mich. 21 Hen. VI. 
 
ATTACHEMENT 145 
 
 (2) A feme covert shall be attached for the goods of Hilary 
 her husband. And this in an Assize, etc. ™' 
 
 Reported in Y. B. Mich, (not Hilary), 7 Hen. VI, p. 9, pi. 15. See Case 2. 
 also Brooke, Attachment in Assize, 4. 
 
 See of Attachment, in the title of Assizes.' Note. 
 
 (3) Attachment upon a prohibition or attachment which Michaeiis 
 
 *• f 4- ^ u 11 u 1 r 30 Hen. VI. 
 
 issues upon an action for contempt, shall be always for 
 the body, etc., upon which no distress follows, but attach- 
 ment infinite. And there is such process in the Exchequer 
 in debt, etc. Yet in any attachment upon a rescous, it is by 
 the body, etc. 
 
 The case has not been identified in Y. B. Mich. 30 Hen. VI. Fitzh: Statham 16 b. 
 has not the title, or Brooke the case. 
 
 ATTEINT " 
 
 (1) An attaint was mamtained where the greater HUary 
 
 ^ r ^u ^^ ■ J J 2 Hen. IV. 
 
 part of the petty jury were dead. 
 
 Reported in Y. B. Paschal (not Hilary), 2 Hen. IV, p. 18, pi. 5. The Case 1. 
 case gives a citation to 6 Ric. II, contra. See also Brooke, Attaint, 23. 
 
 (2) Attaint was brought by two ; one appeared by guar- ™3^ ,,. 
 dian, who said that he would not sue, wherefore he was 
 non-suited, and the other put to sue alone, etc. And 
 because he who would not sue was under age he was not 
 imprisoned, etc. Query, if the jury were attainted would 
 
 the infant be restored, for when he came of age he could 
 not have the attaint, for the jury cannot be twice attainted. 
 
 The case has not been identified in Y. B. Hilary, 41 Ed. Ill, or in the Case 2. 
 later abridgments. 
 
 (3) The king brought attaint and the writ was adjudged ^''^ uj 
 good. 
 
 Very short report in Y. B. Mich, (not Hilary), 42 Ed. Ill, p. 26, Case 3. 
 pi. 14. See also Brooke, Attaint, 15; and Fitzh: Attaint, 18. 
 
 ' Note to case 2. 
 
146 
 
 STATHAM 
 
 Paschal 
 42 Ed. III. 
 
 Case 4. 
 
 Hilary 
 
 19 Ed. III. 
 
 Case 5. 
 
 (4) See the judgment and the execution in attaint; and 
 that well expressed, in Attaint. 
 
 Reported in Y. B. Mich, (not Paschal), 42 Ed. Ill, p. 26, pi. 13. 
 
 (5) An attaint was brought in between the day of Nisi 
 Prius and the day in the Bench, and for this reason it was 
 abated, etc. 
 
 There is no early printed year of 19 Ed. III. The case has not been 
 identified in Y. B. Hilary, 19 Ed. Ill, of the Rolls Series. 
 
 Hilary 
 
 21 Ed. III. 
 
 Case 6. 
 
 (6) Attaint was brought for a false oath given in the 
 Court at Oxford in an assize of fresh forcej and the plain- 
 tiff had caused the record to be brought into the Common 
 Bench by a writ out of the Chancery, and it was challenged 
 because an attaint should be brought in the same place 
 as that where the verdict passed, etc. Sharshull: Inas- 
 much as the record is here you shall sue the attaint here. 
 And then the tenant said that he was not tenant of the 
 part, etc. Fyncheden : We pray a jury for the remainder. 
 Darr : That exception goes to the whole, wherefore answer, 
 etc. Whereupon he said that he was tenant of the whole, 
 etc. And this was tried by twelve at the Nisi Prius. 
 
 Reported in Y. B. Hilary, 21 Ed. Ill, p. 10, pi. 32. See also Brooke, 
 Attaint, 32. 
 
 Anno 
 21 Liber 
 Assisarum. 
 
 Case 7. 
 
 (7) In attaint in a personal action the sheriff returned 
 "nihil" to the summons; and the plaintiff prayed a jury, 
 for one shall not have a re-summons unless the first be 
 sued. Stonore : You shall not have the jury, for you can 
 have a summons in another county upon a testatum est. 
 And so he had it, etc. Query? 
 
 Reported in the Liber Assisarum, 21 Ed. Ill, p. 76, pi. 5. 
 
 Micbaelis 
 21 Ed. III. 
 
 Case 8. 
 
 (8) In attaint, if the Grand Jury remain for want of 
 jurors, a writ shall be directed to the sheriff that he shall 
 take twelve of the best men, or eighteen, or as many, etc., 
 where any of them were ousted by challenge. 
 
 Reported in Y. B. Mich. 21 Ed. Ill, p. 41, pi. 45. 
 
ATTEINT 147 
 
 (9) In attaint against A and B, the writ was "Summon MichaeUs 
 
 21 Kd III 
 
 A and B, 'qui tenet' the aforesaid lands." And the writ 
 was challenged because it was not "tenant." And A 
 was not tenant, but she was party to the first recovery, 
 wherefore she was named; and the other was sole tenant, 
 and for this reason the writ was adjudged good, etc. See 
 the Registrum. 
 
 The case has not been identified in Y. B. Mich. 21 Ed. Ill, or in the Case 9. 
 later abridgments. The index to the Year Book cites this case as on 
 p. 23 of 21 Ed. Ill, but the case is not found there. 
 
 (10) In attaint, the tenant pleaded non-tenure, and so it Paschal 
 was found, etc. And the petty twelve said that they had ^° ^^"' ^'" 
 made a good oath; and the plaintiff said that the tenant 
 
 had made a feoffment to persons unknown, etc., accord- 
 ing to the Statute. Paston : That shall be tried by another 
 inquest than by the Grand Jury. Newton: That is not so, 
 for inasmuch as the issue is not on the point of false swear- 
 ing, it is not peremptory, but the party can have an attaint ; 
 as when in a writ of Right the tenant pleads a collateral 
 warranty in bar, that shall be tried by the Grand Jury, 
 for the above reason, etc. Query, if it be tried by the 
 Grand Jury on the attaint, if it shall be tried by all or by 
 twelve of them? etc. And see the Statute of Westminster 
 the Second, which says that no one shall be put on the 
 jury, unless they were summoned to the, same etc. 
 
 The case has not been identified in Y. B. Paschal, 20 Hen. VI. The Case 10. 
 Statute is that of West. II, 13 Ed. I, Stats, at Large, Vol. 1, p. 203, cap. 3. 
 
 (11) A man shall not have attaint in an appeal of mayhem, HUary 
 or of felony, because this is not warranted by the Statute. 
 Hilary, 10 Hen. IV: by Tvrwhit, etc., and at the common 
 
 law there was no attaint, etc. 
 
 What may be a report of this case appears in Y. B. Mich. 11 Hen. IV, Case 11. 
 p. 7, pi. 18. It is not clearly identified, however. 
 
 The Statute is 3 Ed. I (1275) cap. 38 (West. I). Stats, at Large, 
 Vol. 1, p. 74 (99). 
 
 (12) In mort d'ancestor the tenant vouched one who MichaeUs 
 entered into the warranty and barred the demandant. ^^ ^"^- ^''- 
 
148 
 
 STATHAM 
 
 Case 12. 
 
 Michaelis 
 9 Hen. VI. 
 
 Case 13. 
 
 And then the demandant brought an attaint against the 
 heir of the vouchee and the tenant. And the writ ran 
 "inter quos certis de causa," the assize passed; and the 
 writ was adjudged good, etc. 
 
 The case has not been identified in Y. B. Mich. 38 Ed. Ill, or in the 
 later abridgments. 
 
 (13) In detinue, the plaintiff and the garnishee were at 
 issue, and it was found for the garnishee, wherefore the 
 plaintiff brought attaint against the garnishee, and the 
 writ ran "falsum fecerunt sacramentum in loguela," which 
 was between the plaintiff and the garnishee, and did not 
 mention the defendant, against whom the writ was brought.^ 
 Martyn: The writ is of no value, for the above reason. 
 Rolff: It is not the same as a Pracipe quod Reddat, for 
 when an attaint is brought against a vouchee or the tenant 
 on the receipt, it is reasonable that the tenant of the land 
 who lost be named, because he is to have back the land; 
 but in this case the defendant shall not have the deed, etc. 
 Paston: If two plaintiffs interplead upon two original 
 writs, and one recovers against the other by a tried action, 
 shall not the action mention both the originals? Babyng- 
 TON: No, sir, but of the original on which they agreed to 
 interplead, etc. (Query?) Paston: The garnishee shall 
 have oyer of the first declaration, and if it is of no value it 
 will be abated, so the plea is held upon the original, con- 
 sequently the defendant shall be named, etc. Babyng- 
 TON : The original writ will not be abated for any matter, 
 except for such matter as appears [to the Court]." To 
 my mind the plea is held upon the Scire Facias which is in 
 effect between the plaintiff and the garnishee, albeit it is 
 awarded at the prayer of the defendant. (And see the 
 plea, where it was well argued), etc. 
 
 Reported in Y. B. Mich. 9 Hen. VI, p. 38, pi. 13. 
 
 Paschal (14) A man who is indicted for trespass and found guilty 
 
 10 Hen. IV. ]-,y another inquest, shall not have an attaint, or a petition 
 
 ' Words from the report of the case. 
 
 ' Words from the report of the case. The text in Statham is obscure. 
 
ATTEINT 149 
 
 in the nature of an attaint, because the twenty-four in a 
 manner have given the verdict, since both verdicts agree. 
 But if he is acquitted the king clearly shall have an 
 attaint, etc. By Thirning, in Trespass. But if the 
 defendant be attainted in an appeal of felony, although 
 he be attainted they will not omit in that account to do 
 execution, for execution does not cease by reason of an 
 attaint in any case. But if he be put in prison and the 
 judgment respited for certain reasons, or be delivered 
 to the ordinary, it seems that he shall have an attaint, 
 etc. Query? 
 
 The case has not been identified in Y. B. Paschal, 10 Hen. IV. Case 14. 
 
 (15) Where a writ issues to the sheriff through the Hilary 
 default of the defendant, to inquire as to waste, the party ^ ^^"' ^'" 
 shall have an attaint [for this is greater and higher] ' than 
 
 an inquest of office, for where the sheriff returns damages 
 taxed by the inquest, the justices can choose to give judg- 
 ment according to that return or not, for they could have 
 given judgment before, but it is otherwise in the other 
 case, etc. And also the other party shall have his chal- 
 lenge, and if they find no waste the plaintiff shall be barred, 
 and thus the judgment is given on the verdict, etc. For 
 it is not the same as where a man acknowledges the waste, 
 and a suit issues to inquire as to the waste, for there they 
 ought all to find the waste, for this writ does not issue 
 by the Statute, but by the common law to affirm the judg- 
 ment of waste and the damages, and thus there is a dis- 
 tinction, etc. 
 
 Reported in Y. B. Hilary, 3 Hen. VI, p. 28, pi. 13. See also Brooke, Case 15. 
 Attaint, 105. 
 
 The Statutes are 52 Hen. Ill (1267) c. 23 (Marlb.), and 6 Ed. I, 
 (1278) 0. 5 (Glouc), Stats, at Large, Vol. 1, pp. 55 and 117. 
 
 (16) Assize was brought against two, and one pleaded a statham 17 a. 
 release of the plaintiff in bar, which was denied, and the ^^'^J'^^^f,, 
 
 . r 1 1 • -rr II 1 -r ■ . H Hen. IV. 
 
 other pleaded a misnomer of the plamtiif, and if it be so 
 
 found," etc. And it was found that the plaintiff was well 
 
 ' Words from the case. 
 
150 STATHAM 
 
 named, and they acquitted him who pleaded of the dis- 
 seisin, and it was found that the release was not the deed of 
 the plaintiff, and that he who pleaded the release disseised 
 him, etc., wherefore he recovered. And then he who 
 pleaded the release brought an attaint and assigned as a 
 false oath that they found that the release was not his 
 deed, and also because that they found that the plaintiff 
 was well named. Skrene : As to the release, they swore 
 a good oath, Ready. And as to the other, you see clearly 
 that he assigns a false oath for that which another pleaded, 
 and that he is a stranger [to that]. And also the other 
 was acquitted of the disseisin, in which case no attaint is 
 given to him. Norton: Yes, sir, if he were tenant. For 
 the land was lost; and also if the misnomer had been found 
 the writ had been abated. Hankford: As to the mis- 
 nomer, you shall have no advantage for that, for the above 
 reason, wherefore we will discharge you of that. Norton: 
 Judgment of the writ, for it runs "ad recognoscendum" ; 
 he who is now plaintiff disseised him who is now tenant, 
 or not. And he has assigned a false oath on another 
 point which is not comprised in the writ. Thirning: 
 Upon a writ which is general the party can assign all the 
 false oaths he wants to, to wit: "quod juris falsum fecerunt 
 sacramentum," etc. But this is a special writ, wherefore 
 he cannot pass his writ. Which was conceded. Wake- 
 field: The course is, when an assize is taken, except upon 
 seisin and disseisin, that he shall have a special writ, 
 such as is here. But when an issue is taken out of the 
 point of the assize, and besides that the seisin is found, he 
 shall have a general writ, and so he shall where the assize 
 is taken out of the point of the assize and the tenant con- 
 fesses an ouster, etc. 
 
 Cjise 16. The case has not been identified in Y. B. Mich. 11 Hen. IV, or in the 
 
 early abridgments. 
 
 HUary (17) In an assize against the husband and his wife, who 
 
 11 Hen. IV, pleaded a record in bar, and on the day, etc., they failed 
 
 of the record, wherefore the woman was received and 
 
 pleaded different pleas out of the point of the assize, upon 
 
ATTEINT 151 
 
 which the assize was awarded, and it was found for the 
 plaintiff; and then the husband and his wife brought an 
 attaint which was general, without mentioning the receipt 
 of the wife. HoRTON: By the default the husband was 
 out of Court, and upon such a general writ they could not 
 assign a false oath, except upon the disseisin solely. Gas- 
 COIGNE: They could assign the false oath upon this writ 
 on any point, for "reddendo singula singulis" the husband 
 was not out of Court, for by the receipt of his wife his 
 default was saved. And it is not like a Prcecipe quod Reddat, 
 where judgment shall be given upon the default, for in this 
 case, notwithstanding the default, they should inquire 
 as to the disseisin, and judgment will be given upon the 
 verdict, consequently he is a party, wherefore, etc. Tyr- 
 whit: If the woman, after she was received, had pleaded 
 in bar and had admitted an ouster, and the plea had been 
 found against her, the plaintiff would have had seisin of 
 the land without inquiring as to the seisin and disseisin, 
 because the wife had confessed an ouster, and her husband 
 was disseised by the failure of the record, which Gas- 
 coiGNE and Hankford denied wholly, etc., and with this 
 the Book of the Assizes agrees. And if in an assize the 
 tenant vouches, and he is out of Court, and pays his fees 
 immediately, still [they] shall inquire if he disseised the 
 plaintiff, and if it be so found the plaintiff shall recover 
 his damages against him, since he is a party, etc. And 
 then the justices were agreed that they would assign upon 
 this a writ of false swearing on every point. And so they 
 did, and they would have had the false oath of the pleas 
 pleaded by others, etc., and it was not allowed, etc. 
 
 Reported in Y. B. Hilary, 11 Hen. IV, p. 50, pi. 28. See also Brooke, Case 17. 
 Attaint, 28, and Fitzh: Attaint, 16. 
 
 (18) In an assize, the tenant said that one H enfeoffed Paschal 
 him, and they suffered the said H to hold the same land ^ ^^"' ^^■ 
 at his will. And then H died, and the plaintiff alleged 
 that he had died seised, etc., in fee, etc., and he entered 
 as son and heir, upon whom one F entered, upon whom 
 the tenant entered. The plaintiff said that H died in his 
 
152 
 
 STATHAM 
 
 Case 18. 
 
 estate as of fee, etc., and the assize was taken and said 
 that he did not die seised in fee, wherefore it was adjudged 
 that he was barred. And then he brought an attaint 
 and assigned the false oath on this point, etc., that they 
 found that they made a false oath. HuLS: They should 
 inquire as to the seisin and disseisin, or else the plaintiff 
 cannot have seisin of the land, for if in the assize the issue 
 had been found for the plaintiff they should have inquired 
 as to the seisin and disseisin, inasmuch as no ouster was 
 admitted in bar; consequently they should inquire now, 
 etc. Gascoigne: This attaint is only to inquire of the 
 false oath, wherefore, etc. Hankpord: In the plea in 
 bar, he acknowledged that a stranger ousted the plaintiff, 
 which is sufficiently strong etc., for although in an assize the 
 tenant confesses an ouster in a stranger and it is found 
 for the plaintiff, it is not de rigore juris that they shall 
 inquire as to the seisin and disseisin, but it is the courtesy 
 of the law. And then by advice it was adjudged that the 
 plaintiff should recover seisin of the land, and the damages 
 that he lost. And so note that he had judgment to recover 
 seisin of the land, etc., although many said that he should 
 be put to a new assize, etc. Query, if he shall be restored 
 to the profits in the meantime, etc.? 
 
 Reported in Y. B. Paschal, 8 Hen. IV, p. 23, pi. 10. See also Brooke, 
 Attaint, 26; and Fitzh: Attaint, 14. 
 
 Michaelis 
 21 Hen. VI. 
 
 Case 19. 
 
 (19) If the party, etc., the other shall not have attaint, 
 by Newton: And this in Debt. And the law is the same 
 in all personal actions. 
 
 And he said in the same plea that if the jurors be attainted 
 they could make a fine for their goods and lands. 
 
 The case has not been identified in Y. B. Mich. 21 Hen. VI, or in the 
 early abridgments. 
 
 Michaelis 
 12 Hen. VI. 
 
 (20) In attaint, one of the petty twelve said that the 
 writ was purchased pending the writ of Assize, and he 
 demanded judgment of the writ. And the opinion was 
 that he should have the plea, and also that he should plead 
 the release of the plaintiff, etc. The contrary was held in 
 
ATTEINT 153 
 
 the Book of the Assizes, ibid., that he should plead no plea 
 except to excuse himself of the false oath. 
 
 And in the same plea it was said that if in an attaint 
 an issue be taken which is not of the false oath, as upon 
 a release or something of that sort, the Grand Jury 
 will not try it, but it will be tried by another inquest in 
 the nature of a Nisi Prius. But it is otherwise in a writ 
 of Right, for although the writ of Right be arrayed by four 
 knights still there are no more in the inquest than twelve, 
 therefore although a collateral issue be taken which is not 
 tried, that right will be tried by the same inquest, but 
 final judgment will not be given unless the right be put in 
 issue, etc. 
 
 See in the same plea, if the jurors do not come, or some 
 of them come and the others do not, at the second distress 
 the Grand Jury shall be awarded for their default, and 
 against the Grand Jury the process is as in an assize, etc. 
 
 The case has not been identified in the printed Year Book of Mich. Case 20. 
 12 Hen. VI, or in the early abridgments. 
 
 (21) In an attaint for a false oath given in the franchise statham n b. 
 of the Archbishop of Canterbury, the plaintiff prayed a Michaelis 
 Certiorari out of the Common Pleas to the bailiifs of the ^'^ ^^"" ^^• 
 franchise to certify the record. Portyngton: You should 
 
 have a Certiorari out of the Chancery, because it is con- 
 fessed by the plaintiff that the writ was not his, since it 
 was returned that he did not find pledges to prosecute. 
 And therefore Portyngton said that you should have a 
 Certiorari from the Chancery and that then they would 
 come here by a Mittimus, and that before the writ comes 
 in before us, that is not to the purpose, for we cannot do 
 anything before the record has come here. And they 
 adjourned, etc. 
 
 There is no printed Year Book for 27 Hen. VI. Case 21. 
 
 (22) See a good distinction between a writ of Error and Paschal 
 an attaint, in the title of Error, 29 Hen. VI. ^9 Hen. VI. 
 
 There is no printed Year Book for 29 Hen. VI. Case 22. 
 
154 
 
 STATHAM 
 
 Paschal 
 44 Ed. III. 
 
 Case 23. 
 
 (23) In trespass against two, one came and was found 
 guilty by one inquest; and the other by another inquest. 
 He who was found guilty by the last inquest shall have an 
 attaint, although he is a stranger to it, because he is dam- 
 aged because the first inquest taxed the damages and not 
 the second inquest, etc. And for these damages he shall have 
 the attaint, as appeared in Trespass. Well debated, etc. 
 
 This is apparently an abridgment of the very short case in Y. B. 
 Paschal, 44 Ed. Ill, p. 7, pi. 4. See also Fitzh: Attaint, 21. 
 
 Michaelis 
 4 Ed. III. 
 
 Case 24. 
 
 (24) It was claimed that he who is in the reversion shall 
 have an attaint after the death of his tenant for life; and 
 it was adjudged good. And the Statute of Richard gave 
 an attaint to him while the tenant was living, etc. 
 
 Reported in Y. B. Mich. 4 Ed. Ill, p. 54, pi. 59. See also Brooke, 
 Attaint, 49. 
 
 The Statute is that of 9 Ric. II, cap. 3. Stats, at Large, Vol. 2, 
 p. 277 (1385). 
 
 Anno 
 8 Ed. III. 
 
 Case 25. 
 
 (25) A man shall have an attaint. (Out of the rolls of the 
 justices in the Eyre of Northampton.) 
 
 This appears to be merely a fragment of a note, possibly from some 
 passing remark. It cannot have been meant to be inserted in the 
 printed book as it stands. 
 
 Michaelis 
 18 Ed. II. 
 Case 26. 
 
 (26) Attaint was maintained against a juror of London. 
 
 The point is found in the case reported in Y. B. Mich. 18 Ed. II 
 (Maynard), on page 570. 
 
 Hilary 
 16 Ed. II. 
 
 Case 27. 
 
 (27) If a man be named in an attaint, it is peremptory, 
 etc. Query, if it is before appearance, etc.? 
 
 There is no early printed Year Book for the year sixteen of Ed. II. 
 The case, or rather the point, has not been identified in the Rolls Series 
 for that year. 
 
 Paschal 
 23 Ed. III. 
 
 Case 28. 
 
 (28) Attaint will not be maintained for a concealment, 
 as appeared in an attaint, etc. 
 
 There is but one short term — that of Michaelmas — in the printed 
 year of 23 Ed. III. The point has not been identified there. 
 
ATTEINT 155 
 
 (29) Attaint was maintained by the vouchee, and yet Paschal 
 the writ did not state that he who entered into the 
 warranty, etc., was dead or alive. 
 
 The case has not been identified in Y. B. 25 Ed. Ill, or in the early Case 29. 
 abridgments. 
 
 (30) In trespass against several who pleaded not guilty. Paschal 
 if a general judgment is given for the damages, a general 
 attaint or a several attaint lies. But if it is several on the 
 judgment for damages then the attaint is several, etc. 
 
 And although the judgment be general, still as to the 
 principal, to wit: that of which they are found guilty, 
 a several attaint lies, as it seems, etc. 
 
 The case has not been identified in Y. B. Paschal, 18 Ed. Ill, or in Case 30. 
 the early abridgments. 
 
 (31) Attaint was adjudged good for him who had pleaded Michaeiis 
 non-tenure, but he showed how he was injured, because 
 
 he had the land by a remainder, etc. 
 
 The case has not been identified in Y. B. Mich. 22 Ed. Ill, or in the Case 31. 
 early abridgments. 
 
 (32) Attaint against the tenant and the vouchee was MichaeUs 
 adjudged good. * ^"i- "^• 
 
 The case has not been identified in Y. B. Mich. 4 Ed. Ill, or in the Case 32. 
 later abridgments. 
 
 (33) Attaint was brought by the tenant for a receipt. Trinity 
 and it was adjudged good, notwithstanding the writ did 
 
 not say whether the tenant for life was dead or alive. 
 
 The point in the case has not been identified in' Y. B. Trinity, 3 Ed. Case 33. 
 II, but is found as given by Brooke, Attaint, 49, in Y. B. Mich. 4 Ed. II, 
 p. 58, at the end of the case beginning on page 54. See also Fitzh: 
 Attaint, 47. He gives the same citation as Brooke. 
 
 (34) A man had issue two daughters, and he leased his Hilary 
 land to one of them for the term of his life, and died, and *^ ^'^' ^^^' 
 
156 STATHAM 
 
 the other sister granted the reversion of the half by a fine. 
 In this case the opinion clearly was that she should attorn, 
 because the reversion was severed by course of law. (But 
 yet a man cannot grant a half of a reversion, etc. Nor 
 where two have a reversion jointly, one cannot grant his 
 part, etc.) 
 
 Case 34. The case has not been identified in Y. B. Hilary, 43 Ed. III. There 
 
 are cases that are similar in many ways, but it cannot be asserted with 
 any authority that Statham did not have some unprinted case in his 
 mind or on his notebook which is the authority for this point. 
 
 " The attaint may be said to be an early form of an appeal. Thayer 
 says, "The attaint . . . long held its place as the only way of remedying 
 a false verdict." [Thayer: Evidence, p. 137.] The jury were supposed 
 or alleged to have rendered a false verdict, and a new jury — a grand 
 jury, or jury of twenty-four — are to pass upon the question whether 
 they had sufficient evidence to justify their verdict or not. Although 
 Maitland thinks the penalties given against the petty juries were often 
 small and not so onerous as they might seem [P. & M. Hist, of Eng. 
 Law, 2d ed.. Vol. 2, p. 542], they "are to be imprisoned and to lose their 
 chattels," also they "lose the law of the land," that is, they cease to be 
 "oath worthy." He cites a case in Bracton's Note Book [pi. 917] in 
 which the "moderate fine" seems severe enough, as they have to pay 
 fifty marks. 
 
 It was a cumbersome and on the whole not an over-just procedure. 
 There was ample time between the first and second actions for the more 
 powerful litigant to influence the grand jury. Mr. Thayer gives us a 
 vivid example from the Paston Letters. [Thayer: Evidence, p. 138.] 
 "In 1451 the inhabitants of Swaffham asked Parliament to annul a ver- 
 dict and judgment in Novel Disseisin, alleging perjury in the jurors 
 by 'reason of menaces,' and setting forth that the said inhabitants, 
 for pity and remorse of their consciences, were loth to use a writ 
 of attaint, since the 'said assize durst not, for dread of the horrible men- 
 aces of the said Sir Thomas, otherwise do but be forsworn in giving the 
 verdict in the same assize.' " But this is the view of a later time than 
 that of Maitland. By 1451 we are getting away from the cases in our 
 abridgment. Year Book law will go on for a hundred years, but by 
 the end of that time attaints will have gone practically out of use. 
 [Smith, Commonwealth of England, Bk. 3, chap. 2, p. 207.] Much of the 
 learning on the subject of attaints is to be found in Thayer's great work 
 on Evidence, where it is set forth in a very wonderful way in the fourth 
 chapter. With that chapter to refer to no student need lack 
 enlightenment. 
 
ATTOURNEMENT 157 
 
 ATTOURNEMENT " 
 
 (1) In a quid juris clatnat, the tenant would not attorn statham is a. 
 because the conusor held the same lands of the king in Paschal 
 chief, because then he would be charged to the king by the *^ ^^- "'■ 
 fine, etc., wherefore the demandant showed a license for 
 
 the purchase and for the alienation, and then he attorned, 
 etc. 
 
 Probably the case reported in Y. B. Paschal, 45 Ed. Ill, p. 6, pi. 3, Case 1. 
 although the refusal of attornment is eliminated from the printed text. 
 
 (2) If the king grants me the services of his tenant I can MichaeUs 
 avow without attornment, for I cannot have a Per que ^^ ^'*" '''• 
 Servicia, nor a Quid Juris Clamat, etc., by Sharshull in 
 Wardship. 
 
 The case has not been identified in Y. B. Mich. 21 Ed. Ill, or in the Case 2. 
 early abridgments. 
 
 (3) If I grant a manor to a man, which is part in demesne Hilary 
 and part in service, and deliver seisin to him, he can avow ^^ ^'^' ^'^' 
 upon the other lands which I hold of the manor, without 
 attornment, because he is seised of the principal [part]; 
 
 and this by Willoughby. But yet, query? 
 
 The case has not been identified in Y. B. Hilary, 21 Ed. Ill, or in the Case 3. 
 early abridgments. 
 
 (4) Land was leased to one A for life, the remainder Michaeiis 
 to B, if he survived A, for life, the remainder to the right ^ ^'^- '"• 
 heirs of A. And A, by his deed, granted to B that he 
 should not be impeached for waste when the land came 
 
 to him. A died, and C, who was his son and heir, granted 
 the reversion of B, by a fine, to one D, and he brought a 
 Quid Juris Clamat against B, who said that A, who was 
 the father of the grantor, has granted to him that he 
 should not be impeached for this, and saving to him the 
 advantage of that, he is ready, etc. Nottingham: This 
 A, at the time of the grant, had nothing but a term for 
 
158 
 
 STATHAM 
 
 Case 4. 
 
 life, for there was no reversion to him, but to his heirs, 
 for he could not have had an action for waste, conse- 
 quently his grant was void. And B also had nothing 
 in the land at the time of the grant, therefore we pray 
 that he may attorn generally. Thorpe: If A had 
 alienated, the fee had passed from his heirs, granting he 
 had a fee, and he could have charged the reversion forever, 
 and the grantor could not claim except as heir to him, 
 wherefore, etc., for it is not the same where there was no 
 possession in the father, and where he had possession, 
 wherefore will you say anything else? Pershay: We pray 
 that our protestation be entered, to wit: that we do not 
 acknowledge the deed, for otherwise we could not deny 
 the deed afterward, etc. And so it was. But yet, query 
 as to what effect, because he could have answered to the 
 deed then, and it seems that he could not deny the deed 
 afterward, etc. 
 
 The case has not been identified in Y. B. Mich. 24 Ed. Ill, or in the 
 early abridgments. 
 
 Hilary 
 31 Ed. III. 
 
 Case 5. 
 
 (5) In a quid juris clamat against a woman, she said 
 that whereas the note alleged that she held for the term 
 of her life, the reversion regardant to the conusor, she said 
 that she held in dower, the reversion regardant to the conu- 
 sor; and she demanded judgment if upon such a note she 
 should attorn. And because she did not claim a better 
 estate than a term for life, it was adjudged that she should 
 attorn. 
 There is no printed Year Book for the Year 31 Ed. III. 
 
 Trinity 
 5 Hen. V. 
 
 Case 6. 
 
 (6) If I give land to one in tail reserving a rent, and 
 I grant this rent by a fine, the tenant shall be forced to 
 attorn, etc. It is otherwise if I grant the reversion, etc. 
 Still by such a grant the rent will pass, etc. 
 
 The case has not been identified in Y. B. 5 Hen. V, or in the early 
 abridgments. 
 
 Michaeiis (7) If the reversion of the tenant in dower be granted, 
 10 Hen. IV. ^nd she grants over her estate, and afterwards she attorns. 
 
ATTOURNEMENT 159 
 
 it was the opinion of Thirning, that the attornment was 
 good. In an Assize, etc. 
 
 The case has not been identified in Y. B. Mich. 10 Hen. IV, or in the Case 7. 
 early abridgments. 
 
 (8) In a quid juris clamat a woman prayed to be Michaeiis 
 received upon the default of her husband. HuLS: That 2 Hen. v. 
 cannot be, for no land is in demand against you. Strange: 
 
 If she shows cause it is reasonable that she shall be received, 
 and we say that she is tenant after possibility of issue, etc. 
 in which case, if she be not received, she will be impeached 
 for waste. Skrene: If your husband attorned, that will 
 not bind you after his death. Hankford: Yes, sir, for 
 she is a party to the writ. But it seems that the husband 
 cannot attorn without his wife, etc. Query? 
 
 Reported in Y. B. Paschal (not Mich.), 2 Hen. V, p. 1, pi. 4. Case 8. 
 
 (9) In a quid juris clamat against one A, out of a note Paschal 
 by which the reversion of certain lands, which the said A ^^ Ed.jlll. 
 held for the term of twelve years, was granted, etc. Sadler: 
 
 One R was seised of the same lands in fee and leased to one 
 W for the term of his life and twelve years over ; which W 
 was our husband, and the said W devised to us, etc., six 
 years of the said twelve years, and made us and one H 
 his executors, and so this H and we are executors for six 
 years. The said H is not named in the note, judgment 
 if upon such a note, etc. Skipwith : Since you are tenant 
 for the entire term and we cannot have another note, judg- 
 ment, etc. Nottingham: If there are two joint tenants 
 for life, and the note alleges one to be tenant, he should not 
 attorn, etc. Fyncheden: In your case where the estates 
 are equal — not so here. Thorpe: The attornment of 
 an executor is good for all, wherefore he should attorn, 
 and his protestation will be so entered that he shall not be 
 impeached of waste, etc., unless because it belonged to 
 him, etc. And so it was done, etc. 
 
 There is no printed Year Book for 32 Ed. HI. Case 9. 
 
160 
 
 STATHAM 
 
 Trinity QO) In a Quid juris clamat, the tenant attorned for 
 
 11 Ric. II. ^ 
 
 part, etc. 
 
 Case 10. 
 
 Trinity 
 11 Ric. II. 
 
 Case 11. 
 
 Paschal 
 
 11 Hen. IV. 
 
 Case 12. 
 
 There is no printed Year Book for 11 Ric. II. 
 
 (11) A woman granted the reversion of her tenant for 
 life, and before the attornment she married the grantee, 
 and the tenant attorned, and it was adjudged good, etc. 
 Query? In a Prmcipe quod Reddat. 
 
 There is no printed Year Book for 11 Ric. II. 
 
 (12) In a quid juris clamat, the tenant as to part claimed 
 a fee, and upon that they were at issue, and as to the 
 remainder he said that he was ready to attorn. Hank- 
 ford: He cannot attorn for part. Thirning: Yes, sir, 
 he shall in this case, for as to that in which he has claimed 
 a fee, it is clear he shall never attorn, for if the issue be 
 found against him he has lost the land, etc. Wherefore 
 it was adjudged that he should attorn immediately [for 
 the part]. 
 
 Reported in Y. B. Paschal, 11 Hen. IV, p. 57, pi. 6. There is some 
 confusion in the case as abridged, but the printed report clears up the 
 case. It is not easy to clear up the errors in these cases without re- 
 writing them entirely. The best plan seems to be to follow the case as 
 closely as may be, writing in a few words in brackets, and then referring 
 the reader to the case itself. 
 
 See as to attornment, in the title of Receipt,* Hilary, 
 21 Ed. ni, and in the title of Per que Servicia, and in the 
 title of Quid Juris Clamat, and also in the title of Avowry, 
 Mich. 19 Hen. VI ." 
 
 (13) Attornment for part by the tenant can pass all. 
 As appears in a note. Query, etc. 
 
 The case has not been identified in Y. B. Mich. 22 Ed. Ill, or in the 
 early abridgments. 
 
 statham 18 b. (^4) Attornment after the death of the grantor was 
 
 adjudged good. (The contrary is held to be law.) 
 
 There is no early printed Year Book for 16 Ed. III. The case is 
 reported in the Rolls Series, Y. B. Trinity, 16 Ed. Ill, p. 220. 
 
 ' See infra, title of Resceipte, p. 153 a, pi. 11. 
 ' See infra, title of Avower. 
 
 Note. 
 
 Michaelis 
 22 Ed. III. 
 
 Case 13. 
 
 Trinity 
 16 Ed. Ill 
 
 Case 14. 
 
ATTOXmNEMENT 161 
 
 (15) The tenant for life grants over his estate; the Anno 
 tenant in fact should attorn. But yet this should be dis- ^ ^^"" ^'' 
 tinguished, for if he grants over his estate after the grant 
 
 of the reversion, it seems that the attornment of either 
 of them is good. And this in a note, etc. 
 
 The case has not been identified in Y. B. 8 Hen. VI. Case 15. 
 
 (16) The tenant in dower attorned to the heir of the Hilary 
 grantee of the reversion, after the death of the grantee ; ^ ^^' '" 
 and it was adjudged good where the grant was by a deed, 
 
 etc. But yet, query? 
 
 There are no early printed Year Books for the reign of Ed. I. The Case 16. 
 Rolls Series began printing what were supposed to be the earliest 
 known manuscript years, 20 and 21 Ed. I. There are, however, it has 
 been stated, some earlier years still in manuscript. No year 24 has 
 been put into print. 
 
 (17) After the fine is engrossed and the parts deliv- Trinity 
 ered to the parties, the tenant will not be forced to attorn, ^ ^^- ^''• 
 nor will they grant a Quid Juris Clamat, etc., for the law con- 
 siders it to be finished. As appears in a note, etc. 
 
 The case has not been identified. These allusions to "notes" are Case 17. 
 probably to manuscript notes in the margins of the Year Books used by 
 Statham. The notes are frequent and he probably used such as he 
 thought of interest. Or, it may be that these notes were made by 
 Statham himself on the margin, or in the body, of his own manuscript, 
 and that they were inserted by the person or persons who finally edited 
 and published his manuscript. It is, of course, all conjecture. 
 
 (18) When the husband and his wife attorn, the husband Hilary 
 has the plea. As appears in a note, etc. ^^ ^"^^ '^^• 
 
 The note to case 17 will apply as well here. Case 18. 
 
 " The tenant, by what means we know not, had a certain power 
 over the lands he occupied. If the tenant does not acknowledge the 
 new lord or "attorn" to him, "he that buyeth any lands and tene- 
 ments which are in the occupation of a third cannot get the posses- 
 sion. [Cowell: Law Dictionary.] Maitland says [P. & M. Hist, of 
 Eng. Law, 2d ed.. Vol. 1, p. 349, note 2]: "But the tenant who 
 will not attorn can be sent to jail." [Y. B. 33-35 Ed. I, 317. 
 R. S.] But the case there reported seems only to show that the 
 
162 STATHAM 
 
 tenants were sent to jail for keeping silent on "what right they had." 
 If the tenant could have been sent to jail for a refusal to attorn, it 
 would seem that so perfunctory a right as this of the attornment 
 would have fallen into disuse long years before it did. 
 
 Our first case shows a refusal of a tenant to attorn, in which refusal 
 he was upheld by the Court. Our case 6 says, "the tenant shall be 
 forced to attorn," but it would seem that the forcing was a legal pro- 
 cedure, as by the Per que Servicia, to show cause why he had not so 
 attorned or a Quern Redditum Reddit [Coke, sec. 569, p. 316, b] or a Dis- 
 tringas ad attornandum [Fitzh. Nat. Brev. 147], if he is adjudged to attorn. 
 Again the matter has to be left at loose ends. From the history of the 
 times one would take it for granted that the tenant would necessarily 
 attorn; from a reading of the Year Book cases one would say that he 
 — and she — was constantly refusing to do so, and that the courts up- 
 held them in that refusal. 
 
 We have several cases which raise a point upon which Coke says 
 there was great authority against Littleton. Littleton says [Sec. 566] : 
 "Also, if there be many jointenants which hold by certain services, 
 and the lord grant to another the services, and one of the joyntenants 
 attoume to the grantee, this is as good as if all had attoumed, for that 
 the seignory is entire, etc." Coke observes [Inst. Pt. 1, p. 314], "And 
 albeit there is a great authority against Littleton, yet the law hath 
 been adjudged according to Littleton's opinion, as it hath been in other 
 of his cases when they have come in question, " so we take it that although 
 Coke may have had his private doubts on the matter, that we have his 
 authority as well as Littleton's for the statement of case 13, "Attourn- 
 ment for part by the tenant shall pass all." In case 12 Hankford did 
 not think so, but only because one part needed no attornment and there- 
 fore was practically no part at all. Are these things of no moment? If 
 so, how is a history of English law ever to be written? If we do not 
 know the parts we must fail in a knowledge of the whole. 
 
 There is also a case which is reported in Y. B. 20 Ed. Ill, R. S. Pt. 2, 
 p. 550. It is a case of a Quid Juris Clamat, in which the argument for and 
 against the attornment shows no sign of knowledge that there is any 
 force which it is possible to use. This case was cited by Coke and has 
 stood so cited in his Institute ever since it was published in 1628, but 
 it was not until the year 1911 that those in search of knowledge, and 
 finding that case cited, have been able to go back of the citation to the 
 report and find the case there printed, for it was not until the publica- 
 tion of the Rolls Series of the Year Book of 20 Ed. Ill, that the case 
 could be consulted by anyone who had not access to the manuscript 
 Year Books. 
 
ATTOURNEY 163 
 
 ATTOURNEY " 
 
 (1) An attorney can acknowledge that his master is a Hilary 
 villein. And this in Trespass, etc. ^4 Ed. in. 
 
 Reported in Y. B. Hilary, 44 Ed. Ill, p. 2, pi. 9. See also Brooke, Case 1. 
 Attorney, 19; and Fitzh: Attourne, 45. 
 
 (2) The king brought a Quare Impedit against a prior, Michaeiis 
 and his attorney said that he was a monk of the Abbey of C, ^* ^^- "^• 
 and that he had no convent or common seal; and he had 
 
 the plea, notwithstanding that this was in disability of the 
 law, etc. And then the plaintiff alleged the records in 
 the same place in which the defendant had named him 
 prior; and the defendant could not deny it, wherefore the 
 writ was adjudged good, etc. 
 
 Reported in Y. B. Mich. 44 Ed. Ill, p. 32, pi. 15. See also Fitzh: Case 2. 
 Attourne, 46. 
 
 (3) In a writ of waste brought by the heir, who was Paschai 
 under age, against his guardian, he was received to sue by *^ ^'^^ ^"• 
 attorney, and the guardian made protestation that he 
 
 was under age and pleaded over, for if he had admitted 
 him to be of full age he would have been estopped after- 
 wards to claim the wardship, etc. 
 
 Reported in Y. B. Paschal, 48 Ed. Ill, p. 10, pi. 1. Abridged by Case 3. 
 Brooke on other points, but not on any point of Attorneys. 
 
 (4) In a writ of entry, the tenant appeared by attorney, Paschal 
 who said that his master was under age and attorney, ^ ^'^^ '^^■ 
 etc. And the demandant said that he was of full age, 
 wherefore a day was given for him to be viewed. So see 
 
 that he had the plea notwithstanding that he had a war- 
 rant of attorney as of full age, etc. 
 
 The case has not been identified in Y. B. Paschal, 6 Ed. Ill, or in the Case 4. 
 early abridgments. 
 
 (5) In a per que servicia the plaintiff could not make Michaeiis 
 an attorney in any manner because he should attorn in his ^^ ^<^- "f- 
 
164 
 
 STATHAM 
 
 Case 5. 
 
 own person, and he shall not do any other thing, etc. 
 But in a Quid Juris Clamat if he claims a fee, or pleads a 
 plea by which the land may be lost, he shall have an attor- 
 ney; by Fyncheden, in a. Per que Servicia, etc. 
 
 Reported in Y. B. Mich. 48 Ed. Ill, p. 23, pi. 7. The point is to be 
 found in the midst of the very long case, on p. 24. See also Brooke, 
 Attorney, 23. 
 
 Paschal 
 21 Ed. III. 
 
 Case 6. 
 
 (6) In a writ of wardship brought by the husband and 
 his wife who sued by attorney, and then the writ came 
 by which the wife had removed her attorney. It was 
 challenged because she was covert, and it was not allowed. 
 Query as to the cause, etc., for it seems that inasmuch as 
 the warrant of attorney was joint, one of them could not 
 remove him without the other, etc. 
 
 Reported in Y. B. Paschal, 21 Ed. Ill, p. 12, pi. 3. See also Brooke, 
 Attorney, 34; and Fitzh: Attourne 91. 
 
 Paschal (7) Whenever a man is indicted for trespass he shall have 
 
 22 Ed. III. jjjg attorney. 
 
 Case 7. The case has not been identified in Y. B. Paschal, 22 Ed. Ill, or in 
 
 the early abridgments. 
 
 Paschal 
 18 Ed. III. 
 
 Case 8. 
 
 (8) One prayed to be received and the plaintiff demurred 
 in law by reason of a receipt. And he who prayed to be 
 received made an attorney before he was received, etc. 
 In a PrcBcipe quod Reddat, etc. 
 
 The case has not been identified in Y. B. Paschal, 18 Ed. Ill, or in the 
 early abridgments. 
 
 Paschal 
 24 Ed. III. 
 
 Case 9. 
 
 (9) In any case where one is received to defend his right, 
 and pleads a plea, he can make an attorney. In a Pracipe 
 quod Reddat, etc. 
 
 Reported in Y. B. Paschal, 24 Ed. Ill, p. 51, pi. 41. See also Brooke, 
 Attorney, 50. 
 
 Hilary (10) One brought a writ of detinue for a chest, with 
 
 -1 — ^ — ^jjjj jjg declared one charter in special concern- 
 
 charters. 
 
 ing certain lands. 
 
 The defendant, as to all except the 
 
ATTOURNEY 165 
 
 charter, waged his law. And as to that he made no denial, 
 and the defendant prayed that he might make an attorney. 
 Newton: He comes by the exigent, wherefore, etc. Paston: 
 The reason the exigent was awarded was because of the 
 chest, which is determined since he has made his law as to 
 that. Wherefore the opinion clearly was that he should 
 have his attorney, etc. And so note that he declared on a 
 charter in special because the defendant could not have his 
 law; but yet many say that he could not accept notice 
 of any charter in special, when he demanded a chest or a 
 bag sealed, etc. And it also seems in that case that his 
 declaration would abate his writ, for it was contrary to 
 the process which was awarded, etc. 
 
 Reported in Y. B. Anno 14 Hen. VI, p. 1, pi. 1. See also Brooke, Case 10. 
 Attorney, 57, and the reference to 61. And Fitzh: Attourne, 7, and 
 the references there given. The digest in Statham is obscure, but the 
 case as reported is fairly clear. 
 
 (11) In trespass, a capias was awarded and the defend- Michaeiis 
 ant came into Court and found mainprise and had a Super- ^ ^™- ^^• 
 sedeas. And the sheriff returned non est inventus, on which 
 
 day the defendant appeared by attorney, etc. Hankford : 
 It cannot be by attorney, inasmuch as the Capias was 
 awarded, but after he had pleaded a plea it could, etc. 
 Thirning: He has appeared once, wherefore count against 
 the attorney, etc. Query, how the mainprise were found 
 in that case, for if it were to have him in his own person, 
 then it could not be by attorney, etc. Query, if at the 
 Capias the sheriff returned as above, where he does not 
 render himself, shall he have an attorney, etc., and where 
 he comes gratis, etc. 
 
 Reported in Y. B. Mich. 3 Hen. IV, p. 2, pi. 10. See also Brooke, Case 11. 
 Attorney, 98; and Fitzh: Attourne, 31. The queries in the case 
 appear to be by Statham. 
 
 (12) A man cannot join in aid nor join the plaintiff in statham i9 a. 
 Replevin, nor enter into the warranty, by attorney, before Hilary 
 they come in by process, but they can in their own person; ^ ^^°- ^^• 
 but at the return of the summons they can enter and join 
 
166 
 
 STATHAM 
 
 Case 12. 
 
 Michaelis 
 4 Hen. VI. 
 
 Case 13. 
 
 by attorney in all the cases aforesaid. Which was con- 
 ceded by all the justices in a Recordare. 
 
 Reported in Y. B. Mich, (not Hilary), in the printed Year Book 
 1 Hen. VI, p. 4, pi. 18. There is no printed Hilary Term for 1 Hen. VI. 
 The manuscript may show that this case was really in Hilary Term as 
 reported by Statham. See also Brooke, Attorney, 59. 
 
 (13) If a man comes in by a Capias Cepi Corpus, and 
 another has an action against him, he can make an attor- 
 ney against the other and against all except him at whose 
 suit he is imprisoned. And the law is the same in the 
 King's Bench where I sue a bill ' against one in the custody 
 of the marshal, and although he is imprisoned at my 
 suit, in an action, still he shall have an attorney against 
 me in another action. Query, if a man who is imprisoned 
 at another's suit will be put to reply to me, where I have a 
 writ against him in the same place? It seems not, because 
 he did not come in at my suit, etc. And also the plain- 
 tiff is not harmed, for he can have the process against 
 him, etc. But yet if he be outlawed upon such a process 
 he can sue again, for the above reason, etc. Query, if a 
 man can have a bill of debt against one in the custody of 
 the Warden of the Fleet? By the Justices in an Eyre. 
 
 Reported in Y. B. Mich. 4 Hen. VI, p. 5, pi. 13. See also Fitzh: 
 Attourne, 3. Statham's digest differs from that of Fitzherbert, and the 
 case, as printed seems rather slender authority for the point as it is 
 given in the abridgment. 
 
 Michaelis 
 21 Hen. VI. 
 
 Case 14. 
 
 (14) When the appellee is acquitted by the inquest, and 
 they inquire as to the abettors, and the abettors are found, 
 and the justices will be advised as to the judgment, the 
 appellee shall have an attorney because all the matters of 
 the appeal are tried. And this in an Appeal. 
 
 The case has not been identified in Y. B. Mich. 21 Hen. VI, or in the 
 later abridgments. 
 
 Michaelis 
 23 Hen. VI. 
 
 Case 16. 
 
 (15) An attorney shall not say that his master dwells in 
 another vill than the writ alleges. And this in Debt. 
 
 There is no printed Year Book for 23 Hen. VI. There is a gap of 
 four years between the printed year of 22 Hen. VI, and 27 Hen. VI. 
 
 1 "Vill" in the text. 
 
ATTOURNEY 167 
 
 (16) In a writ de nativo habendo, the defendant shall Hilary 
 not have an attorney. 19 e . . 
 
 The case has not been identified in Y. B. Hilary, 19 Ed. II. Case 16. 
 
 (17) After the law is waged by attorney in a plea of Michaeiis 
 land, to wit: on the day of the law, the attorney can 
 
 plead the release of the demandant, if he has a new war- 
 ranty, otherwise not. Query? etc. In Dower. Query, 
 if the release was made before the last continuance? 
 
 The only case in Y. B. Mich. 2 Ed. Ill, upon which this digest could Case 17. 
 be based is that of Mich. 2 Ed. Ill, p. 18, pi. 24, a case of Detinue. 
 If this is the case, Statham's report must have been fuller than that of 
 "the Vulgate." 
 
 (18) In debt, the defendant was outlawed and sued a Trinity 
 charter of pardon, and had a Scire Facias, and the plaintiff '*^" ' 
 counted against him, and he prayed that he might make 
 
 his attorney, and could not, but found mainprise, etc. 
 
 There are no printed Year Books for the reign of Ric. II. Fitzh: Case 18. 
 Attourne, 60, has a longer digest of the case. 
 
 (19) An attorney can plead a misnomer of his master Paschal 
 
 1-1 , • , , • T 1 1 <<r 2 Hen. VI. 
 
 which stands with his warrant; as if the warrant be J atte 
 
 Style pro loco sua," etc., he can say that he was made a 
 
 knight. And this in Waste, etc. And he can say that 
 
 his master is dead; as appears Hilary, VI Ric, in 
 
 Replevin. 
 
 The case has not been identified in Y. B. Paschal, 2 Hen. VI, or in Case 19. 
 the early abridgments. 
 
 (20) In a per que servicia and a Quid Juris Clamat, the ^J'^^^^'ry 
 tenant should appear in his own person, but when he 
 
 pleads a plea he can make an attorney, as when a man 
 comes in freely by a capias, and if he be adjudged to attorn 
 a distress to attorn shall issue against him: By Hankford. 
 Contrary elsewhere, etc. 
 
 Reported in Y. B. Mich. 11 Hen. IV, p. 28, pi. 54. The point is Case 20. 
 brought up in the midst of a long case. See also Fitzh: Attourne, 35. 
 
168 
 
 STATHAM 
 
 Paschal 
 19 Ed. II. 
 
 Case 21. 
 
 Hilary 
 5 Hen. IV. 
 
 Case 22. 
 
 Michaelis 
 33 Ed. III. 
 
 Case 23. 
 
 Trinity 
 8 Ed. II. 
 
 Case 24. 
 
 HUary 
 
 18 Ed. III. 
 
 Case 25. 
 
 Trinity 
 1 Ed. I. 
 
 Case 26. 
 
 (21) An attorney cannot be received in a writ of Account, 
 etc. (But yet the contrary has been the custom, etc.) 
 
 The case has not been identified in Y. B. Paschal, 19 Ed. II, or in the 
 early abridgments. 
 
 (22) After the exigent is awarded, the defendant shall 
 have an attorney if the process is not well continued; by 
 the opinion of Hankford. And this in Trespass, etc. 
 
 Reported in Y. B. Hilary, 5 Hen. IV, p. 3, pi. 12, which refers the 
 reader to 3 Hen. IV, folio 5, and that in turn refers to folio 2 of the 
 same year. See also Brooke, Attorney, 25, and Fitzh: Attourne, 32. 
 
 (23) The tenant made an attorney in a Per que Servicia, 
 etc. And it is reasonable as well there as in Account. 
 Simile Mich. 39 Ed. Ill, in a Per que Servicia, etc. 
 
 There is no printed Year Book for the year 33 Ed. Ill, there being 
 an hiatus in the printed years from 31 to 37 inclusive of the years of 
 that reign. The case has not been identified in the later digests. 
 
 (24) In an appeal of Mayhem the defendant cannot 
 make an attorney. 
 
 The case has not been identified in Y. B. Trinity, 8 Ed. II. Fitzh: 
 Attourne, 93, has "Note, it is said that in an appeal of mayhem the 
 defendant cannot make an attorney." He gives the same citation as 
 Statham but no folio or placitum. He apparently copied from Statham, 
 adding the "it is said," as he could give no complete citation. 
 
 (25) In detinue, the attorney against the defendant 
 was attorney against the garnishee without any other 
 warrant. 
 
 The case has not been identified in Y. B. Hilary, 18 Ed. Ill, or in the 
 later abridgments. 
 
 (26) None of the petty twelve shall have an attorney. 
 In Attaint. 
 
 There are no Year Books for the reign of Ed. I except those of the 
 Rolls Series, which do not contain the first year. Fitzh: Attourne, 
 85, has the case in the same form as that in Statham. 
 
 Michaelis (27) He who comes in by a supersedeas shall have an 
 22 Hen. VI. attorney, notwithstanding the sheriff returns "ante adven- 
 
ATTOURNEY 169 
 
 turn supersedeas" he had taken him. But if he had 
 returned that "ante datum of the supersedeas" he had taken 
 him it would be otherwise; by the opinion of Newton, 
 etc. 
 
 Reported in Y. B. Hilary (not Mich.) 22 Hen. VI, p. 46, pi. 34. See Case 27. 
 also Brooke, Attorney, 47. 
 
 " By the time of the earliest Year Book the practice of making 
 an attorney had become fully established. We have one very 
 short case in the reign of Ed. I, our case 26. If the citation is 
 correct it is an interesting one, showing that Year Books were in exis- 
 tence in the first year of Ed. I. Statutes had begun to be made about 
 attorneys, to punish their misconduct, for unhappily they were not 
 always incorrupt. In the Statute of Westminster the First [West. I, 
 cap. 29] they are called "Count" and they are known as counters through 
 all the earlier period. Apparently the counter was the father of the 
 modern counsel in England, and the attorney was the parallel to the 
 modem barister there. ... [P. & M. Hist, of Eng. Law, 2d ed., Vol. 
 1, p. 216.] All the authorities, and noticeably and of course most inter- 
 estingly Maitland, touch upon the subject of attorneys; it is not necessary 
 to repeat their learning here, yet if one were to have to argue the point 
 as to the power to make an attorney in a certain case, under certain 
 circumstances, it is not clear that our present knowledge of the law 
 would be sufficient to solve the point involved. In all these cases we 
 have been skimming lightly and pleasantly over these various subjects, 
 and in so doing we are but following our guides and teachers. The 
 history of the law is too voluminous, too intricate and technical, to be 
 more than skimmed over by even the deepest and most wonderful of 
 all those who have written upon it. Almost any one of these titles 
 in this abridgment would furnish valuable, even necessary, matter 
 enough to fill an ordinary volume; how, then, expect the two or three 
 volume histories of our law to cover exhaustively even a small part of 
 it? It is when we go to our histories of the law to find answers to ques- 
 tions upon just such subjects and find little or nothing upon them — 
 a real Mother Hubbard's emptiness — that we realize how much there 
 is yet to be done. 
 
 AUNCIEN DEIVIESNE" 
 
 (1) In replevin, the defendant said that the place where, stathami9b. 
 etc., was ancient demesne; and the plaintiff told how one Hilary 
 J rendered these tenements by a fine to one B, so it became ^^ ^'^' ''^' 
 a free fee; and so it was challenged because it was not 
 
170 
 
 STATHAM 
 
 Case 1. 
 
 shown that the fine was executed, so there was no transmu- 
 tation of possession. And it was not allowed, for Thorpe 
 said that immediately upon the levying of the fine it became 
 a free fee. 
 
 Reported in Y. B. Hilary, 40 Ed. Ill, p. 4, pi. 9. See also Brooke, 
 Auncien Demesne, 4; and Fitzh: Auncien Demesne, 8. There are a 
 number of references to other cases on Ancient Demesne at the end of 
 the reported case. 
 
 Michaelis 
 41 Ed. III. 
 
 Case 2. 
 
 (2) If the lord in ancient demesne brings a Pracipe 
 quod Reddat against another, who says that it is ancient 
 demesne, etc., it is a good plea for the demandant to say 
 that he is lord of the same manor of which this is a part, 
 or of which manor this is held, etc., because it defeats 
 the estate of the tenant to make a free fee. 
 
 And see in the same plea that the tenant said that the 
 land was part of the manor of D, which manor is ancient 
 demesne. (But I believe that that is no plea, for the land 
 which is held of the manor is not part of the manor, but 
 the rent by which it is held is part of the manor, for that 
 which is part of the manor is pleadable at the common 
 law, wherefore it is a better plea to say that is held, as 
 above.) 
 
 Reported in Y. B. Mich. 41 Ed. Ill, p. 22, p. 13. See also Brooke, 
 Auncien Demesne, 6; and Fitzh: Auncien Demesne, 9. Both give long 
 digests of the case. 
 
 Michaelis 
 31 Ed. III. 
 
 (3) In replevin, the defendant said that the place where, 
 etc., was ancient demesne. Sadler: One H, lord of the 
 same manor, of which, etc., by his deed granted and con- 
 firmed to one B, then tenant of the land of which, etc., 
 that he and his heirs and assigns should hold the said land 
 for ten shillings for all services, free of other customs except 
 the enclosing of a park, and suit to his court; and saving 
 tallage when, etc. Fyncheden: It seems that it is a free 
 fee by this confirmation, for by this same deed he shall have 
 a Contra Formam Feoffmenti; which was conceded. But 
 Thorpe said that it did not yet appear why the distress 
 was taken, and also there was not by this confirmation 
 
AUNCIEN DEMESNE 171 
 
 any transmutation of possession, for if a tenant in ancient 
 demesne acknowledges all his right by a fine, to be in 
 you as, etc., if there was no render in that fine it remained 
 ancient demesne, for the above reason, so here, etc. 
 
 There is no printed Year Book for 31 Ed. III. The case has not been Case .3. 
 identified in either of the early abridgments. 
 
 (4) A plea was removed out of ancient demesne by a Michaeiis 
 pone, because he held the same land at the common law, ^^ ^^' '^''' 
 and thus by prescription, etc. And then in the Bench he 
 showed how the lord of the manor by a deed had confirmed 
 
 his estate to hold by certain services, and so it became a 
 free fee. And this was challenged because he showed other 
 reasons which were not in the writ. Thorpe: He can 
 perfectly well show any reason to prove the free fee, if he 
 wishes to show twenty reasons. Which was conceded. 
 And the demandant said that this action which was in 
 ancient demesne was a Nuper Obiit, which was brought 
 before the confirmation, so that by use of this action he 
 was to make these same tenements as in ancient demesne. 
 And it was not allowed, etc. (And I believe the reason is 
 because there is no damage to any one except to the lord 
 of the manor, who can have his remedy if a fine be levied 
 by one of these tenants. But when he himself by his 
 confirmation has made it a free fee, it shall be a free fee 
 forever, etc., wherefore the demandant said that the deed 
 of confirmation was only for the term of his life, and also 
 upon condition; and if it be once a free fee it is always 
 a free fee, etc., which is against the will of the lord who 
 made the confirmation, etc.) Sharshull: It shall not be a 
 fee any longer than the confirmation lasts, no more than 
 where the lord of another court remits curam suam regi 
 hac vice, etc. Which was conceded, etc. 
 
 Reported in Y. B. Mich. 21 Ed. Ill, p. 32, pi. 17. See also Brooke, Case 4. 
 Auncien Demesne, 18. 
 
 (5) If a man sues a pone to remove the plea out of Hilary 
 ancient demesne, and the sheriff returns that the suitors ^^ ^^- ^'^'■ 
 will not give him the record, to wit: the writ of right, he 
 
172 
 
 STATHAM 
 
 Case 5. 
 
 Michaelis 
 30 Ed. III. 
 
 Case 6. 
 
 Paschal 
 32 Ed. III. 
 
 Case 7. 
 
 Trinity. 
 3 Hen. VI. 
 
 shall have a writ to distrain the suitors, as appears Hilary, 
 18, in a Recordare. 
 Reported in Y. B. Hilary, 18 Ed. Ill, p. 3, pi. 10. 
 
 (6) If the lord paramount distrains the tenant in 
 ancient denaesne he shall have a writ of Mesne against his 
 lord in the court of his lord of ancient demesne. And the 
 writ of Warranty of Charter is also maintainable against 
 him in his Court, and against another tenant who holds of 
 the same manor also, for he cannot vouch ; for if he recovers 
 in value the sheriff will put him in execution, and then, by 
 the judgment in the King's Court, the land will become a 
 free fee. And this by Thorpe, in Replevin, etc. 
 
 Reported in Y. B. Mich. 30 Ed. Ill, p. 12, pi. 12. See alsoFitzh: 
 Auncien Demesne, 30. 
 
 (7) If the king grants to a man a manor in ancient 
 demesne, in an ancient borough, that the grantee of the 
 king shall not have tallage of them as the king shall have, 
 but that the king shall have it, for it belonged to him by 
 his prerogative, etc. (And yet it seems that the [grantee of 
 the] king shall have it inasmuch as he demised the manor.) 
 But yet Grene held that the grantee shall not have it, but 
 he said that it should be levied by a writ out of the Chan- 
 cery, and not by distraint, etc. 
 
 There is no printed Year Book for the year 32 Ed. Ill, nor does the 
 case appear in Brooke or Fitzherbert. The case is obscure and needs 
 correction, but there is no printed case by which to correct it. It 
 seems always unprofitable to correct by inference, where the inference 
 may very likely be wrong. 
 
 (8) In an assize the tenant said that the land was held 
 of the manor of D, which manor is ancient demesne, and 
 had been pleaded, etc. (But yet that is no plea, for he 
 should say that all the lands held of the said manor are 
 pleadable, etc.) The plaintiff said that he did not admit 
 that it was held of the manor of D, but we say that the 
 said land is and always has been pleadable at the com- 
 mon law, without this that it has been pleaded within the 
 said manor. Rolff: Inasmuch as you do not deny that 
 the land is held of the manor, judgment. And so to judg- 
 
AUNCIEN DEMESNE 173 
 
 ment, etc. Grene : It is no plea, for it is not denied by 
 the plaintiff that the land is held of that manor ; then to 
 say that it is pleadable at the common law, without saying 
 how by special matter, is not to the purpose. Paston: It 
 is not a good plea to say that it is held of the manor of 
 D, which is ancient demesne, without saying more. Which 
 was denied. Babyngton: Suppose that before time of 
 memory and before the Statute "Quia," ^ etc., the lord of the 
 manor had enfeoffed him to hold of him as of the manor ; 
 now the land is held of the manor and still it is a free fee. 
 And if our case be such we cannot plead otherwise. And, 
 Sir, to my thinking, it is a good plea to say that it is a free 
 fee. Ready, etc., without saying more. And the opinion 
 was that it was not a plea without showing how it had 
 become a free fee, etc. 
 
 And see in the same plea that copyhold is not ancient 
 demesne, but is pleadable by a bill in the same Court, 
 according to the custom, etc. 
 
 Reported in Y. B. Trinity, 3 Hen. VI, p. 47, pi. 4. A long, rambling Case 8. 
 case. See also Brooke, Auncien Demesne, 2, where the abridgment 
 differs much from that in Statham. 
 
 (9) If the tenant in ancient demesne vouches a foreigner Hilary 
 
 to warranty, the tenant shall have a supersedeas out of ^^ ^^"- ^'• 
 the Chancery directed to the king to surcease in the bill statham 20 a. 
 until the voucher be tried and to have another bill to the 
 justices of the common bench to try the warranty, then 
 to remand it back again: By JMewton and AscouGH, in 
 Debt, etc. 
 
 The case has not been identified in Y. B. Hilary, 19 Hen. VI, or in Case 9. 
 the early abridgments. 
 
 (10) See by Thirning, that where jurisdiction of the MichaeUs 
 plea is granted to the commonalty of a vill who have ^ ^™" ^^^ 
 been accustomed time, etc., to be empleaded by the little 
 
 writ of right close, if they use the franchise by force of the 
 jurisdiction, that they have lost the liberty that they had 
 
 ' Statute of West, the Third (Quia emptores terrarum), 16 Ed. I, Stat. 1, 
 Stats, at Large, Vol. 1, p. 255 (1290). 
 
174 
 
 STATHAM 
 
 Case 10. 
 
 Anno 
 7 Ed. II. 
 
 Case 11. 
 
 Hilary 
 7 Ed. III. 
 
 Case 12. 
 
 before, etc. In a writ of Error. Query, as to the city of 
 
 London, for they are in the same case, and still they use 
 
 both, etc. But yet they do not demand jurisdiction, etc. 
 
 The case has not been identified in Y. B. Mich. 8 Hen. IV, or in the 
 early abridgments. 
 
 (11) In an assize, the tenant said that the land was 
 ancient demesne, and it was tried by the Assize, etc. In 
 the Eyre of Nottingham. Simile in the Eyre of Northum- 
 berland, in a writ of Entry, etc. (But I believe that they 
 would not try it now, unless by Domesday Book.) 
 
 The case has not been identified. There are very few cases from the 
 Eyres in the printed Year Books. The Selden Society has now printed 
 one volume of the Eyres, and it is to be hoped that we shall have a 
 continuation of these hitherto unprinted records of the Courts. 
 
 (12) In a juris d'utrum, it is no plea to say that the 
 land is ancient dfemesne because he cannot have a writ 
 of right close, but such a writ as the Statute gives. And 
 also they say that it cannot be free alms and ancient 
 demesne, etc. Query? 
 
 The case has not been identified in Y. B. Hilary, 7 Ed. HI, or in the 
 early abridgments. 
 
 " In our first case we find that ancient demesne is contrasted with a 
 freehold. Through the rendering by A of a tenement in ancient de- 
 mesne to B, "immediately upon the levying of the fine it became a free 
 fee [case 1]. As the tenants in ancient demesne were more or less privi- 
 leged they usually did not care to lose those privileges. All through 
 the cases here adjudged we find the tenants struggling to maintain 
 this tenancy. This struggle is well set forth in the vigorous phrases 
 of the Statute of Ric. II, cap. 6, "that in many seignories and parts 
 of the realm of England the villains and tenements in villainage, who 
 owe services and customs to their said lords, have now late withdrawn, 
 and do daily withdraw their services and customs due to their said 
 lords, by consent and procurement of their counsellors, maintainers 
 and abettors in the country, which have taken hire and profit of 
 the said villains and land tenants, by colour of certain exemplifica- 
 tions made out of the book of doomsday of the manors and towns 
 where they have been dwelling, and by virtue of the same exemplifica- 
 tions, and their evil interpretations of the same, they affirm them to 
 be quite and utterly discharged of all manner servage, due as well of 
 their body as of their said tenures, and will not suffer any distress or 
 other justice to be made upon them, but do menace the ministers of 
 
AUNCIEN DEMESNE 175 
 
 their lords of life and member, and (which is more) gather themselves 
 together in great routs, and agree by such confederacy that every one 
 shall aid other to resist their lords with strong hand." I Ric. II, cap. 6, 
 (1377). Does not the history of ancient demesne soupd like the edi- 
 torial of a modern newspaper denouncing the trades-unions? Has it not 
 a most familiar sound even to the ultra-modem ear? The "exemplifica- 
 tions made out of the Book of Domesday," the just claims arising there- 
 from, and the variety and increasing value and force of the claims made 
 by virtue of these exemplifications, apparently excited the ire of the 
 privileged classes of that day, much as the anger of those of to-day is 
 aroused by the increasing claims of the hitherto unprivileged. We hear 
 in these words the angry voice of the landlord and a certain vigor in the 
 expression of such anger voiced in the bitter phrases. It sounds as if the 
 tenants for the moment were getting the best of the prolonged struggle. 
 One may perhaps be permitted to wonder how the history of land 
 tenure or landlordism in E^ngland would have worked out if the Parlia- 
 ment had not been a parliament of landlords. 
 
 Most of the cases in our Abridgment are prior to the statute. One of 
 them (case 11) brings up the question as to whether Domesday Book 
 was the only evidence in such cases. Many writers state this simply 
 as a fact. Maitland [P. & M. Hist, of Eng. Law, 2d ed.. Vol. 1, p. 399] 
 is inclined to doubt that this was the rule in the fourteenth century. 
 He did not cite our case, but gives another one from the reign of Ed. 
 II, and two from Ed. III. In our case they were evidently getting 
 evidence from the vicinage and were not resting upon the authority of 
 Domesday, and it does seem that this is as yet an open question. 
 
 For further examination into the history of Ancient Demesne we have 
 VinogradofiF: Villeinage 87-129; P. & M. Hist, of Eng. Law, 2d ed.. 
 Vol. 1, pp. 383^06; Holdsworth, Hist, of Eng. Law, Vol. 3, pp. 229- 
 234. An exhaustive study of the Year Book cases seems to be the only 
 real hope of gaining further light upon what the pleading in ancient 
 demesne really was. 
 
 AUDITA QUERELA 18 statham20b. 
 
 (1) In an audita querela against two executors, one Hilary 
 made default, and the other was put to answer, etc. Query, ^ *^^"' '^• 
 if it was in the first writ, etc.? 
 
 Reported in Y. B. Hilary, 2 Hen. IV, p. 17, pi. 28. Case 1. 
 
 (2) One brought an audita querela against one J, Michaeiis 
 and he showed in his writ and his declaration how he made ^^ ^'^- "'• 
 a statute merchant to the said J, in ten shillings, and by 
 
 assent of them the statute was delivered to one B, upon 
 
176 STATHAM 
 
 condition that if they should stand at the arbitrement of 
 the said B, etc., that then the statute should be re-delivered 
 to the said A. And he showed how the said B made an 
 award, which he had performed, etc. And that the said B, 
 by [collusion] ^ had delivered the statute to the said J, 
 and he did not show anything as to the conditions, etc., 
 and for that reason the defendant demurred upon him, etc. 
 Canndish: If I am bound to you in a statute merchant, 
 and you deliver [it] to me in place of an acquittance, and 
 afterwards retake it, I shall have an Aiidita Querela. So 
 here. Fyncheden: I grant it freely, because in that case 
 the statute has lost its force when it is delivered in place 
 of an acquittance, but here the statute remains in force, 
 wherefore it is not the same. Canndish: In a writ of 
 Detinue I show that it was delivered by a stranger and the 
 plaintiff upon conditions, and pray a Scire Facias, etc., 
 and show nothing of the conditions, and that is for the 
 advantage of the third person. So here. Thorpe : To this 
 that you say, that it is for the advantage of the third person, 
 that is not so, but the reason that he shall so plead in your 
 case is because his action of detinue is not founded upon 
 a specialty, but upon a bailment; and that is the reason 
 that a man shall plead a condition without showing any- 
 thing of them. And so shall a man in every personal action 
 which is not founded upon a specialty nor upon a record. 
 But do you think that it is a good plea in a writ of debt 
 brought upon an obligation to say that the obligation 
 was delivered into his own hands upon condition — as above 
 — without showing the conditions in writing? I say no. 
 Neither here, for now it is founded upon an action upon 
 the statute, which is matter of record, etc., wherefore your 
 case is not proved, etc. And you are not injured for you 
 can have a writ of Detinue. Belknap: He to whom the 
 bailment was made died intestate, so our action fails. 
 Thorpe: You could have an action against whomever 
 got the deed, as executor, etc., and if you withdraw your 
 action it will be your own folly, etc. 
 Case 2. Reported in Y. B. Mich. 43 Ed. Ill, p. 27, pi. 11. See also Brooke, 
 
 Audita Querela, \; and Fitzh: Audita Querela, \Q. 
 
 ' Words from the report of the case. 
 
AXJDITA QUERELA 177 
 
 (3) One sued an Audita Querela because the conusor Michaeiis 
 sued an execution on a statute merchant against certain 
 conditions [broken] and also the plaintiff had released to 
 
 him, etc. The defendant challenged the writ because of the 
 doubleness and the plaintiff confined himself to the release, 
 and that was received ; as well as [where] a man pleads a 
 double plea, he can confine himself to one matter, etc. 
 
 The case has not been identified in Y. B. Mich. 46 Ed. Ill, or in the Case 3. 
 early abridgments. 
 
 (4) An audita querela was sued comprising such matter: Michaeiis 
 that whereas the conusor had certain lands the day the 
 recognizance was made, of which part was in the hands 
 
 of one H, the conusee had sued execution of the lands of 
 the conusor and not of the lands of H, wherefore he had a 
 Venire Facias against the conusee and the terre-tenant, on 
 which day the terre-tenant put forward an acquittance of 
 the conusee. Thorpe: The Venire Facias should have 
 issued against the conusee only, if he knew anything to say 
 wherefore he should recover his land, for we cannot try 
 the plea of the terre-tenant and the conusee until this 
 matter is discussed between them. Which was conceded, 
 wherefore the writ was awarded against the conusee, etc. 
 But yet, query? For it seems that an Audita Querela does 
 not lie in that case for him who made the conusance, for by 
 the conusance he could have execution of all his lands and of 
 his body, etc. But if he sued execution of that land which 
 is in the hand of another person for such land as was in the 
 conusor the day, etc.; for that man who had purchased 
 that part an Audita Querela well lies, etc. Query? 
 
 Reported in Y. B. Trinity (not Mich.), 45 Ed. Ill, p. 17, pi. 9. See Case 4. 
 also Brooke, Avdita Querela, 2; and Fitzh, Audita Querela, 19. The case 
 as reported in the Year Book and as abridged in the two abridgments 
 is diflFerent from the abridgment of the cases by Statham. It is evidently 
 the same case, but the abridgers all insert matter not in the case or in 
 each other. The case as abridged by Statham is confused, owing 
 probably to over-condensation. 
 
 (5) One sued an Audita Querela because the plaintiff Michaeiis 
 sued an execution against certain conditions [broken]. 
 
178 
 
 STATHAM 
 
 Case 6. 
 
 Michaelis 
 46 Ed. III. 
 
 Case 6. 
 
 Michaelis 
 47 Ed. III. 
 
 Case 7. 
 
 Hilary 
 47 Ed. III. 
 
 The plaintiff said that the conditions were such that if 
 the conusee held certain lands in peace without damage or 
 loss by default of warranty of the defendant, that then the 
 statute would be void. And he said that one such brought 
 a writ of Dower against him and he vouched the reconusor 
 as heir, who entered as he who had nothing by descent, 
 and lost, and so we put to lose. Hankford: The writ 
 which you sued to have execution was purchased before the 
 loss of which you speak, judgment, etc. Fyncheden: It 
 seems that the writ should abate, for at the time of the pur- 
 chase of the writ he had no cause to sue execution; and 
 also, although the vouchee had nothing by descent, still he 
 might have had it afterwards. And this well debated, etc. 
 Reported in Y. B. Mich. 46 Ed. Ill, p. 27, pi. 20. See also Brooke, 
 Audita Querela, 4. 
 
 (6) One sued an Audita Querela as heir of the conusor. 
 The defendant said : After the death of your ancestor you 
 yourself enfeoffed one H of the same lands which we have 
 in execution, whose estate we have, and the opinion was that 
 the plea was good. Query? For he did not show that the 
 plaintiff was seised, etc., nor that he ousted him, nor that he 
 attorned, in which case it seems that nothing passed, etc. 
 
 Reported in Y. B. Mich. 46 Ed. Ill, p. 30, pi. 30. See also Brooke, 
 Audita Querela, 5. 
 
 (7) One sued an Audita Querela because the defendant 
 had sued execution of a statute merchant against an inden- 
 ture, etc. And that he had taken the indenture from him 
 by force, etc. And he prayed a Venire Facias against the 
 party and had it out of the Common Bench, etc., who 
 came and demanded judgment inasmuch as he did not 
 show the conditions. And so to judgment. And so see 
 that they granted the writ in the Chancery without seeing 
 [anything] of the conditions, etc. 
 
 Reported in Y. B. Mich. 47 Ed. Ill, p. 25, pi. 69. See also Brooke, 
 Audita Querela, 9. 
 
 (8) In an audita querela, the defendant did not come 
 at the distress and the plaintiff went quit. And so note 
 the process is, "Venire Facias distringus." But it seems he 
 
AUDITA QUERELA 179 
 
 should have distress "infinite," for if he has execution of 
 the lands he cannot take the lands without answer, etc. 
 
 Reported in Y. B. Trinity (not Hilary), 47 Ed. Ill, p. 34 (1), pi. 1. Case 8. 
 See also Brooke, Audita Querela, 7; and Fitzh: Audita Querela, 2. 
 
 (9) In an audita querela, a Venire Facias was awarded Paschal 
 to the party, and the sheriff returned that he had nothing 
 within the bailiwick of which to be attached, nor that he 
 
 was found, etc., wherefore the plaintiff prayed to go quit; 
 and it was not allowed, wherefore he prayed a Venire Facias 
 Sicut Alias, and could not have it, but was put to sue a new 
 Audita Querela in the Chancery, etc. And I believe that 
 this was against the law, for they should have awarded a 
 distress, etc., or a Venire Sicut Alias, etc. 
 
 There is no printed Year Book for the year 31 Ed. III. Case 9. 
 
 (10) Executors sued a Scire Facias for the damages recov- statham 21 a. 
 ered by their testator, and the sheriff returned that the 21^ Ed!* in. 
 defendant had nothing by which to be garnished, where- 
 fore they awarded execution on the first day. (Which is 
 strange, that they should have execution before he was 
 garnished, etc.) And then the defendant came into Court 
 
 and showed a release of one of the executors made before 
 execution was sued, and he prayed an Audita Querela. 
 Willoughby: You have had your day in Court by the 
 Scire Facias, wherefore no remedy is given you, etc. Danby : 
 Although we have had a day by the Scire Facias, when the 
 sheriff returned that we had nothing, etc., we never had a 
 day for garnishment. And then the writ was adjudged 
 good for him. And so see Audita Querela adjudged good 
 in the Common Bench, etc. Contrary Hilary, 18 Ed. Ill, 
 where one sued execution out of a recognizance made in 
 the Common Bench, and the other came into the Bench 
 and showed an acquittance and prayed an Audita Querela, 
 and could not [have it] but was put to sue in the Chancery. 
 
 Reported in Y. B. Paschal, 21 Ed. Ill, p. 13, pi. 14. See also Brooke, Case 10. 
 Audita Querela, IS; and Fitzh: Audita Querela, 25. 
 
 (11) If I am bound to one in a statute merchant, and Michaeiis 
 he purchases the land which I have the day, etc., and then 
 
180 
 
 STATHAM 
 
 Case 11. 
 
 HUary 
 
 3 Hen. IV. 
 
 Case 12. 
 
 HUary 
 
 39 Ed. III. 
 
 Case 13. 
 
 Hilary 
 11 Ric. 11. 
 
 I come to the land, and he sues execution, I shall not have 
 an Audita Querela, for against me the Statute is executory; 
 for the Statute is that he shall have execution of the lands 
 which I had the day, etc., or ever afterwards, etc. But 
 if a stranger comes to the land after the possession of the 
 conusee and the conusee sues execution, the stranger shall 
 have an Atidita Querela; and so it was adjudged here, etc. 
 And so note that a man shall have an Audita Querela upon 
 a surmise without a specialty, etc. 
 
 And see in the same plea that the process is Venire 
 Facias and distress infinite. 
 
 There is no printed Year Book for the year 34 Ed. III. The case 
 has not been identified in the early abridgments. 
 
 The Statute is the Statute of Merchants, 13 Ed. I (1285), cap. 1, 
 Stats at Large, Vol. 1, p. 236 (240). 
 
 (12) One made a suggestion that the conusor was 
 imprisoned by force of a statute merchant, and he showed 
 an acquittance made to him by the conusee. And he 
 prayed an Audita Querela and had it; and he prayed a 
 writ to the mayor of S, where he was imprisoned to 
 deliver him, and he was ready to find surety, and he had it. 
 
 Reported in Y. B. Hilary, 3 Hen. IV, p. 12, pi. 16. See also Fitzh: 
 Audita Querela, 14. 
 
 (13) A man shall have an Audita Querela because 
 the reconusee had sued execution, etc. And yet the writ 
 of execution was not returned, etc. 
 
 This case appears to be the case reported in Y. B. Mich, (not Hilary), 
 39 Ed. Ill, p. 30, pi. 32. See also Brooke, Aiidita Querela, 26. 
 
 (14) An audita querela against two, they were at 
 issue upon a deed, and then FynchedeN: Sir, after the 
 Nisi Prius one of the defendants died, and we pray that 
 the writ may abate, etc. Rikhill : This writ is in a manner 
 a trespass, wherefore the death of one does not abate the 
 writ. Charlton: In an Audita Querela against two, if one 
 dies the other shall have execution by the survivorship ; as 
 where two recover and one dies the other shall have exe- 
 cution by the survivorship, wherefore the writ shall not 
 abate. Belknap: At least he should sue a new Venire 
 
AUDITA QUERELA 181 
 
 Facias. And I have seen that in an Audita Querela against 
 several, one came and pleaded his plea without his com- 
 panion, etc. Skipwith: We will continue the process 
 against him; as in a trespass, if one dies after the issue, the 
 process shall be continued in reciting that one is dead, etc. 
 Query of that matter, etc. ? 
 
 There is no printed Year Book for 11 Ric. II. The case has not Case 14. 
 been identified in the early abridgments. 
 
 (15) If one has execution of my lands by force of a Hilary 
 statute merchant against certain defeasances, and then he ^^ ^^°' ^^• 
 alienates the land, I shall have an Audita Querela against 
 
 his alienee. By Thirning and Hankford, etc., notwith- 
 standing that he is a stranger to the statute. And that 
 in an Audita Querela, etc. 
 
 The case has not been identified in Y. B. Hilary, 12 Hen. IV, or in Case 16. 
 the early abridgments. 
 
 (16) Although the plaintiff be non-suited in an Audita Paschal 
 
 • 22 Ed III 
 
 Querela, still he shall have another Audita Querela. 
 
 Reported in Y. B. Paschal, 22 Ed. Ill, p. 4, pi. 12. See also Fitzh: Case 16. 
 Audita Querela, 11. 
 
 (17) An audita querela was sued against the lessee Paschal 
 of the reconusor; by the opinion, etc. Query? 22Ed. iii. 
 
 The case has not been identified in Y. B. Paschal, 22 Ed. Ill, or in Case 17. 
 the early abridgments. 
 
 (18) If an assize be brought against a man of a city or Hilary 
 borough and he names the mayor and the commonalty of ™" ^' 
 the same borough, because it shall not be tried against 
 
 him if he be sole tenant, he shall have an Audita Querela 
 before judgment, directed to the justices of the Assize 
 before whom the Assize is arraigned. As appeared by the 
 Register; which see, etc. 
 
 The case has not been identified in Y. B. Hilary, 12 Hen. IV, or in Case 18. 
 the early abridgments. 
 
 (19) If I am bound in a statute merchant and then he Anno 
 delivers the statute to me in place of an acquittance, and then \ssifmrum 
 he takes it, or assigns the statute and sues execution, I shall 
 
 have an Audita Querela on that matter. As appeared, etc. 
 
182 STATHAM 
 
 Case 19. Probably the case reported in Y. B. Liber Assisarum, 43 Ed. Ill, 
 
 p. 270, pi. 18. 
 
 " That this was a most important -writ for a long period in our law is 
 shown by the space given to it in the old Natura Brevium, Fitzher- 
 bert's Natura Brevium, and the books on pleading up to the later sev- 
 enteen hundreds. Originally a writ directed to the justices of the King's 
 Bench or Common Pleas [Fitzh: Nat. Brev., 293] by the Chancellor, it 
 gradually took upon itself the nature of an equitable action, and could 
 be brought either by writ in the nature of a bill in Chancery, or by such 
 a bill. [Crompton: Pleading, Vol. 2, p. 416-24, 3 ed., 1716.] It is 
 in its nature an equitable action, since it is a suit for relief against a 
 judgment, or, in the modem phraseology of some of our jurisdictions, 
 is a request to the court for a "rule to set aside a judgment" "upon sug- 
 gestion of some just cause." The motion for a rule to set aside a judg- 
 ment is in fact the modem form of the Audita Querela. 
 
 AVERREIMENT " 
 
 statham2ib. (1) In a praecipe quod reddat, the sheriff returned 
 Midiaeiis ^i^ai- ^i^e tenant was dead. The tenant averred that he 
 
 40 Ed. III. 
 
 was alive, against the return of the sheriff, and the sheriff 
 maintained that he was dead. BelknAP: To that you 
 shall not be received, for the Statute allows you at the 
 first day to say that the vouchee is dead. Fyncheden: 
 He can have the averment on any day, for if the tenant 
 vouches one who vouches over another, the demandant 
 can say that the first vouchee is dead, and pray a resum- 
 mons, because that cannot come in by the return of the 
 sheriff. And also when you say that the vouchee is alive 
 you give him the averment to say that he is dead, where- 
 fore say something else, etc. 
 
 And it was said in the same plea that if the sheriff returns 
 at the summons that the vouchee had nothing, if the 
 vouchee comes freely he shall not answer, because he had 
 no day, etc. But if he comes at the time of the voucher 
 or at the sequatur it is otherwise, for the mischief, etc. 
 
 Case 1. Reported in Y. B. Mich. 40 Ed. Ill, p. 36, pi. 8. See also Brooke, 
 
 Averrement, 59; and Fitzh: Averrement, 22. 
 
AVERREMENT 183 
 
 (2) A man shall not have the averment against a fine Paschal 
 upon a conusance of right which alleges a gift executed in 
 himself, to say that he did not give, etc., be he a privy or a 
 stranger, because it is contrary to the fine, for it is not like 
 
 a plea which goes in voidance of the fine, etc. Simile 
 Hilary, 50 Ed. Ill, in a fine upon a grant and render, etc. 
 
 Reported in Y. B. Paschal, 42 Ed. Ill, p. 9, pi. 8. Case 2. 
 
 (3) In a quid juris clamat, the tenant showed how he Hilary 
 was tenant after possibility, etc., and showed it especially 
 
 by a fine, etc. The demandant offered to aver that he 
 was tenant for a term of life as the note alleged, and had 
 the averment, although his conusor could not have had 
 the averment, inasmuch as he was a party to the first 
 fine. 
 
 Reported in Y. B. Hilary, 43 Ed. Ill, p. 1, pi. 1. Case 3. 
 
 (4) In a writ of intrusion, the tenant said that he whom ^'gT jjj 
 the demandant alleged held for term of life, etc., had a fee 
 simple at the time of the death, etc. And he had the 
 averment without alleging the lease which the demandant 
 alleged in his count, etc. 
 
 Reported in Y. B. Hilary, 43 Ed. Ill, p. 5, pi. 9. Case 4. 
 
 (5) A man shall have the averment to say that a man Trinity 
 
 A.A. TT/^ TTT 
 
 died intestate albeit a will approved by the ordinary be 
 shown, etc. In Debt. 
 
 Reported in Y. B. Trinity, 44 Ed. Ill, p. 16, pi. 1. See also Brooke, Case 5. 
 Averrement, 48. 
 
 (6) In a quid juris clamat against a tenant for term of Michaeiis 
 life, who said that your conusor [re]leased to us by this 
 
 deed, etc., before the note was levied. Belknap: He held 
 for a life term as the note alleged. Ready. Fyncheden : 
 You shall not have the averment generally, but you must 
 answer to the release, because you claim by him who made 
 the release; as in a rent charge the tenant can say that 
 
184 
 
 STATHAM 
 
 Case 6. 
 
 your grantee released before the grant, etc. And so it was 
 adjudged. Which note well as above. 
 
 Reported in Y. B. Mich. 44 Ed. Ill, p. 34, pi. 20. See also Brooke, 
 Averrement, 50. 
 
 Paschal 
 45 Ed. III. 
 
 Case 7. 
 
 Hilary 
 
 50 Ed. III. 
 
 Cases. 
 
 (7) A man shall have the averment against things pre- 
 sented in a leet; to wit: such things as touch the freehold 
 or inheritance; but of things which are of sudden adven- 
 ture in the personalty, as bloodshed and outbreaks against 
 the Assize, against such things a man shall not have the 
 averment, etc. 
 
 And it was said in the same plea that if it be presented 
 in a leet that I have built a house to the nuisance of the 
 highway and it is torn down by force, of that I shall have an 
 Assize. 
 
 The case has not been identified in Y. B. Paschal, 45 Ed. Ill, or in the 
 early abridgments. 
 
 (8) One prayed to be received for default of his tenant 
 for term of life, and he gave as a reason that H, who 
 was tenant for term of life, admitted all the right, etc., 
 to be in one B, who granted and rendered to H, for the 
 term of his life, the remainder to him in fee. And the 
 demandant said that before the fine was levied, and still, 
 etc., the said H was and is seised, and that the said B did 
 not render, etc. And he was ousted of the averment, 
 because it was contrary to the fine, etc. And also it seemed 
 that his plea was double; and also he should answer 
 whether he who prayed to be received had anything in the 
 reversion or not, since he showed matter which is triable 
 by pais. But if he would say, "no such record," that is a 
 good plea without saying further what he had in the rever- 
 sion, for that is triable by the record, etc.; for that plea 
 is not contrary to the fine, which is a fine upon a render, 
 etc. 
 
 Not identified in Y. B. Hilary, 50 Ed. Ill, or in the early abridgments. 
 
 Paschal (9) It was found in an office by virtue of a writ which 
 
 49 Ed. III. issued out of the King's Bench, that one H was outlawed 
 
AVERREMENT 185 
 
 for felony and had certain lands of which one J was tenant, 
 wherefore a Scire Facias issued against him, who said that 
 H had nothing in the said land at the time the felony was 
 done nor ever after. And it was the opinion that he should 
 have the averment, etc. Thorpe said in the same plea 
 that he could have the averment to say that he was not 
 guilty of the felony, for otherwise it would follow that for 
 a false indictment bearing date before his purchase of the 
 land that he would lose his lands, etc. Query? For the 
 lands would not be lost because he was guilty, but for the 
 contumacy, etc. 
 
 The case has not been identified in Y. B. Paschal, 49 Ed. Ill, or in Case 9. 
 the early abridgments. 
 
 (10) Where a return is made by two coroners or by Michaeiis 
 the sheriff of London, the party shall have the averment 
 
 to say that one of them died before the return : By Hank- 
 FORD. For at the common law [if] the sheriff had returned 
 that the vouchee was summoned, the party could not have 
 said that the vouchee was dead, etc. And for that reason 
 the Statute was made. And that in a writ of ejectment 
 from a wardship. 
 
 The case has not been identified in Y. B. Mich. 14 Hen. IV, or in Case 10. 
 the early abridgments. 
 
 The Statute referred to is 3 Ed. I (1275), cap. 40, (West. I), Stats, 
 at Large, Vol. 1, p. 79 (100). 
 
 (11) In a quid juris clamat, the tenant said that one W, Jl'^j^jj. 
 ancestor of the conusor, granted to him in the tail. And 
 
 he put forward the deed , etc. Charlton : He held for a life 
 term as the note alleges. Ready. And he could not have 
 the averment, but was put to answer the deed, therefore he 
 said as above, without this that he gave by the deed, etc. 
 
 Reported in Y. B. Trinity, 38 Ed. Ill, p. 20, pi. 37. Case 11. 
 
 (12) See by Fyncheden, that where a writ is brought Michaeiis 
 against a tenant for term of life, who makes default after 
 default, and he in the reversion is received to traverse the 
 action of the demandant, and then the tenant for term of life 
 brings a Quod ei Deforceat, and he shall traverse the same 
 
186 
 
 STATHAM 
 
 Case 12. 
 
 Trinity 
 6 Hen. V. 
 
 Statham 22 a, 
 
 Case 13. 
 
 Michaelis 
 11 Hen. IV. 
 
 Case 14. 
 
 Paschal 
 20 Hen. VI. 
 
 Case 15. 
 
 Note. 
 
 point that was formerly tried, because he is a stranger 
 to that, etc. In a Quare Impedit. Query, if he shall have 
 the Quod ei Deforceat in that case? For from that it would 
 follow that the judgment is given upon his default and not 
 against him who was received, etc. 
 
 The case has not been identified in Y. B. Mich. 38 Ed. Ill, or in the 
 early abridgments. 
 
 (13) In a scire facias which issued against certain 
 mainpernors of one who had found surety of the peace, 
 and afterwards was attainted of felony for the killing of 
 a man and was hung, and the mainpernors would aver 
 that he was not guilty of that felony, the opinion was 
 that they should not have the averment, inasmuch as 
 they were strangers to that, etc. Query, if my tenant be 
 attainted of felony shall his heir have the averment, inas- 
 much as he is privy in blood? etc. 
 
 There is no printed year of 6 Hen. V. Fitzh: Averrement, 46, has 
 the case. 
 
 (14) If a man enfeoffs me of lands and then admits a 
 felony before the coroner for a felony made before the feoff- 
 ment, wherefore he abjured the kingdom, I shall have the 
 averment, and say that that he was not guilty of the 
 felony. And this in a note. 
 
 The case has not been identified in Y. B. Mich. 11 Hen. IV, or in the 
 early abridgments. The note may have been merely a marginal note 
 not reproduced in the printed years. 
 
 (15) A man shall have the averment against a writ of 
 privilege from the Chancery, to say that he was not his 
 menial servant, notwithstanding the contrary was certi- 
 fied by the writ. And this in a note. 
 
 Reported in Y. B. Paschal, 20 Hen. VI, p. 26, pi. 14. This is a 
 printed note. See also Fitzh: Averrement, 3. 
 
 See averment in defeasance of a record in the title of 
 Scire Facias, Hilary, 20 Hen. VI. And in the title of Tres- 
 pass, and in the title of Issue. 
 
 This is merely a note. The case of a Scire Facias referred to is to be 
 found in Y. B. Hilary, 20 Hen. VI. The first part of the case is on 
 p. 24, pi. 5, and the continuation on p. 25, pi. 13. 
 
AVERREMENT 187 
 
 (16) An. averment against the return of the sheriff lies MichaeUs 
 for "too small issues" returned as to the jurors, as well as 
 
 to the party, etc. 
 
 There is no printed Year Book for 2 Ric. II. The sheriff returns the Case 16. 
 jurors to be worth less a year than the amount specified by the Statute. 
 See the Statute of West. Second, cap. 31, Stats, at Large, Vol. 1 
 (1286), pp. 216-17. 
 
 (17) An averment against the return of the sheriff upon Trinity 
 the Statute de Militibus was received, to wit: where the 
 sheriff returned that he could expend forty pounds, he said 
 only ten pounds, etc. 
 
 The case has not been identified in Y. B. 7 Ed. III. Fitzherbert, Case 17. 
 Averrement, 37, has a longer digest of the case, but no reference to the 
 foUo of 7 Ed. Ill, where it should be found. The "Statute de Militi- 
 bus" is apparently the Statute for Knights, 1 Ed. II, Stat. 1, Stats, 
 at Large, Vol. 1, p. 333 (1307). 
 
 (18) An averment was received against the record of ^^^^jjj 
 the coroner, who recorded that he who was at the bar was 
 himself the person who made the abjuration; and the 
 party said that this was not in the arraignment, etc. Con- 
 trary Paschal, 12 Hen. IV, in the King's Bench, etc. 
 
 The case has not been identified in Y. B. Hilary, 2 Ed. Ill, or in the Case 18. 
 early abridgments. 
 
 (19) If the justices of jail delivery command the sheriff Anno 
 to bring before them a prisoner in his keeping, who says ^°' 
 that he died in prison, query if he shall have the averment 
 without saying that the coroner sat on him? For CoKAYN 
 adjourned such a matter, etc. 
 
 There is no printed year of 4 Hen. V. The abridgments do not Case 19. 
 appear to have the case. 
 
 (20) In dower against the husband alone, who said that Hilary 
 
 • 18 Ed III 
 
 he had nothing except in the right of his wife, and that 
 his wife was enfeoffed by a deed, which he showed, the 
 demandant could not have the averment that he was sole 
 
188 STATHAM 
 
 tenant, against the deed, etc. (And yet it is not like a 
 joint tenancy alleged by a deed), etc. 
 
 Case 20. The case has nbt been identified in Y. B. Hilary, 18 Ed. Ill, or in the 
 
 early digests. 
 
 " In spite of the learning of the commentators, the subject of aver- 
 ment remains obscure. We have Coke and his comments upon Little- 
 ton; we have later digests of Comyns and Bacon and Viner. But 
 these writers cite the later cases rather than those of the older law, very 
 much as the modem writer prefers for his authority the later rather than 
 the earlier case. One would not dare to estimate how many times the 
 litigant in the Year Book cases offers to aver instead of going to the 
 country. Over and over and over again we read of it, and it takes 
 a very profound student of the early pleading to be able to foresee that 
 the offer will or will not be accepted. Our selection of cases in the 
 abridgment seems to have been made on no general principle which we 
 may recognize, nor do these cases shed any very special light upon that 
 history of the averment which has not as yet emerged into the clear 
 light of definite statement. We have not been shown by any collec- 
 tion of cases, or any outline of the growth of the practice, how the 
 averment of the old books became the averment of the new — two very 
 different things. We have been content to speak slightingly of the old 
 practice and its pettiness and pitfalls, but even the best of our leaders 
 and teachers do not give us any complete outline of what that old plead- 
 ing was. It is plain enough what it is to aver. It is plain enough what 
 the averment of the later pleading was, but it is not plain enough what 
 the older averment was in the whole effect of its use. If we could have 
 Bereford, or Hankford, or Newton tell us what the real uses and 
 abuses of the averment were, and why it could sometimes be used and 
 why it could not be used in what appear to us parallel cases, we should 
 have a lecture on pleading worth listening to, and it is not wholly un- 
 likely that we should have to revise some of our contemptuous views of 
 that old pleading they knew — really knew — something about. 
 
 AVOWER 
 
 statham 22 b. (1) When a man has pleaded to the action of the avowry 
 
 Hilary he Cannot resort to a plea in abatement of the avowry; 
 
 40 Ed. III. g^g appeared in the case of Ravenshire, etc. Likewise in 
 
 matter apparent he shall have the advantage at all times. 
 
 Case 1. ReportedinY. B. Hilary,40Ed. Ill, p. 9, pi. 18. The point abridged 
 
 appears in the midst of a very long case. The Year Book of 1679 has 
 
AVOWER 189 
 
 "Statham, Avowrie, 1," as a reference in the margin. See also Fitzh: 
 Avowrie, 63. 
 
 (2) The defendant avowed for damage feasant. The Hilary 
 plaintiff prescribed as having common appendant in the 
 same place, where, etc. The defendant said, "One of 
 those whose estate you have never had common there," etc. 
 Fyncheden: You cannot traverse the title by prescrip- 
 tion in this action, for the right to the common cannot 
 
 be tried in an avowry, but in a quo jure, etc., wherefore 
 the defendant said that this was his several pasture, with- 
 out this that the plaintiff had common appendant there, 
 etc. 
 
 Reported in Y. B. Hilary, 40 Ed. Ill, p. 10, pi. 20. The marginal Case 2. 
 note refers only to Statham. 
 
 (3) One J brought replevin. The defendant avowed Michaeiis 
 upon one E because one F was seised and held, etc., of one ^^ ^^' ^^'" 
 G by two pence, etc., which G granted to us the services, 
 
 and F attorned, and he bound the seisin of the two pence 
 in G, and then F enfeoffed H and E, his wife, in tail, the 
 remainder to his right heirs; and we say that H is dead 
 and therefore we have avowed upon E. Canndish: E 
 could have nothing in the life of H, except as a feme covert, 
 but H was seised in his demesne as of fee and enfeoffed us, 
 and we have paid the services to your bailiff, who accepted 
 them to your use, judgment if this avowry, etc. Belknap : 
 He is a stranger to the avowry ; he cannot claim by him 
 upon which we have avowed, besides this he has alleged a 
 payment to our bailiff, which should be understood as to 
 the bailiff of E. He paid to our bailiff the services which 
 our bailiff had no warrant to charge our tenant, etc. 
 Thorpe : The amount of this plea is that you have accepted 
 the services from him and he has also traversed the gift, 
 etc. And they adjourned, etc. (It seems that this traverse 
 was not good for it was only an argument.) 
 
 Reported in Y. B. Mich. 41 Ed. Ill, p. 25, pi. 22. See also Brooke, Case 3. 
 Avowrie, 19, and Fitzh: Avowrie, 65. It is difficult to render the digest 
 comprehensible without a reading of the case, or putting too much of 
 the case into the digest. 
 
190 
 
 STATHAM 
 
 Michaelis 
 41 Ed. III. 
 
 Case 4. 
 
 Hilary 
 42 Ed. III. 
 
 Case 5. 
 
 (4) One avowed because he had the view of frankpledge, 
 etc., and that the plaintiff was amerced there because it 
 was recited that he had received one A for a year and 
 a day who was not put in the dozen, wherefore he was 
 amerced six pence. [And we say] that he found the cattle 
 in the possession of the plaintiff, and on his soil, etc. 
 
 And so note that he did not avow upon the person 
 or upon the land, but by the manner, etc. 
 
 And see by Thorpe in the same plea, that he could not 
 take other cattle on the land of the plaintiff for this amer- 
 ciament, except the cattle of him who was so amerced, etc. 
 (But I believe that the law is the other way.) 
 
 Reported in Y. B. Mich. 41 Ed. Ill, p. 26, pi. 23. See also Brooke, 
 Avowrie, 20; and Fitzh: Avowrie, 65. Fitzh: 264, is also cited in an 
 abridgment of the case on pp. 25-26 of the Year Book. 
 
 (6) The defendant took it as bailiff of the sheriff of S, 
 because there is a hundred in the same county which is 
 called W, within which hundred there are certain people 
 in a vill called H, who have paid to the sheriff at every 
 tourn held in that place a horse or one half mark from 
 time, etc., which is a gift for an easement that the sheriff 
 should do for them; and he and all sheriffs of the same 
 county have been seised for time, etc., and because, etc., he 
 avowed, etc. And because the sheriff could not allege a 
 prescription in his predecessor, nor did he show that it was 
 chargeable upon his account, and also because it was only a 
 gift which was chargeable at the will of the donor, it was 
 adjudged that the plaintiff recover his damages, etc. And 
 see that the avowry was not good for another reason, for 
 he did not allege any prescription in the distress, etc., and he 
 did not show what people paid it, nor by reason of any 
 tenure, etc. 
 
 Reported in Y. B. Hilary, 42 Ed. Ill, p. 4, pi. 16. See also Fitzh: 
 Avowrie, 66. 
 
 Hilary 
 43 Ed. III. 
 
 (6) A man avowed because the land where, etc., is land 
 held in the vill of our manor of F, of which we were seised, 
 etc., within which manor there has been a custom time of. 
 
AVOWER 191 
 
 etc., that everyone who holds in villeinage of the said manor, 
 when he marries himself, his son or his daughter, [without 
 a license from the lord] ' that he shall be fined, etc. And 
 for two shillings he avows in the place where, etc., as 
 land held of us in villeinage. (And so see that he avowed 
 upon the land, albeit the custom was his title, etc. Query?) 
 Canndish : It is clearly against the law that a man should 
 put himself into servitude by his marriage. Belknap: 
 You speak truly, but when you took the land of us by such 
 a service, you were bound by way of a covenant, etc. 
 Which the Court conceded, wherefore he said that he did 
 not hold the land of him by that custom. Kyrton : That 
 is not so, for he is not tenant of the land* so he cannot hold 
 [the land by such customs, etc.] Wherefore he said that there 
 was no such custom as to the land in the vill. Ready, etc. 
 (This seems a negative pregnant, etc.) 
 
 Reported in Y. B. Hilary, 43 Ed. Ill, p. 5, pi. 13. See also Fitzh: Case 6. 
 Avowrie, 68. 
 
 (7) In replevin, the defendant avowed upon the plaintiff Paschal 
 and one A, his wife, and showed that they had issue, and 
 avowed, as above upon the plaintiff and his wife, as in right 
 
 of the wife, with the other co-heirs of the wife, for homage, 
 etc. And judgment was demanded inasmuch as by the 
 issue had between them he had become tenant to the lord, 
 in which case he should have avowed upon him by him- 
 self, without the co-heirs of his wife. And the opinion 
 was that the avowry was good, etc. Query? Wherefore 
 he prayed aid of his wife and had it, etc. Query, to 
 what effect? For he could not plead anything without her 
 coparceners, and she shall not have aid of them, etc. 
 
 Reported in Y. B. Paschal, 43 Ed. Ill, p. 13, pi. 5. See also Brooke, Case 7. 
 Avowrie, 22; and Fitzh: Avowrie, 70. But the abridgment of Fitz- 
 herbert seems to be incomplete. 
 
 (8) Where one avowed the taking of an ox because the Paschal 
 
 . 44 Ed III 
 
 custom, etc., had been from time, etc., that the tenants of 
 
 the manor, etc., should annually choose one to be their 
 
 ' Words from the report of the case. 
 
192 
 
 STATHAM 
 
 Case 8. 
 
 beadle, to collect the rents and amercements, and if he 
 was not sufficient that they should answer for him; and 
 because of the insufficiency of one who was chosen beadle, 
 he avowed for the rents and amercements, etc. Canndish : 
 As to the rent, no such custom ; and as to the amercement, 
 he was sufficient. Ready. Thorpe: The plea is for one 
 and the same ox, and he has pleaded two pleas, so one might 
 be found for him and the other against him, which could 
 not be executed on one and the same ox. Fyncheden: 
 Well enough. Which the Court conceded, etc. Well 
 debated, but it seems one plea went to all, etc. 
 
 Reported in Y. B. 44 Ed. Ill, p. 13, pi. 25. See also Brooke, Avowrie, 
 25, and Fitzh: Avowrie, 73. 
 
 Trinity 
 44 Ed. III. 
 
 Case 9. 
 
 Statham 23 a. 
 
 Trinity 
 46 Ed. III. 
 
 (9) In replevin, the defendant avowed because there 
 was a meeting among the parishioners, in order to 
 repair their church and they, by the assent, etc., taxed each 
 one a certain sum according to their chattels. And the 
 defendant was made collector of this; and they agreed 
 further that they could distrain, etc., and for so much, 
 etc., for which the plaintiff was taxed, he made the distraint. 
 And he said, to further enforce his plea, that there was such 
 a custom in the county time, etc. Thorpe : There might 
 well be such a custom, for there is a custom in some coun- 
 ties called a by-law, that the people, as above, can make a 
 tax to make a bridge, and for that one can have an avowry, 
 etc. But it seems the avowry is double, for he has shown 
 that by assent of the parishioners they fix the tax, in which 
 case the assent binds the plaintiff so far as he was a party 
 to it, etc. Fyncheden : He has rested upon the assent, for 
 that is the strength of his plea, etc. Wherefore the plain- 
 tiff said that he did not assent, etc. It seems that the 
 avowry is not double although he relies upon all, for such 
 an assent is not good unless the custom be such, etc. 
 
 Reported in Y. B. Trinity, 44 Ed. Ill, p. 18, pi. 13. See also Fitzh: 
 Avowrie, 74. 
 
 (10) One avowed upon an abbot, who said that he held 
 in free alms. And the opinion was that that plea was no 
 
AVOWER 193 
 
 plea without showing how; and also he did not reply to 
 the seisin. 
 
 Reported in Y. B. Trinity, 46 Ed. Ill, p. 19, pi. 18. The case and Case 10. 
 the short abridgment do not wholly agree, or rather the abridgment 
 takes a very slight point in the case for its subject-matter. 
 
 (11) One avowed upon the plaintiff because he held of Hilary 
 him by homage, fealty, and ten shillings rent. And for the ^^ ^^' ^'^' 
 homage he avowed, etc. To which the plaintiff said that 
 
 he was never seised of the homage. Kelshull: You 
 cannot plead as privy for you should admit you held of 
 him by some service, for he alleged many services and 
 avowed for one in arrear, etc. 
 
 Reported in Mich, (not Hilary), 48 Ed. Ill, p. 25, pi. 12. See also Case 11. 
 Brooke, Avowrie, 32; and Fitzh: Avowrie, 84. Case and digests 
 differ greatly. 
 
 (12) If my tenant in tail of my gift alienates in fee, still Hilary 
 I shall avow upon the said tenant in tail, and not upon the 
 alienee, albeit the alienee gives me notice, for otherwise I 
 have lost my reversion, since the avowry upon the alienee 
 shall be as upon my very tenant; albeit the alienee be my 
 tenant in fact, the other is my tenant in law. For by 
 FVNCHEDEN: I shall have Cessavit against the alienee. 
 (Which query? etc.) And if I grant the services of my ten- 
 ant where he is disseised at the time of the grant, the serv- 
 ices of the disseisor shall pass, ergo he is not my tenant in 
 fact, etc. And I shall not be coerced to avow upon the 
 alienee for another reason, for then after the Statute "Quia" 
 etc., I shall have a seignory in fee simple, which cannot be. 
 
 And it was said in the same plea that if I grant the services 
 of my tenant in the tail, he shall not be driven to attorn. 
 (But yet, query ?) But if my tenant in tail for rent grants the 
 rent, the tenant will be forced to attorn. But if I grant 
 the reversion of my tenant in tail he shall not be forced to 
 attorn. And if my tenant in tail alienates, in that case 
 the reversion is discontinued, and not the rent, for I shall 
 have avowry for the rent, etc. And in that case the 
 avowry is made upon the alienee. And the tenant in tail 
 
194 
 
 STATHAM 
 
 Case 12. 
 
 who sued a replevin pleaded this matter in abatement of 
 the avowry, and it was argued that he should not have 
 the plea for two reasons: one, because he was a stranger 
 to the avowry; the other, because he had admitted that 
 he himself made the feoffment. And also it might be that 
 the alienee had a collateral warranty to bar the issue in 
 tail, etc. And also this avowry was made by the guardian 
 who had the heir of the donor in wardship. (Query, 
 how the avowry was made by the guardian, etc?) And it 
 was said that the avowry would not injure the heir, but 
 he would avow upon the tenant in tail at his full age. 
 (Query as to that, etc.) And it was said that if the 
 avowry be adjudged good he shall not have a return, but 
 the plaintiff shall have an answer to it, to wit: in bar of 
 the avowry. As if in a Pracipe quod Reddat the tenant 
 pleads in abatement of the writ a plea which is adjudged 
 against him, he has no answer, so here. 
 
 And it was said in the same plea, that a stranger to the 
 avoTvry can plead in abatement of the avowry a thing which 
 appeared in the avowry, as well as he can demur in law 
 upon the avowry. 
 
 Reported in Y. B. Hilary, 48 Ed. Ill, p. 8, pi. 18. See also Brooke, 
 Avowrie, 33; and Fitzh: Avowrie, 18. A long and complicated case 
 upon which each digester has exercised his ingenuity. 
 
 HUary 
 7 Ed. III. 
 
 Case 13. 
 
 (13) If there is a mesne lord and a tenant, the lord can 
 avow upon the tenant for the arrears incurred by the 
 mesne before the forejudgment, etc. And this in Release. 
 
 The case has not been identified in Y. B. Hilary, 7 Ed. HI, or in the 
 early abridgments. 
 
 Paschal 
 10 Ed. III. 
 
 Case 14. 
 
 (14) A man cannot avow for the taking of cattle for 
 rent in arrear, which cattle were taken at night, but he can 
 for damage feasant, etc. In Trespass. 
 
 The case has not been identified in Paschal, 10 Ed. Ill, or in the early 
 abridgments. 
 
 Michaeiis (15) An avowTy should be made in a vill or hamlet, and 
 
 12 Ed. III. j£ j^ ]jg fQ^ 3^ j.gj^^ service it should be made in a vill, because 
 
 when the lord has to bring a writ of right upon a disclaimer 
 
AVOWER 195 
 
 it should be brought in a vill, and should be warranted by 
 the record. (But yet it is not a judicial writ, etc.) Simile 
 Hilary, 3 Ed. III. 
 
 There is no early printed Year Book for 12 Ed. III. The case has Case 15. 
 not been identified in the Rolls Series, 12-13 Ed. Ill, or in the later 
 abridgments. 
 
 (16) The plaintiff counted of his sheep taken, and the ™^y 
 defendant avowed, because he himself as guardian (and 
 
 he showed how, etc.), assigned dower to the plaintiff, and 
 because the dower amounted to more than the third part 
 of the husband, the plaintiff and she herself, by this deed, 
 granted to us four shillings of rent with distress, etc. And 
 the woman demanded judgment because she was covert 
 at the time, etc. And for this reason she recovered her 
 damages. Which note. 
 
 Reported in Y. B. Hilary, 17 Ed. Ill, p. 9, pi. 33. See also Fitzh: Case 16. 
 Avowrie, 95. 
 
 (17) If my tenant gives land in tail to hold of the lord, Hilary 
 still I shall avow upon the feoffor, etc. By Sharshull and 
 Herle, etc. 
 
 There is no early printed Year Book for 16 Ed. III. The case has Case 17. 
 not been identified in the Rolls Series, Y. B. 16 Ed. Ill, or in the early 
 abridgments. 
 
 (18) A man shall not avow for relief if he has accepted Paschal 
 the homage of the same person. By Herle. (All the same, 
 
 that does not seem to be law.) 
 
 There is no early printed Year Book for 15 Ed. III. The case is to be Case 18. 
 found in the Rolls Series, 15 Ed. Ill, p. 107. The point abridged 
 appears on p. 108. It is simply noted in the text as the opinion of the 
 Court, and is accompanied by a query, so that it does not stand as a 
 decision of the Court. 
 
 (19) If a man takes my sow, and afterwards she has MichaeUs 
 pigs in the pound, I shall have a general replevin for the ^^ ^^- ''"■ 
 sow and pigs, and maintain it by special matter, etc. And 
 
 so it was adjudged, etc. 
 
 The case has not been identified in Y. B. Mich. 18 Ed. Ill, or in the Case 19. 
 early abridgments. 
 
196 
 
 STATHAM 
 
 Trinity 
 19 Ed. III. 
 
 Case 20. 
 
 (20) The Abbot of S avowed for ten shillings, and bound 
 the seisin by the hand of the plaintiff, who said that one 
 H, whose estate the abbot had in his seignory, enfeoffed 
 him by this deed, rendering one penny for all services. 
 Judgment if for many services, etc. And the abbot was 
 made to answer it, notwithstanding he bound the seisin 
 by his own hand, and notwithstanding the abbot was a 
 stranger to the deed. 
 
 There is no early printed Year Book for 19 Ed. III. The case is 
 printed in the Rolls Series, 19 Ed. Ill, p. 198. 
 
 Hilary 
 
 18 Ed. III. 
 
 Case 21. 
 
 Statham,23 b. 
 
 HUary 
 
 20 Ed. III. 
 
 Case 22. 
 
 (21) The defendant avowed because the plaintiff held an 
 acre of land of him for one penny, etc. Who said that he 
 held the same acre and another acre by the same services, 
 etc., judgment of this avowry. SetoN: He can take it by 
 protestation. Stonore: Answer him, etc. 
 
 The case has not been identified in Y. B. Hilary, 18 Ed. Ill, or in the 
 later abridgments. 
 
 (22) The alienee of the tenant shall not drive the lord 
 to avow upon him unless he tenders him all the arrears. 
 But yet he can avow upon him for all the arrears before 
 any tender, etc. 
 
 There is no early printed Year Book for 20 Ed. III. The case has 
 not been identified in the Rolls Series, 20 Ed. Ill, or in the early abridg- 
 ments. 
 
 Hilary 
 4 Ed. III. 
 
 Case 23. 
 
 (23) The defendant avowed because one H granted the 
 rent to him, and the tenant attorned. The plaintiff said 
 that he who attorned had only a free marriage, of the 
 gift, etc. And the avowant would have driven him to 
 disclaim, and could not, but was made to answer him, etc. 
 It seems that the attornment was good during his life, etc. 
 
 The case has not been identified in Y. B. Hilary, 4 Ed. Ill, or in the 
 early abridgments. 
 
 Michaelis 
 4 Ed. III. 
 
 (24) One avowed for homage and escuage and rent 
 [upon the defendant who] said that as to the escuage, never 
 seised. And the opinion of Seton was that this was a 
 
AVOWER 197 
 
 good plea. And yet it might be that escuage was not 
 granted after time of memory, etc. 
 
 And it was said in the same plea, that if my villein pur- 
 chases certain lands and leases them to another for the 
 term of his life, rendering to him a certain rent, that I 
 cannot claim the services after the avowry for the rent, 
 etc. (But yet some say that he should claim it in a 
 Court of record as, for instance to bring a writ of Waste.) 
 
 The case has not been identified in Y. B. Mich. 4 Ed. Ill, or in the ^^^ 24. 
 early abridgments. 
 
 (25) One avowed for a heriot, and the plaintiff demanded Hilary 
 payment because he did not bind seisin in the heriot, etc. 
 WiLLOUGHBY : This is a customary heriot, wherefore he 
 does not need to bind seisin. But it is otherwise of a heriot 
 service, etc. 
 
 Reported in Y. B. Hilary, 4 Ed. Ill, p. 8, pi. 13. Case 25. 
 
 (26) One avowed upon an abbot for three shillings of Hilary 
 rent, and bound seisin by the same abbot. Scrope : Your 
 ancestor enfeoffed our predecessor in free alms by this 
 deed, judgment if against, etc. And it was the opinion 
 
 he should not have the plea against such a seisin, but 
 should be put to the ne injuste vexes or a contra formam 
 feoff menti, etc. (But yet such actions do not lie here, 
 as it seems, for he alleged that he distrained for many 
 services. And he who holds in free alms does not hold by 
 any services. Therefore, query as to this, etc.) 
 
 The case has not been identified in Hilary, 3 Ed. Ill, or in the early Case 26. 
 abridgments. 
 
 (27) If the guardian in socage makes a conusance in Michaeiis 
 right of the heir for ten shillings rent, of which the father 
 
 of the infant was seised, etc., and the plaintiff says that 
 the land of which, etc., is in gavelkind, and is partible, 
 etc., and he had a brother, etc. And because he did not 
 show that the rent was divisible the conusance was adjudged 
 good for the land may be partible and not the rent, and a 
 
198 
 
 STATHAM 
 
 Case 27. 
 
 Mlchaelis 
 4 Ed. III. 
 
 Case 28. 
 
 custom shall be taken strictly, etc. And so note that he 
 did not avow as guardian in chivalry, but made a conu- 
 sance, etc. 
 
 The case has not been identified in Y. B. Mich. 7 Ed. Ill, or in the 
 
 early abridgments. 
 
 (28) If there be several mesne tenants and the lord 
 paramount distrains the tenant for the services of the 
 mesne, who is a purchaser of the lord paramount, in that 
 case the tenant shall plead "nothing in arrear" albeit he 
 is a stranger to the avowry, because he cannot have a 
 writ of mesne against him upon whom the avowry was 
 made, and he cannot join him for he is the immediate 
 lord to him, etc. So to avoid evil he shall have the plea. 
 But yet some say that he shall have a writ of Mesne against 
 his next lord, and so each one against the other. But it 
 seems that that is not so, for he can say that he was not 
 distrained for his default, which is true. And this in 
 Replevin. Query? 
 
 The case has not been identified in Y. B. Mich. 4 Ed. Ill, or in the 
 early abridgments. 
 
 Trinity 
 6 Ed. III. 
 
 (29) One avowed for homage, fealty, suit, and rent, 
 and he made an entire avowry for the whole, etc., 
 to wit: the taking of six oxen, etc. And it was chal- 
 lenged because one could be found for him and the 
 other against him, then it is not reasonable that he have 
 an answer for all. Herle: The same reason can be 
 given if he avows for rent alone, for part may be in arrear 
 and part not, wherefore answer. And one J came and said 
 that he upon whom the avowry was made was seised and 
 enfeoffed him ; and whereas the avowry was that R held of 
 him for twenty shillings a year, he held it on four shillings 
 only, etc. And as for this that he alleged the rent to be 
 in arrear for seven years, it was only in arrear for two 
 years, and for these he offers the arrears. And as to many 
 services, "never seised," etc. Pernant: We were seised 
 of twenty shillings: Ready, etc. Thirning: You should 
 answer as well if he were in arrears for only two years or 
 
AVOWER 199 
 
 not. Herle: That he should not, for you have pleaded 
 in abatement of the avowry, wherefore the avowry should 
 be made upon you ; and you have offered the services con- 
 trary to his avowry, in which case if it be found that he 
 was seised of twenty shillings he shall have a return, 
 because you have not offered in accordance. And if it be 
 found for you, the avowry will abate, so the issue cannot 
 be taken except upon the seisin of the twenty shillings. 
 And see that he did not say that he gave him notice after 
 the feoffment, in which case the plea is not good, etc. 
 
 The case has not been identified in Y. B. Trinity, 5 Ed. Ill, or in the Case 29. 
 early abridgments. 
 
 (30) In avowry upon a stranger, the plaintiff said that Hilary 
 he upon whom the avowry was made held by lesser services, ^"' 
 and that he enfeoffed him, and he paid the services, in which 
 
 case he should have avowed upon him, judgment of the 
 avowry. This is a good plea by ThirniNG, in Replevin. 
 
 The case has not been identified in Y. B. Hilary, 10 Hen. IV, or in Case 30. 
 the early abridgments. 
 
 (31) He who is a stranger to the avowry may say that Trinity 
 the avowant is seised of part of the lands or of all, by ^^ ^^- '^^' 
 Herle, etc. And he said in the same plea that he who 
 
 is a stranger to the avowry, where the avowry is made 
 upon the mesne, shall plead "nothing in arrear." And 
 the reason is because if rent be in arrear, and he brings 
 a writ of Mesne against the mesne, he can say that he did 
 not distrain in his default. And it is true; in which case 
 he will recover no damages against him, so if he could not 
 have the plea he would be vexed without reason, etc. 
 But if the avowry be made upon the plaintiff, and he says 
 that he has enfeoffed a stranger in fee and retaken an 
 estate for the term of his life, he shall not plead "nothing 
 in arrear." And yet he is not privy, but if he wishes to 
 plead "nothing in arrear" he should admit the tenure as 
 he had avowed. And this in Replevin. 
 
 There is no early printed year of 15 Ed. III. The case has not been Case 31. 
 identified in the Rolls Series for that year and term. 
 
200 
 
 STATHAM 
 
 Paschal 
 18 Ed. III. 
 
 Case 32. 
 
 (32) He who is a stranger to the avowry shall force the 
 avowant to avow upon him, albeit he does not claim by 
 him upon whom the avowry is made, if he can bind seisin 
 by the plaintiff by his hands, for if the avowant accepted 
 him for his tenant, whether he came in by disseisin or other- 
 wise, he can avow upon him. 
 
 And it was said in the same plea, if the bailiff makes a 
 conusance and the lord joins himself to him, the plaintiff 
 shall recover damages solely against the lord. And if the 
 lord avows for the same reason, the bailiff is immediately 
 out of court. (It seems the law is the same if he avows for 
 other reasons.) 
 
 Reported in Y. B. Hilary (not Paschal), 18 Ed. Ill, p. 7, pi. 22. 
 
 statham24a. (33) A Stranger to the avowry shall not say that the 
 one upon whom the avowry is made is covert of a husband, 
 or that he is dead, or that none such is in rerum natura. 
 And this by Herle, in Replevin, etc. 
 
 Michaelis 
 18 Ed. III. 
 
 Case 33. The case has not been identified in Y. B. Mich. 18 Ed. Ill, or in the 
 
 early abridgments. 
 
 Trinity 
 5 Ed. III. 
 
 Case 34. 
 
 (34) If a man avows for suit at a leet or a thing of that 
 sort, which belongs to a view of frankpledge, or to a fran- 
 chise, etc., he shall not be driven to show his title of right 
 or charter, but that he was seised of such a manor to which 
 the view of frankpledge, etc. But in a quo warranto at 
 the suit of the king it is otherwise, etc. 
 
 The case has not been identified in Y. B. Trinity, 5 Ed. Ill, or in the 
 early abridgments. 
 
 Michaelis 
 6 Ed. III. 
 
 (35) If a man avows for a heriot, although it be a heriot 
 service, he shall not avow upon the person, for he can take 
 it out of his fee. Query then, if every stranger who has 
 his beast taken can plead in bar of the avowry. 
 
 And see in the same case that [the reason] he did not 
 avow upon the person was because he did not avow for 
 any services which any man who was alive could do, etc. 
 (But yet he should bind seisin for services, etc.) And if 
 
AVOWER 201 
 
 he avows for a heriot custom he shall recite the custom 
 in his avowry, etc. 
 
 The case has not beer identified in Y. B. Mich. 6 Ed. Ill, or in the Case 35. 
 early abridgments. 
 
 (36) One avowed upon his tenant in dower because one Hilary 
 H, his grandfather, held the manor of C by twenty shillings ^ ^'^' ^^^• 
 of rent of one F, of whose services, etc., and that his grand- 
 father died, after whose death S, his father, entered and 
 endowed the wife of the present plaintiff, of the third part 
 
 of the manor, rendering to him the third part of the services 
 of which he is charged over, etc. And for so much in 
 arrear he avowed upon him as upon his tenant in dower. 
 And it was challenged because he did not show that he 
 had paid the services over, etc. And it was not allowed, 
 for it is sufficient to show that he is charged over, to wit: 
 that he held over, etc. And he ought to show that fully, etc. 
 
 Reported in Y. B. Hilary, 3 Ed. Ill, p. 6, pi. 20. See also Fitzh: Case 36. 
 Avowrie, 173. 
 
 (37) See an avowry made for divers services, etc., as of Michaeiis 
 any other avowry. ^ ^"^^ "'" 
 
 The case has not been identified in Y. B. Mich. 5 Ed. Ill, or in the Case 37. 
 early abridgments. 
 
 (38) If a man avows for waste he can plead that he who Micheaiis 
 stole the beast was attainted for felony for stealing that 
 
 same beast. 
 
 Not identified in Y. B. Mich. 5 Ed. Ill, or in the early abridgments. Case 38. 
 
 (39) If a man be amerced in the sheriff's tourn the sheriff Hilary 
 can distrain him for all the county, and a lord of a leet 
 
 for all the precinct; and he shall not plead "out of his fee," 
 but he shall say that he took the distress out of the precinct 
 of his leet, etc. 
 
 There is no Year Book for Ric. II. The case has not been identi- Case 39. 
 fied in the early abridgments. 
 
 (40) If I give land to a man in the tail to hold of me, Michaeiis 
 and then I release to him all my right, now the tenant shall ^^ ^<^- ^'^- 
 
202 
 
 STATHAM 
 
 Case 40. 
 
 Michaelis 
 24 Ed. III. 
 
 Case 41. 
 
 Trinity 
 33 Ed. III. 
 
 Case 42. 
 
 Michaelis 
 15 Hen. VI. 
 
 Case 43. 
 
 avow upon him as upon his very tenant, etc. And con- 
 sequently, after such an avowry, if. he commits a felony for 
 which he is attainted the lord shall have the escheat, etc. 
 (But this was argument, not proof.) 
 
 The case has not been identified in Y. B. 24 Ed. Ill, or in the early 
 abridgments. 
 
 (41) If a man avows for a heriot and says that he and 
 his ancestors have been seised for time, etc. Still he shall 
 bind a special seisin in him, or in one of his ancestors, and 
 say by whose hand, etc. And this in Replevin. 
 
 The case has not been identified in Mich. 24 Ed. Ill, or in the early 
 abridgments. 
 
 (42) If one grants a rent to another and to me, and my 
 companion releases to me, I shall have an entire avowry 
 for all the rent, and yet I am in by a several title; but it 
 is necessary for me to show the lease in my avowry. 
 
 There is no printed Year Book for 33 Ed. III. Fitzherbert, in Avow- 
 rie, 195, has apparently copied the case from Statham. 
 
 (43) In a recordare, the defendant said that one H held 
 one acre of land of the king as of his manor of D, by two 
 pence of rent, and by the services that at every alienation 
 he should pay four shillings to the king in the name of relief; 
 which manor the king granted to us for a term of years 
 which still endures, by his letters-patent, etc. And the 
 said H alienated to one B, and for four shillings, etc., we 
 avowed, etc., upon the said B as upon the very tenant of 
 the king, in the manner, and this avowry was admitted 
 for good. But yet, query as to this, etc., for he avowed 
 in his own right ; then to say that he avowed upon the tenant 
 of the king, he is a stranger, etc. And also this cannot be 
 a service, but is a fine, in which case the avowry should 
 not be made upon the person, etc. Query, if a man leases 
 his seignory to one for a term of years, how shall I avow? 
 To wit: as upon my very tenant, or as upon my tenant in 
 the manner, etc.? 
 
 There is no printed Year Book for 15 Hen. VI. 
 
AVOWER 203 
 
 (44) The avowant showed that he was seised of the Paschal 
 manor of F, of which he had waif, etc., and he said that the 
 defendant had carried away certain sheep which came to 
 
 the same vill, and hue and cry was made upon him, where- 
 fore he waived the beasts, and he took them, etc. And the 
 plaintiff said that he did not waive them, and it was not 
 allowed without answering the averment that he waived 
 them, etc. Query, if it be a plea to say that he did not 
 waive them, and not to answer the charges that he carried 
 them away ? etc. And it seems that it is only a justification, 
 etc. 
 
 There is no early printed Year Book of 29 Ed. III. Case 44. 
 
 (45) In a recordare against an abbot who said that one Trinity 
 A, his predecessor, before the Statute gave an acre of land ^^ ^^"' 
 to one B, to hold of him and his successors for twelve pence, 
 
 of which services, etc., and at the same time the said B was 
 seised of a furlong of land, etc., and by this deed indented 
 granted to the said A and his successors that they could 
 distrain in the said land for the said twelve pence in the said 
 furlong of land; and for so much in arrear, etc., he avowed 
 the taking etc., as upon the land charged with this distress. 
 FuLTHORPE: One T was seised of the same acre in fee 
 and leased to us the same acre for a term of years which 
 still endures, and we pray aid of him. Newton : We have 
 avowed for a rent charge, in which case, although he be a 
 stranger to the avowry, he can plead every plea in bar of your 
 avowry, in which case the aid is not grantable. JuYN: 
 Although you avow as for a rent charge, still it is a rent 
 service, in which case it is reasonable that he have the aid, 
 for it is the same rent which was reserved and no other rent, 
 in which case if he have not the aid he will have no plea 
 except "out of his fee," etc. Newton : Inasmuch as the 
 avowry is not made upon any person, how can he have 
 the aid? And he also prayed aid of other lands than those 
 on which our avowry was made, etc. And afterwards the 
 aid was granted. And he came in aid and disclaimed that 
 he held of him, etc. (It was wonderful that he should 
 disclaim inasmuch as no avowry was made upon him, etc. 
 Although a man avows upon a rent charge still it seems that 
 
204 
 
 STATHAM 
 
 Case 45. 
 
 Hilary 
 4 Hen. VI. 
 
 Case 46. 
 
 the plaintiff can have aid because of the feebleness of his 
 estate, but peradventure not before the issue is joined, etc. 
 Study this avowry, for it seems that he cannot afterwards 
 avow for this rent upon the person, etc. Query?) 
 
 There is no printed Year Book of 15 Hen. VI. The Statute is that 
 of Westminster the Third, Quia Emptores Terrarum, 18 Ed. I, Stat. 1, 
 Stats, at Large, Vol. 1, p. 255. 
 
 (46) Where one avowed because one H was seised and 
 granted the rent to him, etc., it is a good plea to say that 
 at the time, etc., H had nothing in the land, without say- 
 ing more, for every stranger who has his beasts taken, 
 although he did not have the land, could plead in bar of the 
 avowry, etc. 
 
 Reported in Y. B. Hilary, 4 Hen. VI, p. 9, pi. 1. See also Fitzh: 
 Avowrie, 5. 
 
 Trinity 
 50 Ed. HI. 
 
 statham24b. (47) If I give land to a man after the Statute, in fee, 
 rendering to me one penny of rent, and saving to him the 
 forinsic services, I shall have such services of him as I 
 held over before the feoffment. And this by Hilary and 
 Thorpe in an avowry, etc. (Which was strange, for from 
 this it seems I can commence a seignory after the Statute, 
 for the land was never held of me before. And I cannot 
 have such services as I held over unless I remain tenant to 
 the lord paramount, etc. Wherefore, query as to this.) 
 
 The case has not been identified in Y. B. Trinity, 50 Ed. III. The 
 early abridgments do not abridge any cases in 50 Ed. Ill under the 
 title of Avowry. 
 
 The Statute of West, the Third, Quia Emptores Terrarum, 18 Ed. I, 
 Stat. 1, Stats, at Large, Vol. 1, p. 255. 
 
 Case 47. 
 
 Hilary 
 
 13 Hen. IV. 
 
 Case 48. 
 
 (48) In avowry for a relief, it is no plea to say "never 
 seised of the escuage," for the seisin of the homage is 
 sufficient, etc. 
 
 And see in the same plea, that a man can hold by homage 
 for all services which are in socage. And so it is when he 
 holds by homage, fealty, and rent, which is only socage. 
 
 Reported in Y. B. Mich, (not Hilary), 13 Hen. IV, p. 5, pi. 11. See 
 also Fitzh : Avowrie, 197. 
 
AVOWER 205 
 
 (49) In a recordare, one, as bailiff of his master, made Michaeiis 
 a conusance upon one H, and showed how one G was seised ^* ^"' ^^' 
 of the honor of Gloucester. And he made the descent 
 of this same honor to his master; and that the custom there 
 was that every tenant who held of this honor should pay 
 at every alienation that he made a certain sum by way of 
 fine; and he showed how one W, his ancestor, was seised 
 of such a fine, and showed how one J held certain lands 
 of the same honor, and alienated without a license, and 
 for that made the conusance. To which the plaintiff 
 said, by way of protestation, he did not admit the custom ; 
 but he said that this same G was seised as above, and 
 that he was seised of this same land as part of the honor 
 in demesne and was so seised before the Statute, and after- 
 wards in time of memory, by this deed gave the same lands 
 to one B to hold of him by fealty and a certain rent for all 
 services, which estate he had, judgment, etc. Norton: 
 And we judgment. And so to judgment. Skrene: It 
 seems that we should have a return for one reason because 
 the custom was always incident to the land into whatever 
 hands, etc. And another reason is that he is a stranger to 
 the avowry, so that he cannot plead anything except "Out," 
 etc. HoRTON: As to that he is a stranger, etc., there is a 
 difference when the avowry is made upon the person and 
 when it is not, for when a man avows for a rent charge, or 
 upon some such custom, every stranger can plead what he 
 will, if he be a party to the writ, etc. Which was conceded. 
 And as to the other point there is a difference between a 
 custom which runs through a whole country, as a heriot, 
 for there unity of possession is not to the purpose, but in this 
 case the custom is only a private customary right of that 
 honor, in which case the law is different, etc. And also the 
 avowry is not good because he has not shown the quantity 
 of the land which was alienated, [and thus he cannot show] 
 the certainty of the fine, in which case if the return be 
 adjudged good, they would not know what fine to adjudge, 
 etc. Skrene : In that case it would be adjudged according 
 to our discretion, as if I distrain for a suit, and he wishes 
 to offer me amends, it will be according to my discretion; 
 
206 
 
 STATHAM 
 
 Case 49. 
 
 Trinity 
 12 Ric. II. 
 
 Case 50. 
 
 Paschal 
 2 Hen. VI. 
 
 Case 51. 
 
 Trinity 
 2 Hen. VI. 
 
 Case 62. 
 
 and the law is the same in a Cessavit for divine services, 
 where a man tenders the arrears, etc.; and also for damage 
 feasant, etc. Hankford: There is a difference between 
 this custom and one where a man has a prerogative of 
 the king by a grant, as the Bishop of Durham and the Prior 
 of Chester, who have from their tenants a fine at each 
 alienation, for there, although the land comes to the lord 
 by escheat, or he alienates part of the demesne, yet they 
 shall have the fine as well as the king, for if the land escheats 
 to the king, and he gives the same land to one who alienates 
 without a license, the king shall have a fine, etc. And then 
 it was adjudged that the plaintiff should recover his damages 
 And this was well debated, etc. 
 
 Reported at very great length in Y. B. Mich. 14 Hen. IV, p. 2, pi. 6. 
 It was "debated" at leisure by the Court and counsel. It is difficult, 
 as is usually the case in regard to these long reports, to make the digest 
 clear enough to convey the sense of the arguments without importing 
 into the digest of the case more of the case itself than is desirable. 
 See also Brooke, 46; and Fitzh: Avowrie, 60.- The latter gives a very 
 long abridgment, being apparently unable to condense the case to his 
 satisfaction. 
 
 (50) One made a conusance as servant to one A, executor 
 of the will of one B, and by his conusance, etc. RiKHiLL: 
 He had another executor, etc. HuLs: For anything, etc. 
 And so to judgment. Query? 
 
 There is no early printed Year Book for 12 Ric. II. Fitzh: Avowrie, 
 88, has a longer and somewhat different abridgment of the case. 
 
 The case has not been identified in Y. B. Trinity, 12 Ric. II, Ames 
 Foundation, ed. Deiser. 
 
 (51) If a rent charge descends to two daughters, and 
 one of the two has issue and dies, the issue shall avow for 
 half of the rent, in the half of the land, etc. 
 
 Reported in Y. B. Paschal, 2 Hen. VI, p. 7, pi. 2. See also Fitzh: 
 Avowrie, 2. 
 
 (52) She who had an estate with a coparcener avowed 
 upon a rent charge and a grant upon the purpart without 
 a deed. And she showed the matter in her avowry — what 
 estate she had, etc. 
 
 Reported in Y. B. Trinity, 2 Hen. VI, p. 14, pi. 14. See also Fitzh : 
 Avowrie, 3. 
 
AVOWER 207 
 
 (53) One avowed because one H held of him by homage, Michaeiis 
 etc., and that he was seised by the hand of H, which H ^^ ^"' ^' 
 enfeoffed the plaintiff. The plaintiff demanded judgment 
 
 of the avowry, for H never had anything except in right of 
 one K, his wife, of whom no mention was made in your 
 avowry, etc. Skrene : He does not deny that he is in by the 
 feoffment of H, by whose hand we were seised of the homage, 
 so he will be estopped to say, "Although H was seised in his 
 own right." Hankford: You say well. Wherefore, Nor- 
 ton amended his plea and said (as above), and that A 
 died, after whose death one F, as heir of K, entered and 
 enfeoffed us. Judgment of the avowry. Thirning: This 
 avowry is not made upon H, but upon you, so that which 
 he alleges of the seisin of H is only a convenience, etc., in 
 which case you should traverse the seisin or answer the 
 avowry, for if I am seised of the services by a disseisor 
 that will bind the disseisee. Hankford : The plea is good. 
 Which the Court conceded. Wherefore the avowant said 
 that H was seised, etc., without this that the woman had 
 anything, etc. And see in this plea that afterward the 
 plaintiff prayed in aid one who was joined to him, and then 
 he pleaded in abatement of the avowry. 
 
 Reported in Y. B. Mich. 11 Hen. IV, p. 28, pi. 54. See also Brooke, Case 53. 
 Avowrie, 43; and Fitzh: Avowrie, 54. 
 
 (54) One avowed for ten shillings rent, upon one H, and Michaeiis 
 he showed that the said H held of one J as of his manor of F, ^^ ^^"- ^^■ 
 one acre of land for the said ten shillings, of which the said 
 
 J was seised, etc., as part of the same manor. And after- 
 wards this same J, by a fine, granted this same manor to 
 one B, for the term of his life, remainder tons in tail; and 
 B was seised of the rent and died, after whose death we 
 entered and were seised of the rent. And for the said ten 
 shillings in arrear, etc. PoRTYNGTON : This plea is double, 
 for the seisin of his tenant for life, or his own seisin, had 
 been good enough. Markham : Our seisin is only a redun- 
 dancy, but the seisin of the tenant for life ought to be all, 
 for if he were not seised the remainder would not pass, 
 and so no seisin is traversable except that, etc. Newton : 
 
208 STATHAM 
 
 statham25a. If the grant had been made by deed the law would be as 
 you say, but when it is by a fine the remainder passes, 
 although the tenant for life was never seised for if I grant 
 the services of my tenant to you for the term of your life, 
 the remainder over in fee, by a fine, and you die before 
 any attornment, he who is in the remainder shall have the 
 per que servicia, wherefore it is double. FoRTESCUE : No 
 attornment is needed in the case here, for if I enfeoff you 
 of a manor which is partly in demesne and partly in service, 
 there is no need that you have attornment of the tenants, 
 for the principal passes by livery, etc., wherefore the action 
 shall be in the same condition, for an advowson or rent 
 by itself cannot pass without a deed, but as part of a manor 
 it can, wherefore, etc. Newton: He should have the 
 attornment of the tenant in your case; which Paston 
 conceded. Fortescue: In many cases one shall avow 
 for rent without attornment; as if one has execution 
 of my manor which is part in demesne and part in service, 
 by force of a statute merchant, he shall avow upon the 
 tenants without attornment. And the law is the same 
 when I lease the manor for a term of years, etc. And 
 suppose that I lease such a manor to you for the term of 
 your life, and the tenants who hold of the manor attorn 
 to you, and afterwards I grant the reversion of the same 
 manor to Markham in fee, and you attorn to him and 
 die; now Markham shall avow without any attorn- 
 ment of the tenants, and yet they have never attorned 
 to him. And then Markham of his own accord amended 
 the doubleness, etc. 
 
 Case 64. The case has not been identified in Y. B. Mich. 19 Hen. VI, or in the 
 
 early abridgments. 
 
 Michaeiis (55) If my Very tenant gives certain lands to a man in 
 19 Hen. VI. ^^j|^ ^-j^e remainder over in fee, I shall avow upon the 
 tenant in tail as upon my very tenant by the manner, etc. 
 But if my tenant gives the land in tail to hold of him, he 
 shall avow upon him as upon his tenant in the manner, etc., 
 and not upon his very tenant, etc., by Newton. 
 
 And he said in the same plea that if my tenant be 
 
AVOWER 209 
 
 disseised and the disseisor dies, and his heir is in by descent, 
 that it is in my election to avow upon him or upon the dis- 
 seisee; for he said that I shall not be forced to avow upon 
 a stranger, except where the land goes legally out of the 
 possession of my tenant. (But yet I believe that this is 
 not the law; and that because the law throws the possession 
 upon him.) 
 
 The case has not been identified in Y. B. Mich. 19 Hen. VI, or in the Case 55. 
 early abridgments. 
 
 (56) If I lease at will, rendering a certain rent, I shall Paschal 
 avow upon the land, etc., by Markham. (But I believe ^^ "^"' ^^' 
 he should avow upon the lease, etc.) 
 
 The case has not been identified in Y. B. Paschal, 21 Hen. VI, or in Case 56. 
 the early abridgments. 
 
 (67) If the defendant avows upon one B for homage Hilary 
 and four pence of rent — Hilary: This B held of you by ^ ^^°' '^" 
 fealty and one penny for all services, whose estate we have, 
 and we say that we paid you; judgment if you should 
 maintain this avowry. Skrene: The land is held by 
 homage and four pence rent, as we have alleged. Ready. 
 And the other alleged the contrary. Query as to this, for 
 it seems double; one, that he avowed upon him, and not 
 upon B; another, that he held by lesser services, which 
 goes in bar. And see also that he traversed the tenure, 
 whereas the tenure is not traversable in avowry. But he 
 should have said that he held of him by one penny, and as 
 to more services, "never seised," etc. Query? 
 
 Reported in Y. B. Hilary, 7 Hen. IV, p. 10, pi. 17. See also Brooke, Case 57. 
 Avowrie, 37; andFitzh: Avowrie, 50. 
 
 (58) If the mesne be forejudged, the lord shall avow upon Hilary 
 the tenant for the arrears incurred in the time of the mesne '' ^'^' ^^^' 
 before he was forejudged, etc., for he cannot avow upon the 
 mesne, since the mesnalty is extinct. 
 
 Reported in Y. B. Hilary, 7 Ed. Ill, p. 8, pi. 17. See also Fitzh: Case 58. 
 Avowrie, 143. 
 
210 
 
 STATHAM 
 
 Paschal 
 7 Hen. IV. 
 
 Case 60. 
 
 Trinity 
 7 Hen. IV. 
 
 Case 60. 
 
 Michaelis 
 27 Hen. VI. 
 
 Case 61. 
 
 (59) In replevin against a prior, he said that one H held 
 of him by twenty shillings of rent, of which services, etc., 
 the said H enfeoffed the plaintiff, and for the rent in arrear 
 for four years he avowed upon the plaintiff. Tyl: He has 
 not shown whether the rent was in arrear in the time of 
 the said H, or in the time of the plaintiff, wherefore, etc. 
 And it was not allowed. (But it is otherwise on the part 
 of the lord where he purchases the lordship, etc.) Where- 
 fore he said H enfeoffed him to hold of the predecessor of 
 the defendant, by the services of four pence which he 
 tendered to the predecessor of the defendant and he received 
 them, judgment if for more services, etc. Thirning: It 
 is hard to preclude his successor by such an acceptance of 
 his predecessor, etc., but it is otherwise as to an heir, etc. 
 And they adjourned. 
 
 Reported in Y. B. Paschal, 7 Hen. IV, p. 14, pi. 12. See also Brooke, 
 Avowrie, 38; and Fitzh: Avowrie, 51. 
 
 (60) In replevin, the defendant said that the beasts 
 belonged to one D, and not to the plaintiff, and to have the 
 return he had avowed upon the plaintiff, for rent in arrears. 
 Tvrwhit: True it is that they belong to the said D, and 
 because B held the land of us we took them out of the pound 
 and put in our beasts in pledge, etc. And this was adjudged 
 good. But see that he did not answer the avowry; and 
 it seems that he should have pleaded immediately to the 
 avowry, for his plea is not contrary to the plea of the plaintiff, 
 etc. 
 
 And it was said in the same plea that the lord paramount 
 could act in the same manner, and if he did not the mesne 
 could have a writ of Mesne against him, and still he is not 
 tenant of the land ; which was conceded by the Court. 
 
 Reported in Y. B. Trinity, 7 Hen. IV, p. 18, pi. 20. 
 
 (61) He upon whom the avowry was made was received 
 to plead "out of his fee," etc. But yet the contrary has 
 been the custom heretofore, inasmuch as he could disclaim, 
 and that amounts to no more. 
 
 The case has not been identified in Y. B. Mich. 27 Hen. VI, or in the 
 early abridgments. 
 
AVOWER 211 
 
 (62) One avowed for fealty and rent; and he made an Hilary 
 entire avowry, etc., for all was but one service, but if he ^"^ ^^^' ^^' 
 had avowed for homage and rent it had been otherwise, etc. 
 
 The case has not been identified in Y. B. Hilary, 27 Hen. VI, or in the Case 62. 
 
 early abridgments. 
 
 •» 
 
 (63) He who had an estate in the seignory had only an Michaeiis 
 estate tail, and the tenant of the land had a fee, in the lands ; ^"' 
 he shall avow upon him as upon his very tenant in the 
 manner, and not as upon his very tenant, for if he does 
 
 so the tenant can disclaim, in which case he shall have a 
 writ of right upon a disclaimer, where he had only an estate 
 tail in the seignory, which cannot be. And he should show 
 in his avowry how the rent was given to him in tail, and 
 he should not bind the seisin generally, etc. But yet it 
 seems that he does not need to bind seisin, etc., for the 
 apparent reason, etc. 
 
 There is no printed Year Book for 26 Hen. VI. The case does not Case 63. 
 appear in the early abridgments under the title of Avowrie. 
 
 See of avowry, in the title of Joinder, Mich. 2 Hen. VI. Note. 
 (The reference to this title seems incorrect.) 
 
 (64) The conusance of a bailiff can be amended after the statham 25 b. 
 aid prayer, when his master comes, etc. As appeared in Jgj'^^jjj 
 Replevin. 
 
 Reported in Y. B. Paschal (not Trinity), 7 Ed. Ill, p. 19, pi. 25. Case 64. 
 
 (65) Where the husband and his wife [hold] in the right Michaeiis 
 of the wife, and replevin is sued against the husband, he 
 cannot avow as in right of his wife, because she is not named ; 
 
 and if he makes a conusance it is hard to make it good, for 
 he shall have it in his name and in the name of his wife, and 
 the rent will be paid to him, so in a manner he makes the 
 recognizance for himself, etc. Query? 
 
 The case has not been identified in Y. B. Mich. 9 Ed. Ill, or in the Case 65. 
 early abridgments. 
 
 (66) If a man avows for homage, it is no plea to say that Hilary 
 
 he tendered it and it was refused, judgment if for other ^^' '"' 
 
212 
 
 STATHAM 
 
 Case 66. 
 
 times, but he shall say that he is ready to do it, and then 
 not speak to any other effect except to excuse him from the 
 damages, etc. 
 
 There is no early printed Year Book for Hilary Term, 20 Ed. III. 
 The case is reported in the Rolls Series, Y. B. Hilary, 20 Ed. HI, p. 44. 
 
 Paschal 
 
 13 Hen. IV. 
 
 Case 67. 
 
 (67) A man shall not make a conusance for rent in arrear 
 as bailiff for a man and his wife in right of the wife, but only 
 as bailiff of the husband, for a feme covert cannot have a 
 bailiff, etc. But he shall say as bailiff of the husband, who 
 has the rent in right of his wife ; and so it was decided by 
 Hankford, etc. 
 
 There is no printed Paschal Term for 13 Hen. IV. The case has 
 not been identified elsewhere. 
 
 Hilary 
 7 Ed. III. 
 
 Case 68. 
 
 (68) If a man drives over my com I cannot take the 
 horse damage feasant and the law is the same if a man 
 brings nets and gins into my warren, I cannot take them 
 from his hands for "damage feasant." And this by Herle 
 in Replevin, etc. 
 
 The case has not been identified in Hilary, 7 Ed. Ill, but it is abridged 
 by Fitzherbert in Avowrie, 199, in practically the same words as those 
 used by Statham. 
 
 Trinity 
 19 Ed. III. 
 
 Case 69. 
 
 (69) If a man avows for brewing against the assize, he 
 cannot plead that his avowant or his ancestor enfeoffed him 
 by his deed to hold by one penny for all services and cus- 
 toms, etc., and because he did not pay by reason of such 
 tenure but by reason of his residency, etc.^ And then 
 avowant shall show in such a case that he had had time, 
 etc., for every gallon brewed two gallons of beer, and that 
 he had been used to distrain for that, time, etc. And in 
 that case he should bind the seisin of the plaintiff, or of such 
 a one whose estate he has, in the same house in which he 
 brews, etc. 
 
 There is no early printed Year Book of 19 Ed. III. The case has 
 not been identified in the Rolls Series for that year. 
 
 ' See the word "receant" in La Curne de St. Pelaye, 
 
ADJOURNMENT 213 
 
 ADJOURNMENT 
 
 (1) When the parties are adjourned upon a plea which Paschal 
 is adjudged void in law, he who pleaded the plea can plead ^^ ^'^' "' 
 other matter which is relevant to the first plea, but no 
 
 other matter. As appeared in a Mort d'Ancestor, which 
 see. Well [debated], etc. 
 
 Reported in Y. B. Paschal, 42 Ed. Ill, p. 11, pi. 16. See also Brooke, Case 1. 
 Adjournment, 1. 
 
 (2) See good matter as to Adjournment in the title of J^'^J^^'^ 
 Certification, etc., where Hankford held that the justices 
 
 in a certification could not adjourn the matter. As ap- 
 peared in a Mort d'Ancestor, which look at carefully, etc. 
 
 Reported in Y. B. Mich. 12 Hen. IV, p. 9, pi. 18. See also Brooke, Case 2. 
 Adjournment, 3; and Fitzh: Adjournment, 3. 
 
 (3) One was associated with a justice of the assize in pais, Hilary 
 and the association was "hac vice." And because of the 
 difficulty they adjourned the assize before them to West- 
 minster, on which day Hankford said that they had not 
 power to adjourn the assize, inasmuch as the association 
 
 was "hac vice," in which case their power was ended the 
 same day, etc. And the opinion of the Court was that 
 the adjournment was good, and that these words "hac vice" 
 had relation to all the time that the assize was pending, etc. 
 Well debated, etc. 
 
 Reported in Y. B. Paschal (not Hilary), 12 Hen. IV, p. 20, pi. £. Case 3. 
 And see also a long residuum in the same year in Trinity Term, p. 22, 
 pi. 1. See also Brooke, Adjournment, 4; and Fitzh: Adjournment, 4. 
 
 (4) In an assize for rent the tenant pleaded "out," etc. Michaeiis 
 
 ™ . . ..^ . , , TT • J 1- ^-11 38 Ed. III. 
 
 The plamtiff said that one H was seised of certain land, 
 
 and granted the rent to one B, who granted the rent to 
 
 him; and he did not show the first deed. And upon that 
 
 they were adjourned. And then in the Bench they showed 
 
 the deed. Fyncheden: This is too late now. Thorpe: 
 
 No, sir, since it is to avoid the title, but it is otherwise when 
 
214 
 
 STATHAM 
 
 it is to avoid the bar, etc. And so it was adjudged. Query- 
 as to the difference? 
 Case 4. Not identified in Y. B. Mich. 38 Ed. Ill, or in the early abridgments. 
 
 AMENDMENTZ 
 
 Statham 26 a. 
 
 Michaelis 
 2 Hen. IV. 
 
 Case 1. 
 
 (1) A nisi prius was sent to the justices of NisiPrius 
 as to the damages of one hundred shillings in a writ of 
 Trespass. And the jurors found for the plaintiff to the 
 damage of twenty pounds. And the principal record in 
 the Bench was one hundred pounds. And all the matter 
 was shown here in the Bench, and by advice, etc., the 
 record of the Nisi Prius was amended and made accordant, 
 etc., because it was an error of the clerk. And it was 
 adjudged that the plaintiff should recover twenty pounds. 
 (Which note, for the party made a bill of exception to this, 
 and one of the justices sealed it.) 
 
 Reported in Y. B. Mich. 2 Hen. IV, p. 6, pi. 23. See also Fitzh: 
 Amendment, 8. 
 
 Hilary (2) A bill can be amended in the Exchequer for an error 
 
 2 Hen. IV. q£ ^^le clerk, as well after the exceptions as before, etc. 
 
 Case 2. Reported in Y. B. Mich, (not Hilary), 2 Hen. IV, p. 4, pi. 10. See also 
 
 Fitzh: Amendment, 7. 
 
 Paschal 
 40 Ed. III. 
 
 Case 3. 
 
 Case 4. 
 
 (3) If the process be wrongly continued, the judges will 
 return to the commencement of the same process, and where 
 it was bad they will amend it, etc. 
 
 Reported in Y. B. Paschal, 40 Ed. Ill, p. 15, pi. 5; and Trinity, 
 40 Ed. Ill, p. 30, pi. 9. See also Brooke, Amendment, 16; and Fitzh: 
 Amendment, 12. 
 
 (4) If a grand cape be awarded instead of the petty cape, 
 the justices can amend it. But if the writ be brought 
 against me in the name of J, and the process is continued 
 against B, that cannot be amended, etc. By Fyncheden, 
 in a PrcBcipe quod Reddat. 
 
 Statham gives no citation for this case. It has not been identified in 
 the year books or the early abridgments. 
 
AMENDMENTZ 215 
 
 (5) If there be error in a process, the judges can amend Michaeiis 
 it after judgment, if it be in the same term, although it be ^ ^^"' ^^' 
 entered in the roll, for all the term the record is in them and 
 
 not in the roll. And although a writ of Error comes to 
 them, in such case they will not put it in the record, but 
 will amend it. And this in the case of HallyTvell. 
 
 The case has not been identified in Y. B. Mich. 7 Hen. VI. The Case 5. 
 point is in a manner contained in a number of cases in 7 Hen. VI, 
 though not in Michaelmas term. Brooke and Fitzherbert also have a 
 number of cases on the point, but none which can be said to be posi- 
 tively identical with this case. 
 
 (6) If a writ of re-summons be in disagreement with the Paschal 
 original, it cannot be amended, notwithstanding it is a *"" 
 judicial writ; because it is in a manner original, as a Scire 
 Facias out of a fine it cannot vary, etc. And the law is the 
 same in a re-attachment; by the opinion of the Court in 
 Detinue, etc. 
 
 The case has not been identified in Y. B. Paschal, 4 Hen. VI, or in Case 6. 
 the early abridgments. 
 
 (7) In debt the inquest found for the plaintiff. Yelver- Michaeiis 
 TON : You should not go to judgment, for in the original ^^ ^^"' ^'• 
 the defendant is named of Eston and in all the process after, 
 
 etc., of Weston, etc., and so a discontinuance, etc. New- 
 ton : The Sire de Lowell once for one put in a warrant of 
 attorney, to wit : that the said lord pro loco sua in a Scire 
 Facias, whereas there was no such writ pending, but a 
 Formedon; and yet the warrant was amended according 
 to the fact. And also in a writ against a husband and his 
 wife, the wife had been left out, and yet it had been 
 amended. Wherefore it was amended, etc. 
 
 The case has not been identified in Y. B. Mich. 18 Hen. VI, or in the Case 7. 
 early abridgments. 
 
 (8) If the process does not agree with the baptismal Hilary 
 name, it cannot be amended ; and this in Debt. Query, if ^0 Hen. vi. 
 the judges can amend the original writs in any case, etc., 
 inasmuch as they are made in another Court, etc. ? 
 
 Reported in Y. B. Hilary, 20 Hen. VI, p. 18, pi. 7. Case 8. 
 
216 
 
 STATHAM 
 
 Trinity 
 
 22 Hen. VI. 
 
 Case 9. 
 
 (9) The judges allowed the sheriff to amend the name, 
 where in a Venire Facias it was Robert and in the distraint 
 Richard, although the sheriff had returned the issues upon 
 Robert; and he lost the issues if he made a default, etc. 
 In the case of Fitzwilliam. 
 
 The case has not been identified in Y. B. Trinity, 22 Hen. VI, or in 
 the early abridgments. 
 
 Trinity (10) A WTit of debt was brought by J. Hull, where the 
 
 22 Hen. VI. obligation was J. Hill, and it was amended notwithstanding 
 
 it was an original [bill] etc. But they said it is otherwise 
 
 when it is on the part of the defendant. 
 
 Case 10. Reported in Y. B. Hilary (not Trinity), 22 Hen. VI, p. 43, pi. 26. 
 
 See also Brooke, Amendment, 40; and Fitzh: Amendment, 31. 
 
 Michaelis 
 22 Hen. VI. 
 
 Case 11. 
 
 Anno 
 
 11 Hen. VI. 
 
 Case 12. 
 
 (11) In debt, a release by the plaintiff was pleaded in bar. 
 The plaintiff said "not his deed," and as to this he put him- 
 self upon the country, and this was questioned and it was 
 amended after verdict. 
 
 The case has not been identified in Y. B. Mich. 22 Hen. VI, or in the 
 early abridgments. 
 
 (12) A writ of forgery of deeds was amended notwith- 
 standing the writ was an original. And the writ ran 
 "ygmaginavit" where there is no such Latin, but it should 
 be imaginatus est, etc. 
 
 Reported in Y. B. Mich. 11 Hen. VI, p. 2, pi. 5. See also Brooke, 
 Amendment, 81; and Fitzh: Amendment, 24. 
 
 Statham 26 b. 
 
 ATTACHMENT SUR PROHIBICION 
 
 Michaelis 
 44 Ed. III. 
 
 (1) In an attachment upon a prohibition, because the 
 defendant had summoned the plaintiff at Canterbury to 
 appear in Lincoln before, etc., to answer for hay, timber, 
 and other things which had nothing to do with matrimony 
 or wills, the process was continued until he was excom- 
 municated. Belknap challenged the writ because it was 
 brought in the county of K, and the grievance was in the 
 
ATTACHMENT SUR PROHIBICION 217 
 
 county of L. Thorpe: He was summoned to Canterbury 
 because the grievance was there. And suppose he was 
 summoned to Rome shall he not have an action for that 
 where he was summoned? (As if he said he would.) 
 Wherefore answer, etc. And the defendant said it was for 
 tithes, Ready. And the other alleged the contrary. And 
 the jury came from the county of K, etc. It seems that 
 it should have been tried by a certification of the Court 
 Christian. 
 
 Reported in Y. B. Mich. 44 Ed. Ill, p. 32, pi. 14. See also Brooke, Case 1. 
 Attachment upon Prohibition, 3; and Fitzh: Attachment upon Prohi- 
 bition, 6. 
 
 (2) Three sued an attachment upon a prohibition Hilary 
 against one H, because he had sued a plea in a Court 
 Christian for great trees, etc., until they were put out of 
 
 the church, 1 etc. Fencot: Judgment of the writ brought 
 by them in common, for the grievance of one cannot be the 
 grievance of the others. Hankford: The woods were 
 in us in common, wherefore, etc. And for this reason the 
 writ was adjudged good etc. 
 
 Reported in Y. B. Hilary, 50 Ed. Ill, p. 10, pi. 21. See also Brooke, Case 2. 
 Attachment upon Prohibition, 5; and Fitzh: Attachment upon Prohibi- 
 tion, 7. The two abridgments and the report of the case are singularly 
 diverse in many points, yet there can be little doubt that both abridg- 
 ments refer to this case. 
 
 (3) In an attachment upon a prohibition because the Michaeiis 
 
 yf ft Tj*^ TTT 
 
 defendant was in the Court Christian against the plaintiff 
 for things which belonged to the King's Court; and he 
 showed what things, etc. The defendant said that he took 
 the turkeys, to wit, those same things which were devised 
 to him by the testator of the plaintiff. And the plaintiff 
 showed a deed in the same Court Christian, by which the 
 goods were given to him by the testator himself: and he 
 set forth the proof, etc. And after we were concluded in 
 the case the prohibition was delivered, etc. Ham: The 
 goods were given to us, without this that we were executor 
 or administrator, etc. Fyncheden : That is not at all to the 
 
 ' Into the Chancery. 
 
218 
 
 STATHAM 
 
 Case 3. 
 
 Michaelis 
 21 Ed. III. 
 
 Case 4. 
 
 Michaelis 
 9 Hen. IV. 
 
 Case 5. 
 
 Michaelis 
 9 Hen. VI. 
 
 purpose, whether you were executor or not, since the cause 
 will not be tried here, to wit: whether this action were 
 false or true, wherefore you shall take nothing by your writ, 
 etc. See the Statute, Anno 18 Ed. III. 
 
 Reported in Y. B. Mich. 46 Ed. Ill, p. 32, pi. 37. See also Brooke, 
 Att. upon Pro. 4. The Statute is that of 18 Ed. Ill, Stat. 3, cap. 6, 
 (Statute of the Clergy), Stats, at Large, Vol. 2, p. 16. 
 
 (4) One sued an attachment upon a prohibition because 
 the defendant sued in the Court Christian, a thing, etc. 
 Sharshull: He did not sue after the prohibition was 
 delivered to him. Willoughby: That is no plea, for he 
 should not have any answer to the delivery of the prohibi- 
 tion, albeit there was never any prohibition delivered, for the 
 Statute is a prohibition in itself. Wherefore he said that 
 he had not sued any plea in the Court Christian on a lay 
 fee, Ready. Query, how could that be tried? etc. 
 
 Reported in Y. B. Mich. 21 Ed. Ill, p. 29, pi. 5. See also Brooke, 
 Att. upon Pro. 9; and Fitzh: Att. upon Pro. 13. For the Statute see 
 case 3, supra. 
 
 (5) One sued an attachment upon a prohibition because 
 the defendant sued to the Court of Rome for something 
 which belonged to the Court of the King, to wit: for a mare. 
 The defendant showed how he was vicar of B, and after 
 the death of any one of his parishioners he should have his 
 best beast in the name of a mortuary, and how one J, who 
 was his parishioner, died, and this mare was his best beast, 
 and the plaintiff disturbed him from taking it, wherefore 
 he sued in the Court of Rome, as well he might, etc. Bel- 
 knap: He had possession of the beast before he sued. 
 Thirning: Still he sued in right of the mortuary and he 
 did well, which Hankford conceded. 
 
 The case does not appear in the short printed year of 9 Hen. IV, but 
 what appears to be the same case is found in Y. B. Mich. 10 Hen. IV, 
 p. 1, pi. 2, 1 Pramunire Facias. See also Fitzh: Att. upon Pro. 12. 
 
 (6) The Abbot of E came in by an attachment upon 
 a prohibition. And the plaintiff counted that he made an 
 appointment with him to be before the ordinary such a 
 day, year, and place, etc., to answer for the tithes of great 
 
ATTACHMENT SUR PROHIBICION 219 
 
 trees, to wit: "silva cedua." Fulthorpe: We ask you to 
 record that he does not plead any Statute, and we say that 
 no prohibition was deHvered to us. Ready, etc. MartyN: 
 That is not to the purpose, a prohibition is in itself, etc. 
 Fulthorpe : Justified as having tithes for great trees, to 
 wit: "silva cedua'' by prescription and binds seisin in him 
 as it would seem. NewtoN: To the plea pleaded by the 
 manner, etc. And so to judgment, etc. Query as to this 
 matter, for it does not appear by his declaration whether 
 the action was brought upon the Statute or at the common 
 law, for he should not recite the Statute because there 
 was such an action at the common law. But whether 
 it be one or the other it seems that the prescription is of 
 no value, etc., for a private person cannot prescribe in a 
 thing which is prohibited by the law, etc. 
 
 The case has not been idertified in Year Book 9 Hen. VI, or in the Case 6. 
 early abridgments. The Statute (if any definite Statute is here meant) 
 is probably that of 46 Ed. Ill, Cap. 3, Stals. at Large, Vol. 2, p. 190. 
 "A prohibition shall be granted where a suit shall be commenced in a 
 spiritual court for Sylva Cadva." 
 
 (7) In an attachment upon a prohibition the plaintiff Hilary 
 should count that he delivered the prohibition to the ^ *^^"' ^'' 
 defendant such a day, year, and place, in the presence 
 
 of such a one and such a one; albeit the party shall not have 
 an answer to the delivery, etc. Query, if the attachment 
 be founded on the prohibition at the common law, of which 
 no Statute speaks, etc., if the defendant shall have an 
 answer to the delivery, etc.? 
 
 Reported in Y. B. Hilary, 9 Hen. VI, p. 61, pi. 12. See also Fitzh: Case 7. 
 Attachment upon Prohibition, 2. 
 
 (8) One had a prohibition to the steward of the Court Hilary 
 
 of the manor of B, commanding him that he should not ^^ ^^"- ^^• 
 proceed in a plea before him, which amounted to the 
 sum of forty shillings; and because he would not cease, 
 he sued an attachment against him, and also against the 
 plaintiff in the said suit. PortyngtoN: It appears by the 
 writ that he should have had several writs, to wit: a writ 
 
220 
 
 STATHAM 
 
 Case 8. 
 
 against the steward and another against the plaintiff. 
 Newton: No, sir, for it is but one entire tort. But it 
 seems that the writ is not good for another reason, for 
 the attachment relates that one had sued against the 
 prohibition and the other against the law of England, for 
 the prohibition was only directed to the steward, so to 
 join them together in one writ was wrong, etc. Query? 
 
 Reported in Y. B. Hilary, 19 Hen. VI, p. 54, pi. 17. See also Brooke, 
 Attachment upon Prohibition, 11; and Fitzh: Attachment upon 
 Prohibition, 3. 
 
 Statham 27 a. 
 
 ASSETZ PAR DISCENT 
 
 Hilary 
 
 43 Ed. III. 
 
 Case 1. 
 
 Paschal 
 7 Hen. IV. 
 
 (1) In a scire facias to have execution out of a fine 
 by which the land was rendered to one B for life, the remain- 
 der to one C in tail. And the demandant as heir to C 
 demanded execution. Belknap: Your father confirmed 
 our estate for the term of our life, with warranty, and you 
 have assets by descent, judgment, etc. Canndish: Our 
 father was indebted to the king, who seised this same land 
 which you allege descended to us, and committed this same 
 land to us until the debt should be raised, which debt never 
 was raised, without this that we have any other land by 
 descent. Belknap: And we, judgment, since you are 
 seised of the freehold, and of the fee, etc. And so to judg- 
 ment. (He did not say that the king was seised in the life 
 of his father, so the descent was not denied, etc.) 
 
 Reported in Y. B. Hilary, 43 Ed. HI, p. 9, pi. 27. See also Brooke, 
 Assets by Descent, 9. 
 
 (2) Although nothing descends to the heir except 
 lands in ancient demesne, still he shall be charged by that 
 descent by a writ of Debt, as heir to his father ; by Hank- 
 FORD and Hilary. But the plaintiff shall not have execution 
 of that land, for the sheriff cannot put him in execution 
 of it, for then it would be a free fee. Query, how then 
 should he have execution? For it is not reasonable that 
 any other thing be put in execution, except the land which 
 
ASSETZ PAR DISCENT 221 
 
 descended, etc. Query, if he shall have execution of land 
 which descended afterwards, as in Formedon, etc., by a 
 Scire Facias, etc.? And query, if such assets in ancient 
 demesne are a bar in Formedon, etc. ? 
 
 Reported very briefly in Y. B. Paschal, 7 Hen. IV, p. 14, pi. 11. Case 2. 
 The abridgment is longer than the reported case. See also Brooke, 
 Assets by Descent, 11. 
 
 (3) Where assets by descent are pleaded in Formedon, Michaeiis 
 the demandant can say that the same ancestor had nothing ^^ ^*°- ^^• 
 in the same land which descended to him, except by a 
 disseisin made on another who had entered. Or else he 
 can say that after the death of his ancestor he waived the 
 possession, for the above reason: by Haltoste in Debt, in 
 the Exchequer, etc. 
 
 The case has not been identified in Y. B. Mich. 35 Hen. VI, or in the Case 3. 
 early abridgments. 
 
 ACCORDE 
 
 (1) If I plead an accord in bar, in a writ of Trespass, or Michaeiis 
 other action in which such a plea lies, it is necessary for me ^0 Hen. VI. 
 to allege in fact that the plaintiff was satisfied, to wit: that 
 an agreement was made between the plaintiff and the 
 defendant that the defendant should pay him for all in 
 debate, etc., which he has paid; and not to say, "which he 
 is ready to pay" as in an arbitration, etc. For upon an 
 arbitrament the plaintiff can have an action of debt, but not 
 upon an accord, etc. 
 
 And it was said in the same plea that there cannot be 
 an accord except between the parties, for if another man 
 be a party to it, it is an arbitration and not an accord, 
 because when he pleads the accord he shall not say that "by 
 the mediation of their friends" this accord was taken, etc. 
 In Trespass in the King's Bench, etc. Query, if an accord 
 can be pleaded in an action of debt, etc., since such an 
 accord cannot be pleaded except where it appears by the 
 action that a wrong was done by the defendant to the 
 
222 
 
 STATHAM 
 
 Case 1. 
 
 Hilary 
 
 36 Hen. VI. 
 
 Case 2. 
 
 plaintiff, etc. And if in debt a man can say that as to this 
 debt and all trespasses an accord was taken, as one pleads 
 in an arbitration, etc. ? 
 
 Reported in Y. B. Paschal (not Mich.), 30 Hen. VI, p. 4, pi. 6. See 
 also Fitzh: Accord, 5. 
 
 (2) In trespass it is a good plea that one H gave to the 
 plaintiff two shillings in satisfaction of a trespass, which 
 he received, judgment, etc. And the opinion was that 
 it was a good plea notwithstanding the said H was not a 
 party to the trespass. 
 
 The case has not been identified, but in Y. B. Mich. 36 Hen. VI, 
 p. 8, pi. 5, there is a very long case where the law of accord is "well 
 debated." 
 
 AMERALTIE 
 
 statham27b. (1) See the powcr of the Court of Admiralty well dis- 
 Michaeiis cussed in the title of Replication; and that in Michaelis 18 
 18 Hen. VI. Hen. VI.i 
 
 Case 1. The citation has not been identified in Y. B. Mich. 18 Hen. VI. 
 
 HUary 
 2 Ed. III. 
 
 Case 1. 
 
 AD OUOD DAMPNUM 
 
 (1) Ad quod dampnutn shall not be as to anything which 
 belongs to the crown and dignity of the king. As if the 
 king grants to me to have return of writs and like things, 
 etc.; by the opinion, etc., in an Ad Quod Dampnum, etc. 
 Query? 
 
 The case has not been identified in Y. B. Hilary, 2 Ed. III. 
 
 ABBE 
 
 Hilary (1) An abbot shall not be charged by his co-monk for 
 
 ^"' ^^* anything done after his entry into religion, if it be not to the 
 
 * The reference is to Statham, title of Replicacion and Rejoynder, 
 p. 151 b, case 1, infra. 
 
ABBE 223 
 
 use of the house; by Fortescue, in the case of the Abbot 
 of Westminster. 
 
 Reported in Y. B. Mich, (not Hilary), 22 Hen. VI, p. 4, pi. 4. See Case 1. 
 also Brooke, Abbe and Prior, 8; and Fitzh: Abbe, 20. 
 
 (2) An abbot shall be charged for a contract made by an Trinity 
 officer of the house to the use of the house. And this in ^^ ^'*" ^^^' 
 Debt, etc. 
 
 Reported in Y. B. Mich, (not Trinity), 25 Ed. HI, p. 48, pi. 2. (In Case 2. 
 the edition of 1679 there is a confusion in the pagination of the years 
 24 and 25 Ed. III. The paging is continuous, and so p. 48 of Ed. Ill, 
 becomes p. 91 in the "vulgate" as Maitland called it. Mich. 25 Ed. 
 Ill, p. 91, pi. 2). See also Fitzh: Abbe, 19. 
 
 (3) If the abbot and the convent seal a deed with my S^'p^^^nr 
 seal the successor shall be charged, etc. 
 
 The case has not been identified in Y. B. Mich. 22 Ed. III. Fitzh: Case 3. 
 Abbe, 21, has a very short abridgment. He has it "a" seal, not "my" 
 seal. 
 
 (4) An abbot without a convent can by a fine bind his i" iter 
 successor, to wit: acknowledge for himself and his sue- f^ po ' 
 cessors, but not by a deed enrolled, etc. (Note the dis- 
 tinction). And this in an Iter of Cornwall, folio primo. 
 (And so can the bishop, as it seems, etc.) 
 
 We have not the printed Eyre of Cornwall which is cited. Fitzh: Case 4. 
 Abbe, 21, has the case. 
 
 (5) If an abbot acknowledges a deed, in an action brought Anno 
 against him, that will bind his successor; as was held in 20 Hen. vi. 
 Debt, in the King's Bench. 
 
 Reported in Y. B. Trinity, 20 Hen. VI, p. 45, pi. 36. See also Fitzh: Case 5. 
 Abbe, 22. 
 
 (6) An abbot was charged by a deed made by his prede- Trinity 
 cessor and the convent, by the words "Sigillum nostrum 22 Hen. vi. 
 apposuimus" ; and it did not say, "Sigillum nostrum com- 
 mune" or "conventuale," etc. In Debt. 
 
 Reported in Y. B. Mich, (not Trinity), 22 Hen. VI, p. 4, pi. 6. See Caae 6. 
 also Fitzh: Abbe, 24. 
 
224 
 
 STATHAM 
 
 Hilary (7) See in the title of debt an action was brought 
 
 ^°' ■ against an abbot on a contract made by his predecessor. 
 Good matter. Hilary 20 Henry VI. 
 
 Case 7. Reported in Y. B. Hilary, 20 Hen. VI, p. 45, pi. 36. 
 
 Hilary 
 
 25 Ed. III. 
 
 Case 8. 
 
 (8) If an abbot who is a parson emparsoni by appropria- 
 tion can charge without his ordinary, inasmuch as he is 
 patron; and shall he have aid of the ordinary, and has 
 the bishop correction of him as of other persons? Since 
 from that it would follow that he should examine every 
 abbot as to his ability, etc. And it seems that he shall 
 have aid of himself and of the ordinary; and so it was 
 adjudged, Hilary, 25 Ed. HI, in Annuity. 
 
 The case has not been identified in Y. B. Hilary, 25 Ed. Ill, or in the 
 early abridgments. 
 
 BASTARDIE 
 
 statham 28 a. (1) In an assize, the bishop certified that the plaintiff 
 Trinity was legitimate, and this by special matter. And it was 
 
 adjudged good, etc. And there was also a writ which 
 issued to the bishop for certification, which was returnable 
 at their next session ; on which day no justices came, where- 
 fore the assize was re-attached to another day, on which 
 day the bishop certified, and it was admitted, etc. See 
 the Statute of Bastardy and the proclamation, etc. 
 
 Case 1. The case has not been identified in Y. B. Trinity, 43 Ed. Ill, or in the 
 
 early abridgments. Statute of Bastardy. See 20 Hen. Ill, cap. 9, 
 Stats, at Large, Vol. 1, p. 31. 
 
 Paschal 
 44 Ed. III. 
 
 Case 2. 
 
 (2) If a man marries a woman who is enceinte by another 
 man at the time of the marriage, that issue will be a bastard. 
 But it is otherwise if she be enceinte by himself, etc. But 
 the issue as to legitimacy shall be tried as to whether she was 
 first enceinte by him or another at the time of the marriage. 
 And this in a Scire Facias, etc. See as to Bastardy in the 
 Book of Assizes, etc. 
 
 Reported in Y. B. Paschal, 44 Ed. Ill, p. 12, pi. 21. 
 
BASTARDIE 225 
 
 (3) If the defendant alleges bastardy generally, and 
 the plaintiff shows that such a one, his father, took his 
 mother to wife, within which espousals he was bom and 
 was legitimate, the defendant shall have no answer to that 
 special matter, but should maintain his issue. (But yet 
 it seems that this shall be tried by the country; and there- 
 fore it is good for the defendant to show special matter 
 at the commencement.) Query as to this? 
 
 Statham omits the citation to this case, which is, therefore, unidenti- Case 3. 
 fied. 
 
 (4) One brought a scire facias to execute a remainder Hilary 
 as heir, etc., and he showed how one H married one K, ^"" 
 his mother, between whom he was the issue. HuLs: 
 Execution, etc., for a long time before the marriage, etc., 
 
 this K was enceinte by one P, of this same demandant, and 
 afterwards she was married as [was said] before and then 
 she eloped from her husband and went to the said P, and 
 lived with him for a quarter of a year, within which time the 
 demandant was born; judgment if he shall be received as 
 heir, etc. Rolff: That is no plea. And, first, the elope- 
 ment is not to the purpose, but the strength of the plea is that 
 she was enceinte. And sir, "enceinte" and "not enceinte" is a 
 good issue, and shall be tried by women ; but he said that she 
 was enceinte by one P, and that cannot be tried, for if it be 
 so he is a bastard, and the son of no one, etc. And also a 
 woman has been enceinte for four years, etc. Strange: 
 If he had said that the demandant was the son of one who 
 was her first husband and he was bom after the marriage 
 between H and herself, that had been a good plea to bastard- 
 ize him by such special matter, as to say that her husband 
 was of the age of eight years. And then by advice execution 
 was awarded, etc. 
 
 Reported in Y. B. Mich, (not Hilary), 1 Hen. VI, p. 3, pi. 8. See also Case 4. 
 Brooke, Bastardy, 26; and Fitzh: Bastardy, 1. 
 
 (5) See by Thorpe in an assize, that a divorce can be Michaeiis 
 made after the death of both [of those] who were married, ^^ ^'^- "'• 
 etc. And by the divorce their issue shall be bastardized. 
 
226 
 
 STATHAM 
 
 but Fyncheden [said] that this cannot be except the issue 
 be made a party to it. And when this matter is taken 
 before the ordinary, the ordinary should make process 
 against the issue, etc. 
 
 And see in the same plea, the tenant alleged a general 
 bastardy, and the plaintiff showed special matter which 
 was triable by the country to which the tenant was made 
 to answer. 
 
 Case 5. Reported in Y. B. Mich. 39 Ed. Ill, p. 31, pi. 35. See also Brooke, 
 
 Bastardy, 23. 
 
 Trinity 
 
 11 Hen. IV. 
 
 Case 6. 
 
 (6) General bastardy certified by the Bishop will pre- 
 clude strangers as well as privies. But where the bishop 
 certifies that one is legitimate, still a man can allege special 
 bastardy in him, for that is not contrary to the certification 
 of the bishop, for he may be legitimate by the law of the 
 church and a bastard by our law. But if he be a bastard 
 by the law of Holy Church he is wholly bastard in our law 
 and the bishop cannot certify twice, wherefore, etc. 
 
 Reported in Y. B. Trinity, 11 Hen. IV, p. 84, pi. 32. 
 Bastardy, 12; and Fitzh: Bastardy, 6. 
 
 See also Brooke, 
 
 HUary 
 7 Hen. IV. 
 
 Case 7. 
 
 (7) If a man pleads special bastardy in me, I may choose 
 to answer to the special matter, or else to say "legitimate 
 and not bastard" and not answer the special matter; for 
 all the special matter amounts to nothing more than to 
 bastardize him ; by Thirning in a Scire Facias. 
 
 And simile Anno 6 Ric. II. (But yet I believe that this 
 is not the law, for he should answer to the special matter 
 as it seems.) 
 
 Reported in Y. B. Hilary, 7 Hen. IV, p. 9, pi. 13. See also Brooke, 
 Bastardy, 8; and Fitzh: Bastardy, 4. 
 
 HUary 
 
 18 Hen. VI. 
 
 Case 8. 
 
 (8) Bastardy alleged in Trespass shall be tried by the 
 county and not by the Bishop; by the opinion of the 
 Court in Trespass. 
 
 The case has not been identified in Y. B. Hilary, 18 Hen. VI, or in 
 the early abridgments. 
 
BASTARDIE 227 
 
 (9) Bastardy shall be tried by the bishop where the land HUary 
 
 is, notwithstanding the marriage is alleged to have been ^ ^^"' ^^' 
 in another diocese. And this in a Cui in Vita, etc. 
 
 The case has not been identified in Y. B. Hilary, 7 Hen. IV, or in the Case 9. 
 early abridgments. 
 
 (10) If a bastard enters as heir and dies seised, his issue Hilary 
 shall hold the land, and the lawful issue shall be estopped ^ ^'^' ^^^' 
 from bastardizing him in an assize of Mort d'Ancestor 
 brought by the legal issue for the land, but for other lands 
 
 he can bastardize him. This is also understood where the 
 bastard is the oldest son ; and this in a Mort d'Ancestor, 
 etc. Simile in the time of King Edward the First, in 
 different places, etc. (But yet it is strange law!) 
 
 The case has not been identified in Y. B. Hilary, 2 Ed. HI, or in the Case 10. 
 early abridgments. 
 
 (11) Divorce because of kinship between the parents Anno 
 shall not bastardize; by the opinion of the Court. And [fono ultimo.] 
 this in a note, etc. 
 
 There are no early printed Year Books for 29 Ed. I. The citation Case 11. 
 seems to be to some Eyre. 
 
 (12) Although the bastard continues in possession, as Michaeiis 
 above, still, for other lands which descend to his issue after- 
 wards, the lawful issue can enter, and his entry is legal. 
 
 And it was said in the same plea that where he died 
 seised, without claiming, and without issue, the lord shall 
 not have the land by escheat against the legal issue. And 
 this in an assize of Novel Disseisin. Query, if the lawful 
 issue brought a writ of right against the issue of the bastard, 
 if such a continuance would cause him to have a right 
 against the lawful issue. It seems not, etc. 
 
 The case has not been identified in Y. B. Mich. 14 Ed. II, or in the Case 12. 
 early abridgments. 
 
 BRIEFER" Statham28b. 
 
 (1) In debt against a husband and his wife the woman Michaeiis 
 was called M, at Stile, which was the name of her father, ^ *^^°- ^^- 
 
228 
 
 STATHAM 
 
 Case 1. 
 
 and by this name she was bound. But yet, because by 
 the taking of a husband she had lost her name, the writ 
 was abated. Query, how shall the writ be in that case, etc? 
 
 Reported in Y. B. Mich. 2 Hen. IV, p. 1, pi. 5. See also Brooke, 
 Briefe, 52; and Fitzh: Briefe, 207. 
 
 Michaelis 
 2 Hen. IV. 
 
 Case 2. 
 
 (2) In trespass, the defendant justified for rent in arrear 
 to his master, and asked judgment of the writ vi et armis, 
 and the opinion was the servant was not in the purview 
 of the Statute, to wit: non idea puniatur dominus. 
 
 Reported in Y. B. Mich. 2 Hen. IV, p. 4, pi. 11. See also Fitzh: 
 Trespass, 399. 
 
 The Statute is that of 52 Hen. IV, Marlbridge, cap. 111. Stats, 
 at Large, Vol. 1, p. 67. 
 
 Michaelis 
 2 Hen. IV. 
 
 Cases. 
 
 (3) The Bishop of Winchester brought a writ of Tres- 
 pass against several. And in the pone one was mis-named, 
 and notwithstanding that they could have answered 
 separately in that writ, the writ was abated against all. 
 But it is otherwise if there are several pones or several 
 prcBcipes. 
 
 Reported in Y. B. Mich. 2 Hen. IV, p. 8, pi. 40. See also Fitzh: 
 Briefe, 209. 
 
 Paschal 
 2 Hen. IV. 
 
 Case 4. 
 
 (4) The Bishop of Winchester brought a quod per- 
 mittat against the abbot of Hyde "Quod Permittat episcopum 
 redunde cursum cujusdam aquce in Hyde, quern W, predeces- 
 sorum prcsdicti abbaiis duxit ad nocumentum sibi tenementum 
 sui. ' ' And the writ was abated. That he permitted. 
 
 Reported in Y. B. Mich, (not Paschal), 2 Hen. IV, p. 13, pi. 55. 
 See also Brooke, Briefe, 529. (That he permitted his bishop to destroy 
 the course of his water in Hyde, which W, the predecessor of the afore- 
 said abbot had cut, to the damage of his free tenement.) 
 
 Paschal 
 2 Hen. IV. 
 
 (5) In a formedon, the tenant prayed aid of the king 
 and had it. And then the procedendo came and the 
 tenant said that the demandant had made an omission of 
 the descent, etc., and he asked judgment of the writ. 
 Rikhil: He has prayed aid, wherefore, etc. Hankford: 
 
BRIEFE 229 
 
 We have seen that the reversion is in the king, who should 
 not lose through your false writ, wherefore answer him, etc. 
 
 Reported in Y. B. Paschal, 2 Hen. IV, p. 19, pi. 15. See also Brooke, Case 5. 
 Brief e 97; and Fitzh: Brief e, 212. 
 
 (6) If a man recovers against me pending another writ Hilary 
 against me, if he does not sue execution the first writ stands 
 good, etc. In Wardship. 
 
 Reported in Y. B. Hilary, 40 Ed. Ill, p. 7, pi. 16. See also Brooke, Case 6. 
 Brief e, 39; and Fitzh: Brief e, 520. 
 
 (7) A bishop brought a writ of Wardship alleging that Hilary 
 the ancestor of the infant held of him. The defendant said *" ^^' ^^^' 
 that the same ancestor died in the time of your predecessor. 
 
 And the writ was abated, for it may be that the ancestor 
 held of his predecessor; and it seems that it belongs to his 
 executor, etc. 
 
 Reported in Y. B. Hilary, 40 Ed. Ill, p. 14, pi. 31. See also Brookei Case 7. 
 Briefe, 502; and Fitzh: Briefe, 521. 
 
 (8) A writ against a master of a college, leaving out his Paschal 
 soholars,' is good, by the opinion. And [see the] contrary, 
 
 for their possession is not the same as that of a dean and 
 chapter. And this in Debt. 
 
 Reported in Y. B. Paschal, 40 Ed. Ill, p. 23, pi. 23. Case 8. 
 
 (9) That which is nugatory does not abate the writ ; and 
 this in a Formedon. 
 
 Statham has no citation for this case, which is reported in Y. B. Case 9. 
 Paschal, 40 Ed. Ill, p. 25, pi. 29. See also Brooke, Briefe, 41 ; andFitzh: 
 Briefe, 525. 
 
 (10) In debt, the -writ was "PrtEcipe Priori de T," And Paschal 
 the obligation was " Prior e Monasterii deT." And because 
 
 of the disaccordance the writ was abated, etc. 
 
 Reported in Y. B. Paschal, 40 Ed. Ill, p. 25, pi. 30. Case 10. 
 
 'The printed report of the case gives "his chapter" intead of his 
 "scholars." 
 
230 
 
 STATHAM 
 
 Trinity 
 40 Ed. III. 
 
 Case 11. 
 
 (11) In a praecipe quod reddat, the tenant said that 
 the demandant had another writ pending against him for 
 the same land, in which he had the view, etc. And for this 
 reason the writ was abated. 
 
 Reported in Y. B. Mich, (not Trinity), 40 Ed. Ill, p. 35, pi. 3. See 
 also Brooke, Brief e, 43; and Fitzh: Brief e, 528. 
 
 The Year Book margin gives Statham, case 10, which would be cor- 
 rect if we did not include the case of "nugacion." 
 
 Michaelis 
 40 Ed. III. 
 
 Case 12. 
 
 (12) In dower, the demandant was nonsuited at the 
 Nisi Prius. And after this, and before the day in the 
 Bench, she purchased another writ. And although the 
 day in the Bench and the day in the Nisi Prius were all 
 one day [in law] the second writ was abated, since it was 
 purchased before the other writ was abated by judgment, 
 etc. 
 
 Reported in Y. B. Mich. 40 Ed. Ill, p. 38, pi. 12. See also Brooke 
 Briefe, 44; Fitzh: Brief e, 530. 
 
 Michaelis 
 40 Ed. III. 
 
 Case 13. 
 
 (13) If a writ be brought against a woman who takes a 
 husband pending the writ, the writ shall not abate because 
 that was her own deed. And this in Scire Facias, where 
 the writ was brought as above; and she took a husband, 
 and the demandant brought another writ against the hus- 
 band and the wife, which was abated, etc. (But yet it 
 was reasonable in that case, because the first writ was not 
 abated by a judgment.) 
 
 Reported in Y. B. Mich. 40 Ed. Ill, p. 44, pi. 28. See also Brooke, 
 Briefe, 45; and Fitzh: Briefe, 531. The margin of the Y. B. refers to 
 this case as Statham 12. See supra, case 11. 
 
 Michaelis 
 41 Ed. III. 
 
 Case 14. 
 
 (14) The writ was brought in H and W, and because W 
 was a hamlet of H, and he thus demanded one thing twice, 
 the writ was abated. 
 
 Reported in Y. B. Mich. 41 Ed. Ill, p. 22, pi. 12. See also Brooke, 
 Briefe, 50; and Fitzh: Briefe, 536. The margin of the Y. B. gives 
 Statham 13; Fitzh: 546, and Brooke, 51. 
 
BRIEFE 231 
 
 (15) In a writ of waste against the tenant for term of Michaeiis 
 life, after he who was in the reversion entered, by reason 
 
 that he alienated in fee, the writ was "qtiod tenet" and it 
 was adjudged good, etc. 
 
 This is apparently the case reported in Y. B. Mich. 41 Ed. Ill, p. 23, Case 15. 
 pi. 15. The report and the abridgment, however, are quite "disaccor- 
 dant." See also Fitzh: Brief e, 540, but Fitzherbert has lost his page. 
 
 (16) In a scire facias brought by two, one was sum- Hilary 
 moned and severed, and died ; and yet the writ stood good, 
 since by the severance he was out of court. 
 
 Reported in Y. B. Hilary, 42 Ed. Ill, p. 2, pi. 9. See also Brooke, Case 16. 
 Brief e, 53; and Fitzh: Briefe, 551. The margin of the Year Book is 
 right for Statham, but gives Brooke, 54, and Fitzh: 531. 
 
 (17) At the return of the great cape the tenant abated Hilary 
 
 li. -^ I ^^ ^4. 42 Ed. III. 
 
 the wnt for matter apparent, etc. 
 
 Reported in Y. B. Hilary, 42 Ed. Ill, p. 3, pi. 10. See also Brooke, Case 17. 
 Briefe, 54. The margin of the Year Book gives Statham 16. 
 
 (18) In a praecipe quod reddat against two who Paschal 
 vouched one J, who vouched one who said that one of the 
 tenants was dead, the writ was abated, etc. 
 
 The case has not been identified in Y. B. Paschal, 43 Ed. Ill, or in the Case 18. 
 early abridgments. 
 
 (19) If, pending the writ against the tenant, another Jl'^^^.j. 
 recovers against him, and pending the writ he sues execu- 
 tion and the tenant returns to the land, the first writ stands 
 
 good, for he shall say that he was tenant the day, etc. And 
 yet, etc. In Cosinage, etc. 
 
 Reported in Y. B. Trinity, 43 Ed. Ill, p. 21, pi. 9. See also Brooke, Case 19. 
 Briefe, 61. 
 
 (20) A man shall have a Quare Impedit for a prebend Michaeiis 
 in the county, where the body of the prebendary is, not- 
 withstanding the cathedral church, in which, etc., is in 
 another county. And the writ was good. 
 
 Reported in Y. B. Mich. 43 Ed. Ill, p. 33, pi. 42. See also Fitzh: Case 20. 
 Briefe, 566. Margin of Y. B. gives Statham, 19. 
 
232 
 
 STATHAM 
 
 Paschal 
 44 Ed. III. 
 
 Caee 21. 
 
 Trinity 
 46 Ed. III. 
 
 Case 22. 
 
 (21) In formedon the writ was "pfcecipe guod reddat 
 B, manerium, etc. F juxta K." Belknap: Part of the 
 manor of F is in K, judgment of the writ. And the opinion 
 was that the writ should abate, although it was known by 
 the same name. And from this it follows that as to a 
 manor which extends into different vills, every vill shall 
 be in the writ, or else he shall demand the manor, except, 
 etc. 
 
 Reported in Y. B. Paschal, 44 Ed. Ill, p. 12, pi. 23. See also Brooke, 
 Briefe, 67; and Fitzh: Briefe, 574. The margin of the Y. B. gives 
 Brooke, 68, Statham, 20. 
 
 (22) In trespass for goods carried away, it is no plea 
 to say that there was another writ pending for the same 
 trespass, unless the names of the vills agree, etc. Query, 
 for if a man should recover I should bar him by such matter 
 and aver that it was the same trespass, etc. But in a 
 battery one shall abate the writ by such a plea, because 
 it can be continued. 
 
 Reported in Y. B. Trinity, 46 Ed. Ill, p. 16, pi. 12. See also Fitzh: 
 Briefe, 602. The text of the abridgment in Statham is very corrupt. 
 
 Statham 29 a. 
 
 Trinity 
 44 Ed. III. 
 
 Case 23. 
 
 (23) In trespass "guare bona et cattalla cepit," etc. The 
 declaration was for barley taken. Hankford : Judgment 
 of the writ, for he should have a writ "guare tot guarteria 
 argei," etc. And the writ was adjudged good. But he 
 could not declare for so much silver, etc., taken, for that 
 which was taken must be certain, etc. 
 
 Reported in Y. B. Trinity, 44 Ed. Ill, p. 20, pi. 17. The margin 
 of the Y. B. gives Statham 20. 
 
 Hilary 
 
 48 Ed. III. 
 
 Case 24. 
 
 Hilary 
 
 30 Ed. III. 
 
 (24) In a cui in vita, the writ was "gtia clamat tenere 
 sibi et haeredibus de corpora suo exeunt." And it did 
 not mention by whose gift, and for this reason the writ 
 was abated, etc. It is otherwise in a Quod ei Deforceat, etc. 
 
 The case has not been identified in Y. B. Hilary, 48 Ed. Ill, or in the 
 early abridgments. 
 
 (26) In a praecipe quod reddat the tenant said that 
 on the day, etc., he had nothing in the land, but before 
 
BRIEFE 233 
 
 the writ was purchased he bought the reversion, and pending 
 the writ the tenant died, so we became tenant while the 
 writ was pending. Judgment, etc. 
 
 Reported in Y. B. Hilary, 30 Ed. Ill, p. 3, pi. 11. See also Fitzh: Case 26. 
 Briefe, 297. 
 
 (26) One made a statute merchant to the husband and Paschal 
 his wife, who made a defeasance, and against this sued ^ ^^' ^^'' 
 execution, wherefore he sued an Audita Querela against 
 
 them. And the writ was challenged because it should 
 have been against the husband alone. And the opinion 
 was that this was good. And this well debated , etc. 
 
 Reported in Y. B. Paschal, 48 Ed. Ill, p. 12, pi. 4. See also Brooke, Case 26. 
 Briefe, 80. 
 
 (27) If an abbot, prior, or bishop, brings an action, he Michaeiis 
 does not need to have this clause in the writ, to wit: "if 
 
 the plaintiff makes you secure," etc., for the law will con- 
 sider that they are sufficient, etc. And the law is the same 
 for a Mort d'Ancestor by one under age, to wit: various 
 clauses may be left out. By the opinion of Newton in 
 the Exchequer Chamber. 
 
 There is no printed Year Book for 26 Hen. VI. Case 27. 
 
 See as to brief, in the title of Formedon, many matters. ^°'^^- 
 And also in the title of Misnomer. 
 
 (28) In formedon for a manor with the appurtenances, Paschal 
 the tenant said that part of the manor extended into 
 another county, etc.; and he was forced to show how. 
 
 And for this reason the writ was abated. 
 
 Reported in Y. B. Paschal, 4 Ed. Ill, p. 23, pi. 16. Case 28. 
 
 (29) In a writ of sur cui in vita for land and rent, as Trinity 
 to the land the tenant alleged joint tenure; and as to the 
 
 rent he said that the very land in demand was put in view, 
 so he demanded lands and rent issuing out of the same 
 land. Darr: He has pleaded two pleas to abate our writ: 
 we pray that he be kept to one. Seton : If we pleaded 
 
234 
 
 STATHAM 
 
 Case 29. 
 
 the joint tenure you would force us to answer to the rent, 
 wherefore, etc. And then the plaintiff was forced to answer, 
 who said that he put other land in view within the same 
 vill. Herle: You ought to traverse generally, that he 
 cannot be tenant of the rent. And so he did. And the 
 demandant said he was tenant of the other land, so tenant 
 of the rent, etc. 
 
 Reported in Y. B. Trinity, 5 Ed. Ill, p. 21, pi. 9. 
 Brief e, 721. 
 
 See also Fitzh: 
 
 Hilary 
 7 Ed. III. 
 
 Case 30. 
 
 (30) If I have a writ pending on the quindene of Michael- 
 mas, and then it is abated, and in the meantime, between 
 the said fifteenth day and the day the writ was abated, the 
 plaintiff purchases another writ, it is a good purchase, if 
 it be in the same term, for the abatement of the writ shall 
 relate to the said fifteenth, because all the term, in effect, 
 is only one and the same day. And this in a Ravishment 
 of Wardship, etc. 
 
 Reported in Y. B. Hilary, 7 Ed. Ill, p. 11, pi. 23. See also Fitzh: 
 Briefe, 433. 
 
 Hilary 
 7 Ed. III. 
 
 Case 31. 
 
 (31) A writ of dower was abated because it was brought 
 against the guardian not named guardian, etc. And the 
 same day another writ of Dower was abated because it was 
 brought against the heir, whereas he had a guardian in 
 chivalry for the same land, etc. 
 
 Reported in Y. B. Hilary, 7 Ed. Ill, p. 10, pi. 21. 
 
 Hilary 
 8 Ed. III. 
 
 (32) In a cessavit against two, one made default after 
 default ; the other said he was tenant of the entirety, with- 
 out this, etc. Wherefore the demandant counted against 
 him. (Query, for it seems that he should maintain his 
 writ, etc.) And the tenant said that he held the same lands 
 for the term of his life, of the lease of him who made default, 
 and vouched him to warranty. To which the demandant 
 said that the vouchee nor any of his ancestors, ever 
 had, etc., after the title, etc., up to the day the writ was 
 purchased. The tenant demanded judgment since, as 
 
BRIEFE 235 
 
 he had brought this writ against him, so he had admitted 
 the contrary of his writ. But yet the writ was adjudged 
 good, because it might be that he had nothing before the 
 writ was purchased, but he might have had it afterwards, 
 in which case the writ is good; and the admission of a 
 man shall not abate his writ, except where it is an express 
 admission, etc. 
 
 The case has not been identified in Y. B. 8 Ed. Ill, or in the early Case 32. 
 abridgments. 
 
 (33) In dower against one as guardian, he said that he Hilary 
 had nothing except for a term of six years of the lease of ^ ^^' ^^^' 
 one A who was guardian in law. And the writ was abated 
 because he was not guardian in law, nor guardian in fact, 
 because he did not have all the estate of a guardian. 
 
 Reported in Y. B. Hilary, 8 Ed. Ill, p. 15, pi. 46. See also Fitzh: Case 33. 
 Briefe, 446. 
 
 (34) In a praecipe quod reddat for a rent charge HUary 
 against two tenants in common, one pracipe is good enough, 
 although they are in by separate titles; but it is otherwise 
 
 of a rent service, because it can be severed. 
 
 Reported in Y. B. Paschal (not Hilary), 9 Ed. Ill, p. 13, pi. 13. See Case 34. 
 also Fitzh: Briefe, 458. 
 
 (35) An abbot brought a Cessavit, and the writ was Hilary 
 challenged because it was not "which he claimed to be ' ' 
 the right of his church," but he declared [it] in his count, 
 
 and the writ was adjudged good, etc. 
 
 The case has not been identified in Y. B. Hilary, 10 Ed. III. Fitzh: Case 35. 
 Briefe, 690, has the case, but there is no citation to page or placitum. 
 
 (36) If a man pleads in abatement of the writ, because Mlchaeiis 
 of the form he should give the plaintiff a better writ, but ^^ ^'^- ^"• 
 it is otherwise if he pleaded to the matter of the writ. And 
 
 this by Herle, in Waste. 
 
 The case has not been identified in Y. B. Mich. 10 Ed. Ill, or in the Case 36. 
 early abridgments. 
 
236 
 
 STATHAM 
 
 Michaelis 
 6 Ed. III. 
 
 Case 37. 
 
 Paschal 
 13 Ed. III. 
 
 Case 38. 
 
 Trinity 
 16 Ed. III. 
 
 Case 39. 
 
 Michaelis 
 18 Ed. III. 
 
 (37) The vouchee shall plead in abatement of the writ 
 for the form of the writ, but not to the matter, etc., since 
 the tenant has committed, etc. 
 
 The case has not been identified in Y. B. Mich. 6 Ed. Ill, or in the 
 early abridgments. The text is apparently corrupt. I give it literally. 
 
 (38) In trespass brought by the abbot and his co-monks, 
 for a battery made on the co-monk it was "ad damnum 
 ipsorum," and it was adjudged good. 
 
 There is no early printed year of 13 Ed. III. The case is printed 
 in the Rolls Series, 12 & 13 Ed. Ill, pp. 248-^9. 
 
 (39) In formedon against one J, who said that this same 
 demandant brought Formedon for this same land against 
 one F, who vouched us to warranty, and that the writ still 
 pends, judgment, etc. And because he did not say that 
 he entered into the warranty, in which case he was not a 
 party to the first writ, the writ was adjudged good, etc. 
 (It seems that he could have estopped the demandant, 
 because, etc.) 
 
 There is no early printed year of 16 Ed. III. 
 identified in the Rolls Series for that year. 
 
 The case has not been 
 
 (40) In trespass against the parson of the church of E, 
 the process continued until he was outlawed, and he had 
 his charter of pardon, and sued a Scire Facias, and the 
 plaintiff counted against him. And he demanded judg- 
 ment of the writ because he was parson of only half the 
 church, etc. Darr: To that you shall not be received, 
 inasmuch as you sued your Scire Facias as parson of the 
 entirety. And this was not allowed because he could not do 
 anything but that which was in accordance with the record, 
 etc. (But yet it seems the contrary [was right] and that he 
 was not outlawed, etc.) 
 
 Reported in Y. B. Mich. 18 Ed. Ill, p. 33, pi. 11. 
 
 statham29b. (41) In dower against the guardian of ihe scholars of C. 
 RiKHiLL: He is the master; and he produced the letters 
 of the king as to his foundation, etc. Seton : He is known 
 by both names. But yet the writ was abated. But it 
 
 Michaelis 
 18 Ed. Ill 
 
BRIEFE 237 
 
 is wonderful that he who was a stranger could take notice 
 of the name of his foundation, when it was known by 
 different names, etc. 
 
 The case has not been identified in Y. B. Mich. 18 Ed. Ill, or in the Case 41. 
 early abridgments. 
 
 (42) In debt the writ was, "Distrain M, who was the wife Michaeiis 
 of A de B, of F, husbandman." Rolff: Judgment of the ^ ^en. vi. 
 writ, for he did not name the wife as of any vill, for F refers 
 
 only to the husband, and not to the wife, etc. Query? 
 
 Fitzh: Briefe, 25, gives this case as reported in Mich. 4 Hen. VI, Case 42. 
 p. 4, pi. 9. It has not been identified in any of the editions to which I 
 have had access. 
 
 (43) Detinue against the husband and his wife for a Hilary 
 bailment made to them after the coverture. And the writ ^® ^'^- ^^^• 
 was abated because it should have been brought against 
 
 the husband alone, etc. Query, if the bailment had been 
 made to the woman before the coverture? Or if the woman 
 had them as executrix? 
 
 Reported in Y. B. Hilary, 38 Ed. Ill, p. 1, pi. 1. Case 43. 
 
 (44) In a writ of annuity against one J, as co-canon of Michaeiis 
 the Priory of B, and perpetual custodian of B, the defendant ^^ ^^- ^^^' 
 alleged a variance between the writ and the deed, etc. And 
 
 on another day he said he was under the obedience of the 
 said prior, not named, etc. Fyncheden: To that you 
 shall not get, inasmuch as you have alleged a variance, etc. 
 Sharshull: He shall have this plea notwithstanding that, 
 etc., inasmuch as this plea goes to the action, wherefore 
 answer, etc. 
 
 Reported in Y. B. Mich. 21 Ed. Ill, p. 36, pi. 26. Case 44. 
 
 (45) If one be bailiff of my manor which extends into Trinity 
 different vills, all the vills shall be named. And if any ^^ Ed. m. 
 of the vills be within a franchise I shall have my action 
 
 for that which is within the franchise, notwithstanding he 
 is bailiff of the entire manor, etc. ; by Sharshull, etc. 
 
 The case has not been identified in Y. B. Trinity, 24 Ed. Ill, or in Case 45. 
 the early abridgments. 
 
238 
 
 STATHAM 
 
 Trinity 
 34 Ed. III. 
 
 Case 46. 
 
 Paschal 
 14 Hen. VI. 
 
 (46) In a quare impedit the writ was, "Prcecipe the 
 chaplain, etc., and if not, etc., then summon the aforesaid 
 A." And because it was not "then summon the aforesaid 
 bishop" the writ was abated, for he shall be summoned by 
 his name of dignity, etc. 
 
 There is no early printed Year Book for 34 Ed. III. The case has 
 not been identified in the Rolls Series for that year. 
 
 (47) In a writ of entry by the husband and his wife, 
 the writ was "Of which he disseised them." Newton : 
 Judgment of the writ, for at the time of the alleged disseisin 
 the woman was sole seised, and after that this her husband 
 espoused her, in which case it should be "disseised her." 
 FuLTHORPE: That is no plea, for no time for the dis- 
 seisin is alleged in our writ nor in our declaration. And 
 also he does not answer us, for he ought to answer "with- 
 out this that he disseised them both, without this that 
 the husband had anything at the time of the disseisin. 
 Paston : I believe that he cannot have any other writ in 
 the Chancery. But yet he said that it was not a good plea 
 to confess the disseisin. Query, How could he plead it? 
 etc. 
 
 Reported in Y. B. Anno 14 Hen. VI (this year fourteen is not divided 
 into terms in the printed Year Books), p. 13, pi. 46. 
 
 Trinity 
 16 Ed. III. 
 
 Case 48. 
 
 (48) It is no plea to say that the plaintiff has another 
 writ pending against him, etc., unless he says that the 
 plaintiff had appeared, for it might be that a stranger of 
 the same name brought the writ, in which case he would 
 not be precluded, etc. And this in Formedon. 
 
 There is no early printed year of 16 Ed. III. The case has not been 
 identified in the Rolls Series for that year. 
 
 Michaelis 
 18 Ed. III. 
 
 (49) In formedon in the descender the tenant said that 
 formerly the demandant brought a writ of Formedon in the 
 remainder against him for the same gift and lands, etc., 
 to which he appeared. And the demandant said that 
 "in the first writ you waged your law of not summoned, 
 upon which the writ was abated, and we purchased this 
 
BRIEFE 239 
 
 writ," etc. And the writ was adjudged good, etc. But 
 see that this was no plea in abatement of the writ, etc., on 
 that day, for he shall plead the whole record, or else the 
 plaintiff shall say "no such record." 
 
 The case has not been identified in Y. B. Mich. 18 Ed. Ill, or in the Case 49. 
 early abridgments. 
 
 (50) If the tenant by the curtesy surrenders to him in Hilary 
 the reversion, pending a writ against him in the reversion, 
 
 the writ shall not abate, for the agreement to surrender was 
 his deed. Well debated. And with this agrees the Book 
 of the Assizes, in the case of Quyntyn, upon a fine, where 
 the tenant said that he had recovered the lands against 
 a stranger pending the writ; and the writ was adjudged 
 good because it was his deed, as above, etc. And from this 
 it follows that where land comes to a man pending the writ, 
 that this shall not abate the writ in any case except only 
 where it comes to him by descent; and the reason there 
 is because he cannot do otherwise, for the law throws the 
 possession upon him in spite of himself, etc. 
 
 The case has not been identified in Y. B. Hilary 1 Hen. VI. The Case 50. 
 only term for this year in the printed books is that of Michaelmas. 
 
 (51) In account for a receipt in the county of H, the Michaeiis 
 defendant said that the receipt was in another county, in 
 which case he should have brought his action there, etc., 
 according to the Statute. BabyNGTON: It seems that 
 
 he shall not have this plea, but he shall have his remedy 
 by way of an action [on the Statute], as if a man distrains 
 in the high road, etc. MartyN : Not the same, for in your 
 case the Statute is made for the plaintiff, and in this case 
 for the defendant, therefore it is reasonable that he have 
 it by way of a plea, etc. And this was the opinion of the 
 Court, etc. 
 
 Reported in Y. B. Mich. 4 Hen. VI, p. 2, pi. 4. See also Brooke, Case 51. 
 Briefe, 205; and Fitzh: Briefe, 23. 
 
 The Statutes are those of 6 Ric. II, Stat. 1, cap. 2, Stats, at Large, 
 Vol. 2, p. 253 (1382); and Marlbridge, 52 Hen. Ill, Stat. 1, cap. 15. 
 Stats, at Large, Vol. 1, p. 67 (1267). 
 
240 STATHAM 
 
 Michaeiis (52) In trespass for a close broken, brought by two, 
 27 Hen. VI. ^j^^ defendant said that one of the plaintiffs had nothing 
 in the said land on the day of the alleged recognizance, 
 except jointly with one H, who is alive, and not named, 
 etc. Danby: What do you say against the other plaintiff? 
 Pole: That goes to all. Moile: That is not so, for if a 
 man pleads in abatement of the writ, he shall give the 
 plaintiff a better writ, and it may be that the other plaintiff 
 held jointly with other persons, wherefore, etc. Pole: If 
 one plaintiff has nothing, not even a cause of action, and the 
 other held jointly, how should we plead? Asshton : You will 
 plead as above as to one, and as to the other that he never 
 had anything, etc. Pole : That is no plea, for it amounts 
 to nothing more than "not guilty," wherefore I shall be 
 forced to take the general issue. And if I plead "not guilty" 
 against him that is contrary to the other plea, for then I 
 shall admit that he was seised at the time of the alleged 
 trespass. PoRTYNGTON: You can take that by protesta- 
 tion. Prisot: That cannot be, for even if it is taken by 
 protestation, still he has admitted that he has a cause of 
 action, etc. Danby : If two bring an action against me, and 
 I say that one of them is my villein, I shall plead over to 
 the other, to wit: "and inasmuch as he has conceived this 
 action with one who is not responsible, judgment, etc." 
 stathamsoa. FxjLTHORPE: Not the same. And it may be that one of 
 the plaintiffs holds jointly, as he has alleged, and that the 
 other holds in common, wherefore if the defendant will 
 say that both of the plaintiffs hold jointly, or in common, 
 that will be found against him, wherefore it seems that he 
 has pleaded well. ASCOUGH: Still it seems to me that 
 he should answer to the other plea, and the plea that goes 
 in abatement of the writ shall be first tried. Prisot: 
 If he should say, as Danby has said in the case of the 
 villein, to wit: "inasmuch as he has conceived, etc," that 
 plea is double, for he pleads two pleas in abatement of the 
 writ. And in a PrcBcipe quod Reddat brought by two, 
 where one had no cause of action, I cannot see how he shall 
 plead in abatement of the writ, unless the plea goes to the 
 action, etc. But if he had matter in abatement of the writ. 
 
BRIEFE 241 
 
 as misnomer of one of the plaintiffs, and that the other 
 held jointly, peradventure he could have both the pleas, 
 for there none of them goes to the action, etc. Query, if 
 it had been a plea to say that one of the plaintiffs held 
 jointly, etc., without this that the other had anything, etc.? 
 And it seems not, for the above reason, etc. 
 
 And it was said in [the same plea] if tenants in common 
 bring trespass, where one of the two is tenant of one part, 
 and another of two parts, and another of three parts, that 
 it shall be asked of how much each of them is tenant, and 
 their damages shall be severed accordingly, etc. Query? 
 
 The case has not been identified in Y. B. Mich. 27 Hen. VI, or in Case 52. 
 the early abridgments. 
 
 (53) If one demands judgment of the writ because he Michaeiis 
 is a co-monk, it is no plea unless he says that he is under ^°' 
 the obedience of one such, etc., for an abbot is a co-monk. 
 
 And this in Debt, etc. 
 
 The case is not easily identified. A discussion of the point may be Case 53. 
 found in Y. B. Mich. 14 Hen. IV, p. 10, pi. 8. 
 
 (54) In a monstraTerunt, the defendant said that one Paschal 
 of the plaintiffs died pending the writ, judgment of the writ. ^ ^^"' ^' 
 Strange : The writ should have been brought against three 
 
 or two of them, for there is no need that all be named, 
 any more than in a writ of Error brought by a number, the 
 death of one of them shall not abate the writ, for one of 
 them can have a writ of Error, leaving out the others. 
 HULS: It is brought for an injury done to them, as 
 in Trespass, wherefore it seems that the writ shall not abate. 
 And also the action is merely personal, for it is not like 
 a ne injute vexes, etc., which is in the right, wherefore, etc. 
 Well argued. 
 
 The case has not been identified in Y. B. Paschal, 2 Hen. V, or in q^^^ 54. 
 the early abridgments. 
 
 (55) In debt by a prior against one J, who demanded Michaeiis 
 judgment of the writ because since the last continuance he ^ ^^"- ^■ 
 was deposed. Strange: That is no plea, without saying. 
 
242 
 
 STATHAM 
 
 "So not Prior," for it might be that he was restored, etc. 
 And a plea in abatement of the writ ought to be good, to 
 all ordinary intents. And this well argued, etc. 
 
 Case 55. Reported in Y. B. Paschal (not Mich.), 9 Hen. V, p. 11, pi. 1. 
 
 also Brooke, Briefe, 134. 
 
 See 
 
 Trinity 
 32 Ed. III. 
 
 Case 56. 
 
 (56) In a scire facias brought by two coparceners, one 
 was severed. Barton: She who was severed had taken 
 a husband pending the writ. Fyncheden: That is no 
 plea, for it does not appear whether she took a husband 
 before the severance or after. Thorpe : Either way the 
 writ is abated. And so it was adjudged, etc. 
 
 There is no printed year for 32 Ed. III. The case has not been iden- 
 tified in the early abridgments. 
 
 Hilary 
 
 38 Ed. III. 
 
 Case 57. 
 
 (57) In debt by executors, one was severed and died, 
 and the writ was abated. The law is the same where an 
 executor comes by distraint, and is made to reply alone, 
 and afterwards his companion dies, the writ will abate, etc. 
 Simile Mich. 28 Hen. VI, in a Formedon against two; one 
 disclaimed and died, and it was the opinion that the writ 
 should abate. 
 
 Reported in Y. B. Paschal (not Hilary), 38 Ed. HI, p. 11, pi. 19. 
 The report is very brief. See also Brooke, Briefe, 136; and Fitzh: 
 Briefe, 498. 
 
 Michaelis 
 38 Ed. III. 
 
 Case 58. 
 
 (58) In a quare impedit by two parceners, the death of 
 one does not abate the writ. The law is the same if one 
 of the two be named, etc., and because of the harm done 
 by the lapse. 
 
 And it was said in the same plea that if a husband and 
 his wife be disturbed in an advowson which is in right of 
 the wife, and the wife dies, the husband shall not have a 
 Quare impedit because he cannot make title, unless he be 
 tenant by the curtesy, etc. Then query, who shall have 
 the presentation? 
 
 Reported in Mich. 38 Ed. Ill, p. 35, pi. 51. See also Brooke, Briefe, 
 136. 
 
BRIEFE 243 
 
 (59) In a praecipe quod reddat against two by several MichaeUs 
 precipes, he was non-suited against one, and the writ 
 
 stood good against the other, etc. Contrary ex quo, etc. 
 
 The case has not been identified in Mich. 38 Ed. Ill, or in the early Case 59. 
 abridgments. 
 
 (60) In debt by the husband on an obligation made to Trinity 
 him and his wife, the writ was adjudged good in his own 
 name, etc. Well argued. But yet, query? 
 
 There is no early printed Year Book for 12 Ric. II. Fitzh; Case 60. 
 Briefe, 639 has an abridgment of the case. It has not been identified 
 in Y. B. Trinity, 12 Ric. II, Ames Foundation, ed. Deiser. 
 
 (61) Debt was brought in London upon a recognizance Hilary 
 made in the Chancery at Westminster. And because the 
 writ was not brought in Middlesex, it was abated. 
 
 There is no printed Year Book for the reign for 13 Ric. II. Fitzh: Case 61. 
 Briefe, 649, has the case. 
 
 (62) In debt by the husband and his wife, on an obligation Michaeiis 
 made to the wife when she was sole, the writ was, "prcecipe ^ *^™' ^^' 
 T. quod juste, etc., reddat B, et A, uxori ejus alias dicit 
 Aspold." RoLFF : She cannot have two names. And the writ 
 
 was adjudged good, for "alias" in that case shall be "alias 
 tempore" and not "aliter," etc. Query? 
 
 Reported in Y. B. Mich. 2 Hen. VI, p. 4, pi. 2. See also Brooke, Case 62. 
 Briefe, 4; and Fitzh: Briefe, 5. The Latin of the writ is given differ- 
 ently in the report of the case, and in each abridgment, and the argu- 
 ments differ accordingly. 
 
 (63) In trespass against four who pleaded "not guilty" Michaeiis 
 at the Nisi Prius. And then in the Bench Rolff said that 
 
 one of the defendants had died since the inquest passed, 
 and he prayed that the whole writ should abate, for the 
 death of one of them. For in a former case ^ after the 
 plea, and before the inquest was taken, all the writ was 
 abated ; so here, for there was only one Venire Facias awarded , 
 etc. And it was adjudged that the plaintiff should recover 
 
 ' The text is corrupt and has been slightly changed in translation, 
 in accordance with the text of the reported case. 
 
244 
 
 STATHAM 
 
 Case 63. 
 
 Paschal 
 2 Hen.'iVI. 
 
 Case 64. 
 
 against the three, and that he should take nothing as to 
 the fourth. Query, for it seems that the defendant had 
 no day to plead that plea, etc. Well debated, etc. 
 
 Reported in Y. B. Trinity (not Mich.), 2 Hen. VI, p. 12, pi. 5. See 
 also Fitzh: Briefe, 9. 
 
 (64) In waste. Rolff: Judgment of the writ, for 
 whereas he has alleged the waste to have been made in 
 seven vills, as to three of the vills (and he named their 
 names), we say that there are no such vills or hamlets or 
 place known, etc., within that county, judgment of the 
 writ. Martyn: What do you say to the remainder? 
 Rolff: That goes to the entire writ. And that was the 
 opinion of the Court, etc. 
 
 The case has not been identified in Y. B. Paschal, 2 Hen. VI, or in 
 the early abridgments. 
 
 Michaelis 
 9 Hen. VI. 
 
 (65) If a man brings a writ for two things where he 
 could not have an action for one of them, as appeared by the 
 writst, ill the writ is good for the remainder. But it is 
 otherwise where he can have a writ for each of them by 
 itself. As if a woman demands dower of lands and com- 
 mon for a great number of cattle; as to the land, the writ 
 is good, because she could not have an action for such a 
 common; but where a man brings an assize for lands and 
 statham 30 b. for common, it shall abate for all, because he could have 
 had separate writs. And this in a fine pleaded by the Prior 
 of Saint Bartholomew, etc. And from this it follows that 
 if I vouch two to warranty, and I show the lien of only 
 one of them, still I shall not fail of my voucher against him 
 who made the lien since I have no cause for a lien against 
 the other, nor reason for a voucher. But yet it is not like 
 the other case, for it does not appear but that I can bind 
 him by another deed, or another cause, etc. 
 
 The case has not been identified in Y. B. Mich. 9 Hen. VI, or in the 
 early abridgments. 
 
 Case 65. 
 
 Hilary (66) In a WTit of entry in the nature of an assize, Channt 
 
 9 Hen. VI. asked judgment of the writ because it was purchased pend- 
 
BRIEFE 245 
 
 ing an assize against us by the plaintiff, for this same land. 
 And he made it all certain, etc. Martyn: If two assizes, 
 or two actions, of the same nature, are returned on one and 
 the same day and the plaintiff appears in both, both shall 
 abate. But if they are returnable on different days, the 
 second assize shall abate and not the first. But if a man 
 had a writ pending and purchased a writ of a higher nature, 
 that would stand good, and the writ of a lower nature 
 would abate, because of its greater dignity, etc., in which 
 many concurred. Strange: If a man has a bill of 
 debt in the Exchequer it is a good plea to say that the 
 plaintiff has a writ for this same debt pending against him 
 in the King's Bench, or in the Common Bench, to which he 
 has appeared, judgment, etc. But it is otherwise in Tres- 
 pass, etc. And it was also said that if a man purchases a 
 writ of Trespass pending another writ for the same Tres- 
 pass, the last writ shall not abate. Query as to the cause 
 of this difference, etc. 
 
 Reported in Y. B. Mich, (not Hilary), 9 Hen. VI, p. 50, pi. 34. See Case 66. 
 also Brooke, Briefe, 17. 
 
 (67) A man shall not have a writ de herede rapto, Paschai 
 
 22 FH TTT 
 
 unless it be for his heir apparent, for if it be a younger son 
 or daughter, it does not lie for them. And this by WiL- 
 LOUGHBY. 
 
 The case has not been identified in Y. B. Paschal, 22 Ed. HI, or in Case 67. 
 the early abridgments. 
 
 (68) "Praecipe A, pannar London." That writ is not Mkhaeiis 
 good, for he might be a baker in London, and live in another ^ ^^" ^^' 
 county, but "praecipe" one such, a baker of London, is 
 
 good without saying of what county, because it is a county 
 in itself. And this in Debt. 
 
 Reported in Y. B. Mich, (not Paschal), 7 Hen. VI, p. 1, pi. 4. The Case 68. 
 case of the baker is written "the case of a pointmaker" and the town 
 Bristol. See also Fitzh : Briefe, 30. 
 
 (69) One B brought a writ of Debt and counted that the Paschal 
 defendant was the receiver of one C, his testator, and that 
 
 the plaintiff, as executor of the said C, assigned auditors 
 
246 
 
 STATHAM 
 
 Case 69. 
 
 for him, and that he was found in arrears of the sum 
 in demand, etc. The defendant demanded judgment of 
 the writ inasmuch as he was not named executor. Pas- 
 ton: It seems the writ is good. As if I make an obliga- 
 tion to an executor for the debts of his testator, he shall 
 have an action without naming himself executor. M artyn : 
 It is not the same, for even if an executor assigned audi- 
 tors to him, that is in the name of all, so all shall be named, 
 and consequently, since there is but one executor, he will 
 be named, and the release of one of them is a bar against 
 all. But in the case which Paston has put it [does not] 
 appear whether the debt was to his testator or not, where- 
 fore, etc. And the opinion was that the writ should abate. 
 [Paston dissenting.] 
 
 Reported in Y. B. Paschal, 9 Hen. VI, p. 11, pi. 33. See also Fitzh: 
 Briefe, 57. 
 
 HUary 
 
 7 Hen. VI. 
 
 Case 70. 
 
 (70) In a quare impedit, the defendant said that after 
 the last continuance the plaintiff was made a knight at B, in 
 the county, etc. Judgment of the writ. And the opinion 
 was that the writ should abate. And this well argued. 
 The contrary was adjudged Anno 3 Hen. V. 
 
 Reported in Y. B. Mich, (not Hilary), 7 Hen. VI, p. 14, pi. 24. See 
 also Brooke, Briefe, 158; and Fitzh: Briefe, 35. 
 
 Hilary 
 
 3 Hen. VI. 
 
 Case 71. 
 
 (71) In debt upon an obligation, Rolff asked judgment 
 of the writ, for by the Statute of Ric, Anno VI, it is decreed 
 that all the actions of debt, detinue, and covenant shall 
 be brought in the same county where the contract is made ; 
 and we say that this contract was made in the county 
 of Lincoln, in which case, etc. And the plaintiff was 
 obliged to answer this, and he said that the deed was 
 delivered ^ to B in the county where the writ was brought, 
 etc. Contrary elsewhere, etc. 
 
 Reported in Y. B. Hilary, 3 Hen. VI, p. 29, pi. 14. See also Fitzh: 
 Briefe, 18. 
 
 The Statute is that of 6 Ric. II, cap. 2; Stats, at Large, Vol. 2, p. 253 
 (1382). 
 
 '"Made" in the report of the case. 
 
BRIEFE 247 
 
 (72) Executors brought a writ of Trespass for goods Michaeiis 
 carried away in the life of their testator, and for his close ^^ ^^"' '^" 
 broken. Skrene: Such an action for the close of their 
 testator broken is not given by the Statute, wherefore 
 judgment of all the writ. Thirning: Answer to the 
 remainder. (And I think the reason was because as to 
 
 the close broken they could not have an action, etc., 
 which would accord with the re-summons.) (Martyn. 
 From the other side of this page, next placitum, etc.) 
 
 Reported in Y. B. Mich. 11 Hen. IV, p. 3, pi. 8. See also Brooke, Case 72. 
 Brief e, 118; and Fitzh: Briefe, 229. 
 
 The Statute is that of 4 Ed. Ill, cap. 7, Stats, at Large, Vol. 1, p. 434 
 (1330). 
 
 (73) A woman brought a quid juris clamat, leaving out Michaeiis 
 her husband because the note was levied on him before ^^ ^™' ^^' 
 the coverture, and she could not vary from the note. But 
 
 yet the writ was abated, etc. 
 
 Reported in Y. B. Mich. 11 Hen. IV, p. 7, pi. 16. See also Brooke, Case 73. 
 Briefe, 522; and Fitzh: Briefe, 230. 
 
 (74) In trespass the writ was "Contra pacem Richardi Michaeiis 
 nuper Regis AngUcB et contra pacem nostram." And 
 
 the plaintiff counted that part of the trespass was made in 
 the time of the other king, and part in the time of this king. 
 Skrene : Judgment of the writ, for the whole writ is 
 against the peace of two kings, etc. Norton : But I have 
 made the writ good by my count, etc. Which the Court 
 conceded, etc. 
 
 Reported in Y. B. Mich. 11 Hen. IV, p. 15, pi. 33. See also Brooke, Case 74. 
 Briefe, 519; and Fitzh: Briefe, 232. 
 
 (75) Two brought an assize, and one was severed after ^'??^^''j„ 
 appearance. Skrene: Judgment of the writ, for he who 
 
 was severed is an alien, and bom out of the allegiance of 
 the king, and never made a denizen. Hankford: The 
 writ is good for the other, for this plea goes to the action 
 for the denizen. For if an alien and I purchase jointly. 
 
248 
 
 STATHAM 
 
 Case 75. 
 
 the king shall be seised of only the half, for an alien can 
 purchase well enough, and the king shall be seised ; for it 
 is not the same as where a monk and I purchase jointly, 
 there all shall vest in me, etc. And then the writ was 
 adjudged good, but the reason was that he who was severed 
 had nothing except in right of his wife, and so clearly, etc. 
 
 The case has not been identified in Y. B. Mich. 11 Hen. IV, or in the 
 early abridgments. 
 
 Trinity 
 
 18 Hen. VI. 
 
 Case 76. 
 
 (76) A writ of debt was brought and it ran, " Praecipe 
 Societate Lumbardorum." And the writ was good enough, 
 etc. (In the case of Enderby, etc.) 
 
 The case has not been identified in Y. B. Trinity, 18 Hen. VI, or in 
 the early abridgments. 
 
 Paschal (77) In debt against A de B, of Skene, in the county of 
 
 19 Hen. VI. Middlesex, formerly of Abington. Portyngton: The writ 
 is not good, for my matter is such that I do not know 
 how to plead in abatement of the writ, for the defendant 
 was never of Skene nor of Abington. And if I plead the 
 one in abatement of the writ he will counter upon me because 
 I do not deny the other; and if I plead both the plea is 
 double. Markham: It seems that the "formerly" is void, 
 unless the action is brought upon a specialty which is made 
 accordingly, etc. Newton: We will be advised, etc. 
 
 Case 77. Reported in Y. B. Paschal 19 Hen. VI, p. 66, pi. 6. See also Brooke, 
 
 Briefe, 436. 
 
 Michaelis 
 19 Hen. VI, 
 
 (78) In debt by executors, they counted that the defend- 
 ant had accounted before auditors, assigned by them for a 
 statham 31 a. receipt of their testator. The defendant demanded judg- 
 ment of the writ because it was "detinet" solely, whereas 
 it should be "debet et detinet" inasmuch as he was never 
 indebted to their testator. Markham: Where it is not 
 necessary that two be named executors, but they are named, 
 so for the redundancy the writ shall be as you say. As 
 where executors brought a writ of Trespass for goods taken 
 out of their possession and recovered, and they brought a 
 writ of Debt for those damages, and named them executors. 
 
BRIEFE 249 
 
 the writ shall be "debet et detinet" for the above reason. 
 But in the case here it is quite necessary that they be named 
 executors. Wherefore the writ was adjudged good, etc. 
 
 The case has not been identified in Y. B. Mich. 19 Hen. VI, or in Case 78. 
 the early abridgments. 
 
 (79) In trespass against A and B, A said that there was Paschal 
 no such B alive. Yelverton : You shall not have this plea. 
 Paston: Yes, sir, as well as he shall say that the said B was 
 dead before the writ was purchased, which the Court con- 
 ceded, etc. But he did not plead a misnomer of his com- 
 panion, etc. 
 
 Reported in Y. B. Paschal, 20 Hen. VI, p. 30, pi. 29. See also Fitzh: Case 79. 
 Briefe, 85. 
 
 (80) Where he who prayed in aid died after he was Paschal 
 joined in aid and had pleaded with the demandant; still ^"' 
 the writ shall not abate, for he is only a stranger to the writ 
 
 in law, for the plea that he pleaded is wholly the plea of 
 the tenant, and no judgment will be given against him. 
 And the law is the same where he upon whom the avowry 
 is made dies, etc. But query, if he joins himself to the 
 tenant, and then dies; then it seems that the writ shall 
 abate. And this in a Replication, etc. 
 
 The case has not been identified in Y. B. Paschal, 21 Hen. VI, or in Case 80. 
 the early abridgments. 
 
 (81) In debt against one J, who said that after the last Michaeiis 
 continuance he was consecrated Bishop of S, judgment of 
 
 this writ. And it was not allowed, for it was his own deed 
 etc. Query, if he be made duke, or count, or knight? etc. 
 
 Reported in Y. B. Mich. 4 Hen. VI, p. 2, pi. 8. See also Fitzh: Case 81. 
 Briefe, 893. 
 
 (82) In trespass, the writ was that the defendant,together Hilary 
 with others, made the trespass ; and the writ was abated, ^ ^^"' ^" 
 inasmuch as it appeared by the writ that the trespass was 
 
 made with others not named, etc., for it is not the same as 
 
250 
 
 STATHAM 
 
 Case 82. 
 
 Michaelis 
 12 Hen. IV. 
 
 Case 83. 
 
 Hilary 
 
 12 Hen. IV. 
 
 Case 84. 
 
 Trinity 
 
 27 Hen. VI. 
 
 Case 86. 
 
 Michaelis 
 26 Hen. VI. 
 
 Case 86. 
 
 Michaelis 
 28 Hen. VI. 
 
 Case 87. 
 
 an Oyer and Terminer, which is issued to inquire upon a 
 suggestion, etc. 
 
 Reported in Y. B. Hilary, 8 Hen. V, p. 5, pi. 20. See also Fitzh: 
 Briefe, 786. 
 
 (83) In a writ of Ejectment from Wardship, against two, 
 the death of one, pending the writ, shall not abate the writ 
 because it is only a trespass, etc., but it is otherwise on the 
 part of the plaintiff, etc. 
 
 Reported in Y. B. Mich. 12 Hen. IV, p. 10, pi. 20. See also Fitzh: 
 Briefe, 482. 
 
 (84) In a writ de herede rapto, the writ was challenged 
 because it was "whose marriage belonged to him," because 
 it is to recover damages to the value of the marriage. And 
 the opinion was that the writ was good. But yet query, 
 if he shall recover for the value, etc. ? 
 
 Reported in Y. B. Hilary, 12 Hen. IV, p. 16, pi. 9. See also Fitzh: 
 Briefe, 483. 
 
 (85) In trespass because a certain obligation in which 
 the defendant was bound to the plaintiff, at such a place, 
 he found, took and tore up. Pole: This writ com- 
 prehends double matter, to wit: one, the taking and the 
 other the [tearing up] . Portyngton : The taking is nothing 
 except to connect the action with the other, to wit, the 
 [tearing up] wherefore answer, etc. 
 
 The case has not been identified in Y. B. Trinity, 27 Hen. VI, or in 
 the early abridgments. 
 
 (86) In debt by executors, or against executors, the 
 death of one of them shall abate the writ. 
 
 There is no printed year for 26 Hen. VI. The case has not been 
 identified in the early abridgments. 
 
 (87) In formedon against two, one disclaimed, the 
 other vouched to warranty, and afterward he who dis- 
 claimed died. And the opinion was that the writ should 
 abate. 
 
 The case has not been identified in Y. B. Mich. 28 Hen. VI, or in the 
 early abridgments. 
 
BRIEFE 251 
 
 See as to brief, in the title of Formedon ; in the title of 
 View; in the title of Misnomer; in the title of Prescription, 
 Mich. 18 Hen. VI ; and in the title of Maintenance of 
 Writs, and also in the titles of Nontenure, Joint Tenancy, 
 Several Tenancy, and in the title of Addition, etc' 
 
 (88) In a writ brought against a parson for lands in his Anno 
 
 glebe, and he resigns, pending the writ, the writ shall abate. 
 
 There is no early printed year for 15 Ed. III. The case has not Case 88. 
 been identified in the Rolls Series for that year. 
 
 (89) A writ brought in the Common Bench for land ^ r-^^^i 
 in Wales, which was not in the franchise, was held good in 
 
 a Qtmre Impedit, etc. Query, to whom should the writ 
 be directed? 
 
 There is no printed Year Book for 6 Ric. II. The case has not ^^^ ^''• 
 been identified in the early abridgments. 
 
 (90) A writ shall abate in all where the demandant is !i''S."7 „, 
 
 xo xl-a. ill. 
 
 seised of part. And this in a Dum Fuit infra Mtatem. 
 
 There is no early printed year for 16 Ed. III. The case has not ^^^^ ^''■ 
 been identified in the Rolls Series for that year. 
 
 (91) A writ of Trespass "quare talum nativum, etc., et ^i'^*^''^. 
 servientem suum ou [apprenticiam suum"] was adjudged good, 
 
 as in the case of Hungerford, etc. 
 
 Reported in Y. B. Mich. 22 Hen. VI, p. 30, pi. 49. A very long Case 91. 
 drawn-out case, where the learning of the period is "debated" with 
 great solemnity. 
 
 (92) A writ of assize which was brought for lands, part Michaeiis 
 within the franchise and part without, was abated because 
 
 the panel could not be arraigned by those of the franchise, 
 nor by the sheriff, etc. Query? 
 
 'This is one of the instances in which the cross-references, which 
 would naturally come at the end of the title, have been placed in the 
 midst of the case. It forms one part of the proof showing that Statham 
 did not correct his own proof, or make any final arrangement of the 
 cases he had so carefully collected. 
 
 The one title which carries a reference is that of the title Prescrip- 
 tion, and the case there referred to is to be found supra, Statham, 
 Prescription, 133 a, case 7. 
 
252 
 
 STATHAM 
 
 Case 92. 
 
 Michaelis 
 20 Hen. VI. 
 
 Case 93. 
 
 Trinity 
 16 Ed. III. 
 
 Case 94. 
 
 Michaelia 
 4 Hen. V. 
 
 Case 96. 
 
 The case has not been identified in Mich. 18 Ed. II, or in the early 
 abridgments. There is a similar case in Hilary, 18 Ed. Ill, p. 86, 
 pi. 1, but the decision differs from that of the abridged case. 
 
 (93) In a praecipe quod reddat against two, they 
 waged their law, and on the day, etc., one of them said 
 that the other had died after the last continuance. And 
 he had the plea, etc. 
 
 The case has not been identified in Y. B. Mich. 20 Hen. VI, or in the 
 early abridgments. 
 
 (94) Debt was brought by executors, and one was 
 severed. The defendant demanded judgment of the writ 
 because he who was severed was dead. And the writ was 
 adjudged good, because the executors of him who was dead 
 could not join in an action with the other executors, etc. 
 
 There is no early printed year for 16 Ed. III. The c^se is printed 
 in the Rolls Series, 16 Ed. II, 2, p. 178. 
 
 (95) In trespass, the writ was that the defendant "to- 
 gether with others" made the trespass, and because the word 
 "ignotus" was left out, the writ was abated, because the 
 intention is that the plaintiff shall give notice to them, in 
 which case he should have named them in the writ, etc. 
 Coram Rege. It is otherwise as to a bill, as was said. 
 
 There is no printed year for 4 Hen. V. The case has not been iden- 
 tified in the early abridgments. 
 
 It may be further noticed here that the cases inserted after the 
 note (see supra, note to case 87) are nearly all from manuscript cases; 
 that they are very poorly done, and would seem to be of very little 
 authority; the whole evidence seems to point to the absence of the 
 master hand in the work. 
 
 " The all-important matter of the writ seems too limitless to attempt to 
 confine within the bounds of the title in an abridgment. Yet the maker 
 of this earliest of the abridgments apparently did not feel hampered 
 by the great bulk of cases which could even then have come logically 
 under this head. When he found a case which to his mind answered a 
 question as to the proper treatment of a writ by the Court, he put it 
 in his title, not bothering whether or not it could logically go some- 
 where else just as well or better. Any one of us to-day would probably 
 put most of the cases which he has put under this title elsewhere, but 
 that only means that not one of us knows our old pleading as he did. 
 
BRIEFE 253 
 
 He, in common with those about him, wanted to know just these things 
 about the writ; these things that come up in everyday practice, so here 
 we have them — points of practice set down for the practising lawyer 
 of the late fourteen hundreds. 
 
 The first case abridged here is important as throwing light on the 
 ideas of the time as to the right of a woman to the name to which she 
 was bom. Rikhill says, "Although she still remains daughter to her 
 father, nevertheless she has lost her surname." Times change, and 
 a judge in a case decided in Wisconsin [Lane v. Duchac, 73 Wis. 646, 
 1889] knows of "no law which will invalidate obligations or convey- 
 ances executed by her and to her in her baptismal name, if she chooses 
 to give them or take them in that form." He gives no authority for 
 his statement, and had evidently never heard of "mon maistre Rikhil" 
 and his equally unsupported decision. It has also been said [Greene: 
 Woman's Manual of Law, p. 72, sec. 85]: "The law does not compel any 
 wife to take her husband's surname when she marries. It is merely a 
 custom not having the force of law." 
 
 The early law seems to form itself upon and be formed by the writ. 
 The Abridgments, treatises, compendiums of all kinds, all that we 
 have in print that treats of the early English law, are based upon the writ. 
 Bracton, Britton, Fleta, the Natura Breviums old and new, follow 
 the names of the writs for the formulation of their compilations or trea- 
 tises. A subject which has not been formulated into a writ has small 
 chance of getting much attention, but let it once become the subject 
 of a writ and it comes into its own, or more than its own. We know 
 when a writ for any certain object first got into the register; we know 
 its first form; we know its later evolutions. We can trace it through 
 the courts, and know how the judges treated it and when it would be 
 sustained and when not. We have at least something well known and 
 tangible to base further knowledge on, but if a subject never came to be 
 formed into a writ, then we may seek in vain for anything but the most 
 perfunctory knowledge or data upon it; we must in the greater number 
 of cases trace the meanderings of our topic painfully through the byways 
 of the books, for the guide posts will be wanting. The great places to 
 which the highways of learning run, filled with crowds of facts, filled 
 with light and crowded with information, are the writs; all else is but 
 vill and hamlet or even terra incognita, lonely and isolated places where 
 one may not even find a single habitant to answer the simplest query. 
 
 It is not strange, perhaps, that we find the title of Briefe a sort of 
 refuge for a motley collection of writs; such a collection as might well 
 be labelled "miscellaneous" to-day in a collection where the author or 
 compiler has a lot of information or matter left which he has not been 
 able to include under any specific head, but has not wished or dared 
 to utterly discard. It would be safe to include the greater portion of 
 the Year Book cases under this title, but although we have a goodly 
 number of cases our compiler has been merciful, and the title has not 
 been swollen unduly. 
 
254 
 
 STATHAM 
 
 BRIEFE AL EVESQUE 
 
 Paschal 
 41 Ed. III. 
 
 statham 31 b. (1) In a praecipe quod reddat, the parties were at issue 
 upon "profession" and the writ was awarded to the bishop. 
 And the defendant brought a writ to the justices, testifying 
 that the bishop was out of the realm, and he prayed a writ 
 to his vicar, and had it, notwithstanding the other writ 
 was not returned, but it was returnable a long time after- 
 ward, etc. 
 
 Reported in Y. B. Paschal, 41 Ed. Ill, p. 10, pi. 6. 
 
 Cage 1. 
 
 Hilary 
 
 60 Ed. III. 
 
 Case 2. 
 
 Michaelis 
 24 Ed. III. 
 
 Case 3. 
 
 Hilary 
 
 13 Hen. IV. 
 
 Caae 4. 
 
 Hilary 
 
 13 Hen. IV. 
 
 Cases. 
 
 (2) In dower against the bishop of S, and another, by 
 different prcBcipes, the plea was "never married," etc. And 
 because the bishop was tenant a writ issued to the metro- 
 politan; and because the other was tenant a writ issued 
 to the same bishop, etc. (They erred, as it seems.) 
 
 The case has not been identified in Y. B. Hilary, 50 Ed. Ill, or in the 
 early abridgments. 
 
 (3) The king brought a Quare Impedit against two ; and 
 against one it was adjudged that he should have a writ 
 to the bishop, but the writ was not to issue until the plea 
 between the king and the other should be argued, to wit: 
 when they were at issue, or at law. Query, shall a man 
 have a writ to the bishop in a writ of right for an advowson, 
 etc.? 
 
 The case has not been identified in Y. B. Mich. 24 Ed. Ill, or in the 
 early abridgments. 
 
 (4) In a quare impedit, if the defendant pleads that he 
 did not disturb him, the plaintiff shall have a writ to the 
 bishop immediately, because the defendant does not claim 
 anything in the patronage. 
 
 The case has not been identified in Y. B. Hilary, 13 Hen. IV, or in 
 the early abridgments. 
 
 (5) The defendant shall have a writ to the bishop where 
 the writ was abated for false Latin, for it is not like nonsuit, 
 etc. By Hankford, etc. 
 
 The case has not been identified in Y. B. Hilary, 13 Hen. IV, or in 
 the early abridgments. 
 
BRIEFE AL EVESQUE 255 
 
 (6) If bastardy be alleged in Trespass, a writ shall issue Michaeiis 
 to the bishop to certify it. By the opinion of ThirniNG, ^^ "^°' ^^' 
 etc., in Trespass. 
 
 The case has not been identified in Y. B. Mich. 14 Hen. IV, or in the Case 6. 
 early abridgments. 
 
 See as to Writ to the Bishop in the title of Qiiare Impedit, Note. 
 and in the title of Trial. 
 
 (7) A writ to the bishop shall be awarded on every Michaeiis 
 appearance, if the defendant makes default; in a Quare 
 Impedit. 
 
 Reported in Y. B. Mich. 10 Ed. II, p. 305, pi. 1. ^^^^ ''■ 
 
 (8) If the defendant in a Qtuire Impedit wishes to have Hilary 
 a writ to the bishop upon the nonsuit of the plaintiff, he 
 shall make a sufficient title to have a writ to the bishop, etc. 
 
 Reported in Y. B. Mich, (not Hilary), 2 Hen. VI, p. 8, pi. 13. See Case 8. 
 also Brooke, Briefe al Evesque, 25; and Fitzh: Brief e al Evesque, 5. 
 
 (9) The king brought a Qtiare Impedit, and on the return Anno 
 
 of the summons the sheriff returned "nihil," and upon the ^^ ^^"' ^^' 
 attachment "nihil," and to the distress "nihil." And now 
 the question is whether the king shall have a writ to the 
 bishop or not? Martyn: It seems that he shall not have 
 a writ to the bishop, for by the common law a man shall 
 have no other process in a Quare Impedit except distress 
 ad infinitum. Thus, if he shall have a writ to the bishop 
 it shall be by the Statute of Marlbridge, which abridged the 
 process in a Quare Impedit. And it seems that he is not 
 within the purview of the Statute, for the Statute is, "Et in 
 placito vera g^uare impedit, si ad primum diem ad quern sum- 
 monitus fuerit non venerit nee essonium miserit impeditor, tunc 
 attachietur ad aUum diem quo die si non venerit, nee essonium 
 miserit, distringatur, et si tunc non venerit, scribatur episcopo 
 loci," and so it appears by the words of the Statute that the 
 writ should be sued. And now he has returned "nihil" 
 to all three writs, so none of them is served, wherefore, 
 Cottingham: It seems that the sheriff should be amerced, 
 for he could have summoned him upon the glebe of the 
 
256 STATHAM 
 
 parsonage, etc. Babyngton: That is not so, for nothing 
 is in demand in this Quare Impedit; but in a writ of right 
 for an advowson it should be as you say. Martyn: If 
 in [a writ of] right of an advowson the tenant makes default 
 upon which the Grand Cape is awarded, what shall be 
 taken into the hand of the king? Babyngton : The glebe. 
 PastoN: That is not so, for the patron shall never have 
 the glebe, for on trespass made while the church is vacant 
 the patron shall not have an action, for the glebe does not 
 belong to him but to the ordinary. But at the Grand Cape 
 the church shall be taken into the hand of the king. And 
 this can be clearly proven, for an advowson can pass by 
 livery, and that shall be at the door of the church, for a sign 
 that the advowson, which is only a novation, passes, etc. 
 Martyn : That does not show how it can pass by livery, etc. 
 Newton : The king shall have a writ to the bishop in that 
 case. And since the Statute says, "ad quem diem'' etc., that 
 proves that he should be summoned. At the common law 
 there was only a distress "in infinite," and the plaintiff lost 
 his issues. Then at the common law he would much rather 
 appear since he loses his issues "in infinite" where there are 
 any issues to lose. And when a ' 'nihil' ' is returned upon him, 
 in which case he loses nothing, then that is a greater evil 
 than it was at the common law. And when there are two 
 evils in one action and the lesser evil is remedied by express 
 words in a Statute, it seems that the greater shall be in- 
 cluded in the same remedy, although nothing is said about 
 it. So here. Paston (to the same effect): Although 
 the Statute is "ad quem diem," etc., it shall not be under- 
 stood by those words that he was summoned in fact, for 
 there are no actions of debt in that place. Wherefore the 
 defendant was outlawed upon the "nihil" returned to the 
 summons. And yet the entry is that such a one was 
 summoned to answer, etc. And yet in fact he was not 
 summoned ; then that entry is nothing but to prove that a 
 summons issued here, wherefore, etc. And they adjourned. 
 Case 9. Reported in Y. B. Mich. 11 Hen. VI, p. 3, pi. 8. 
 
 The Statute is that of Marlborough, 52 Hen. Ill (1267), cap. 12. 
 Stats, at Large, Vol. 1, p. 65. See also Brooke, Briefe al Evesque, 24; 
 and Fitzh : Briefe al Evesque, 4. 
 
BILLE 257 
 
 BILLE" 
 
 (1) A man shall have a bill of trespass in the King's statham 32 ■< 
 Bench, or in the Common Bench, for trespass made in any Trinity 
 county in England, although there be an action pending ^^ ^^' "' 
 against him, if a man assaults him on the way going to 
 
 court ; and he shall be attached in the hall by a crier, or 
 by an officer of the place, for when a man pleads or is em- 
 pleaded, he is immediately under the protection of the king. 
 
 There is no printed Year Book for 31 Ed. II. Ca3e 1. 
 
 (2) See by the opinion of Martyn in a Scire Facias, if a HUary 
 man be imprisoned in the Common Bench, and in the keeping ^ ^^°- ^^■ 
 of the warden of the Fleet, that a man can have a bill of debt 
 against him, as a man shall have in the King's Benfch, in the 
 custody of the marshal, etc. (But it is not the custom, etc.) 
 
 Reported in Y. B. Hilary, 3 Hen. VI, p. 25, pi. 6. (The point is to Case 2. 
 be found on p. 26). It is obscure even there. See also Fitzh: Bylle, 18. 
 
 (3) A man shall not have a bill against one of the clerks Michaeiis 
 
 r 1 T, 1 r T 7 Hen. IV. 
 
 of the Bench, except for trespass, or on a contract made 
 
 in the same [county]^ where the Bench is, but he shall 
 
 sue by writ ; and this in a bill, etc. 
 
 And it was said in the same plea that a man shall not have 
 process of outlawry in any case where the original suit 
 commenced by a bill, etc. Query, if he shall have a Capias 
 ad Satisfaciendum, where he recovers upon a bill, etc. 
 
 Reported in Y. B. 7 Mich. Hen. IV, p. 5, pi. 34 (point on p. 6). See Case 3. 
 also Brooke, Bille, 4; and Fitzh: Bylle, 17. 
 
 (4) One brought a bill in the King's Bench for a deceit Anno 
 made in the Hall of Westminster. And the marshal of 
 
 the place took the panel of the people who were in the Hall. 
 
 And see, by Hankford, in the same plea, that an essoin 
 does not lie in any plea which commences by a bill, and no 
 more does it in the Oyer and Terminer, etc. 
 
 The case has not been identified in Y. B. 7 Hen. V, or in the early Case 4. 
 abridgments. 
 
 'Word from the report of the case. Statham has it "Contract." 
 
258 STATHAM 
 
 " The first attempt to clear up the story of the Bill as we find it in the 
 early Year Books, and consequently in our abridgment, resulted only 
 in the conviction that the bill as it was known in these early times had 
 been respectfully neglected by all our writers upon the early law. 
 Crabb alone [Crabb, Hist, of Eng. Law] seems to have had some idea 
 of the ancient bill, for he says [p. 282] that the "bill seems to be of more 
 ancient date than the writ." His reason for this statement makes one 
 suspect that he had seen some of the old bills in manuscript, for he says 
 that they were better adapted to the extraordinary jurisdiction exer- 
 cised by the earlier kings than the writ. Later knowledge seems to 
 prove this contention, but no one else pays much attention to the point 
 thus brought forward. Reeves [Hist. Eng. Law, Vol. 3, p. 93] feels that 
 the knowledge of the subject had become lost in the mists of time! The 
 origin of the practice of making use of the bill rather than the writ is 
 only conjectural. The use of it in the three courts is sufficiently attested 
 by the Year Books of Ed. IH, these courts being the King's Bench, 
 Common Pleas and Exchequer. He says further,"! t is beyond all ques- 
 tion that actions were brought in this way during all this reign, and the 
 books are full of them." [lb., p. 93.] Reeves was influenced, as 
 everyone seems to have been, by the idea which grew up around the sub- 
 ject that the proceeding by bill might have arisen through the juris- 
 diction of the marshal. He found cases in which the jurisdiction of 
 the marshal was not mentioned, but he thought that might be explained 
 by the fact of the custody being understood without necessity of men- 
 tion. No one else seems to have thought much about the matter. 
 Either they had not the insight which led Crabb to doubt the accuracy 
 of the inference that the bill grew from that in which the defendant was 
 in custodia marescalU, and from that into the bill of Middlesex, or they 
 had too much respect for the depth of the dust overlying the subject 
 to care to disturb it. At all events they one and all, the greatest as well 
 as the least, left it where they found it. There it was found when, coming 
 to the subject of bills in the Abridgment, it became apparent that Crabb 
 was right — that the bill was a very ancient method of procedure, con- 
 current with the writ, and that it had nothing whatever to do with the 
 custody of the marshal, and therefore, nothing to do with the bill of 
 Middlesex. Yet the evidence was not wholly complete; the truth was 
 not fully cleared by such evidence as was at hand. All that could 
 be said was that taking it all together the actual evidence as to the his- 
 tory of the bill was not complete. We might read through the lines of 
 the cases where nothing is shown in regard to the custody of the mar- 
 shal and infer from the cases where it is mentioned that it was to be 
 read in by inference to the other cases. There was no actual proof that 
 the contrary was true, although the atmosphere of the cases was con- 
 vincingly the other way. The only thing to say was the somewhat 
 futile sentence, "The cases do not let in sufficient light for us to decide 
 as yet, but the cases have not given us all the light they contain." It 
 
BILLE 259 
 
 seemed hard to let it go at that ; better say nothing and let the law remain 
 undisturbed in its dusty hiding place. And then, upon that decision, 
 came the proof that was needed. Mr. W. C. BoUand had met and — 
 thanks to his possession of the evidence so long shut away from us — 
 had conquered the difficulty. In his introduction to Volume Twenty- 
 seven of the Selden Society Publications [Y. B. Series, Vol. 7, Eyre of 
 Kent, 6-7; Vol. 2, Ed. II, 1313-14, p xxi] he says: "The Year Books 
 and Rolls of the general Eyres reveal to us a procedure which has been 
 so long extinct and which continued for so comparatively short a time 
 that all memory of it seems to have been lost for centuries past. Not a 
 single authority, ancient or modern, that I have consulted — and I have 
 searched wherever I thought instruction might be found — tells us 
 anything of it. I refer to the procedure, in certain cases, by bill 
 instead of by writ." He goes on to say that they were not the bills 
 mentioned in the Roll recording the Trials of the Judges and other 
 ministers of the King before the Commission instituted by Ed. I. 
 Neither did he find that they had "any connection with the ancient 
 bills mentioned by the Lord Chief Justice Hale in his Discourse Con- 
 cerning the Courts of King's Bench and Common Pleas." [Hargrave's 
 Law Tracts (1787), p. 363.] "Neither have they anything to do with 
 that special kind of bill which came to be known by the generic title 
 of 'bill of Middlesex.' " [p. xxii.] At last light had come! The bill 
 which had been so puzzling was not any relation to that bill of 
 Middlesex which was so constantly laying claim to it as a relative, yet 
 which had been seen to show no trace of kinship. Nor does Mr. 
 Bolland stop with assertion; he goes on to give us proof of the 
 matter, and in so doing gives a description of the bills themselves. It 
 was this description which led to the remark above made about Crabb 
 apparently having seen some of the bills themselves. Here is Mr. Hol- 
 land's description: "They are formed of strips of parchment varying 
 in size with what had to be written upon them. Some of them are 
 barely as wide as a man's little finger. They are almost invariably written 
 in Anglo-French. A very few are in Latin. They are largely used by 
 very poor people. No rules as to form affect them, so that no expert 
 knowledge being necessary, they can be framed and presented by any one 
 who can write or who can get another to write for him. There is no evi- 
 dence that any fee was payable on the presentation of a bill, as it was on 
 the purchasing of a writ, but there is conclusive evidence that the way 
 of the very poor man to the ear of the King's Justices was made easy 
 for him. Now to what does all this point? Surely to the immemorial 
 belief that inherent in the King are the right and the power to remedy 
 all wrongs independently of common law or statute law, and even in the 
 teeth of these ... I think that there can be no doubt that these bills 
 are the very beginning of the equitable jurisdiction." [76., Pref. xxviii.] 
 Crabb was right, it appears; this bill was a proceeding "better adapted 
 to the extraordinary jurisdiction exercised by the earlier kings," than the 
 
260 STATHAM 
 
 writ. Was it insight on his part, or had he indeed seen these "strips of 
 parchment" so variable in size and so utterly without form that all the 
 usual defences in regard to form fail? For there is a case given us by 
 Mr. Bolland, in the Eyre of London of 15 Ed. II [p. xxvi] in which one 
 Agnes de Warr was unjustly thrown into prison and brought her bill. 
 She leaves out all statements as to how long she was confined in the dun- 
 geon, and as to how and when the money was taken from her, and what 
 her damages were. The judge himself learns all these matters by 
 questioning her, and makes the defendant answer fully. Here we 
 find ourselves freed from all quibbles, all webs to catch the unwary. 
 The poor man and the poor woman make out their complaint or bill, as 
 it is known, in the simple and unlearned language of the poorer people, 
 and send it in without formal address, even "Sire" being sufficient 
 [p. xxii], to one of the king's justices, and he, apparently, hears the com- 
 plaint much as the lord of a manor might have heard it, and decides in 
 a dispute between two tenants or servants. 
 
 Mr. Holland's account is so full of interest, so illuminating histori- 
 cally, that no one interested in the subject can fail to read and re-read it 
 with profit and interest. Were it not accessible to every student it 
 would seem almost necessary to reprint it here, as it contains the only 
 certain knowledge of the subject in print to-day. His earlier cases are 
 long before those in this abridgment. Indeed they appear to range 
 from Ed. I to Ed. III. Mr. Bolland was editing an Eyre; he believes 
 that only justices in Eyre had jurisdiction of these bills, and appar- 
 ently he would call them "Bills in Eyre." An examination of the 
 printed years of Ed. II and Ed. Ill appear to give additional evidence 
 that this is so, since we find but two cases in the Maynard in which we 
 are told that a bill was brought. The first is Y. B. 14 Ed. II [p. 425], 
 and is a bill of debt, brought in an eyre in London. The second is a 
 bill of trespass [Y. B. 14 Ed. II, p. 425] brought against an abbot. 
 Here there is nothing to show where the bill was brought, and the 
 case stands without giving any testimony for or against the theory of 
 the bill in eyre. The first case in Y. B. Ed. Ill [18 Ed. Ill, 28, 31] 
 shows that a bill for goods carried away was brought in the Common 
 Pleas, while a writ for the same trespass was pending in the King's 
 Bench. The case presents us with no argument upon the subject of the 
 differences or likenesses as to bills — plain or in eyre — and writs; in 
 fact the bill and the writ are spoken of as if they were practically the 
 same thing. There is no symptom of the doctrine of custodia mare- 
 scalli or bill of Middlesex. Taken by itself we might infer from the 
 case that a bill and a writ were exactly the same. The case seems to 
 stand by itself among the printed cases, and so standing it is not suffi- 
 cient as a basis for a new theory as to the status of writs at this period. 
 In 21 Ed. Ill [p. 46, pi. 65] a bill of fresh force was brought, in which it 
 was alleged that it was pleadable by the common law and not by way of 
 bill. This idea would show the bill to be a sort of equitable bill. 
 
BILLE 261 
 
 which the bill in eyre seems to have been in a way, although we have 
 seen already one case in the Common Pleas. Our next case of a bill 
 brings us into the region of the bill of Middlesex, and does not belong to 
 the bill we are considering. [Y. B. 27 Ed. Ill, p. 4, pi. 1.] Another 
 case in 27 Ed. Ill [Y- B. 27 Ed. Ill, p. 6, pi. 25] shows us a bill in the 
 King's Bench "alleging divers things," but there is nothing to show how 
 the bill was treated by the Court. The only other case of a bill [Y. B. 
 42 Ed. Ill, p. 13, pi. 20] is against the warden of the Fleet and is prob- 
 ably a bill of Middlesex. 
 
 Perhaps we should look at the four cases in our abridgment in which 
 the bill is used instead of the writ. The first case is only known to us 
 through the abridgment itself, for we have no printed Year Book for 
 the year 31 Ed. III. It is rather a note than a case, but it states boldly 
 that a bill of trespass may be brought in either the King's Bench or 
 Common Bench; it seems as if it narrowed the bringing of a bill down, 
 however, to the case where a man has an action pending against him, 
 and he is therefore in the protection of the king. This being the case, 
 it would again be the extraordinary jurisdiction of the king which makes 
 the proceeding by bill the proper proceeding. The second case is again 
 a case of bill of Middlesex. 
 
 We get little, if anything, on our special point from the next two cases ; 
 they are points of pleading on the bill rather than cases which show 
 us anything about the bill itself, and it is interesting to learn from our 
 case four that an essoin did not lie in a case which began by a bill; evi- 
 dently the shifts which were used to gkin time in the writs were not 
 allowed in the more equitable proceeding by bill. 
 
 On the whole we have made one step and but one in the discovery of 
 the history of the procedure by bill in the early cases. We know that 
 these bills were brought in the eyres. We have some cases to show 
 that they were also brought in the King's Bench and the Common Pleas 
 in the common course. The evidence necessary to prove that these 
 bills were not simply bills in eyre but bills in opposition, or in an alterna- 
 tive procedure to the writ, is as yet but slight, but is sufficient for 
 hope that now that the attention of the patient legal searcher for his- 
 torical fact has been called to the matter, we shall soon be able to trace 
 the history of the bill; and the signs are that we shall find it, not a fore- 
 runner of the bill of Middlesex, not even a bill in eyre simply, but an 
 alternative procedure to the writ, of an equitable nature, but in many 
 ways unlike the bill in equity. 
 
 BARRE22 
 
 (1) In trespass, the defendant said that the plaintiff ^tatham 32 b. 
 formerly, etc., affirmed a complaint for the same trespass f^i^^jjj 
 against the same defendant, in London, etc., and he pleaded 
 
262 
 
 STATHAM 
 
 Case 1. 
 
 all the record, etc., and had judgment to recover forty 
 shillings for the damages, which we have been ready at 
 all times to pay, and still are. And he offered the money. 
 Ufflete : He pleads a record in a lower Court, and also he 
 does not show that we have sued execution, wherefore it 
 is no plea. And afterwards it was adjudged that the 
 plaintiff was barred, etc. 
 
 Reported in Y. B. Trinity (not Paschal), 40 Ed. Ill, p. 27, pi. 3. 
 See also Fitzh: Barre, 194. 
 
 Michaelis 
 40 Ed. III. 
 
 Case 2. 
 
 (2) In a writ of rationabili parte bonorum, the defendant 
 showed that the plaintiff had a reversion descending 
 through his father, so she was estopped as she had had an 
 advancement. And the opinion was that it was a good 
 bar notwithstanding the reversion had not fallen in, because 
 she could sell it, etc. 
 
 Reported in Y. B. Mich. 40 Ed. Ill, p. 38, pi. 13. Statham and the 
 report differ as to the words of the case. 
 
 Paschal 
 41 Ed. III. 
 
 Cases. 
 
 (3) In formedon, it was alleged that one A gave to his 
 father. Canndish: This A, who gave, is the same person 
 who is tenant. And he said that this gift was by 
 force of imprisonment, and it was adjudged a good bar, 
 etc. 
 
 Reported in Y. B. Paschal, 41 Ed. Ill, p. 9, pi. 2. 
 
 Trinity 
 42 Ed. III. 
 
 Case 4. 
 
 (4) In formedon in the descender, on a gift made by one 
 F to G and C, his wife, in tail, and to the demandant 
 as son and heir to them, etc. Fencot : One F, your grand- 
 father, whose heir you are, gave these same lands to the 
 said G and C, in fee, with warranty, by his deed, etc. G 
 survived C, whose estate we have. Judgment if, against 
 the warranty, etc. Belknap: This F, and F, the donor, 
 are all one and the same person. And inasmuch as your 
 plea is contrary to your writ, judgment, etc. Thorpe: 
 This plea is good enough, for he relies upon the warranty, 
 wherefore answer him if you will, etc. 
 
 Reported in Y. B. Trinity, 42 Ed. Ill, p. 19, pi. 1. 
 
BARRE 263 
 
 (5) In a writ of entry, it was alleged that the tenant had Hilary 
 no entry except by one A, who disseised the father of the *^ ^^' '" 
 demandant. Fencot: Your grandfather, whose heir you 
 
 are, enfeoffed us with warranty, judgment, etc. And it 
 was adjudged a good bar. And so is warranty of every 
 ancestor a good bar, or of the demandant, notwithstanding 
 it is contrary to the writ. But yet the feoffment without 
 warranty is not to the purpose, without traversing the point 
 of the writ, etc. 
 
 The case has not been identified in Y. B. Hilary, 43 Ed. Ill, or in the Case 5. 
 early abridgments. 
 
 (6) In trespass, the plaintiff counted that this bailiff took Paschal 
 certain cattle within his fee, etc., in such a place, for rent 
 
 in arrear, and the defendant made a rescue on him. The 
 defendant said that he took them in another place within 
 the same vill, which is out of his fee, and he made the rescue, 
 etc. Belknap: He does not answer us, wherefore, etc. 
 Fyncheden: It is enough for him to arrest^ you for a 
 distress, wherefore answer him, etc. Query as to this, for it 
 seems that it is no plea, for various reasons, etc. 
 
 The case has not been identified in Y. B. Paschal, 43 Ed. Ill, or in Case 6. 
 the early abridgments. 
 
 (7) In detinue against the husband and his wife, the Trinity 
 plaintiff counted for twenty sheep bailed to the wife before ^^ ^^' '^^' 
 coverture. Belknap: He bailed them to our wife to 
 fertilize his land and afterwards we married her; and we 
 commanded you to take your sheep, and you would not. 
 
 And then we found them damage feasant on our soil, and 
 we took them. Judgment if action (etc.). And it was 
 adjudged a good bar. Which note. 
 
 Reported in Y. B. Trinity, 43 Ed. Ill, p. 21, pi. 10. Case 7. 
 
 (8) In trespass, the defendant said that the plaintiff had Trinity 
 an action of detinue pending against him for the same thing, 
 
 and that he had appeared. Judgment if action (etc.). 
 
 And it was not allowed, because this action was of a different 
 
 'The writ "Arristandis bonis ne disipentur.'' 
 
264 
 
 STATHAM 
 
 Cases. 
 
 nature. Which note, for it might be that he had cause for 
 both actions. 
 
 Reported in Y. B. Mich, (not Trinity), 43 Ed. Ill, p. 23, pi. 15. 
 
 Michaelis 
 46 Ed. III. 
 
 Case 9. 
 
 (9) In a writ of entry on a disseisin made on his grand- 
 father, the tenant [said] that one H was seised and gave 
 the same tenements to your grandfather, and A his wife, 
 and the heirs of his wife; and your grandfather died and 
 his wife remained in, whose estate we have. And this is a 
 bar. But yet query, for it did not give him color for an 
 action, etc. See the plea, etc. 
 
 Reported in Y. B. Mich. 46 Ed. Ill, p. 30, pi. 26. 
 
 Trinity 
 47 Ed. III. 
 
 Case 10. 
 
 (10) In trespass for a close broken, the defendant said 
 that the plaintiff had leased the same close before the 
 alleged trespass to one B, for a term of ten years, which 
 still lasts, judgment if action (etc.). Query, if it be a plea, 
 since he did not say what estate he had, etc. 
 
 The case has not been identified in Y. B. Trinity, 47 Ed. Ill, or in 
 the early abridgments. 
 
 Hilary 
 48 Ed. III. 
 
 Case 11. 
 
 (11) In trespass for a close broken, the defendant said 
 that he was amerced in the court of the plaintiff at D for 
 two shillings for the same trespass, which he had paid to 
 him at such a place. And it was adjudged a good bar. 
 But this amercement was not legal, as it seems, then 
 neither is the plea good, unless it be by way of accord, etc. 
 
 Reported in Y. B. Hilary, 48 Ed. Ill, p. 8, pi. 16. See also Fitzh: 
 Barre, 222. 
 
 HUary 
 
 31 Ed. III. 
 
 (12) In a writ of annuity by a prior against a parson, 
 he counted that the predecessor of the prior had leased 
 to the predecessor of the parson certain tithes, for which 
 the said predecessor of the parson, with the assent of the 
 patron and of the ordinary, granted to our predecessor the 
 annuity, etc. Fulthorpe : He did not lease it. And the 
 opinion was that this was not a bar, for he had declared 
 according to the specialty. And although there was no 
 
BARRE 265 
 
 such lease, still, to end the dispute, the annuity was 
 granted, etc. 
 
 There is no printed year for 31 Ed. III. Case 12. 
 
 (13) One avowed upon the tenant because he leased Paschal 
 certain lands to him for the term of his life, rendering a ^^ ^^' ^^^' 
 certain rent, and for so much in arrear, etc. , The tenant said 
 
 that the avowant entered upon him and enfeoffed one H 
 in fee, judgment, etc. Query if it be a bar, since he did 
 not say what estate he had, etc.? But yet the plea seems 
 good, for it amounts to "out of his fee," etc. It seems 
 double, etc. 
 
 There is no printed Paschal Term for 30 Ed. III. Case 13. 
 
 (14) In debt upon an obligation, the defendant said that Hilary 
 
 he said to one F, If the plaintiff would make an in- ^^ ^^"- ^^■ 
 
 denture and deliver it to him, then he would make an 
 
 obligation in the name of the defendant. And he said 
 
 that the plaintiff had not performed the conditions, so not 
 
 his deed. (And so see that he admitted no livery, etc., 
 
 for if he admitted a livery and pleaded as above, the opinion 
 
 of many is that the plea was not good, etc.) 
 
 There is no printed year for 13 Hen. VI. Case 14. 
 
 (15) In formedon on a rent service, it is no plea that the Paschai 
 lands are not held of him, because by the presumption of ^^^'^- 1'"^- 
 this action he is out of the possession of the rent, in which 
 
 case he does not hold of him, etc. And also it is no answer 
 
 to the writ, which alleges a gift, etc. And if it be a plea 
 
 it amounts to no more than that the land is out of his fee, 
 
 which is no plea in a formedon for rent, because the title 
 
 is comprised in the writ. But yet it does not appear by 
 
 the writ what rent it is. Query, should he put it in his 
 
 count? etc. And if he showed in his count that it was a 
 
 rent service, shall he say, "out" etc.? And it seems not, stathamSSa. 
 
 but that he shall answer to the gift, etc. 
 
 The case has not been identified in Y. B. Paschal, 19 Ed. Ill in the Case 15. 
 Rolls Series, or in the early abridgments. 
 
266 
 
 STATHAM 
 
 Michaelis 
 24 Ed. III. 
 
 Case 16. 
 
 Hilary 
 
 14 Hen. VI. 
 
 Case 17. 
 
 Trinity 
 3 Hen. IV. 
 
 (16) In a writ of intrusion, the tenant said that he 
 enfeoffed this same [person] whom you allege to be tenant 
 for life, in the tail, and he died without issue, and we 
 entered, without this that he died your tenant for life. 
 And the plea was adjudged good. But yet, query, etc. 
 
 Reported in Y. B. Mich. 24 Ed. Ill, p. 74, pi. 95. 
 
 (17) In maintenance, the defendant said that he was 
 his cousin, and he showed how as appears [in the case]. 
 And he said he was his mainpernor, which was the alleged 
 maintenance, etc. (The plea seems double, etc. And also he 
 did not say, "without this that he maintained in any other 
 manner.") But yet the plea was adjudged good, etc. 
 
 Reported in Y. B. Anno 14 Hen . VI, p. 6, pi. 30. See also Fitzh : Barre, 
 15. 
 
 (18) In debt upon an obligation, the defendant said that 
 formerly the plaintiff sued a bill of debt for this same obliga- 
 tion before the sheriff of London, against this same defend- 
 ant, who pleaded a release of the plaintiff, bearing date 
 at Windsor. And the plaintiff demurred upon the plea, 
 inasmuch as the custom is that no such foreign plea is 
 sufficient, etc. Wherefore, inasmuch as that was a good 
 plea, it was adjudged that the plaintiff should have a 
 sequatur at the common law, and that the defendant 
 should go without day. And we demand judgment, inas- 
 much as you were once barred. Rede: Since the force 
 of the judgment was of no other effect than that we were 
 put to sue at the common law, and inasmuch as the plea 
 that was pleaded went to the jurisdiction, judgment, etc. 
 Hankford : It seems that the plea shall be barred, for when 
 the defendant pleaded that plea, it was a good plea prima 
 facie, for the plaintiff could have admitted it, and said that 
 it was made through duress in London, in which case the 
 Court would have had jurisdiction; or if he had said, "not 
 his deed," then they would have adjudged that it was at the 
 common law, but when he demurred in judgment generally, 
 it was his own folly. And to this that is said, that the 
 judgment contains two kinds of judgment, to wit: that the 
 
BARRE 267 
 
 plaintiff sue at the common law, and the defendant go 
 without day, that shall be taken according to the matter. 
 And the reason for the judgment, which was that he should 
 be barred, [is] as in a Quare Impedit brought by the king: 
 if the defendant bars the king, the judgment is that he go 
 without day; and if he abates the writ of the king, judg- 
 ment is in the same manner, so it does not appear by the 
 judgment whether the king shall have another action or 
 not, but that it shall be taken according to the plea of the 
 defendant. So here. And they adjourned, etc. 
 
 Reported in Y. B. Trinity, 3 Hen. IV, p. 18, pi. 3. Case 18. 
 
 (19) In debt upon an obligation, the defendant said Michaelis 
 the obligation was endorsed upon the condition that if he ^* ^^° ^^" 
 obeyed the award and arbitrement of one G, then, etc., 
 
 which G adjudged that I should pay to you at the feast 
 of Nowel last past, ten pounds; on which day I offered 
 you the money, and you refused it, judgment if action, etc. 
 Newton : That is no plea, for he does not say that he has 
 been at all times ready, etc. Nor does he offer the money 
 to the Court, etc. Martyn: There is a difference when 
 a man pleads an arbitration in bar and when he pleads 
 a condition; for if the obligation be endorsed that I shall 
 pay ten pounds on such a day, I shall plead as you say, 
 for there it is all the time a debt owed by me, for which the 
 plaintiff can have an action. But in the other case I shall 
 be forced to pay only according to the form of the arbitra- 
 tion. And if it appears by his plea that he has performed 
 the award, then the plaintiff can have an action for that, 
 wherefore answer, etc. 
 
 Reported in Y. B. Anno 14 Hen. VI, p. 23, pi. 68. The year 14 Case 19. 
 Hen. VI is not divided into terms in the printed Year Book. 
 
 (20) In a writ de herede rapto, the plaintiff said that he Hilary 
 was grandfather to the infant, and had one hundred pounds 
 
 of land, and that the infant was his next heir for this same 
 land, and that he took him by reason of nurture, judgment 
 if wrongfully — without this that he would aver that the 
 mother of the infant who brought the action never had any 
 
268 
 
 STATHAM 
 
 Case 20. 
 
 Hilary 
 31 Ed. III. 
 
 Case 21. 
 
 Paschal 
 49 Ed. III. 
 
 Case 22. 
 
 Paschal 
 49 Ed. III. 
 
 Case 23. 
 
 Trinity 
 49 Ed. III. 
 
 lands which could descend to him . Willoughb Y : Whether 
 she has lands or not the nurture belongs to the mother, 
 wherefore your plea avails not. Which was conceded by 
 the Court. 
 
 There is no printed Year Book for 31 Ed. III. 
 
 (21) If a woman brings a writ of Dower against the heir 
 and is barred, and then she brings another writ of Dower 
 against his guardian, he shall plead this matter in bar, 
 etc. And the law is the same for an advowson recovered 
 by the heir, and if he against whom the recovery was 
 limited brings a Quare Impedii against the guardian in 
 chivalry, or in socage, he can bar him by such matter, 
 because he claims in right of the heir. And this in a Quare 
 Impedit, etc. 
 
 There is no printed Year Book for 31 Ed. III. 
 
 (22) In detinue upon an obligation, the defendant said 
 that the obligation was delivered to him by the plaintiif 
 and one A, who was bound to the plaintiff in the same deed, 
 etc. , and he prayed a Scire Facias, etc. [A] came and pleaded 
 the release of the plaintiff for all matters in dispute. And 
 the opinion was that he should not be barred in that action 
 because if he recovered and brought a writ of Debt upon 
 that, then he would be barred. (And yet "frustra sit per 
 plura") 
 
 Reported in Y. B. Paschal, 49 Ed. Ill, p. 13, pi. 6. 
 
 (23) "Never joined," etc., is no plea in a Cui in Vita, 
 because she does not claim anything of the possession 
 of her husband, nor by him, etc. By Thorpe, in an 
 Assize, etc. 
 
 The case has not been identified in Y. B. Paschal, 49 Ed. Ill, or in 
 the early abridgments. 
 
 (24) In a cui in vita, in which she claimed to hold to 
 herself and the heirs of her body issuing, etc. Babyngton : 
 He did not give it. Thorpe : That is no plea, for the point 
 of her writ is the feoffment of her husband, which ought 
 to be received; and although he did not give it, still if 
 
BARRE 269 
 
 another gave it she shall have an action. And albeit 
 no gift was made by anyone, but it came to her by descent, 
 still she shall have an action, wherefore you can have it 
 in abatement of the writ, and not by way of bar, since the 
 writs are of different forms, etc. 
 
 Reported in Y. B. Trinity, 49 Ed. Ill, p. 22, pi. 6. Case 24. 
 
 (25) In waste, the defendant said that he did not sur- Michaeiis 
 render to the plaintiff before the purchase of the writ; to ^"' ^' 
 which he agreed. GooDREDE : That is well, for if the plain- 
 tiff said that he did not surrender, the tenant will say that 
 
 he surrendered at such a place, etc. And in the same way 
 in regard to money, if the issue is taken upon that, as 
 where a man pleads a release in bar, who says "not his 
 deed." Then the defendant shows the place in sufficient 
 time, and he shall say, "Your deed made at such a place." 
 Query, could he have alleged that place in another county, 
 etc.? I think he could not, etc. 
 
 There is no printed year book for 15 Hen. VI. Case 25. 
 
 (26) In debt upon the arrears of a lease for a term of Michaeiia 
 years, it is a good plea to say, "levied by distress," without ^ ^^"' ^^' 
 answering to the debet, etc., for it is a special declaration, stathamSSb. 
 in which case each point is traversable, etc. 
 
 Reported in Y. B. Mich. 4 Hen. VI, p. 5, pi. 12. Case 26. 
 
 (27) If a man pleads an accord in bar, he should show Hilary 
 in his plea in what place the accord was taken, etc., and hot ^"' 
 plead generally as in a release. And this in Trespass, 
 
 etc. 
 
 There is no printed Year Book for 15 Hen. VI. Case 27. 
 
 (28) In a writ of entry, it was alleged that the tenant Hilary 
 had no entry except by one J, who disseised the demandant. 
 Cotesmore: One H, your father, was seised, etc., and 
 gave these same lands to the said J, our father, in tail, 
 
 and then your father died, and you, alleging that he had 
 leased for the term of his own life solely, entered, etc., and 
 
270 STATHAM 
 
 our father ousted you and died, etc., judgment, etc. And it 
 was held a good bar. And so see that in every writ of Entry a 
 man can give "color of action," as in an assize on a specialty, 
 where the disseisin is made on the demandant himself, etc. 
 Case 28. Reported in Y. B. Hilary, 4 Hen. VI, p. 10, pi. 3. 
 
 Hilary (29) In a wiit of entry in the post, on a disseisin made 
 
 on the father of the demandant, it is a good bar to plead 
 the feoffment of the said father, without warranty, for the 
 writ does not allege with certainty any entry, etc. 
 
 Case 29. There is no printed Year Book for 35 Ed. HI. 
 
 Paschal (30) In debt, the plaintiff counted upon an obligation 
 
 ^" made by the defendant to the plaintiff, bearing date the 
 
 first day of May, in the first year of the present king; and 
 that this same deed was first delivered to the plaintiff the 
 first day of July in the same year. FoRTESCUE said 
 that the plaiiitiff and the defendant put themselves upon 
 the arbitrement of A, B and C, the first day of April in the 
 same year, as to all trespasses and disputes, etc., who 
 awarded that the defendant should make this same obliga- 
 tion and deliver it to the wife of the plaintiff, to the use 
 of the plaintiff; and that he made the obligation and 
 delivered it to the wife, as above, the same first day of May. 
 And then, the first day of July, the said wife first delivered 
 the said obligation to her husband, who is now plaintiff. 
 And the said plaintiff, by his deed, which is here, bearing 
 date the last day of May, released to us all actions. Judg- 
 ment if against this release, action, etc. PortvngtoN: 
 To the plea pleaded by the manner, etc. Sir, that is no 
 plea, for he does not answer us unless he says, "Without 
 this that it was first delivered the first day of July," for 
 two affirmatives cannot make an issue, and that plea refers 
 to this that was delivered to our wife the first day of 
 May, which delivery is of the date of the deed, and 
 not of the other delivery, etc. Fortescue: No, sir, for 
 the delivery to the wife to your use is not good until you 
 have agreed, etc. And we have shown that the wife first 
 delivered the deed to you the first day of July, and it shall 
 
BARRE 271 
 
 be understood that if you did not agree before that, 
 then you agreed with us as to the days, etc., wherefore 
 it is not necessary for us to traverse you, etc. And this 
 was truly well debated. And it was adjudged that the 
 plaintiff should recover his debt and his damages. 
 
 The case has not been identified in Y. B. Paschal, 18 Hen. VI, or in Case 30. 
 the early abridgments. 
 
 (31) In an action upon the Statute of Laborers against Trinity 
 the master, the servant of the master said that whereas ^"' 
 you have counted that he was retained by you on Candle- 
 mas Day, the year 18 of the present king, until Candlemas 
 
 next following, we say that on the first day of March, 
 in the year 16 of the same king, we retained him to serve 
 us for one year next ensuing; and he on the twentieth day 
 afterward departed from our service, and the same day 
 made a covenant to serve you for one year next ensuing. 
 And then we found him in your service, and required him 
 to come to us, and he came back, without this that you 
 retained him at the feast of Candlemas, etc. Fortescue : 
 That is no plea, for it may be that the plaintiff retained 
 him on another day before or after, which is good enough. 
 For it may happen that he came to the plaintiff at the 
 Candlemas which the plaintiff has alleged, at which time 
 your term was ended, wherefore, etc. And this was the 
 opinion of the Court, wherefore he said as above, "without 
 this that he was retained to serve him from Candlemas to 
 Candlemas," etc. 
 
 Reported in Y. B. Trinity, 18 Hen. VI, p. 13, pi. 2. Case 31. 
 
 Statute of Laborers, 23 Ed. Ill (1349), Stats, at Large, Vol. 1, p. 26. 
 
 (32) In trespass for a servant beaten. Markham: Trinity 
 Action, etc., for we [say by way of] protestation that we ^^ ^^"- ^^• 
 did not beat him. But we say that at the time of the 
 alleged trespass he was not your servant. Ready. PoR- 
 TVNGTON : That is no plea, no more than in trespass for 
 
 goods carried away it is a plea to say that at the time, etc., 
 the property of the same goods was in another, for it amounts 
 to "not guilty." Newton: It is not the same, for in the 
 
272 
 
 STATHAM 
 
 Case 32. 
 
 case here the plea is good. (But he did not give the reason, 
 etc.) Query as to the difference? But he could have 
 made a good plea of this matter if he had said that he was 
 a common tailor, or suitmaker, and made robes for the 
 plaintiff and others, without this that he was his servant 
 in any other manner; and he would then have given color to 
 the plaintiff to have an action, etc. Simile, Mich. 11 Hen. 
 IV, placitum one. 
 
 Reported in Y. B. Trinity, 18 Hen. VI, p. 16, pi. 5. See also Fitzh: 
 Barre, 18. 
 
 Trinity 
 
 18 Hen. VI. 
 
 Case 33. 
 
 (33) In debt upon the arrears of a lease for a term of 
 years, the plaintiff counted upon the lease, which was by 
 deed indented. Markham: Nothing owing him. Ready, 
 etc. FoRTESCUE : That is no plea against the specialty. 
 Newton : A levy by distress is a good plea, and it is reason- 
 able, for he cannot constrain the lessor to make him an 
 acquittance; but he should say further, "and so nothing 
 owing him, and so nothing in arrears." Paston : Although 
 the plaintiff has declared by a deed indented, that does 
 not alter the case to my mind, for the action is founded 
 upon the lease. And such a plea has often been admitted. 
 And also in debt upon the arrears of an account, the plea 
 is good. And they adjourned. Query as to that conclusion, 
 to wit: "And so nothing in arrears," for if he pleaded thus 
 he would not reply to the point of the writ, to wit: to the 
 debet, etc. 
 
 Reported in Y. B. Trinity, 18 Hen. VI, p. 17, pi. 8. See also Fitzh: 
 Barre, 19. 
 
 Michaelis 
 30 Hen. VI. 
 
 (34) Where one is bound in a recognizance to be in the 
 Chancery on a certain day, or to have another man there 
 on a certain day, on which day he does not come, wherefore 
 a Scire Facias is issued against him to have execution, 
 it was the opinion of many of the judges that he should 
 say that on the day, etc., he was imprisoned at such a place 
 at the suit of such a one, wherefore no default was in him. 
 And also he could not have an action against him at whose 
 suit he was imprisoned, for the imprisonment was legal 
 
BARRE 273 
 
 by force of a suit. It is otherwise where a man imprisons 
 
 him by his own tort, in which case he would not make a 
 
 plea [of that sort]. But yet it seems hard for him to have 
 
 his plea, for it was his own folly to be bound by such statham34a. 
 
 a recognizance so strictly; as appeared in the year 40 Ed. 
 
 Ill, where a man bound himself by his deed that he would 
 
 be excused for anything which came by sudden adventure, 
 
 which is an act of God. A fortiori he could not excuse 
 
 himself in that case, except for that for which he was [not] 
 
 bound , to wit : if he bedead , becausedeath dissolves all things. 
 
 The case has not been identified in Y. B. Mich. 30 Hen. VI, or in the Case 34. 
 early abridgments. 
 
 (35) In debt upon an obligation for twenty pounds, the MichaeUs 
 defendant said that it was endorsed upon the condition ^°" 
 that if he paid to the plaintiff ten pounds on a certain day 
 
 and place, that then, etc.; on which day he offered the 
 money to him and he refused it, judgment if action. And 
 the opinion of Fortescue was that this was no plea, because 
 for the sum of ten pounds the plaintiff could not have an 
 action. And it clearly appeared that it was a debt, and 
 so he ought to show that he had been at all times ready, 
 etc., for it is not the same as where the condition is that 
 they will submit to the award of certain persons, who 
 award that they shall pay to the plaintiff ten pounds on 
 such a day and [at such a] place, which they offered him 
 and he refused, for on that the plaintiff can have an action, 
 and therefore it is sufficient. But it is otherwise in this 
 case, etc. And they adjourned. (Query, all the same, in 
 the case of the arbitrement), etc. 
 
 The case has not been identified in Y. B. Mich. 30 Hen. VI, or in the Case 35. 
 early abridgments. 
 
 (36) In formedon for rent, the warranty of the same Hilary 
 ancestor, with assets by descent, is a good bar, although ^^ ^^- "'• 
 the rent cannot be discontinued except at the will of the 
 
 issue. But it is the folly of the issue to bring such an action, 
 which proves him to be out of possession of the rent, etc., 
 for he could have distrained, etc. 
 
 There is no printed Year Book for 33 Ed. III. Case 36. 
 
274 
 
 STATHAM 
 
 Paschal 
 34 Ed. III. 
 
 Case 37. 
 
 (37) In an assize, the tenant said that one such rendered 
 to me the same land by a fine, and the estate of the plaintiff 
 is mesne. Sharshull: That is no plea, for it is not like 
 a recovery, which disproves the right of the plaintiff and 
 every right prima facie. To which the Court agreed, etc. 
 In that case there was not any mesne [at the] time. 
 
 There is no printed Year of 34 Ed. III. The text seems corrupt, 
 but I give it as it stands, not being able to correct it without changing 
 the text more than seems best. 
 
 Michaelis 
 21 Hen. VI. 
 
 Case 38. 
 
 Trinity 
 
 21 Hen. VI. 
 
 Case 39. 
 
 Michaelis 
 21 Hen. VI. 
 
 Case 40. 
 
 (38) In a scire facias to recover damages, the plaintiff * 
 said that within the year the plaintiff sued a Fieri Facias to 
 the sheriff, who had levied for the same sum," judgment if 
 another time, etc. And it was adjudged a good plea, etc. 
 See such matter well debated, Anno 11 Hen. IV. 
 
 Reported in Y. B. Mich. 21 Hen. VI, p. 5, pi. 13. 
 
 (39) In a writ of entry in the nature of an assize, the 
 tenant said that the plaintiff enfeoffed such a one, "whose 
 estate I have." And the opinion was that this was not 
 a bar. Query as to the reason, for it is a good bar in an 
 Assize. 
 
 Reported in Y. B. Mich, (not Trinity), 21 Hen. VI, p. 12, pi. 26. 
 
 (40) In debt against a collector, he declared that the 
 king had given him the sum by a patent, and that there 
 was a liberate delivered to the same collector. The 
 defendant said that he had paid all that was in his hands 
 by force of a tally delivered to him ; and he did not say that 
 the tally was delivered to him before the liberate and 
 for this reason the plaintiff demurred upon him. Fray: 
 When a man brings an assize of Novel Disseisin or an action 
 which is uncertain, the defendant can plead a release or 
 a feoffment which is also uncertain, and this is sufficient to 
 stay the plaintiff from any possession, but where the day and 
 the year are declared in certain, the law is otherwise ; where- 
 fore it was adjudged that the plaintiff should recover, etc. 
 
 The case has not been identified in Y. B. Mich. 21 Hen. VI, or in the 
 early abridgments. 
 
 ' Defendant. * Words from the report of the case. 
 
BARRE 275 
 
 (41) In debt upon an obligation against two, one pleaded Paschal 
 a release by the plaintiff; the other denied the deed. And 
 
 it was found that the plaintiff had released, and that the 
 obligation was the deed of the other. And the opinion was 
 that the plaintiff should recover against him, because he 
 could take no advantage by the release, etc. 
 
 The case has not been identified in Y. B. 21 Hen. VI, or in the early Case 41. 
 abridgments. 
 
 (42) In debt upon a lease for a term of years, it is no plea Michaeiis 
 to say that the plaintiff commanded him to make repairs 
 unless he shows a deed for the command ; by Hankford. 
 
 But in Trespass it is a good plea to say that the plaintiff 
 gave him a license to cut the same trees, and he need not 
 show the license. Query, if in debt upon a lease for a term 
 of years it is a plea to say that the plaintiff gave him the 
 same arrears without showing a deed? 
 
 Reported in Y. B. Hilary (not Mich.), 14 Hen. IV, p. 27, pi. 35. See Case 42. 
 also Fitzh: Barre, 192. 
 
 (43) In detinue, the plaintiff counted of a box with muni- MichaeUs 
 ments, and especially of a charter concerning the manor 
 
 of B, of which one H was seised, and he conveyed the 
 descent of this same manor down to himself, etc. And the 
 defendant said that this same H, by whom you claim, was 
 never seised, etc. And he had the plea. And so see the 
 difference, for if he had admitted the bailment, the bailment 
 had then been traversed generally, etc. 
 
 Not identified in Y. B. Mich. 14 Hen. IV, or in the early abridg- Case 43. 
 ments. 
 
 (44) In replevin, the defendant made a conusance as Paschal 
 bailiff of his master, for rent in arrear. Strange: of ^ "^"" ^" 
 your own wrong, without such cause. And the opinion 
 clearly was that this was no plea in that case. 
 
 Reported in Y. B. Paschal, 2 Hen. V, p. 14, pi. 1. Case 44. 
 
 (45) In debt upon a lease for a term of years, the defend- Michaeiis 
 ant said that he paid the money in another county, 
 
276 
 
 STATHAM 
 
 Case 45. 
 
 Michaelis 
 9 Hen. V. 
 
 Case 46. 
 
 Hilary 
 
 32 Ed. III. 
 
 Case 47. 
 
 judgment, etc. Strange: That amounts to no more than 
 "nothing due him," therefore he should then conclude so, 
 etc. HuLS : Then he shall not have the advantage of that, 
 for it shall be tried where the writ is brought. Wherefore 
 the plea was adjudged good, etc. Query? 
 
 The case has not been identified in Y. B. Mich. 9 Hen. V, or in the 
 early abridgments. 
 
 (46) In a scire facias out of a judgment in a writ of 
 annuity, the defendant pleaded "nothing in arrear." And 
 the opinion of all the Court was that this was no plea with- 
 out showing an acquittance . The law is the same in debt for 
 the arrears of an annuity, where the annuity was recovered 
 before, etc. 
 
 The case has not been identified in Y. B. Mich. 9 Hen. V, or in the 
 early abridgments. 
 
 (47) In waste, the tenant said that the plaintiff was seised 
 of part, etc., the day the writ was purchased. And he had 
 the plea. And he was forced to answer over for the other 
 part. 
 
 There is no printed Year Book for the year 32 Ed. HI. 
 
 Trinity (48) A woman brought a writ of de rationabili parte 
 
 32 Ed. III. honorum against the executors of her husband, who said 
 that the goods of their testator were so much. As to 
 one portion, they said that they had paid certain moneys 
 for which their testator was indebted, etc. And as to 
 another part, they said that they had paid a certain sum 
 to the king, for which their testator was indebted. And 
 as to another part, they said that their testator had made 
 legacies of certain goods to different persons, whom they 
 had paid; and as to that which remained, they were ready 
 statham 34 b. to render, etc. Birt demurred upon the first plea, because 
 they did not show that their testator was bound by a writing, 
 etc., in which case no action lay against them, etc. And 
 upon the second, because they did not show any process 
 issued against them by the king. And upon the third plea, 
 because the legacies would not take effect until he was dead, 
 
BARRE 277 
 
 and her title to have her reasonable part came from the 
 marriage, so her title was the elder, etc. And they ad- 
 journed, etc. Query? 
 
 There is no printed year of 32 Ed. III. Case 48. 
 
 (49) In debt, the plaintiff declared upon a loan. The Trinity 
 defendant said that at the time, etc., he was under age. ^^^^- "'• 
 And it was adjudged a good plea, etc. 
 
 Reported in Y. B. Mich, (not Trinity), 39 Ed. Ill, p. 20, pi. 5. Case 49. 
 
 (50) In debt, the plaintiff counted upon an arbitrement. Michaeiis 
 ROLFF: They did not put themselves into an arbitrement. ^" 
 Ready. MartyN: Do you think you can have that plea? 
 
 to wit: to traverse the propriety of the action, since you 
 can wage your law? Rolff: Yes, truly. And they ad- 
 journed, etc. 
 
 Reported in Y. B. Mich. 8 Hen. VI, p. 5, pi. 13. Case 50. 
 
 (51) In debt upon an obligation. Rikhil: TheobUgation Trinity 
 
 is endorsed that if the defendant delivers certain goods ^^ ^"^' "' 
 to one A, before such a day, that then, etc. And we say 
 that at the time of the making of this obligation, the property 
 in these goods was in this same A, who before that day 
 released to us, by this deed, all actions and all that he had 
 in these goods; judgment if action, etc. And the plaintiff 
 demurred upon the plea. 
 
 There is no early printed Year Book for the reign of Ric. II. The Case 51. 
 case has not been identified in Y. B. Trinity, 12 Ric. II. Ames Foun- 
 dation, ed. Deiser. 
 
 (52) In a writ of entry [where it was] alleged that the Michaeiis 
 tenant had no entry except by one A, who disseised the father ^ ^^"' ^^" 
 of the demandant, it is no plea to say that the father en- 
 feoffed the said A, etc., unless he traverses the disseisin, for 
 
 it is contrary to the writ. But it is a good plea to say that 
 this same father enfeoffed a stranger, whose estate the 
 tenant has, etc., as in an assize. But yet, query? For 
 this amounts to nothing more than that he did not enter 
 by A, etc. And if that be a plea, it is a good plea to say 
 
278 
 
 STATHAM 
 
 Case 62. 
 
 Michaelis 
 9 Hen. VI. 
 
 Case 63. 
 
 Paschal 
 9 Hen. VI. 
 
 Case 64. 
 
 Trinity 
 9 Hen. VI. 
 
 Case 66. 
 
 Michaelis 
 3 Hen. VI. 
 
 that same father enfeoffed the tenant, etc., in which case 
 the point of the writ is not taken. (But yet with warranty 
 the plea is good.) And this in Trespass, etc. 
 Reported in Y. B. 9 Hen. VI, p. 55, pi. 41. 
 
 (53) In ravishment of wardship, it is no plea to say 
 that the father of the infant enfeoffed him, unless he entitles 
 himself to the wardship, for that feoffment is not a title, since 
 the plaintiff was in possession of the wardship, wherefore 
 he pleaded as above. And he made his title as next friend. 
 And he also made protestation that the lands were held in 
 socage, and not in chivalry. And the Court said that such 
 a plea is no plea in right of the wardship. But he should 
 say, "Without this that he died in his homage," etc. 
 Query as to that protestation, for it does not seem good, 
 etc. But such a plea has often been pleaded in a writ 
 in right of the wardship, to wit: the feoffment of the 
 ancestor of the infant, without saying more, etc. 
 
 Reported in Y. B. Hilary, 9 Hen. VI, p. 61, pi. 13. 
 
 (54) In detinue for a charter, it is a good plea that the 
 defendant delivered the same charter to the plaintiff in 
 another county, without answering to the detinue. And 
 the reason is that he cannot wage his law, etc., for in detinue 
 on an obligation he shall not have such a plea. From this 
 it follows that in debt upon the arrears of an account, it 
 is a good plea to allege a payment in another county, for 
 the above reason. Query, etc. 
 
 Reported in Y. B. Paschal, 9 Hen. VI, p. 9, pi. 24. 
 
 (55) If one demands a charter touching lands tailed to 
 him by a remainder, the opinion is that it is no plea to plead 
 a release of his ancestor with warranty, for the right to the 
 land shall not be tried in that case, etc. Query? 
 
 Reported in Y. B. Trinity, 9 Hen. VI, p. 15, pi. 5. 
 
 (56) In trespass for hunting in his warren, it is a good 
 plea to say that it is the freehold of the defendant; judg- 
 ment if without showing how you have a warren you can 
 
BARRE 279 
 
 have an action, etc. From this it follows that it is a good 
 plea to say, "What have you [to show] for the warren?" as 
 in an assize for a common in gross, etc. But yet that is 
 no plea unless he can show the freehold is in himself, as 
 it seems, etc. 
 
 Reported in Y. B. Mich. 3 Hen. VI, p. 12, pi. 15. Case 56. 
 
 (57) In debt against executors, they told how their MichaeUs 
 testator was outlawed at the time of his death, etc. PastoN : ^ '^^°' ^'" 
 That is no bar for they do not deny it although they have 
 administered, and although they are chargeable to the 
 
 king, still they are chargeable to us, and this by their 
 own act, inasmuch as they administered ; for they could 
 have pleaded as above, and that they had not administered 
 except to the use of the king. And also they could not 
 disable their testator, no more than could their testator 
 himself, for their testator could not allege outlawry in 
 himself, consequently neither could they, etc. And they 
 adjourned, etc. Well argued, etc. 
 
 The case has not been identified in Y. B. Mich. 3 Hen. VI, or in the Case 57. 
 early abridgments. 
 
 (58) In trespass for a close broken and grass cut, it is Hilary 
 a good plea to plead the feoffment of the ancestor of the ^ ™' 
 plaintiff to the defendant by a fine, or to such a one whose 
 estate he has, and demand judgment, if without showing 
 special matter action, etc. And the law is the same on 
 
 a recovery against his ancestor; and it seems that this 
 is by way of an estoppel. And it also seems that the 
 feoffment of the ancestor of the plaintiff with warranty 
 is a good bar, etc. Query, etc. 
 
 Reported in Y. B. Hilary, 3 Hen. VI, p. 27, pi. 9. Case 58. 
 
 (59) In a writ of wardship, it is a good plea to say that Hilary 
 the ancestor of the infant enfeoffed him, without answering ^ ^*'°' ^'" 
 to the averment that he died in his homage, and still he shall 
 
 not have the wardship of the infant, for he is not his tenant 
 in law, but as to making an avowry he is his tenant, where- 
 
280 
 
 STATHAM 
 
 Case 69. 
 
 Hilary 
 3 Hen. VI. 
 
 Case 60. 
 
 fore, etc. Query if it be a plea as to the [wardship] of 
 the body, etc? 
 
 Reported in Y. B. Hilary, 3 Hen. VI, p. 32, pi. 23. 
 
 (60) In a scire facias against one A, to have execution 
 out of a recovery tailed by the plaintiff against one B, in 
 Formedon, the tenant said that one H was seised and en- 
 feoffed him, so he was seised until disseised by this B, and 
 he entered pending the writ of Formedon, judgment, etc. 
 MartyN: That is no plea unless you make a title of an 
 elder time than that of the gift, or else show that B dis- 
 seised you by fraud between the demandant and himself. 
 And they adjourned, etc. But yet the plea is good enough, 
 for by his entry pending the writ of Formedon, the writ 
 of Formedon was abated, so he could not falsify the recovery 
 nor make an elder title, but the demandant should answer 
 to the disseisin, etc. But if he showed that his entry was 
 after the judgment, then it would be otherwise, etc. 
 Reported in Y. B. Hilary, 3 Hen. VI, p. 34, pi. 28. 
 
 Hilary 
 3 Hen. VI. 
 
 (61) In a scire facias upon an annuity, Rolff: After the 
 judgment in a writ of Annuity, and before the purchase 
 of the Scire Facias, you yourself delivered the same deed 
 
 statham .35 a. by which the annuity was granted, instead of an acquittance. 
 Judgment if action, etc. Paston demurred upon the plea, 
 and said : It does not seem to be a plea, for it is not like a 
 release or an acquittance in fact, to which the plaintiff could 
 say, "not his deed," etc. 
 
 Case 61. Reported in Y. B. Paschal, 3 Hen. VI, p. 40, pi. 7. 
 
 (62) In debt, the plaintiff counted that the defendant 
 bought of him thirty pounds of tallow, for the sum in 
 demand, to wit: forty shillings. Newton : We bought 
 the said tallow for ten shillings only, without this that we 
 bought it for forty shillings, which ten shillings we are 
 ready to pay, and we offer the money. And as to the 
 remainder, "Nothing owing him," etc. (Study this plea 
 well for divers reasons.) 
 
 Case 62. 
 
 The citation to this case is missing in Statham, it has not been iden- 
 tified elsewhere. 
 
BARRE 281 
 
 (63) In trespass for goods carried away and his servants Michaeiis 
 beaten. Rolff: Judgment of the writ, for the plaintiff " Hen. iv. 
 is the villein of the bishop of W, regardant, etc., and he 
 
 and his predecessors, etc., are seised; and we say that 
 the bishop, by one B, his seneschal, etc., seized the same 
 goods, and afterwards delivered them to the plain'tiff, to 
 the use of the bishop, so that at the time, etc., the goods 
 belonged to the bishop, judgment, etc. And as to the 
 servant we say that she was your daughter, and lived in 
 your house, and was a common laundress to us and to you^ 
 and others, without this that she ever was retained in your 
 service. Cheyne: As to the first plea, the seneschal 
 made a general seisin, without this that he made such a 
 special seisin, etc. Rolff: And as to the other plea, she 
 was retained, etc. Ready. And they were at issue. It 
 seems that the first plea is good, inasmuch as the plaintiff 
 is not chargeable over to his lord, by way of an action, 
 for if the lord brought an action against him, he is enfran- 
 chised. But if he was chargeable over, although he were 
 not retained, it is not legal for any one to take him out 
 of my service without cause. And he has not shown any 
 cause or justification to take him, wherefore, etc. Query? 
 For it seems that such a common servant, during the time 
 that he is a common servant, cannot be a special servant, 
 and such an action does not lie for a special servant, etc. 
 
 Reported in Y. B. Mich. 11 Hen. IV, p. 1, pi. 2. Case 63. 
 
 (64) In trespass for goods carried away in the life of Michaeiis 
 their testator, brought by executors. Horton: Your 
 testator gave the goods to D, in another county, etc. 
 Hankford : You do not answer him as to the trespass made 
 
 in this county, etc. (But yet, if he said, as above, "by 
 force of which he came to the place where the trespass 
 was alleged, and took them," that is a good plea, for other- 
 wise it would follow that a man could not give any goods 
 but the goods that he had in the same county, etc.) 
 
 The case has not been identified in Y. B. Mich. 11 Hen. IV, or in the Case 64. 
 early abridgments. 
 
 • Words from the report of the case. 
 
282 
 
 STATHAM 
 
 Michaelis 
 11 Hen. IV. 
 
 Case 65. 
 
 (65) Waste was assigned in a house that the defendant 
 held for life, of the lease of the plaintiff. The defendant 
 said that the father of the plaintiff was seised before the 
 lease, and sold the same house to one B who, after the death 
 of your father, and after the lease, came and tore down 
 the said house, judgment, etc. Hankford: After the 
 death of your father it was not legal to tear it down, because 
 it was not [annexed]* to the freehold in the life of the 
 father. Hilary: Yes sir, when the land is in fee simple, 
 but it is otherwise as to land in tail. Which was conceded, 
 etc. 
 
 Reported in Y. B. Mich. 11 Hen. IV, p. 32, pi. 59. 
 Barre, 180. 
 
 See also Fitzh: 
 
 Hilary 
 
 11 Hen. IV. 
 
 (66) In a writ upon the Statute of Laborers, the defendant 
 said that he was retained upon condition that if he was 
 pleased with his service at the end of one month next 
 ensuing, etc., then he would serve him for the whole year, 
 and if not, that he should depart. And he said that he was 
 not pleased at the end of the month, and he departed, 
 judgment, etc. And it was adjudged a good plea. 
 
 Reported in V. B. Hilary, 11 Hen. IV, p. 43, pi. 15. 
 The Statute is the Statute of Laborers, 23 Ed. Ill (1349). Stats, at 
 Large, Vol. 2, p. 26. 
 
 11 Hen. IV. (67) In detinue for charters, the defendant showed a 
 redelivery in another county, and the opinion was that it 
 was a good plea, since he could not wage his law, etc. 
 
 Case 67. Reported in Y. B. Hilary, 11 Hen. IV, p. 50, pi. 27. 
 
 Case 66. 
 
 Trinity 
 
 11 Hen. IV. 
 
 Case 68. 
 
 (68) In debt upon the arrears of a lease, it is no plea to 
 say that the plaintiff had an obligation for the same sum, 
 because the defendant cannot wage his law, for he shall 
 have no such plea except where he can wage his law. By 
 Hankford and Huls. (But yet that is not the case, etc.) 
 
 The case has not been identified in Y. B. Trinity, 11 Hen. IV, or in 
 the early abridgments. 
 
 ' From the report of the case. "Examine" in the abridgment. 
 
BARRE 283 
 
 (69) In trespass for his park broken, the plaintiff counted Trinity 
 according to the Statute. Markham: What have you iSHen. vi. 
 of the park? Fulthorpe: What is that to you? It is 
 necessary that you excuse yourself of the tort, etc. Mark- 
 ham: I shall not have imprisonment unless it be a park 
 
 by the grant of the king, or by prescription, for the Statute 
 relates to a park and not to a close. Paston: Plead at 
 your peril. Markham : He has not had a park there 
 for time, etc., nor by grant of the king, judgment if without 
 a specialty shown, etc. Newton : That goes to the action. 
 Paston : This plea is worse than the other, for you have 
 traversed something that is not alleged by the plaintiff. 
 AscouGH : If the plaintiff had no park, as above, you can 
 make a justification of the entry in the close of the plaintiff, 
 "without this that it was a park in any other manner." 
 Markham: We say by protestation that you have no 
 park, but we say that we rode by the palings and let our 
 dogs run at a doe in the high road nearby, and the dogs 
 followed it over the palings, and we did that which was 
 in our power to prevent them, without this that he is guilty 
 in any other manner. And as to the taking and carrying 
 away, etc., not guilty. And it was adjudged a good justi- 
 fication. 
 
 And it was said in the same plea that in a trespass made 
 in a warren the defendant shall say that the place where, 
 etc., was his freehold, and was so at the time, etc. And 
 he shall demand of the plaintiff what he has of the warren, 
 etc. 
 
 Reported in Y. B. Mich, (not Trinity), 18 Hen. VI, p. 21, pi. 6. Case 69. 
 
 The Statute is that of 3 Ed. Ill (1275), cap. 20, Stats, at Large, Vol. 
 1, p. 90, "Offences Committed in Parks and Ponds." 
 
 (70) In debt upon an obligation, the obligation was en- Trinity 
 dorsed upon the condition that if one A abided by the 18^™-^!- 
 arbitrement of one F, on the death of one G, her husband, 
 providing that the award be made before such a day, then, 
 
 etc. And we say that the said A died before any award 
 was made. Fortescue: That is no plea, for it might 
 accord with that that an award was made, and that she died 
 
284 
 
 STATHAM 
 
 Case 70. 
 
 before, etc. Also that she died and the award was made, 
 wherefore it is necessary for you to state definitely the 
 day on which the award was made, or else say no award 
 was made. Which the Court conceded, etc. 
 
 The case has not been identified in Y. B. Trinity, 18 Hen. VI, or in 
 the early abridgments. 
 
 Trinity 
 18 Hen 
 
 VI. 
 
 (71) In trespass, the plaintiff alleged that the defendant 
 entered in his warren and took coneys, etc., and also that 
 he fished in his several fishery at such a place, etc. Yel- 
 statham35b. VERTON: As to all except the fishery, "not guilty"; and 
 as to that action, etc., for we say that the place where, etc., 
 is a water running from S to F, and as to part of the same 
 water (and he made the boundaries certain), that at the 
 time, etc., the soil upon which that part ran was our free- 
 hold, and we took fish there, as well we might, judgment, 
 etc. And as to the fishery in all the remainder, we say 
 that we and all our ancestors have had common of fishery 
 there, from time, etc., and we fished, etc. Fulthorpe: 
 The first plea is no plea. NewtoN: It is good enough, for 
 if the soil where the water runs is his freehold, you shall 
 have no fishery there without special matter shown. And 
 this was the opinion of the Court, etc. Wherefore he 
 emparled, etc. 
 
 29, pi. 2. See 
 
 Case 71. 
 
 Michaelis 
 18 Hen. VI. 
 
 Case 72. 
 
 Reported in Y. B. Hilary (not Trinity), 18 Hen. VI, p. 
 also Fitzh: Barre, 20. 
 
 (72) In forgery of deeds, Markham [by way of] 
 protestation [said] he did not forge them. But he said 
 that he gave the plaintiff a gallon of good wine in satis- 
 faction of the same trespass, to which he agreed. Judg- 
 ment if action. Fortescue: That is no plea unless you 
 say that an agreement was made between them. Newton : 
 The plea is good. Fortescue: We did not receive the 
 gallon of wine in satisfaction of the trespass. Ready. 
 And they were at issue. It seems that he should say for 
 what cause he received the wine, etc. 
 
 Reported in Y. B. Mi ch. 19 Her. VI, p. 29, pi. £2. See also Filz 
 Barre, 26. 
 
BARRE 285 
 
 (73) In debt upon an obligation, the defendant said Hilary 
 that he delivered the same obligation to one B, to deliver ^^ "^"' ^^" 
 to the plaintiff when the plaintiff had delivered to him a 
 
 release to our use, and otherwise that he should hold 
 it as an escrow; and he delivered the obligation and did 
 not take the release, and so not his deed. And it was 
 adjudged a good plea. 
 
 Reported in Y. B. Hilary, 19 Hen. VI, p. 58, pi. 22. Case 73. 
 
 (74) In trespass for fish taken in his several fishery. Trinity 
 Markham: The place where, etc., contains ten perches 19 Hen. vi. 
 in length, and four in width, and the soil upon which, etc., 
 
 was my freehold at the time, etc. Judgment if action. 
 FoRTESCUE: That is no plea for you should reply, "Judg- 
 ment, if without special matter shown," etc. Wherefore 
 Markham concluded so, etc. Newton said that both 
 pleas were good enough, etc. Query? 
 
 Reported in Y. B. Mich, (not Trinity) 20 Hen. VI, p. 4, pi. 12. See Case 74. 
 alsoFitzh: Barre, 27. 
 
 (75) In replevin, the defendant said that at the time Hilary 
 
 of the taking the property in the cattle was in one A, and ^^ ^en. vi. 
 not in the.plaintiff, etc., and he had the plea, etc. But yet 
 it is no plea in trespass. Query as to the difference, etc.? 
 (It seems that the difference is because in replevin, to 
 the common understanding, the taking is legal, and that 
 he does not claim property, so he does not need to excuse 
 himself of the tort. But trespass is not to be considered 
 legal in any event, etc.) (Study well, my son.) 
 
 The case has not been identified in Y. B. Hilary, 19 Hen. VI, or in Case 75. 
 the early abridgments. The note at the end can hardly have been 
 meant to appear in a serious digest of cases, however refreshing such 
 notes may be to us now. 
 
 (76) In debt upon the arrears of an account, the defendant Hilary 
 alleged payment in another county. Fortescxje: That ^OHen. vi. 
 is no plea, unless you conclude, "So nothing owing him." 
 Markham : Then our special matter is not to the purpose. 
 
286 STATHAM 
 
 for then it shall be tried where the writ is brought, where 
 they will have no notice of this. And it is reasonable for 
 two reasons that we have this plea. One reason is, 
 because as soon as we were found in arrears, it is a debt 
 to the plaintiff, which he can demand in every county, in 
 which case unless we pay him we shall be charged with the 
 damage to him; then, if we pay him in one county, and he 
 demands it by an action of debt in another county, and 
 we have not this plea, we are injured. For the other reason, 
 it is the law, to my thinking, that where a man cannot 
 wage his law he can have such a special answer, as well as 
 where he cannot wage his law he can have a traverse to the 
 jurisdiction of the action ; as in debt upon the arrears of a 
 lease, I shall say that he did not lease, and I allege payment 
 in another county. Fortescue: There it is reasonable 
 that you allege payment in another county, for you are 
 charged against him by distress; so in avoiding the distress 
 you can pay him where he demands it. But in this case 
 you are not in such danger. And they adjourned, etc. 
 But it seems that is no plea, for if it is founded upon 
 matter of record, or a specialty, the defendant shall not 
 have such a plea ; for in debt upon an obligation, or in debt 
 founded upon a record, such a plea is of no avail, and yet 
 in those cases the defendant cannot wage his law. But 
 that reason, to wit: that where a man cannot wage his law 
 he shall have his answer to the necessity of the action, 
 or else allege such special matter, is where the action is not 
 brought upon a matter of record or a specialty, and yet 
 the defendant cannot wage his law ; as in debt upon the 
 arrears of a lease, although the lease be a deed, still the 
 action is founded upon the lease and not upon the specialty, 
 for although the lease be without a deed the defendant 
 shall not wage his law. And the law is the same in detinue 
 for charters; the defendant can allege a release in another 
 county, for the above reason, but not so here. (Study this 
 matter well.) 
 
 Case 76. Reported in Y. B. Hilary, 20 Hen. VI, p. 16, pi. 3. The remarks 
 
 after the adjournment are those of the author of the abridgment. They 
 are not in the Year Book case. 
 
BARRE 287 
 
 (77) In debt upon the arrears of a lease for life, the defend- Hilary 
 ant said that the plaintiff disseised one W, and leased to ^°' ^ ' 
 him for life, and W entered before he entered, so nothing 
 
 in arrear. And it was not allowed, because he did not 
 answer to the debet, wherefore he said as above, "at which 
 time he owed him nothing," etc. Newton: It seems that 
 he can plead it in bar of all the rent, for he is charged against 
 the disseisee for the trespass at the same time. Paston : 
 I do not know that, and although it be so, yet a man can 
 charge it to two persons for one and the same thing in 
 different cases, etc. And they adjourned, etc. Query, 
 for it seems that the action of debt does not lie in such a 
 case, since it appeared by the declaration of the plaintiff 
 that the term still lasted ; still in that case it were hard to 
 have an action of debt unless he shows the matter in his 
 declaration, to wit: that the term is ended. 
 
 Reported in Y. B. Hilary, 20 Hen. VI, p. 20, pi. 15. Case 77. 
 
 (78) In a scire facias to have execution of a certain debt, Michaeiis 
 the defendant said that the plaintiff sued a Scire Facias to 20 Hen. vi. 
 the same sheriff who had raised the money, etc. Fortescue : 
 
 That is no plea unless he says that the sheriff returned 
 his writ, for such judicial writs are not of record before 
 they are returned, etc. Query? (In a note, etc.) 
 
 Reported in Y. B. Mich. 20 Hen. VI, p. 4, pi. 13. Case 78. 
 
 (79) In trespass for an obligation taken out of the Paschal 
 possession of the plaintiff. Markham: You delivered ^^ "^"' ^^• 
 the obligation to one B, to deliver to us, and he delivered 
 
 the obligation to us, and we took it, which is the same 
 taking. And it was held a good plea, etc. Query? 
 
 Reported in Y. B. Paschal, 20 Hen. VI, p. 24, pi. 9. Case 79. 
 
 (80) In debt upon an obligation. Markham: The statham36a. 
 obligation is endorsed upon condition that if we paid four Paschai 
 pounds to the plaintiff annually, for a farm which we had 20 Hen. VI. 
 of him, etc., that then etc., and we say that the plaintiff 
 
 never had anything in the said lands which we have of him 
 
288 
 
 STATHAM 
 
 Case 80. 
 
 Paschal 
 20 Hen. VI. 
 
 Case 81. 
 
 Paschal 
 21 Hen. VI. 
 
 Case 82. 
 
 Paschal 
 
 21 Hen. VI. 
 
 Case 8.3. 
 
 Paschal 
 
 21 Hen. VI. 
 
 to farm, except by a disseisin made by one who entered 
 upon us before any day of payment, etc. Judgment if 
 action. And the opinion was that this was no plea against 
 the obligation, but in debt upon the lease it is otherwise. 
 
 Reported in Y. B. Paschal, 20 Hen. VI, p. 23, pi. 2. 
 
 (81) In debt upon an obligation, the defendant said that 
 the obligation was made in Paris, in the Kingdom of France, 
 and not, etc., judgment of the writ. PortynGTON: That 
 is no plea. Markham : If the obligation bore date in Paris 
 you could not maintain an action upon that, consequently 
 when there is no date in the deed we shall have the averment. 
 Newton : That goes to the action, wherefore be advised. 
 And Markham dared nor demur, but emparled. 
 
 Reported in Y. B. Paschal, 20 Hen. VI, p. 28, pi. 21. 
 
 (82) In debt upon arrears of an account, brought by 
 administrators for a woman who died intestate, and who 
 assigned auditors, etc. Markham: At the time she 
 assigned auditors she was covert of one B, judgment if 
 action, etc. Yelverton demurred upon the plea, etc. It 
 seems that it is no plea unless he says, as above, and also 
 "at the time of the account," etc. Query? 
 
 The case has not been identified in Y. B. Paschal, 21 Hen. VI, or in 
 the early abridgments. 
 
 (83) In trespass for his apprentice taken with force and 
 arms at London, etc. (Query if this be good without show- 
 ing at what place in London he was taken, etc.) Yelver- 
 ton: Such a day, year and place before the alleged trespass 
 the plaintiff discharged this apprentice from his service, 
 judgment, etc. Newton : An apprentice cannot be retained 
 without a specialty, wherefore that discharge cannot be 
 pleaded unless you show a specialty for it. Wherefore 
 it was adjudged that the plaintiff recover his damages, etc. 
 
 Reported in Y. B. Hilary (not Paschal), 21 Hen. VI, p. 31, pi. 18. 
 
 (84) In detinue, the defendant said that the plaintiff gave 
 him the same goods, without this that he bailed them to 
 
BARRE 289 
 
 him to rebail to the plaintiff, etc. And it was the opinion 
 of Newton and Paston that it was a good plea to traverse 
 the bailment by such a special matter, etc. It seems that 
 the gift is a good plea for him, etc. 
 
 The case has not been identified in Y. B. Paschal, 21 Hen. VI, or in Case 8*. 
 the early abridgments. 
 
 (85) In debt upon an obligation, the defendant said that Hilary 
 the plaintiff delivered to him the obligation in lieu of an ^°' 
 acquittance, and then he took it back from us, judgment 
 
 if action. Hankford: For this retaking you can have 
 an action of trespass. And if a man could avoid an obliga- 
 tion by such a plea, an obligation will be of little value. 
 Wherefore it was adjudged that the plaintiff should recover, 
 etc. 
 
 There is no printed year of 5 Hen. VI. The citation is an error, and Case 86. 
 should be Y. B. Hilary 5 Hen. IV, p. 2, pi. 6. 
 
 (86) In a writ of waste, it was alleged that he had done Hilary 
 waste in lands leased to him by the plaintiff for life. And ^ ^^"' ^^' 
 he assigned the waste as of the cutting of trees. Hilary 
 
 (for the tenant): Sir, you yourself, who are plaintiff, cut 
 the trees, and we demand judgment if, for this cutting, 
 action, etc. HoRN: We are much injured if we cannot 
 have this action, for otherwise he can bring a writ of Trespass 
 against us for this same cutting, and recover his damages. 
 Hankford : If he has the plea now, to bar you of the waste, 
 he shall not have an action of trespass afterwards. Where- 
 fore it was adjudged that the plaintiff was barred. 
 
 Reported in Y. B. Hilary, 5 Hen. IV, p. 6, pi. 8, or in the early Case 86. 
 abridgments. See also Fitzh: Barre, 238. 
 
 (87) In debt at the distress, the plaintiff said that he had H"ary 
 
 ... . » . , 1 1 < 1 7 Hen. IV. 
 
 been at all times ready, etc. And he had the plea, etc. 
 
 (But if the other writs were served, I believe that he should 
 
 not have the plea, etc.) 
 
 Reported in Y. B. Hilary, 7 Hen. IV, p. 9, pi. 15. Case 87. 
 
 (88) In detinue, the plaintiff showed that the deeds were Paschal 
 concerning certain lands, which were given to his ancestor ^ ^^°" ^^" 
 
290 
 
 STATHAM 
 
 Case 88. 
 
 in tail. The defendant showed that the land was given 
 to his ancestor, and traversed the gift. And the opinion 
 of Thirning was that he should answer to the detinue, etc. 
 
 The case has not been identified unless it is the case in Y. B. Paschal, 
 7 Hen. IV, p. 14, pi. 14. This case, however, differs in many points 
 from the case in the abridgment. 
 
 Paschal 
 7 Hen. IV. 
 
 Case 89. 
 
 Paschal 
 7 Hen. IV. 
 
 Case 90. 
 
 Trinity 
 7 Hen. IV. 
 
 Case 91. 
 
 Trinity 
 7 Hen. IV. 
 
 Case 92. 
 
 (89) In account, it is a good plea to say that he has 
 accounted before the plaintiff himself. 
 
 Reported in Y. B. Paschal, 7 Hen. IV, p. 14, pi. 17. 
 
 (90) In trespass for goods carried away, it is a good plea 
 to say that the plaintiff had sued a replevin for these same 
 cattle, etc. {Distinguendum, etc.) 
 
 The case has not been identified in Y. B. Paschal, 7 Hen. IV, or in 
 the early abridgments. 
 
 (91) In debt upon an obligation. Rikhill: The obliga- 
 tion is endorsed that if we pay a lesser sum on such a day, 
 etc., then, etc., on which day we tendered it to him, and 
 he refused it, judgment if action. And the plea was 
 adjudged good. And the law is the same in replevin — 
 to say that he tendered the rent to the plaintiff, etc., upon 
 the land, and he refused it, without showing the money 
 to the Court, for he shall not pay it except on the land. In 
 which case the defendant shall be put to a new distress, etc. 
 And if he avows for homage, it is a good plea to say that 
 it was offered and refused, judgment if another time. And 
 albeit the tender was in another county, for he refused 
 the homage and he shall not have the homage at any time 
 afterwards, etc. 
 
 Reported in Y. B. Trinity, 7 Hen. IV, p. 18, pi. 17. 
 
 (92) In a juris d'utrum, the tenant pleaded a recovery 
 against the demandant in bar by a writ of Cessavit, and the 
 opinion of Hankford was that it was no bar, because the 
 right is to be tried by the writ; but he should conclude, 
 "And so it is his lay fee, etc." Query, etc.? 
 
 Reported in Y. B. Trinity, 7 Hen. IV, p. 20, pl. 30. 
 
BARRE 291 
 
 (93) In detinue, the plaintiff counted on a bailment Hilary 
 made by himself to the defendant in London, in a certain ^ ^^°' ^• 
 ward and parish. The defendant said by protestation, 
 
 not admitting the bailment as the plaintiff had alleged; 
 but he said that the plaintiff bailed them to the defendant 
 in another place, in another ward, within the same city, 
 upon certain conditions, and he made the conditions in cer- 
 tain etc., which he had fulfilled, and he showed how, etc., 
 judgment if action. HuLS: That is no plea unless you say, 
 "Without this that he gave them in the place where he has 
 declared." Paston: In battery I shall say that in another 
 place within the same county the plaintiff had assaulted 
 me, and did the evil, etc., and I shall not say, "Without 
 this." LoDYNGTON : I grant your case, because the battery 
 could be continuous, but take the case of a horse carried 
 away, and you shall not have the plea. And the opinion 
 was that he should not have the plea, etc. But in London 
 it is usually pleaded, and then the venue will come from both 
 parishes, etc. 
 
 Reported in Y. B. Hilary, 8 Hen. V, p. 3, pi. 11. See also Fitzh: Case 93. 
 Barre, 311. 
 
 See as to Barre, in the title of Actions upon the Case, Note. 
 Michaelis, 31 Hen. VL Good matter. 
 The reference is to Statham, Accions sur le Cas, p. 11 b, case 26, supra 
 
 (94) Debt upon the arrears of an acc'ount. The defend- statham 36 b. 
 ant pleaded an arbitration for the same arrears, and other Hilary 
 trespasses. And the opinion was that that it was not a bar, ® ^^"" ^' 
 no more than against the obligation, etc. But yet the 
 contrary was held elsewhere, etc. 
 
 Reported in V. B. Hilary, 8 Hen. V, p. 3, pi. 13. Case 94. 
 
 (95) In a writ of Entry in the nature of an assize, the Michaelis 
 tenant said that he was seised until disseised by one H, 
 
 who enfeoffed the plaintiff, upon whom one L entered, 
 upon whom the tenant entered. And the opinion was that 
 that was no bar, but that it went only in abatement of 
 the writ, since it admitted the ouster in one who was a 
 
292 
 
 STATHAM 
 
 Case 05. 
 
 stranger to the writ, in which case the plea proves that the 
 plaintiff should have a writ of entry in the per, etc. But 
 yet this is a good plea in an assize. And yet it seems that 
 it amounts to no more in an assize although there was no 
 disseisor named in the writ. (But I think that the reason 
 it is good in an assize is because in an assize the nature of 
 the writ is to inquire as to the disseisin, in which case the 
 conveyance of the tenant of the tenancy is not to the 
 purpose, for there shall be an inquiry as to the disseisin, 
 although that bar be found or adjudged against him, unless 
 he acknowledge an ouster in fact, etc. As in the assize the 
 tenant says that the plaintiff was never seised so that he 
 could be disseised, that is a plea in bar, and although it be 
 found that he was seised, still they could inquire as to the 
 disseisin, albeit the tenant did not plead over to the assize, 
 to wit : "And if it be found," etc., because that is the nature 
 of the action. But it is otherwise in any writ of Entry 
 which is a Pracipe quod Reddat and not a Juris Utrum.) 
 
 The case has not been identified in Y. B. 12 Hen. VI, or in the early 
 abridgments. 
 
 Michael is 
 12 Hen. VI. 
 
 Case 96. 
 
 (96) In debt upon an obligation by one J of F, against 
 one H. Newton: We made this obligation and delivered 
 it to another J of F, and not to the plaintiff, Ready, etc. 
 Chaunt: Then you shall not say, "Not your deed." 
 CoTESMORE: He cannot do that, but he may well plead, 
 etc. And the plaintiff was made to answer to this plea. 
 And he said that it was delivered to him. Ready, etc. 
 
 Reported in Y. B. Mich. 12 Hen. VI, p. 7, pi. 7. 
 
 Michaelis 
 27 Hen. VI. 
 
 (97) In debt upon an obligation for twenty pounds, the 
 defendant said that the obligation was endorsed, upon the 
 condition that if he paid ten pounds to the plaintiff, etc., 
 then, etc., and he said that he paid the ten pounds to 
 one B, by command of the plaintiff, judgment, etc. PoRT- 
 YNGTON: That is no plea, for it does not agree with the 
 conditions, etc. Which the Court conceded, wherefore 
 he said that he paid the ten pounds to the plaintiff by 
 
BARRE 293 
 
 the hands of this said B, Ready. And the other alleged 
 the contrary. And so note, etc. 
 
 Reported in Y. B. Hilary (not Mich.), 27 Hen. VI, p. 6, pi. 1. See Case 97. 
 also Fitzh: Barre, 43. 
 
 (98) In a writ of entry, it was alleged that he had no Paschal 
 entry except by one H, to whom B demised, who disseised 
 
 the ancestor of the demandant. Pole: The same ances- 
 tor released all the right he had in the land to one B, then 
 tenant, whose estate you have, judgment if action. Danby : 
 That is no plea, for the writ alleges that you entered 
 by H, and your plea proves the contrary. Portyngton: 
 This plea is good, for it may be that he who disseised your 
 ancestor enfeoffed the said G, in whose possession your 
 ancestor released, and then G re-enfeoffed the disseisor, 
 and he made the demise as the writ alleges, in which case 
 the writ lies, as it is brought either in the post or at the 
 election of the demandant, wherefore, etc. In which the 
 Court concurred, etc. 
 
 The case has not been identified in Y. B. 27 Hen. VI. There is no Case 98. 
 printed Paschal Term for that year. 
 
 (99) In detinue, the plaintiff counted that he bailed to Michaeiis 
 the defendant a barrel of tar to rebail to him, etc. Pole: ^ ^"' 
 A long time before the plaintiff had anything, etc., one J 
 
 was in possession of this same barrel and bailed it to us, 
 upon condition that if one A paid to us ten shillings at 
 the feast of Easter next ensuing, we would bail the said 
 barrel to him; and the said A sold the said barrel to the 
 plaintiff for a certain sum, by force of which the plain- 
 tiff came and took the barrel, and we took it back, with- 
 out this that he bailed the said barrel to us to rebail to 
 him. ASCOUGH: It is hard for you to traverse the bail- 
 ment, unless you admit the delivery. Pole: We have 
 acknowledged the property to be in him. And the opinion 
 was that the plea was good. But yet it seems that he 
 should say that A did not pay the said ten shillings. 
 
 The case has not been identified in Y. B. Mich. 27 Hen. VI, or in the Case 99. 
 early abridgments. 
 
294 
 
 STATHAM 
 
 Michaelis 
 27 Hen. VI. 
 
 Case 100. 
 
 Michaelis 
 30 Hen. VI. 
 
 Case 101. 
 
 (100) In trespass for a horse, the defendant showed how 
 formerly the plaintiff brought a writ of Trespass against 
 him for the same horse, and the same taking, and recovered 
 his damages, judgment, etc. Danbv: He does not say 
 that we issued an execution, wherefore it is no plea. And 
 the opinion was that the plea was good, because he could 
 sue execution when he would. And so see, etc. 
 
 The case has not been identified in Y. B. Mich. 27 Hen. VI, or in the 
 early abridgments. 
 
 (101) In the assize of Wenlock, the tenant said that 
 one H was seised and enfeoffed him by force of which he 
 was seised until one H entered upon him and enfeoffed 
 the plaintiff, upon which, etc. Query if it be a bar? For 
 it seems that he should say that the said H disseised him, 
 and to this the plaintiff could have replied. And also it 
 seems that the plea is double. 
 
 The case has not been identified in Y. B. Mich. 30 Hen. VI, or in the 
 eariy abridgments. 
 
 Mictiaelis 
 30 Hen. VI. 
 
 (102) An assize was brought by the Duchess of Suffolk 
 and others against J. Wenlock and others; and one of the 
 defendants pleaded the release by one of the plaintiffs of 
 ^11 actions real and personal, and relied upon the double- 
 ness of the actions, etc. And they demurred in judgment 
 as to whether that should be a bar against all the plaintiffs, 
 or only against him who made the release. And then in 
 the Exchequer Chamber Danby [said]: It seems to me 
 that this shall be no bar, except against him who made it, 
 for in an assize severance lies, and although one of them 
 will say that he will not sue further, still the other shall 
 sue further, for his deed shall not injure his companion, 
 and he shall also recover the freehold, etc. And in detinue 
 for charters this action is personal, and yet the release of 
 one plaintiff does not bar both, for severance lies when 
 the action is for charters. (As if he said the reason is the 
 same, etc.) Pole (to the same effect) : For if this shall 
 be a bar against all, it may be that they are without a 
 remedy, and yet it appears that their title and right 
 
BARRE 295 
 
 remain in them, for it may be that their entry is tolled by 
 the discharge of the tenant. And it may be that they 
 cannot join in a writ of right because peradventure they 
 have separate estates. And it may be that they cannot 
 join in a writ of entry in the nature of an assize; as if lands 
 be given to a man for life, the remainder to two in fee, and 
 they have the lands in execution by virtue of a statute 
 merchant made to them by the tenant for life, and they 
 are ousted by a stranger, who enfeoffs another; now a 
 writ of entry upon a disseisin would fail them, and yet an 
 assize lies. So it may be that they have no action but an 
 assize, for they cannot have any action to execute this statham 37 a. 
 remedy, in which there is a mischief to you if it shall be a 
 bar against them all. And the plea will be taken to better 
 effect for him against whom it is pleaded, wherefore, etc. 
 And in a writ of annuity by two, the release of one will 
 not bar both, because they cannot have any other action, 
 and yet the action is personal, etc. Moile: Which nobody 
 will deny. But if an action be brought by one, and a 
 release of all actions personal be pleaded in bar, that will 
 bar him wholly, wherefore, etc. Bitelton (to the same 
 effect) : And if twenty men have cause to have the assize 
 against me, if one of them be agreed with me they will 
 never have an assize, for if they bring an assize and make 
 their plea for the land, he who has agreed with me shall 
 say that the plea is for rent, and the others will allege the 
 contrary, and then the Court cannot proceed. And, sir, 
 it is not apparent to the Court [how] they could have 
 another action, wherefore, etc. Lacon: Contra. Albeit 
 that prima facie the action is personal, still the action is 
 more in the realty than the personalty, for the judgment 
 will be that he recover seisin of the land and his damages, 
 which judgment is real. And if two bring a writ of descent 
 against me, the release of all actions personal by one of them 
 will not bind both, and yet prima facie the action is per- 
 sonal. But the nature of the action is that he may be 
 restored to the land. And the law is the same for a writ 
 of covenant brought by two heirs to found a singing chap- 
 lain, etc. Illingworth: Contra. To that which is said 
 
296 STATHAM 
 
 that in a Qtuire Impedit and in a writ of wardship the release 
 of one will not bar both, that is not so, for they sound merely 
 in the personalty, and this can well be proved, for one 
 who has but a term of years in a manor to which an advow- 
 son is appendant shall have a Quare Impedit and a writ 
 of wardship also. And a fermor cannot have any action 
 which is in the realty, and yet these actions sound in the 
 realty as well as an assize. And, sir, that this release bars 
 every one of the plaintiffs I shall prove, for I understand that 
 where several bring an action and the defendant disables 
 one of them of his action, and yet, notwithstanding, their 
 title and rights remain jointly to them, in that case all 
 will be disabled. As if one of the defendants says that 
 one of the plaintiffs is outlawed in a personal action or 
 that he is excommunicated, now all shall be disabled, for 
 their title remains to them jointly and it cannot be disproved 
 by that. So here they can have a writ of right, on a writ of 
 entry upon disseisin, for anything which is yet shown, etc. 
 Henkston : Contra. It seems to me that it shall be a bar 
 against none of the plaintiffs. And Fortescue said to him 
 not to argue any more on that point, for we will not change 
 the law which has been in use for so long a time, to wit: that 
 that shall be a bar against him who made it, etc. Henkston : 
 Well, sir, then it seems to me that it shall not be a bar 
 against the other plaintiffs, for in an assize against a man 
 who pleads a plea in bar, and admits an ouster, and I demur 
 upon the plea, and it is adjudged no plea, now I can release 
 my damages and pray seisin of the land. And still, for the 
 reason that Illingworth gave, that the assize was brought 
 wholly on the wrong done, to wit: for the disseisin, inas- 
 much as he demands no lands, it follows that if he released 
 his damages, he would be barred from the land, which 
 cannot be, for it is the common course in an assize. 
 Chokke: It is not the same, for in your case he can clearly 
 release his damages, but if he wishes to release his action, 
 then he shall be barred, for a man shall plead a release of 
 all personal in an assize made after the last continuance, 
 wherefore, to my mind, your case is not proved. Nede- 
 ham: Contra. To my mind the action is real, for it shall 
 be brought against the tenant of the freehold, or else it 
 
BARRE 297 
 
 shall abate; and a joint tenancy is a good plea, and the 
 tenant shall vouch and shall pray in aid, and he shall be 
 received; so it is real, and this is clearly proved, for of this 
 same disseisin his heir shall have a writ of entry, and so 
 the disseisin is not only a personal tort, for then it would 
 have died with his person. Wangford: The damages 
 are merely the issues of the land in the meantime, and that 
 is the reason that a man shall recover damages in an assize 
 at the common law, for in no other action by which a man 
 recovered land were there damages at the common law, 
 and although the heir shall have an action for the same 
 disseisin, still he does not recover damages for that disseisin, 
 for he does not recover damages except for the time [since] 
 the death of his ancestor. And it appears here that the 
 plaintiffs could join in another action, as has been well said. 
 Then the law compels them to be joined, for if they were 
 now severed and the other recovered, still he would hold 
 in common with them, which is not reasonable. And then 
 it may be they bring an action for the half of the other half, 
 and it will be severed, and so on ad infinitum until all is 
 recovered, and damages for all, which is against reason. And 
 it has been adjudged where a husband and his wife and a 
 third purchased jointly and lost by default, and the husband 
 died, then the wife should not have a Cui in Vita for that, 
 because she and the third could join in a writ of right, or in 
 zQuod ei Deforceat, and if they could not join in a writ of right 
 for their several estates, then peradventure the law would 
 sufifer them to have separate actions; but otherwise not, etc. 
 Prisot : This action is not merely personal, nor merely real, 
 and whoever calls it an action personal or an action real 
 abuses his terms. And yet in an assize a release of all actions 
 personal is a good bar, and so is a release of all actions real, 
 for when the action is personal and real and a man releases 
 the personalty or else the realty, then his action is gone, 
 for it cannot be divided. Then it is to be seen in this case, 
 where the action is thus mixed, whether the release made 
 by one of them shall be a bar against all. And it seems 
 to me that it shall be a bar but against him who made it, 
 for when his action is so mixed it shall rather be adjudged 
 according to the realty than according to the personalty; 
 
298 
 
 STATHAM 
 
 and the realty shall be more favored because of its greater 
 dignity, etc. And in a real action the release of one of the 
 plaintiffs is no bar except as to him who made it, conse- 
 quently not here, wherefore, etc. FoRTESCUE (to the same 
 effect) : And this is clearly proved, for in a Quare Impedit by 
 two, where one of the plaintiffs is nonsuited, the other shall 
 have a writ to the bishop for the whole advowson because 
 the deed of one of them shall not hurt the other, in such an 
 action which is mixed, but rather shall it give him standing; 
 as in a writ of wardship for the body brought by two, the 
 release of one of them shall not hurt the other, but gives 
 statham37b. him Standing, for he should recover the entire wardship, 
 and hold his companion out of that which he had released, 
 as it seems, etc. And the law is the same in all like cases. 
 And afterwards it was adjudged that it should be no bar, 
 except against him who had made it, etc. Which note. 
 
 Case 102. The case has not been identified in Y. B. Mich. 30 Hen. VI. Fitzh: 
 
 Barre, 256, has a very short digest of the case. 
 
 Note. 
 
 Paschal 
 34 Ed. III. 
 
 Case 103. 
 
 Michaelis 
 3 Ed. III. 
 
 See as to Barre in the title of Arbitrement ; in the title of 
 Account; in the title of Assizes, and in the title of I>ey, 
 Hilary, 31 Ed. III. In the title of Entry; in the title of 
 Debt, many matters. And in the title of Justification, and 
 in the title of Trespass, and others, etc. 
 
 (103) In an assize for a common, the release of the 
 ancestor of the plaintiff, with warranty, is no plea, because 
 it is for aiiother thing. (But I believe that it is no bar for 
 another reason also, for the law cannot defeat the warranty of 
 his ancestor by entry on the land, for his entry on the land 
 cannot be legal, so to bar him by the deed of his ancestor 
 when there can be no laches or default directly in him is 
 wrong, etc.) 
 
 There is no printed year of 34 Ed. III. 
 
 (104) In ravishment of ward, the defendant said that 
 at the time of the alleged ravishment the infant was of 
 full age. And the Court said that the plea would not avail, 
 for the day was not traversable unless he justified, etc. 
 And it might be that he stole him some other day when 
 he was under age, wherefore he said that he was not stolen 
 
BARRE 299 
 
 under age, Ready. And the other alleged the contrary. 
 (It seems that this is a negative pregnant.) 
 
 The case has not been identified in Y. B. Mich. 3 Ed. Ill, or in the Case 104. 
 early abridgments. 
 
 (105) In debt upon an obligation, the defendant said that Paschal 
 the plaintiff recovered the same debt at Kingston by a plea ^^ ^'^' ^'^' 
 affirmed on the same obligation. And it was not allowed, 
 because it was his folly that the obligation was not can- 
 celled, etc. 
 
 Reported in Y. B. Paschal, 17 Ed. Ill, p. 24, pi. 11. See also Fitzh: Case 105. 
 Barre, 246. 
 
 (106) It is a good plea in bar, in debt against executors, Michaeiis 
 to say that such a one sued a writ of Debt against them, ^° ^''- '"• 
 upon the obligation of their testator, of an elder date, and 
 
 had judgment to recover, and they had nothing in their 
 hands except so much on which he could sue execution at 
 his will, etc. Query, if it be of a later date? It seems it is 
 all one, etc. 
 
 There is no early printed year for Mich. 20 Ed. III. The case is Case 106. 
 printed in Y. B. Mich. 20 Ed. Ill, Pt. 2 (R. S.), p. 418. 
 
 (107) In trespass for a close broken, the defendant said Michaeiis 
 that he was seised of the place, etc., until disseised by one ^ "^"' ^'' 
 A, who enfeoffed the plaintiff, to maintain for him the title 
 
 to the same land, without this that he ever had any other 
 possession. Littleton : The Statute says that if the dis- 
 seisor makes such a feoffment in the way of maintenance, 
 such a feoffment is void, and it is reasonable that the 
 disseisee shall have the advantage of that; as well in a 
 writ of Trespass brought against him, as where he brings 
 the assize, etc. FORTESCUE: The Statute of Westminster 
 the Second, cap. 1, says, "Et si finis inde levetur ipso jure 
 sit nullus" and yet it is a discontinuance, and is good until 
 it be defeated. So here it is good until it be defeated by 
 an action or retrogression of the seisin, etc. And they 
 adjourned, etc. Coram Rege. 
 
 The case has not been identified in Y. B. Mich. 31 Hen. VI, or in the Case 107. 
 early abridgments. 
 
 The Statute is West. Second, 13 Ed. I (1285), cap. 1, Stats, at Large, 
 Vol. 1, p. 163. 
 
300 STATHAM 
 
 MichaeUa (^qS) A man found sureties of the peace, to wit: two 
 men were bound for him in twenty pounds to keep the peace 
 and also to be at the King's Court on such a day, on which 
 day he did not come, wherefore a Scire Facias issued against 
 his sureties [to show] why the king should not have execu- 
 tion for the twenty pounds. These said that on the day, 
 etc., the person they should have brought to the Court was 
 Imprisoned at Dale in the custody of such a one and such 
 a one, the bailiff, etc. Judgment, etc. And upon this 
 the attorney for the king demurred in law. Yelverton: 
 It was his act to be so bound, wherefore it is no plea to excuse 
 him, for it is not like the Petty Cape where a man shall 
 say that he was imprisoned, etc., for there he was not 
 bound by his deed but by the law, wherefore he cannot 
 excuse himself by such an averment, unless he will say that 
 he was dead, for if he was dead he could not have his body 
 there, etc. But yet in some cases death does not excuse 
 him ; as if I be bound to a man that J at Stile shall make a 
 house by such a day, it is no plea for me to say that before 
 the day J at Stile died, for another man could have made it 
 for him ; no more than where a man is bound in twenty 
 pounds that J at Stile shall pay twenty pounds on such a 
 day, it is a plea to say that he was dead before the day, for 
 the above reason. Fortescue: If he had said that he was 
 imprisoned at the suit of the king, the plea were good, 
 but [not] to say that he was imprisoned at the suit of another 
 man, for if he be imprisoned wrongfully, he could have his 
 remedy against him who imprisoned him, etc. As in a 
 writ of waste it is no plea to say that a stranger made the 
 waste, for the above reason, but it is a good plea to say 
 that the plaintiff made the waste. So here. Wherefore it 
 is well to see the record, etc. And the record was examined, 
 and it was that he for whom they were bound was detained in 
 prison under the custody of such a one and such a one, bailiffs 
 of Dale, without more, etc. Yelverton : It may be that he 
 was a cutpurse, and that he was imprisoned for that reason, 
 in which case the plea were of no value, etc. But my 
 master Fortescue has informed you how you shall plead 
 in order to save the twenty pounds, etc. Which note. 
 
BARRE 301 
 
 The case has not been identified in Y. B. Mich. 31 Hen. VI, or in the Case 108. 
 early abridgements. 
 
 '^ To take up the subject of the old pleading so far as it relates to the 
 plea in bar is a task which is outside the limits of these notes. Coke 
 says of the plea in bar [Coke, 1st Inst. f. 372]: "Barre is a word common 
 as well to the English as to the French, of which cometh the noun, a 
 Bar, Barra. It signifieth legally a destruction forever, or taking 
 away for a time of the action of him that right hath. And Barra is an 
 Italian word, and signifieth Bar, as we use it; and it is called a Plea in 
 Bar when such a Bar is pleaded." The later writers simply copy or 
 paraphrase Coke. 
 
 It is easily to be seen that the plea is capable of an infinity of varia- 
 tions, and that in our one hundred examples in the abridgment we shall 
 find many kinds of writs; yet there seems to be a preponderance of writs 
 of debt and trespass. Why these cases were chosen by the compiler, 
 and if there were any reason why the plea in bar was more useful or less 
 settled in the writs of debt or trespass, we do not know; to solve the prob- 
 lem would take such a knowledge of the old pleading as Littleton incul- 
 cates [Coke, 1st Inst. sec. 534, f. 302]. We might then be able to state 
 why this case was rejected and that accepted. As it is we can take the 
 maxim of Littleton to heart: "Etsaches, monfils, gue est un des plus hon- 
 orables, laudahles, et profitables choses in nostre ley, de aver le science 
 de bien pleder en actions real et personals, et pur ceo jeo toy counsaile 
 especialment de mitter ton courage et cure d'ceo apprender." For if it is 
 necessary to know the old law in order to apprehend the underlying 
 principles of the new, then it is also necessary to understand this "bien 
 pleder" which was indeed a science; a mold into which went that crude 
 law which came out a perfected and skilfully shaped system. 
 
 CONNTE »» 
 
 (1) In a writ of annuity, the plaintiff counted upon an statham 38 a. 
 annuity which was granted by a composition for a dispute Paschal 
 
 as to tithes between their predecessors, and he counted 
 the year of grace one thousand, and there was nothing said 
 as to any king. And the opinion of WiLLOUGHBY was that 
 the count was good, etc. 
 
 Reported in Y. B. Trinity (not Paschal), 24 Ed. Ill, p. 53, pi. 35. Case 1. 
 See also Brooke, Count, 41; and Fitzh: Count, 40. Brooke has the 
 date twelve hundred, which is probably nearer right. 
 
 (2) In a scire facias a man shall [not] count upon that Michaeiis 
 matter which is comprised within the writ; no more shall ^° "^°' ^^' 
 
302 STATHAM 
 
 he in a distraint, where he has judgment to recover an 
 acquittance by the statute, and so in other judicial writs, 
 etc. 
 
 And it was said in the same plea, that in a writ of Mesne 
 a man shall count that the defendant should acquit him 
 generally. But yet it does not acquit him except against 
 the chief lord, but the form is such, etc. And also in a writ 
 of Dower, there is no count, but a demand. And the law 
 is the same in a writ de Tale Quale. 
 
 Case 2. The'case has not been identified in Y. B. Mich. 30 Hen. VI, or in the 
 
 early abridgments. 
 
 Michaeiis (d) A woman brought a writ of Detinue against executors, 
 30 Ed. III. ^^^ gjjg counted that by the common custom of the king- 
 dom, women have, after the death of their husbands, the 
 half of their goods, if they have no issue, etc., and then only 
 the third part. And she showed that her husband was 
 dead without issue between them. SetoN: Judgment 
 of the count, for she declares on a common custom, and 
 if there were such a custom through all the kingdom, then 
 it is the common law, and I never knew a man rehearse 
 the common law in his count ; for if, in a writ of Dower, I 
 wish to rehearse in my count that women shall be endowed 
 of the third part, that is of no avail. And if I would say 
 "no such custom" that could not be tried by the inquest, 
 for it is common law. Willoughby: A writ of Dower is 
 general, and yet a woman shall have her special demand, 
 and she shall say that by license of gavelkind she shall 
 have the half , etc. Thorpe: That is only a private custom 
 which is contrary to the common law. Willoughby: I 
 shall count against one as a common hosteler, and I shall 
 recite the custom. Seton: It is reasonable in that case, 
 because the writ is special, and rehearses the custom, so 
 the count should be accordant, etc. Thorpe: Answer. 
 Seton: Still, judgment of the count, for she counts that 
 her husband died without issue between them, and it may 
 be that he had issue by another wife. Willoughby: 
 Then you can show that, and although you do show it, still 
 it is no plea unless you say that they were never advanced. 
 
CONNTE 303 
 
 etc. And then the count was adjudged good, etc. (All 
 the same, query? For I think that this is not the common 
 custom through all the kingdom, etc.) Seton: We tell 
 you that we were charged and impleaded before the 
 ordinary for various things touching the testament, 
 and we do not think that before the testament be 
 proved as to this action the Court will take jurisdiction. 
 Willoughby: You have taken exception to the count, 
 and to the writ, so you have affirmed the jurisdiction. 
 Seton: I have taken no exception except such as appeared 
 in the writ and the count. Thorpe : Shall not a man have 
 a writ of debt against you, notwithstanding that? Seton: 
 Yes, sir, but not this action. Willoughby: If what you 
 say is true, I do not know how it shall be tried here. And 
 they adjourned, etc. 
 
 Reported in Y. B. Mich. 30 Ed. Ill, p. 25, pi. 51. Case 3. 
 
 (4) If a man declares upon an obligation [which is] with- Michaeiis 
 out date, he shall show in his declaration where it was made. 
 
 But if the defendant pleads an acquittance [which is] 
 without date, he does not need to put any place where, etc., 
 but only the day, etc. But if the plaintiff denies it, then 
 there is time enough [to do it]. And this in Debt, etc. 
 
 Reported in Y. B. Mich. 3 Hen. IV, p. 4, pi. 15. Case 4. 
 
 (5) In debt, the plaintiff counted that he leased, by a Hilary 
 deed indented, certain lands to the defendant, to do certain 
 covenants, and to fulfill the covenants the defendant by 
 
 the same deed bound himself to the plaintiff in one hundred 
 pounds. And the plaintiff counted that the covenants 
 were broken, so accrued, etc. And note 'that he did not 
 declare on any covenant. Ready, etc. Simile, Mich. 3 Hen. 
 VI, in Debt. 
 
 The case has not been identified in Y. B. Hilary, 3 Hen. IV. Case 5. 
 
 (6) In detinue, the plaintiff counted upon a bailment Michaeiis 
 to rebail to him, and the defendant had a Scire Facias 
 against one who came and said that the plaintiff delivered 
 
304 
 
 STATHAM 
 
 Case 6. 
 
 them upon certain conditions; and the plaintiff showed 
 that the conditions were different. And the opinion of 
 Paston was that the count should abate, iuEismuch as he 
 had shown conditions contrary to the declaration, etc. 
 
 There is no printed Year Book for 15 Hen. VI. 
 
 Paschal 
 IS Hen. VI. 
 
 Case 7. 
 
 (7) If I lease land for a term of life, the remainder over 
 in fee, the tenant for life shall have a writ of Mesne, and 
 count that he holds of me, etc., for which services as by 
 the hands of his very tenant. And although the matter 
 be disclosed the count shall not abate, for the seisin is not 
 traversable in that case, etc. 
 
 There is no printed Year Book for 15 Hen. VI. 
 
 Hilary 
 34 Ed. III. 
 
 Case 8. 
 
 (8) In all writs of entry founded upon a disseisin, a man 
 shall count, "After the first passage," for they claim by the 
 disseisin, in which case they shall have the same limitation. 
 But in other writs of entry, a man shall count upon a seisin 
 after the coronation of the same king, 'according to the 
 Statute of Westminster the First. By Willoughby, in 
 a writ of entry in consimili casu, etc. 
 
 There is no printed Year Book for 34 Ed. III. 
 has the case. 
 
 Fitzh: Count, 39, 
 
 Michaelis 
 30 Hen. VI. 
 
 Case g. 
 
 (9) In a quare impedit, the plaintiff counted that one 
 H was seised of the manor of D, to which, etc., and he 
 presented, etc., and enfeoffed him, and the church was 
 vacant so it belonged to him [to present]. Danby: 
 Judgment of the count, because he does not show that he 
 was seised of the manor at the time of the vacancy. And 
 it was not allowed, because it shall be understood so, until 
 the reversion be shown, etc. 
 
 And it was said in the same plea, that if I am disseised 
 of a manor to which an advowson is appendant, that I can 
 present to the advowson before I enter into the manor, etc. 
 
 The case has not been identified in Y. B. Mich. 30 Hen. VI, or in the 
 early abridgments. 
 
CONNTE 305 
 
 (10) In trespass for his apprentice wrongfully taken. Hilary 
 Markham: Judgment of the count, for he does not declare ^^ '"^"' ^'' 
 for what time he was his apprentice. Newton: If the 
 
 action had been brought against the apprentice for his 
 departure, then that had been a good exception, by which 
 he would recover his term. And the law is the same for 
 a servant taken, etc., but against a stranger the count is 
 good, wherefore answer, etc. 
 
 Reported in Y. B. Hilary, 21 Hen. VI, p. 31, pi. 18. See also Fitzh: Case 10. 
 Count, 33. 
 
 (11) In debt against one B, the plaintiff counted that stathamSSb. 
 one H was his apprentice, and this H and the defendant Michaelis 
 were bound in twenty pounds, in an indenture (which he ^* ^^°' ^^' 
 produced) that the said H would serve him well, and that 
 
 the conditions were broken, etc. So note that in every 
 case where a man cannot have an action, except by reason 
 of a broken covenant, he should show how the covenant 
 was broken in his declaration, for it is not like an obligation 
 which has a condition, for the condition being fulfilled 
 defeats the obligation, which cannot be shown by the plea, 
 etc. And see also that the plaintiff in his count showed 
 that the other who made the indenture was under age at 
 the time of the making, etc., for otherwise he varied from 
 his specialty, for the writ was brought against B alone. 
 
 The case has not been identified in V. B. Mich. 14 Hen. IV, or in the Case 11. 
 early abridgments. 
 
 (12) In an attachment upon a prohibition, the plaintiff Hilary 
 counted that he delivered the prohibition to the defendant, * ^^°" ^'' 
 such a day, year, and place, in the presence of such a one, 
 
 and such a one, although the party had nothing to show 
 [for] the livery. Query if attachment be founded upon 
 prohibition at the common law? etc. 
 
 Reported in Y. B. Hilary, 9 Hen. VI, p. 61, pi. 12. See also Brooke, Case 12. 
 Count, 11. 
 
 (13) In debt upon an obligation made to B, in the county Michaelis 
 of N. Rolff: Judgment of the count, for the vill of B 3Hen. vi. 
 
306 STATHAM 
 
 extends into divers counties (and he showed which), and 
 he does not say in which county the deed was made. 
 Martyn: It shall be understood to be in the same county 
 where the writ is brought, wherefore answer, etc. 
 
 Case 13. Reported in Y. B. Hilary (not Mich.), 3 Hen. VI, p. 35, pi. 30. See 
 
 also Brooke, Count, 6; and Fitzh: Count, 6. 
 
 Paschal (14) In fortnedon against the husband and his wife, 
 
 who made default after appearance, etc. At the Petty 
 Cape the husband made default and the wife was received 
 and asked judgment of the count because he counted on a 
 gift, etc., and said "by force of which their donor was 
 seised," where it should be the donee. RoLFF: We are 
 ready to count anew against you, for the first count is gone 
 through the default, etc. BabyngtoN: So it seems, for 
 he shall count anew as well in this case as against the tenant 
 by the warranty, or against him who is received because 
 of a reversion, etc. Paston: It is reasonable there, for 
 they are strangers to the first count, but the woman is a 
 party, etc. Rolff: Still she is now in another course. 
 And this was well debated. And then it was adjudged 
 that he should count anew. 
 
 And it was said in the same plea, if after the declaration 
 the tenant makes default at the Petty Cape, the demandant 
 can choose to release the default or to hold to the default ; 
 and if he releases the default, then he shall count anew, 
 because by the default the first count is gone; as if the 
 case be put without day after a declaration, by protesta- 
 tion, at the resummons the plaintiff shall count anew; 
 and if he holds to the default the tenant cannot save it, 
 [so]^ if the count be not good the justices will not give judg- 
 ment upon it if it seems bad, etc. And it was said on this 
 account it seemed to them here that the demandant held 
 himself to the default when he suffered the woman to be 
 received. But he could not do otherwise for he had no 
 choice in this case, since the receipt is given by the Statute, 
 as it seems, etc. 
 
 • "Issuit" in the Year Books. 
 
CONNTE 307 
 
 Reported in Y. B. Paschal, 3 Hen. VI, p. 41, pi. 10. See also Brooke, Case 14. 
 Count, 7; and Fitzh: Count, 4. 
 
 The Statute is Westminster the First, 13 Ed. I, cap. 4 (1285), 
 Stats, at Large, Vol. 1, p. 163 (171). 
 
 (15) In detinue for a writing, against a man as executor Michaeiis 
 of one B, he counted that the" father of the plaintiff bailed ^^ ^™' ^'• 
 this same deed to his testator; in which it was set forth 
 
 that one A gave to the father of the plaintiff, and to E, 
 his wife, all the lands which he had in the county of Middle- 
 sex, in tail, to rebail to the said father and mother and their 
 heirs aforesaid. And that after the death of your testator 
 the deed reverted, etc. Fortescue: Judgment of the 
 count, for the plaintiff has [not] shown in what vill the land 
 is. Markham: There is no land in demand, except the 
 deed, wherefore he should entitle himself according to the 
 deed. Fortescue: You say truly, where a man has 
 demanded as heir general, but here he entitles himself as 
 heir in tail. Newton : The declaration is double, for he 
 demands as heir to the land, and also because of a bail- 
 ment given. One would suffice, but you have pleaded in 
 abatement of the writ, wherefore you have passed the point 
 of taking exception to the count, wherefore answer, etc. 
 (But yet that matter appeared, wherefore he shall have 
 the advantage which, etc.?) 
 
 The case has not been identified in Y. B. Mich. 18 Hen. VI, or in Case 15. 
 the early abridgments. 
 
 (16) In wardship the demandant was driven to show in Hilary 
 
 his count that the heir was under age, and yet the writ did ^^ ^™' ^^' 
 not mention it. Which note, for the tales are not so, etc. 
 
 Reported in Y. B. Hilary, 12 Hen. IV, p. 16, pi. 10. Case 16. 
 
 (17) In ravishment of ward. Danby: Judgment of Michaeiis 
 the count, for it says "Cuius maritagiutn ad ipsum pertinet," ^^ ^^"' 
 and does not say that he was under age at the time of the 
 ravishment, etc. Portyngton: Whether he be under 
 
 age or of full age, the marriage belongs to him, etc. 
 
 The case has not been identified in Y. B. Mich. 27 Hen. VI, or in the Case 17. 
 early abridgments. 
 
308 
 
 STATHAM 
 
 (18) In a quare itnpedit, where the plaintiff counted on 
 a gift in tail, of the manor with the advowson, made to his 
 ancestor in tail, he should make himself heir to him who was 
 last seised, and mention everyone who held the estate ; as 
 well as in a Formedon, etc. 
 
 Case 18. Statham has no citation to this case, 
 
 identified. 
 
 It has not been elsewhere 
 
 Note. See as to Count, in the title of Debt, and in the title of 
 
 Bar, Paschal, 18 Hen. VI ; and also in the title of Detinue ; 
 and in the title of Quare Impedit, Trinity, 18 Hen. VI. 
 
 For the case in the title of Bar, see supra Statham, title Barre, 
 p. 33 b, case 30. The case in Quare Impedit has not been identified 
 in Statham. The references to the other titles are incomplete. 
 
 Hilary 
 
 2 Hen. IV. 
 
 Cage 19. 
 
 (19) In debt upon the arrears of an account, he did not 
 show in his count for what things the defendant should 
 account, and it was adjudged good. But in debt upon the 
 arrears of an account against executors, he should show for 
 what things their testator accounted, etc. As appeared in 
 the same year. (But yet I do not know any difference) , etc. 
 
 The case has not been identified in Y. B. Hilary, 2 Hen. IV, or in the 
 early abridgments. 
 
 Anno 
 
 H Ed. III. 
 
 Case 20. 
 
 (20) The demandant counted against the tenant, for 
 a receipt, etc. In Formedon. Simile, Anno 3 Hen. VI. 
 
 There is no early printed year for 11 Ed. III. The case has not 
 been identified in the Rolls Series, 11-12 Ed. III. The point, however, 
 may have been concealed in the midst of a long case, and may very 
 well have escaped the eye of the editor. 
 
 Michaelis 
 22 Hen. VI. 
 
 Case 21. 
 
 (21) In a quare impedit and in a writ for an advowson, 
 a man shall count that his clerk was admitted and insti- 
 tuted, and he need not say that he was inducted or in- 
 stalled, etc. By Newton and Paston in a Quare Impedit. 
 
 The case has not been identified in Y. B. Mich. 22 Hen. VI, or in 
 the early abridgments. 
 
 Statham 39 a. 
 
 Trinity 
 
 19 Ed. III. 
 
 (22) A count in Quo Jure against all the tenants is good, 
 notwithstanding every one of them had a several right, 
 
CONNTE 309 
 
 because it is in the nature of a trespass; and this in Quo 
 Jure, etc. 
 
 There is no early printed Y. B. for Trinity, 19 Ed. III. The case Case 22. 
 has not been identified in the Rolls Series for that year and Term. 
 
 (23) The count in ContribuHone Facienda shall mention Paschal 
 as well every one holding the land, and as well everyone 
 shall pay, and one shall answer without the other, etc. 
 
 Reported in Y. B. Paschal, 18 Ed. II, p. 604, pi. 5 (Contribution). Case 23. 
 
 ^ After the title of Barre the old learning of the Count follows natu- 
 rally. Heath [Maxims and Rules of Pleading, p. 3] says, "There is 
 holden a maxim in our books that it sufficeth if a bar be good to common 
 intent; hut a count in the substance thereof must he good to every intent." 
 So in the step from the bar to the count we seem to pass from the less 
 formal to the more precise. The count also seems to have to be "'good to 
 any intent," yet often seems miraculously to escape being declared bad. 
 In our second case we find that the count was declared good, but the 
 commentator does not think that it should have been so declared'. He 
 states that in a writ of dower "there is no count, but a demand." Glan- 
 ville supports the note, for he says : "The woman shall set forth her claim 
 against her adversary in the following words, 'I demand such land, as 
 appertaining to such Land which was named to me in dower.' " The 
 words of Glanville are: "Peto terram illam sicut pertinentiam illius terra, 
 qua mihi nominata est in Dotem." [Glanville, Liber 6, Chap. VIII. 
 Beames, Glanville, p. 122, Beale's ed. p. 101 (1812).] Nevertheless, 
 although the form seemed that of a demand, it appears to have been 
 known as the count and the question is whether there was at that 
 time any foundation for this distinction. Is the seeker for dower a 
 demandant or a plaintiff? In instances of the early action of Debt 
 the active party is often put before us, not as complaining but as 
 demanding. [P. & M. Hist, of Eng. Law, 2d ed., Vol. 2, p. 672. Brac- 
 ton, Note Book, pi. 52, 177, 325, 381, etc.] 
 
 Astothecount Maitlandsays: "It is a formal statement bristling with 
 sacramental words, an omission of which would be fatal." {lb., p. 605.) 
 This, of course, while the pleading was in its earlier stages. Later the 
 pleading, while still subject to criticism, was placed on a more scientific 
 basis. 
 
 The cases given in the abridgment do not show the "sacramental 
 words" of Maitland; they do not even show a strict dependence upon 
 form. The first case is indeed quite to the contrary, for without any 
 exact date given, and "nothing said as to any king," the count was ad- 
 judged good. This does not look like a servile dependence upon mere 
 words. If we go down the list of the cases here given we shall find, or so 
 it seems, that the reason for the decision — where a decision is given — 
 
310 STATHAM 
 
 is based not on the infinitely small, the quibble, the difference in a spell- 
 ing or word; it is the reasoning that is paramount here; that is the 
 chief matter for thought in the typical cases here presented. They are 
 not chosen to show that the count was bad for some trivial reason, but 
 because some underlying principle was violated. In spite of the petti- 
 ness of many of the cases it is this fact which comes to us more and more 
 in the Year Book reading. Small people saw small things large and 
 argued as if they were really large ; the larger people saw things in a better 
 proportion and it was the men of larger minds who seem to us to have 
 predominated. To be sure the man who wishes to make the lesser reason 
 seem the larger is often among the users of the lengthy and involved 
 arguments intended to show the force of the really forceless, or the great 
 importance of the missing word or "addition." Yet while he gets the 
 full benefit of his argument which may occupy a half of the folio page 
 he is not often the man who wins in the end. There is generally 
 some short-phrased and wise judge to state the law to him, and to do it 
 in very brief and effective fashion. He has known what the law was all 
 through the barren wilderness of wordy talk, and he says so without 
 mincing words ; so the law is kept on its track, and gets down to us not a 
 matter of quibbles and chaff, but with its sound principles intact. 
 
 CHAMPARTIE 
 
 ^avl ^^^ ^^ champerty the plaintiff shall show the date of 
 
 the writ in his count, and although the count be that the 
 defendant had purchased part, etc., pending the plea, 
 still that means the writ, etc., as well before the plea as 
 after. And this in Champerty. 
 
 Case 1. Reported in Y. B. Hilary, 30 Ed. Ill, p. 3, pi. 15. 
 
 (2) In champerty it is no plea to justify the purchase 
 by force of a condition or covenant made before the writ 
 was purchased, unless he says, "without this that he pur- 
 chased for Champerty" or to maintain the quarrel in any 
 other manner. And this in Champerty. 
 Case 2. There is no citation for this case given in Statham. The case has 
 
 not been identified in the early abridgments. 
 
 CHARGE 
 
 Statham 39 b. 
 Paschal 
 
 (1) If a man leases land for a term of years, and then 
 6 Hen. V. charges the land, and then the termor surrenders his estate. 
 
CHARGE 311 
 
 whether the lessor holds the charge during the term or not 
 was well argued. 
 
 And it was said in the same plea, if I lease lands for the 
 term of twenty years without impeachment of waste, and 
 then I confirm his estate for the term of his life, that he 
 shall not be impeached for waste during the term of twenty 
 years, etc. 
 
 Reported in Y. B. Paschal, 5 Hen. V, p. 8, pi. 20. See also Brooke, Case 1. 
 Charge, 10. 
 
 (2) A man can charge a reversion, to wit: by a fine or HUary 
 by a deed indented, for the estoppel, but not by a simple ^^ ^^' "'• 
 deed. By Thorpe in a Scire Facias. 
 
 Reported in Y. B. Hilary, 38 Ed. HI, p. 4, pi. 15. Case 2. 
 
 (3) If the tenant of the king charges [his lands] and dies Trinity 
 while his heir is under age and in the wardship of the king, 
 
 the king shall hold charged because he claims in another's 
 right. But it is otherwise if it comes to him by escheat 
 or forfeiture. But yet other persons than the king shall 
 hold charged for these reasons etc., for when the king has 
 the vacancies of a bishopric or of an abbey, which was 
 charged, etc., he who shall have such a charge from the king 
 shall have an allowance for it, etc. In the Exchequer, etc. 
 
 The case has not been identified in Y. B. Hilary, 38 Ed. II, or in the Case 3. 
 early abridgments. 
 
 (4) Land was leased to a woman for a term of years, and 
 she took a husband who granted to the plaintiff ten shillings 
 of rent, out of this same land, to do different services for 
 him and his wife. The husband died, after whose death 
 the woman paid the rent, and then the plaintiff brought a 
 writ of Debt for this same rent. And the opinion was that 
 the woman should hold discharged, notwithstanding that ^ 
 payment, for immediately after the death of her husband 
 the land was discharged in fact: as if a man had issue a 
 daughter and died, and his wife is enceinte with a son, the 
 daughter is charged after the son is bom, and pays the rent ; 
 
312 
 
 STATHAM 
 
 Case 4. 
 
 this payment does not conclude them for the above reason, 
 etc. Like matter, Mich. 3 Hen. VI, in Avowry. 
 
 And it was said in the same plea if the husband had built 
 a house upon the same land that the wife would be forced 
 to sustain it, or else she would be impeached for waste. 
 Which was conceded, etc. 
 
 The case has not been identified as there is no citation given by 
 Statham. 
 
 Trinity 
 
 11 Hen. IV. 
 
 Case 5. 
 
 (5) Where one is to charge a prebend, it is necessary 
 that the ordinary confirm it; and also the dean and the 
 chapter of the cathedral church in which the prebend is, 
 for they are patrons, etc. And of some prebends the bishop 
 is a patron. 
 
 And see in the same plea that the plaintiff showed a 
 ratification made by the chapter, and the dean was not 
 named in it, but one who was a commissionary of the dean 
 in the absence of the dean was a party to the deed, and 
 put his seal to the deed. And the opinion of Thirning 
 and HuLS was that this was good enough. 
 
 And see in the same plea, if in a writ of Annuity the 
 patron and the ordinary are prayed in aid, and it is returned 
 that they were summoned and did not come, but the 
 annuity is received against the patron, the church will be 
 charged forever, etc. The law is the same where one of 
 them comes and the other does not, since he joins in aid 
 alone, in that case. 
 
 The case has not been identified in Y. B. Trinity, 11 Hen. IV, or in 
 the early abridgments. 
 
 Hilary 
 
 12 Hen. IV. 
 
 (6) If a prior who is presentable has a convent and a 
 common seal, whether such prior and convent can charge 
 the house in perpetuity, without the assent of their patrons 
 and ordinary, was well argued in a writ of Annuity. 
 
 And it was said in the same plea, that if an annuity be 
 brought against an abbot or prior and he would levy a fine to 
 the plaintiff for this same annuity, or for a lesser sum, 
 this fine will bind his successors, for if he will admit the action 
 of the demandant, that will bind his successor, and con- 
 
CHARGE 313 
 
 sequently a fine levied upon the same [land], etc. See 
 that in the first case he had been ousted of the aid. And 
 it was also said that he shall not have a writ of right for 
 an advowson for the tithes, nor a writ of Juris d'Utrum, 
 etc. Query? 
 
 The case has not been identified in Y. B. Hilary, 12 Hen. IV, or in Case 6. 
 the early abridgments. 
 
 (7) If one be disseised of an acre of land in tail, and of ^"?fy „, 
 
 , . , . , , , r 12 Hen. IV. 
 
 another acre m fee simple, and grants a rent charge out of 
 both acres, and dies, his heir shall hold the land tailed dis- 
 charged, but by the opinion of Thirning, the land in fee 
 simple shall be charged with all the rent, etc. 
 
 The case has not been identified in Y. B. Hilary, 12 Hen. IV, or in Case 7. 
 the early abridgments. 
 
 (8) Where a man devises a rent charge with a clause Anno 
 
 of distress, it is good; and the devise shall be pleaded ^„,jo^„ 
 without showing the testament, for it does not belong to 
 him, etc. As appeared Anno 40, Liber Assisarum, in an 
 office. 
 
 The case has not been identified in Anno 40, Ldber Assisarum. Case 8. 
 
 (9) In an assize for rent the tenant pleaded "out of his Paschai 
 
 7 Kd III 
 
 fee," and the plaintiff produced a deed by which one J 
 granted the rent issuing out of the manor of F, to wit : to 
 receive so much by the hands of one such, tenant, and so 
 much by the hands of one such. And the opinion was 
 that notwithstanding these words, all the manor should 
 be charged, and every part of it, etc. Query, for he did 
 not say how the distress was, etc. But yet that did not 
 change the matter as to the assize, but in an avowry, etc. 
 
 The case has not been identified in Y. B. Paschal, 7 Ed. Ill, or in the Case 9. 
 early abridgments. 
 
 CHARTRE^* 
 
 (1) The sheriff returned that the garnishee was dead. statham40a. 
 And without more the charter was allowed, etc. 40 eX hi. 
 
 Reported in Y. B. Hilary, 40 Ed. Ill, p. 2, pi. 4 and 5. See also Case 1. 
 Fitzh: Chartre, 3. 
 
314 
 
 STATHAM 
 
 Hilary 
 
 48 Ed. III. 
 
 Case 2. 
 
 Hilary 
 
 48 Ed. III. 
 
 Cases. 
 
 (2) In account against one H, he was outlawed and had 
 a charter of pardon and sued a Scire Facias, etc., to which 
 the sheriff returned that he had nothing by which to be 
 garnished, and then he came and prayed that he might 
 count against the said H. Fyncheden: You should sue 
 a Sicui Alias, for when a Scire Facias is awarded he cannot 
 answer unless he comes by the process, but at the Sicut 
 Alias he can because of the mischief. As in a voucher, 
 at the summons he cannot answer, unless he be summoned, 
 but at the Seguatur he can, for the mischief (etc.)- But 
 yet when one is vouched and is ready to enter before any 
 summons is issued, he can enter into the warranty well 
 enough, etc. Then the Sicut AUas was awarded, etc. And 
 from this it follows that the Sicut AUas is peremptory, etc. 
 
 Reported in Y. B. Hilary, 48 Ed. Ill, p. 1, pi. 1. 
 
 (3) In debt brought by three against three, until they 
 were outlawed, and one of them sued a charter of pardon, 
 and had a Scire Facias against the plaintiffs, etc. And the 
 sheriff returned that one was garnished, and that the other 
 two had nothing, etc. Percy: He that was garnished 
 did not come, wherefore we pray that he be demanded 
 to the effect that if he does not come, that he be nonsuited, 
 in which case the nonsuit of one of them is the nonsuit 
 of all, as well as in the first action, etc. And then he was de- 
 manded, and appeared by attorney, wherefore a Sicut AUas 
 was awarded against the two and the same day given to 
 him, etc. Query, if at the Sicut AUas all the three come, 
 if they shall be received to count against him, because in 
 the first case they could not count against him until his 
 companions came, etc. (But I believe he would have the 
 same day, until the others had sued their charters.) Query 
 well, etc. In a Scire Facias, etc. 
 
 Reported in Y. B. Hilary, 48 Ed. HI, p. 3, pi. 7. See also Fitzh: 
 Chartre, 5. 
 
 Hilary (4) In debt, the defendant was outlawed, and had a 
 
 50 Ed. III. charter of pardon and sued a Scire Facias, to which the 
 
 plaintiff declared, etc. And the plaintiff found main- 
 
CHARTRE 315 
 
 prise, and had a day over, on which day he made default, 
 and the plaintiff prayed that the charter be disallowed. 
 And the opinion of Willoughby was that it should be 
 allowed, and a capias issued against his mainpernors, etc. 
 
 Simile, in the same term, in Debt, where upon the Scire 
 Facias the defendant pleaded in bar, and the plaintiff 
 demurred in law upon the plea; and the opinion was that 
 the charter should be allowed, etc., immediately, etc. 
 Query? 
 
 The case has not been identified in Y. B. Hilary, 50 Ed. Ill, or in the Case 4. 
 early abridgments. 
 
 (5) The husband and his wife were outlawed. The wife Trinity 
 had a charter of pardon, and produced it before the Court, ^^ ™' 
 and prayed, by Newton, that she might go free. Thirn- 
 
 ING : You may well pray, yet we cannot allow it, for she can- 
 not have a Scire Facias without her husband ; wherefore the 
 charter was delivered back to the woman and she was 
 allowed to go free, etc. (It seems that she was imprisoned 
 by a capias utlagium and sued this charter), etc. 
 
 Reported in Y. B. Trinity, H Hen. IV. See also Brooke, Chartres de Case 5. 
 Pardon, 18. 
 
 (6) In debt, the husband and his wife were outlawed, and HUary 
 the wife had a charter of pardon, and showed it to the 
 Court, and prayed to be dismissed, since she could not have 
 
 a Scire Facias. Hankford: At the common law when 
 one was outlawed and had a charter of pardon, the plaintiff 
 was put [to sue] a new original, and the case is the same 
 here, wherefore she was dismissed and the plaintiff had a 
 capias utlagium against the husband and his wife. Query, 
 if the husband had a charter afterwards, if he should have 
 a Scire Facias in his own name, leaving out his wife? And 
 it seems not, etc. 
 
 Reported in Y. B. Mich, (not Hilary), 13 Hen. IV, p. 26 (1), pi. 2. Case 6. 
 
 (7) In trespass, the defendant said that the plaintiff ^'g^j'l'i 
 was outlawed; and the plaintiff produced a charter of 
 
316 
 
 STATHAM 
 
 Cage 7. 
 
 pardon, which was purchased pending the writ. And it 
 was adjudged good, etc. 
 
 There is no printed year for 32 Ed. III. The case has not been 
 identified in the early abridgments. 
 
 Micbaelis 
 11 Hen. IV. 
 
 Case 8. 
 
 (8) One was attainted in an appeal, and he took to his 
 clergy; and the plaintiff said that he was a bigamist, and 
 a writ issued to certify it, and afterward the plaintiff died, 
 and the defendant had a charter of pardon. And because 
 this special matter was not related in the charter, the 
 opinion was that it was of no value, etc. 
 
 Reported in Y. B. Mich. 11 Hen. IV, p. 11, pi. 24. See also Fitzh: 
 Chartre, 16. The case was continued to Hilary Term of the same 
 year. See Hilary, 11 Hen. IV, p. 48, pi. 23. 
 
 Michaelis 
 9 Hen. IV. 
 
 Case 8. 
 
 (9) In an appeal against two by a woman, they were 
 outlawed at her suit, and then one of them purchased a 
 charter of pardon, and had a Scire Facias against the plain- 
 tiff, who was garnished, and did not come, wherefore the 
 charter was allowed. And then the other defendant pur- 
 chased a charter of pardon and prayed that it be allowed. 
 Hankford: You should have a Scire Facias. Norton: 
 No, sir, for the woman was garnished at the suit of my 
 companion, and she did not come, so the original is ended. 
 Hankford : If it was in an action in which the plaintiff could 
 count upon the first original, you would speak according to 
 law, but in this case she cannot count, but shall ask you 
 if you have anything to say why you should not be hung. 
 Wherefore it was adjudged that he should sue a Scire Facias, 
 if he would. (Note this matter for various reasons, etc.) 
 
 Reported in Y. B. Mich. 9 Hen. IV, p. 24 (1), pi. 2. See also Brooke, 
 Chartre de Pardon, 14. See a report of a like case in Mich. 9 Hen. 
 IV, p. 7, pi. 21. 
 
 Paschal 
 9 Hen. IV. 
 
 (10) In an appeal for the death of a man, if the defendant 
 had a charter of pardon and a Scire Facias against the plain- 
 tiff, and the sheriff returned that he was dead, that charter 
 shall not be allowed until he has a Scire Facias against his 
 heir, etc. Simile, Mich. 11 Hen. IV, etc. 
 
CHARTRE 317 
 
 The case has not been identified in Y. B. Paschal, 9 Hen. IV, or in Case 10. 
 the early abridgments. The reference to Mich. 11 Hen. IV, may be 
 to the case 8, supra. 
 
 (11) One was outlawed at the suit of the Dean and Chapter Anno 
 of Lichfield, in a writ of Debt, and he sued a charter of pardon ^^ "*^°' ^^' 
 and a Scire Facias against the plaintiff, and the sheriff re- 
 turned that they were garnished, on which day the defendant 
 said that after the last continuance the dean died, and he 
 prayed that the charter be allowed, and that he be dis- 
 missed. And because the attorney of the plaintiff could 
 not deny this, it was adjudged that the charter be allowed, 
 etc. It seems that he should have no such exception before 
 the declaration. (But yet perchance the report here is not 
 perfect, etc.) 
 
 Reported in Y. B. Mich. 11 Hen. VI, p. 1, pi. 1. See also Brooke, Case 11. 
 Chartres de Pardon, 56; and Fitzh: Chartre, 20. Statham has here 
 expressed the ever-present doubt as to the correctness of the reported 
 cases in the Year Books, or as to the reported cases anywhere. It is 
 the feeling one has constantly in reading the digest which goes under 
 his name, but the more closely one reads the digested cases the more 
 one feels that the reporting at least was very faithfully done. 
 
 " This title conveys an exactly opposite idea to the modem reader to 
 that which it conveyed to the contemporary student to whom a copy of 
 Statham was first presented. There were other charters than these pre- 
 sented here under this title, like and unlike those of later times, yet re- 
 lated to them in a greater or less degree, but the charters presented to us 
 by Statham are of a different character. It takes the second part of 
 their full title to convey their real meaning, for they are wholly charters 
 of pardon granted by the king, but not, as the modern mind would im- 
 mediately take for granted, for criminal offences, or for offences against 
 the State. Half of the cases here collected are for debt, account, or 
 rent. "Process continued until they were outlawed" is a frequent 
 phrase. But the phrase need not convey visions of Robin Hoods and 
 Maid Marians, these people did not take to the woods — not all of 
 them, perhaps many did — nor did they cease to live the life of the ordi- 
 nary citizen any more than does a person to-day against whose goods 
 a judgment has been taken and execution awarded. The student will 
 find the whole process of outlawry for debt set out at length and with 
 great clearness in Crompton's Practice. [Crompton: Practice Common- 
 placed, 3d ed. 1786, Vol. 2, pp. 32-69.] 
 
 Maitland [P. & M. Hist, of Eng. Law, 2d ed.. Vol. 2, 127, 143, 207- 
 216] gives us the early history of the action of debt. He says elsewhere, 
 
318 STATHAM 
 
 "In the course of the fourteenth century the power of outlawry spreads 
 rapidly through many of the personal actions." [P. & M. Hist, of 
 Eng. Law, 2d ed., Vol. 1, p. 476-7.] Process continued until he was out- 
 lawed sounds like a linked process long drawn out — and is so. A man 
 had to be 'exacted' five times — that is demanded in the county courts 
 five times — it might be that this process would take from two and a half 
 to five years. [See Bracton, f. 125, b.] But this was in Bracton's time 
 and for felony. "Outlawry is no longer punishment, it is mere 'process' 
 compelling the attendance of the accused." [P. & M. Hist, of Eng. 
 Law, 2d ed., Vol. 2, p. 459.] This change has. come about before the 
 writing of judicial records; even Bracton could use outlawry in debt 
 and covenant [Bracton, f . 441] and in the time of the cases in our 
 abridgment the process was usual. How did it come about? 
 
 By the Statute of 13 Ed. I, the outlawry lies in account. [Boote: Action 
 at Law, p. 103.] We find that it was given for debt, detinue and re- 
 plevin by the Statute of 25 Ed. HI, c. 17, and by 19 Henry VH, cap. 9, 
 it was given in an action on the case. And this process, although by the 
 Statute of Ed. HI it was forbidden to anyone but the sheriff to put any 
 outlaw to death even for felony, put the defendant beyond the protec- 
 tion of the king, forfeited all his goods, put him in prison and lost to him 
 all the profits of his land. And Boote [supra, p. 103] says that for this 
 reason great care was taken that no person should be outlawed without 
 sufficient notice. And therefore it was that three capiases should issue 
 before there should be a process of outlawry, i. e., "the capias, alias and 
 pluries (words familiar to our later law). Thus, when a capias issued 
 upon a return of the original, and that capias was returned non est in- 
 ventus, the alias issued, and upon non est inventus returned on the alias, 
 the pluries issued; and upon the return thereof, process of outlawry 
 issued." There was much abuse of these restrictions and two statutes 
 were made to enforce them, 6 Hen. VHI, and 31 Eliz. (this of course 
 being long after our period). But this was apparently the process spo- 
 ken of so often in the Year Books, and it was then, as it was later, the 
 method of securing judgment and execution. 
 
 But so far we have gotten only to the outlawry. Having been put 
 in this parlous position — outside the law and yet subject to its exactions — 
 through the all too common impossibility of the payment of a debt, or 
 even through the refusal to pay a debt which the defendant felt or knew 
 he did not owe, though he could not prove his contention in court, it 
 seemed that there was some way needed of getting out of the situation 
 which the courts themselves did not provide. The simple way, in those 
 days, was to appeal to the king's mercy, and the easiest and surest way 
 to secure that mercy was to purchase it. A person outlawed for civil 
 reasons was still an outlaw, and as outlaws were so frequently pardoned 
 by the king the analogy to the criminal law, in the judgment, was car- 
 ried out in the relief, and the outlaw sued his charter of pardon from the 
 king, and when haled into court again upon the judgment, produced his 
 
CHARTRE 319 
 
 charter and "went quit." If he did not have it he might pay the debt 
 and be relieved from debt, but he was still an outlaw. In the Natura 
 Brevium of Fitzherbert [Fitzh. Nat. Brev. 247, g.] the manner of secur- 
 ing the pardon is given: "And if a man be condemned in the Common 
 Pleas in Debt and outlawry upon the same; then, before he shall have 
 his Pardon, he ought for to yield himself to the Prison of the Fleet, and 
 satisfy the Party, and the Record of his Condemnation and of the Satis- 
 faction ought to be certified by Certiorari unto the King in his Chancery 
 and thereupon he shall have his Pardon, and that is by the Statute of 5 
 Ed. Ill, cap 12." [See Fitzh: Nat. Brev. 8th ed.. Hale, 1755, 559.] So 
 after payment and pardon the debtor could at last be restored to his 
 status as a citizen, and ceased to be an outcast before the law. To the 
 sociologist, who seems not to have troubled the history of the law over- 
 much, the matter would seem to be of some interest, as well as to the 
 historian of the law, who in his turn seems not to have troubled about 
 the matter at all. 
 
 CHALLENGE 
 
 (1) A juror was challenged because he was not of the statham40b. 
 hundred. The triers said that he was not of the hundred, Michaeiis 
 but they said further, upon their own responsibility, that ^ ^^"' '^' 
 there were six hundreds which all came to one Court, and 
 
 that he was within one of them. And this was held a good 
 reply, wherefore he was sworn, etc. And the inquest 
 passed against the defendant, and the defendant who was 
 out on bail before, was sent to prison. 
 
 Reported in Y. B. Mich. 2 Hen. IV, p. 6, pi. 22. See also Brooke, Case 1. 
 Challenge, 28; and Fitzh: Challenge, 74. The report of the case 
 makes the defendant fail to appear, and sends the mainpernors to 
 prison. 
 
 (2) Where an inquest was awarded, and the plaintiff Hilary 
 challenged all the jurors, some of the justices said that they ^ *^^°" ^^• 
 should be discharged. But yet he was tried, for the Court, 
 
 who is the third person, will see that right is done. But 
 yet, query? How shall it be tried? 
 
 Reported in Y. B. Hilary, 2 Hen. IV, p. 14, pi. 13. See also Brooke, Case 2. 
 Challenge, 30: and Fitzh: Challenge, 76. The case says "some" of the 
 jurors, Brooke "many," instead of "all," as our abridgment has it. 
 
320 
 
 STATHAM 
 
 HUary 
 2 Hen. IV. 
 
 Caae 3. 
 
 (3) A juror was challenged because he was godfather of 
 one of the children of the plaintiff, etc. And this was a 
 peremptory challenge, and it is so the other way, to wit : when 
 the plaintiff is grandfather to one of the children of the 
 jurors, etc. 
 
 Reported in Y. B. Hilary, 2 Hen. IV, p. 15, pi. 16. See also Brooke, 
 Challenge, 31; and Fitzh: Challenge, 77. See the report of the case 
 as to the law on the subject. 
 
 Hilary 
 
 43 Ed. III. 
 
 Case 4. 
 
 (4) The array was quashed because the sheriff was des 
 robes ^ to the plaintiff. Although the bailiff of the sheriff 
 made the array in a good manner, not knowing that his 
 master was des robes to the plaintiff, etc. 
 
 Reported in Y. B. 44 Ed. HI, p. 44, pi. 56. 
 lenge, 24; and Fitzh: Challenge, 96. 
 
 See also Brooke, Chal- 
 
 Hilary 
 50 Ed. III. 
 
 Case 5. 
 
 (5) The array was challenged because one of the hun- 
 dred was put in the panel. Pershay : All the hundred is 
 within the seignory of the plaintiff, and they are under the 
 distraint, etc. And the array was adjudged good since 
 they were of the next hundred adjoining. And it seems 
 that this challenge does not go to the array, etc. 
 
 The case has not been identified in Y. B. Hilary, 50 Ed. HI, or in the 
 early abridgments. 
 
 Trinity 
 31 Ed. III. 
 
 Case 6. 
 
 (6) If a man pleads in bar of the assize that which is no 
 bar, wherefore the assize is awarded, the defendant shall 
 not have any challenge. And this by the opinion of Shar- 
 SHULL, in Assize. 
 
 There is no printed year for 31 Ed. III. The case has not been 
 identified in the early abridgments. 
 
 Hilary 
 
 35 Ed. III. 
 
 (7) In formedon, the tenant and the vouchee were at 
 issue upon the place. And then the inquest came, and 
 the tenant challenged the array and vouched also. WlL- 
 LOUGHBY : That shall be quashed immediately. ThirniNG, 
 
 ' "If the sheriff was des robes, as they called it, to either party, it 
 was a cause for a challenge." Reeves, Hist, of Eng. Law, vol. 3, p. 104. 
 
CHALLENGE 321 
 
 for the demandant: We say that the tenant and the 
 vouchee are in collusion, and they will do this "in infinite" 
 to the end that we shall never have the effect of our suit. 
 And we will aver that the panel is impartial, and we pray 
 that it be tried immediately. And the opinion of Shar- 
 SHULL was that it should be tried, etc. 
 
 There is no printed year of 35 Ed. III. Fitzh: Challenge, 156, has Case 7. 
 the case. 
 
 (8) See how, in a writ of right, the parties shall have their Trinity 
 challenge before the panel is made and not afterwards, etc. '^ ^^"" '^• 
 Simile, Hilary, 39 Ed. III. And this is to the knights 
 
 and not to the jurors. Query, how shall it be tried? 
 
 The case has not been identified in Y. B. Trinity, 7 Hen. IV, or in Case 8. 
 the early abridgments. 
 
 (9) The defendant challenged all except one, and the Paschal 
 plaintiff challenged him. And the justices would not allow ^^ ^^'^' ^^' 
 the one challenged by both to be a trier, because it might 
 
 well be that when the plaintiff challenged one of them, 
 it was by his assent; and so it would be a fraud, but they 
 took triers of all the others challenged, etc. 
 
 The case has not been identified in Y. B. Paschal, 21 Hen. VI. Fitzh : Case 9. 
 Challenge, 38, has a longer and somewhat different abridgment of the 
 
 (10) In an appeal against two, one as principal and Michaeiis 
 the other as accessory, they pleaded not guilty, and at the ^"' 
 Nisi Prius the accessory challenged the array, and the 
 principal said nothing. And because the array was quashed 
 
 at his challenge Hankford would not take the inquest 
 against the other, etc. 
 
 Reported in Y. B. Mich. 4 Hen. IV, p. 5, pi. 18. See also Fitzh : Case 10. 
 Challenge, 157. 
 
 (11) In an appeal, ten were sworn and the inquest re- Michaeiis 
 mained for default, etc. And on another day the defendant ® ^^"' ^" 
 challenged one of them who was sworn before, and showed 
 cause. And although he could have had the same chal- 
 
322 
 
 STATHAM 
 
 Case 11. 
 
 Michaelis 
 1 Hen. V. 
 
 Case 12. 
 
 Michaelis 
 32 Ed. III. 
 
 Case 13. 
 
 lenge on the first day, still he had the challenge then to 
 expedite matters, etc. 
 
 The case has not been identified in Y. B. Mich. 9 Hen. V, or in the 
 early abridgments. 
 
 (12) In an appeal of robbery against several, who pleaded 
 not guilty, one of them challenged a juror, and was driven 
 to show cause at the beginning, etc. From this it follows 
 that if he challenged one of them, he should not challenge 
 peremptorily afterward. And then others were sworn, 
 and he who was challenged was sworn in, and then another 
 of the defendants challenged him, and could not [have 
 his challenge] because he did not say anything at the com- 
 mencement, etc. And so see that in Crown law the chal- 
 lenges are different from those in other actions. See the 
 plea for various reasons. 
 
 Reported in Y. B. Mich. 1 Hen. V, p. 10, pi. 1. See also Fitzh: 
 Challenge, 70. The "divers causes" for which the case was to be 
 consulted were apparently too "divers" for the abridger. 
 
 (13) One was challenged because he was des robes ' to 
 the attorney of the plaintiff, etc. Query, is it peremptory, 
 etc.? And also if he is of his blood? 
 
 There is no printed year for 32 Ed. 
 identified in the early abridgments. 
 
 ni. The case has not been 
 
 Hilary 
 
 3 Hen. VI. 
 
 Case 14. 
 
 (14) In trespass, a juror was challenged because he was 
 chosen to be an arbitrator in regard to the same trespass 
 and because he was chosen by the plaintiff, etc. And this 
 was adjudged a peremptory challenge. It is otherwise 
 where an arbitrator is indifferently chosen by both parties, 
 etc. 
 
 And it was said in the same plea that if one be chosen 
 by the plaintiff and another by the defendant, to be 
 arbitrators indifferently, yet since each is a stranger to the 
 election of the other, it is a good challenge, etc. 
 
 Reported in Y. B. Hilary, 3 Hen. VI, p. 24, pi. 3. See also Brooke, 
 Challenge, 7; and Fitzh: Challenge, 16. 
 
 ' See case 4, supra. 
 
CHALLENGE 323 
 
 (15) If one be challenged because he has nothing Paschai 
 within the hundred he shall stand by, etc., and he shall ^ ^^"- ^'• 
 not be trier if there be four others of the hundred, and 
 enough outside. And also if there be many of the hundred, 
 
 a man can challenge them at the commencement, to the 
 intent that they shall not be sworn, etc. And if he has 
 nothing within the hundred, still if he lives within the 
 hundred and has enough outside in the same county, he 
 shall be sworn, etc. Query, if he dwells outside of the 
 hundred, and has enough within the hundred, shall he be 
 sworn? And this in Estrepement, etc. It seems not, for 
 he cannot have so good a knowledge, etc. 
 
 Reported in Y. B. Paschal, 3 Hen. VI, p. 38, pi. 3. See also Brooke, Case 15. 
 Challenge, 8; and Fitzh: Challenge, 18. 
 
 (16) One was challenged because he was tenant to the Paschal 
 defendant. And the jurors said he was not. But they ^"' ^' 
 said he was enfeoffed of certain lands to the use of one such 
 
 who was tenant to the defendant, and held this same land 
 of him, etc. Paston: Then he is his [tenant]. And for this 
 reason he was withdrawn, etc. And then the inquest 
 remained because there were not enough of the rape * and 
 the plaintiff prayed ten tales. Prisot: We say that the 
 plaintiff is lord of the rape and we say that there are none 
 within the rape except his tenants and within his distress, statham 41 a 
 wherefore we pray that the tales be awarded in the next hun- 
 dred adjoining the rape. And we pray that our distress be 
 tried by triers immediately, and that the eleven who were 
 taken, and the others who were challenged because they had 
 nothing within the rape, be sworn, etc. Strange : That can- 
 not be tried here now, but they can come in upon the return 
 of the sheriff. Martyn: The same case was adjudged 
 before. Hankford: In a Nisi Prius at Lewis, etc. And 
 afterwards by advice, etc., it was adjudged that it should 
 be tried immediately, and so it was. They said that there 
 were enough who were not his tenants, wherefore ten tales 
 were awarded from the rape. And this in Account, where 
 
 ■ A rape in Sussex, which is divided into six rapes, is the same as a 
 hundred in other counties, or a wapentake. 
 
324 
 
 STATHAM 
 
 Case 16. 
 
 the defendant said that he had fully accounted at B, in 
 another county; and upon this they were at issue, etc. 
 
 Reported in Y. B. Paschal, 3 Hen. VI, p. 39, pi. 5. See also Brooke, 
 Challenge, 9; and Fitzh: Challenge, 19. 
 
 Michaelis 
 11 Hen. IV. 
 
 Case 17. 
 
 (17) One was challenged because he was not of the 
 
 hundred, and it was said that he was of a hundred next 
 adjoining, and these two are one rape. And it was found by 
 triers that each hundred had a leet by itself, and that no 
 one was juror to another, wherefore the challenge was 
 adjudged good, although both hundreds were within one 
 rape, since there were.separate jurors to the leet, etc. 
 
 Reported in Y. B. Mich. 11 Hen. IV, p. 2, pi. 5. See also Brooke, 
 Challenge, 44; and Fitzh: Challenge, 86. 
 
 Michaelis 
 11 Hen. IV. 
 
 (18) In a writ of annuity, they were at issue upon the 
 seisin, because the seisin was alleged in another county. 
 A jury was awarded from both counties, and the plaintiff 
 challenged the array of one inquest, and the defendant 
 challenged the array of the other inquest. HoRTON: 
 We pray one of one inquest and one of the other inquest 
 to try both the arrays. Hankford : That shall not be, 
 for there are separate Venire Facias by which the justices 
 choose two of each inquest who affirm the array, and then 
 they cause them to be sworn, to wit: one of one county 
 and the other of the other county, and so until six of each 
 panel are sworn. Which note. And one panel was chal- 
 lenged and two triers were sworn upon it, and because 
 they could not agree they were put in ward until the next 
 day; and also one of the other inquest who was sworn 
 upon the principal [matter] and also the two triers of the 
 same inquests were put in ward until the next day, and the 
 next day they agreed. Horton prayed that they might 
 have food for there was no fault in the three. Hankford : 
 One of them is sworn upon the principal matter, and there- 
 fore he cannot have food, but the other two can, for they 
 are not sworn upon the principal [matter]. Thirning: 
 In that case no default can be adjudged upon him, although 
 
CHALLENGE 325 
 
 he be sworn upon the principal [matter], wherefore give 
 him food, etc. 
 
 Reported m Y. B. Paschal (not Mich.), 11 Hen. IV, p. 62, pi. 14. Case 18. 
 See also Brooke, Challenge, 46; and Fitzh: Challenge, 88. 
 
 (19) The array was challenged because the coroner who Michaeiis 
 made the array had an action of debt pending against the ^^ ^^"- ^^• 
 defendant, which was of an older date than the assize, etc. 
 
 And it was adjudged that it was not peremptory; but 
 it was said that if the action had been trespass for a battery 
 it would have been peremptory; or if the defendant had 
 had an action of debt against the coroner, that that would 
 have been peremptory, etc. But yet, query? 
 
 Reported in Y. B. Mich. 11 Hen. IV, p. 26, pi. 50. See also Brooke, Case 19. 
 Challenge, 45; and Fitzh: Challenge, 87. 
 
 (20) In trespass to the damage of twenty pounds, a Michaeiis 
 juror was challenged for non-sufiliciency. It was found ^^ ^^"' ^^' 
 that he had a freehold to the value of one mark a year. 
 FoRTESCUE: If the damages were ten pounds, it were 
 necessary that the jurors should [be able to] expend ten 
 shillings, and now the damages are twenty pounds, in which 
 
 case he should expend twenty shillings to the hands, etc. 
 And it was not allowed, wherefore he was sworn. 
 
 The case has not been identified in Y. B. Mich. 18 Hen. VI, or in the Case 20. 
 early abridgments. 
 
 (21) See that no challenge to the array is peremptory Michaeiis 
 unless on a special case, as to say that the sheriff was out ^ ^^°- '^• 
 of the kingdom and there was no under sheriff, or such like 
 
 case, etc. Study well, etc. 
 
 The case has not been identified in Y. B. Mich. 7 Hen. IV, or in the Case 21. 
 early abridgments. 
 
 (22) A juror was challenged for non-sufi&ciency, and the Michaeiis 
 triers said that one H leased certain lands to the juror for '^ ^"^"^ ^^" 
 life, rendering a certain rent, and one re-entered for default 
 
 of payment. And the opinion was that he was not enabled 
 
326 
 
 STATHAM 
 
 Case 22. 
 
 Michaelis 
 8 Hen. V. 
 
 Case 23. 
 
 by such a freehold, which is defeasible, to be a juror. And 
 this in a writ of Entry, etc. 
 
 The case has not been identified in Y. B. Mich. 7 Hen. IV, or in the 
 early abridgments. 
 
 (23) The plaintiff challenged one poll and the defendant 
 challenged another poll. Pole (for the plaintiff): We 
 release our challenge. Strange: Then we challenge him. 
 Hilary : To that you shall not get now, inasmuch as you 
 did not put your challenge to him when the plaintiff chal- 
 lenged him, for then he had been withdrawn immediately. 
 Wherefore he was sworn, etc. 
 
 Reported in Y. B. Mich. 8 Hen. V, p. 10, pi. 21. 
 Challenge, 151. 
 
 See also Fitzh: 
 
 Michaelis 
 8 Hen. V. 
 
 Case 24. 
 
 (24) In debt on an obligation, the plaintiff challenged 
 because formerly it passed against the plaintiff in a writ 
 of debt for this same debt, which was reversed afterwards 
 by a writ of error, etc. Hilary: Where is the record? 
 RoLFF: In the King's Bench. Hilary: Then your chal- 
 lenge is not peremptory, unless you show the record. Which 
 the Court conceded. And another day he was challenged 
 because the plaintiff had a writ of trespass pending against 
 him in the same place, etc. And this defendant said that 
 this writ was of a later date than the writ of debt, and was 
 brought by fraud between them with the design that he 
 should not pass in this inquest. And it was inquired 
 immediately whether it was brought by fraud or bona fide. 
 And it was said by fraud of the plaintiff. And they were 
 sworn to inquire further if he was favorable for this reason 
 or for any other reason. They said "no." Wherefore 
 he was sworn, etc. But if the writ of trespass had been 
 of an older date than was the action of debt, I think that 
 the challenge had been a peremptory challenge, and that 
 the other party could not have been aided by alleging such 
 a fraud, etc. (But there could have been fraud as well 
 in one case as in the other.) 
 
 Reported in Y. B. Mich. 8 Hen. V, p. 11, pi. 22. See also Fitzh: 
 Challenge, 179. 
 
CHALLENGE 327 
 
 (25) In a writ of entry, one was challenged because he Michaeiis 
 was tenant to the vouchee; and [it was not] * allowed. 7 Hen. iv. 
 Query, as to the reason? 
 
 Reported in Y. B. Mich. 7 Hen. IV, p. 1, pi. 4. See also Brooke, Case 25. 
 Challenge, 34; and Fitzh: Challenge, 84. 
 
 (26) In f ormedon, ten were challenged by the demandant Michaeiis 
 and one by the tenant. Twelve [ten?] were sworn; and ^ ^^"^^ ^'• 
 because these who were sworn could not try by themselves, it 
 
 was adjudged that one of those who was challenged by the 
 demandant, and another of those who was challenged by 
 the tenant, should be sworn to try with them. Skrene: 
 He who was challenged by the demandant is heir to the 
 demandant, etc. Thirning: Yet you cannot challenge 
 for that in this case. Which note, etc. 
 
 The case has not been identified in Y. B. Mich. 7 Hen. VI, or in the Case 26. 
 early abridgments. 
 
 (27) In attaint, four of the hundred are enough, as well Hilary 
 as in an inquest of twelve, etc. And s6 it was adjudged 
 
 in an Attaint, etc. 
 
 There is no printed Hilary Term for 9 Hen. IV. The case has not Case 27. 
 been identified in the early abridgments. 
 
 (28) It is a good challenge to the array that many Michaeiis 
 villeins are empanelled. And this in an Appeal, etc. ^ 
 
 The case has not been identified in Y. B. Mich. 26 Ed. Ill, or in the Case 28. 
 early abridgments. 
 
 (29) It is a good challei^e to the array that the sheriff statham 4i b. 
 is cousin to the wife of the plaintiff. In an Assize at Exeter. Anno 
 Contrary, Anno 18 in the Liber Assisarum. Query if it ^^ ^^"' ^^' 
 be peremptory? 
 
 The case has not been identified in Y. B. Anno 12 Hen. VI. Fitzh: Case 29. 
 Challenge, 159, has the case, but gives no page or placitum. 
 
 (30) It is a good challenge to the array made by the HUary 
 coroner, that the same panel which he had returned was 
 formerly returned by the sheriff and quashed. And this 
 
 ' Words from the case. 
 
328 
 
 STATHAM 
 
 in Array, etc. Query, if it be a good challenge for part of 
 the first panel empanelled? 
 
 Case 30. There is no printed Hilary Term for 25 Ed. III. The case is reported 
 
 in Y. B. Trinity, 25 Ed. Ill, p. 80, pi. 1. Fitzh: Challenge, 121, 
 has the case. The report of the case has it that the challenge was 
 not allowed. 
 
 Hilary 
 
 12 Ed. III. 
 
 Case 31. 
 
 (31) It is no challenge to the array that the panel was 
 made by the bailiff of the franchise of which the plaintiff 
 is seneschal, unless he says that the seneschal removed the 
 bailiff, etc. In an Assize, etc. 
 
 There is no early printed year for 12 Ed. III. The case has not been 
 identified in the Rolls Series for that year, or in the early abridgments. 
 
 Michaelis 
 8 Hen. VI. 
 
 Case 32. 
 
 Anno 
 
 27 Ed. III. 
 
 Case 33. 
 
 (32) It is no challenge to the array that the sheriff had 
 put in a person favorable to one party or to the other, 
 unless he says that the sheriff knew of it. In a note. 
 
 The case has not been identified in Y. B. Mich. 8 Hen. VI, or in the 
 early abridgments. 
 
 (33) It is no challenge to say that the defendant is 
 tenant to the sheriff without saying, "And so favorable." 
 And this in an Assize, etc. In a note. 
 
 The case has not been identified in Y. B. 27 Ed. Ill, or in the early 
 abridgments. 
 
 Michaelis 
 12 Hen. VI. 
 Case 34. 
 
 (34) Three were triers in an Attaint. 
 
 The case has not been identified in Y. B. Mich. 12 Hen. VI, or in the 
 early abridgments. 
 
 Michaelis 
 2 Ric. II. 
 
 Case 35. 
 
 (35) It is no challenge to the trier that after he was 
 sworn he had eaten with the defendant. And this in an 
 inquest. 
 
 There is no printed Year Book for 2 Ric. II. The case has not been 
 identified in the early abridgments. 
 
 Hilary 
 2 Hen. IV. 
 
 Case 36. 
 
 (36) Where the inquest is awarded for default, and the 
 plaintiff challenges a poll, it shall be tried. And this in a 
 note. 
 
 The case has not been identified in Y. B. Hilary, 2 Hen. IV, or in the 
 early abridgments. 
 
CHALLENGE 329 
 
 (37) It is a good challenge that he holds of one J, who Michaeiis 
 holds over of the plaintiff. And this by the opinion of the ^^ "™- ^'• 
 Court, in Debt. 
 
 The case has not been identified in Y. B. Mich. 13 Hen. VI, or in Case 37. 
 the early abridgments. 
 
 (38) It is a good challenge in an Attaint that one of the Michaeiis 
 Grand Jury had married the daughter of one of the petty 
 
 jury- 
 There is no early printed year for 12 Ed. III. The case has not Case 38. 
 been identified in the Rolls Series for that year, or in the early abridg- 
 ments. 
 
 (39) A man shall have a challenge to the polls notwith- Anno 
 standing the king was a party in the Exchequer. Query "^" " 
 if he shall have one to the array? It seems not, unless in 
 special cases, etc. 
 
 There is no printed Year Book for 6 Ric. II. The case has not been Case 39. 
 identified in the early abridgments. 
 
 (40) If a man who is outlawed for felony says that at Paschal 
 the time, etc., he was so sick that he could not come, and 
 
 the reverse is alleged for the king, he shall have his challenge. 
 And the law is the same where one abjures [the kingdom] 
 and is taken out of the high road. By the opinion, etc. 
 Coram Rege. 
 
 There is no printed Year Book for 11 Ric. II. The case has not been Case 40. 
 identified in the early abridgments. 
 
 (41) If the party challenges one who is the son of the Anno 
 plaintiff, the plaintiff may say that he is a bastard. And ^^ ^^°- ^^• 
 the opinion was that this should be tried by the triers, etc. 
 
 And this in an Assize at Southwark. 
 
 There is no printed year of 26 Hen. VI. The case has not been Case 41. 
 identified in the early abridgments. 
 
 (42) A man can challenge thirty-five without cause, as Anno 
 well in an appeal of felony as in an indictment for felony, i Hen. v. 
 etc. Coram Rege. 
 
330 
 
 STATHAM 
 
 Case 42. This case is not found in Y. B. Anno 1 Hen. V, but it appears in 
 
 Y. B. Trinity 9 Hen. V, p. 7, pi. 21, where Brooke, Challenge, 50, and 
 Fitzh: Challenge, 72, put it. 
 
 Michaelis 
 25 Ed. III. 
 
 Case 43. 
 
 (43) If a juror be challenged because the party had an 
 action against him, he shall show the record if it be not in 
 the same Court. And the law is the same in outlawry. 
 
 The case has not been identified in Y. B. Mich. 25 Ed. HI, or in the 
 early abridgments. 
 
 Michaelis 
 7 Hen. V. 
 
 Case 44. 
 
 (44) If the party challenges a juror because he had a writ 
 of Trespass pending against him before the purchase of 
 this writ, the other party may say that this is by fraud. 
 And that shall be tried, in Trespass. 
 
 The case has not been identified in Anno 7 Hen. V, or in the early 
 abridgments. 
 
 Paschal 
 
 13 Hen. IV. 
 
 Case 45. 
 
 (45) It is a good challenge that he ate at the cost of 
 the plaintiff after he was empanelled. But it is other- 
 wise if he ate lately. And this in Trespass, Coram Rege. 
 
 The case has not been identified in Y. B. Anno 13 Hen. IV. There 
 is no printed Paschal Term for that year. The case has not been iden- 
 tified in the early abridgments. 
 
 CONFIRMACION 
 
 statham 42 a. (1) In an asslze, the tenant pleaded the feoffment of the 
 Paschal plaintiff, made to one J, whose estate he had. And the 
 
 deed read that the plaintiff had leased land to this J for 
 a term of years, and the plaintiff confirmed his estate 
 in fee. And the tenant pleaded in accordance with this. 
 And the plaintiff said that at the time of the confirma- 
 tion this J had nothing in the lands. Fyncheden: To 
 that you shall not get, inasmuch as you have admitted the 
 deed. Fyncheden: That was merely a relation which does 
 not preclude him, etc. Query? 
 
 The case has not been identified in Y. B. Paschal, 46 Ed. HI, or in the 
 Case 1. early abridgments. 
 
CONFIRM ACION 331 
 
 (2) If one holds an acre of land of me for twelve pence Paschal 
 and another acre for four pence, and I confirm his estate *^"' 
 in both, to hold for six pounds for all services, the opinion 
 
 is that this confirmation is void, for then it may be 
 that that acre which was charged with four pence is 
 charged with six pence, which cannot be, etc. Query, 
 if the avowant bound the seisin by my hands, could I plead 
 such a confirmation, made to such a one whose estate I 
 have, etc., against that seisin, etc. Query, if it be in the 
 purview of the Statute? 
 
 Possibly the case reported in Y. B. Paschal, 9 Hen. VI, p. 8, pi. 22. Case 2. 
 It is given by Brooke, Confirmacion, 1; and Filzh: Confirmacion, 1. 
 The case as there reported differs from the case in Statham in many 
 ways. 
 
 Reference to the Statute is not clear. 
 
 (3) See by Hankford where my entry is legal, my con- Hilary 
 firmation or release is good, although there is no privity 
 between us, for in this case the confirmation or release will 
 countervail an entry and a feoffment; and it was adjudged 
 before by me, and this in an Assize, etc. 
 
 Reported in Y. B. Hilary, 3 Hen. IV, p. 9, pi. 5. See also Fitzh: Case 3. 
 Confirmacion, 12. 
 
 See of confirmation in the Assize of the Prioress of Note. 
 Clerkenwell. 
 
 (4) Confirmation to him who is tenant, by executors, Hilary 
 
 QQ T^J TTT 
 
 is good for the reconusor. And this in an Assize. Simile, 
 Anno 31 Liber Assisarum, in an Assize of rent, etc. 
 
 There is no printed year for 33 Ed. III. The case has not been Case 4. 
 identified in the early abridgments. 
 
 (5) Confirmation by a joint tenant and his companion Trinity 
 is of no value. By Thorpe and Grene in an Assize, etc. 
 
 And that his part does not pass by it, but his half is ex- 
 tinguished in the half of his companion and breaks the 
 survivorship, etc. 
 
 There is no printed year of 34 Ed. III. Fitzh: Confirmacion, 15, has Case 5. 
 the case. 
 
 (6) Confirmation of a franchise to him "who does not Michaeiis 
 use or abuse it" is void, if there were not these words ^°' 
 
332 
 
 STATHAM 
 
 in the charter: "licet abusus vel non usus ftierit." By the 
 opinion of the Court in Trespass, Coram Rege. It seems 
 to me the contrary, for he is at all times seised of the fran- 
 chise until the king seizes it. 
 
 Case 6. There is no printed year of 24 Hen. 
 
 identified in the early abridgments. 
 
 VI. The case has not been 
 
 Hilary 
 9 Hen. IV. 
 
 CONTYNUELLE CLAYME 
 
 statham42b. (1) If a man wishes to take advantage of a continual 
 claim he should make his claim from year to year, and not 
 cease for three or four years. And also he should come 
 near there so that he can see the land and show it to the 
 people, and say that he dares not approach for fear of 
 death. 
 
 And see that it was held in the same plea, that a man 
 cannot bind a continual claim in his father and also in 
 himself, for then it is double, for the party shall have a 
 traverse to the continual claim ; as it appeared in this plea, 
 where the plaintiff said that the tenant made no claim in 
 any place where he could see the land. And this in an 
 Assize, etc. They should then say that he made a con- 
 tinual claim at all times to enter at any time, to claim, etc. 
 
 Case 1. Reporledin Y. B. Mich, (not Hilary),9Hen. IV, p. 4, pi. 18. See also 
 
 Brooke, Continuel Claime et Non Claime, 1, and Fitzh: Continual 
 Claime et Non Claime, 3. Both give the page as five, as that is the 
 page where the point appears. 
 
 CONDICIONS« 
 
 Hilary 
 
 40 Ed. III. 
 
 (1) In detinue for writings, the defendant said that the 
 writings were delivered upon certain conditions, to wit: 
 if one A did certain things (and he showed them all in cer- 
 tain) that then, etc. And he did not know if the said A 
 had performed the conditions with the plaintiff. And 
 he prayed a Scire Facias against A, and had it. And note 
 
CONDICIONS 333 
 
 that he did not say that the writings were delivered by the 
 plaintiff to this A, in which case A is a stranger to the 
 delivery; so it seems that he should not have had a Scire 
 Facias, inasmuch as no one was a party to the delivery, 
 except he himself, etc. See the plea, etc., to wit: in the 
 case of Pecchy; he should have alleged that the conditions 
 were not performed, judgment if action, etc. 
 
 Reported in Y. B. Hilary, 40 Ed. Ill, p. 11, pi. 24. Case 1. 
 
 (2) In debt upon an obligation, the defendant showed Michaeiis 
 certain conditions by an indenture, to wit: if the defendant ^^ ^'^' ^^'' 
 received certain [lands] ' by such a day, and enfeoffed the 
 plaintiff of the same lands, before the said day, that then, 
 
 etc. And he said that he received the land and would have 
 enfeoffed the plaintiff before the same day, and the plaintiff 
 would not take the feoffment for doubt of champerty, 
 [but] he commanded the defendant to enfeoff one J, and 
 he did so, judgment if action. Belknap: He pleads 
 another thing which is not comprehended within the con- 
 ditions of the indenture, and for this he does not show any- 
 thing, wherefore judgment, etc. Wherefore the plaintiff 
 was put to ans^Ver to that plea. Which study, etc. And 
 it seems that it is double, etc. 
 
 Reported in Y. B. Mich. 42 Ed. Ill, p. 23, pi. 2. See also Brooke, Case 2. 
 Condicions, 24. 
 
 (3) If the plaintiff declares upon a contract without a Michaeiis 
 specialty, the defendant shall say that the same contract 
 
 was made upon certain conditions, without showing any- 
 thing in regard to them. 
 
 Reported in Y. B. Mich. 44 Ed. Ill, p. 27, pi. 6. See also Brooke, Case 3. 
 Condicions, 28. 
 
 (4) If a man leases land to me for a term of years, by statham43a. 
 a deed indented, rendering a certain rent, and he brings a Paschal 
 writ of Debt against me for the rent, I shall say that one 
 
 H enfeoffed the plaintiff before the lease upon conditions 
 which were broken on the part of the plaintiff, and that 
 
 ' Word from the case. 
 
334 
 
 STATHAM 
 
 Case 4. 
 
 the feoffor had entered, before which entry nothing was 
 in arrear; I do not show anything of the conditions, since 
 I am a stranger to them, etc. 
 
 The case has not been identified in Y. B. Paschal, 45 Ed. Ill, unless 
 it is the case reported on p. 8, pi. 10, in which the matter is similar to 
 the case abridged. Brooke, Condicions, 29, abridges the case on 
 another point. 
 
 Trinity 
 45 Ed. III. 
 
 Case 5. 
 
 (5) In a writ upon the Statute of Laborers, against the 
 servant, he said that he was retained upon certain con- 
 ditions, and he had the plea without showing anything 
 of them, since the action is not founded upon a specialty. 
 
 The case has not been identified in Y. B. Trinity, 45 Ed. Ill, or in 
 the early abridgments. The Ststute is that of 23 Ed. Ill (1349). The 
 Statute of Laborers, Stats, at Large, Vol. 2, p. 26. 
 
 Case 6. 
 
 (6) In an assize, neither the tenant nor the plaintiff can 
 plead conditions without showing them in writing; all the 
 same the assize can find the conditions, inasmuch as seisin 
 can be delivered upon condition, since they can have notice. 
 But as to other conditions I think that they cannot. 
 
 There is no citation given by Statham for this case, and it has not 
 been identified. No case from 50 Ed. Ill is abridged by Brooke or 
 Fitzherbert under this subject. 
 
 Hilary 
 
 60 Ed. III. 
 
 Case 7. 
 
 (7) See that the reason why, in Detinue, the defendant 
 shall say that the writings were delivered to him by the 
 plaintiff and another, upon certain conditions, and not 
 show anything of them, is not because the third person is 
 a party to them, as many say, but the reason is because the 
 action is not founded upon a specialty. By Thorpe, 
 in Detinue, etc. 
 
 The case has not been identified in Hilary, 50 Ed. Ill, or in the early 
 abridgments. 
 
 Michaelis 
 7 Hen. VI. 
 
 (8) In trespass, the defendant pleaded that he himself 
 enfeoffed the plaintiff upon condition to re-enfeoff him, 
 etc. And he did not show anything of the conditions. And 
 it was the opinion that he should have the plea in this writ 
 
CONDICIONS 335 
 
 of Trespass, because it is not to recover the freehold for which 
 the conditions are pleaded, for in no writ where a man is 
 to recover land can such conditions be pleaded without 
 a deed. Query as to the difference, etc. 
 
 Reported in Y. B. Mich. 7 Hen. VI, p. 7, pi. 10. Case 8. 
 
 (9) Four brought a writ of Debt as executors of one A. Michaeiis 
 And the will read, "I ordain and constitute such and such 
 to be my executors, and if they refuse, then I ordain such 
 and such." And because all four were named, where more 
 than two cannot be executors, for such a condition it was 
 adjudged that the writ should abate. 
 
 And see by Martyn, in the same plea : If I am bound to a 
 man in an obligation for twenty pounds, upon the condition 
 that if he goes to Canterbury the said obligation shall 
 be good. In such a case, if he brought an action upon the 
 obligation, he could show that he had performed the con- 
 dition, in his declaration, for that is the cause of his action. 
 But I believe that such a condition avails not, unless it 
 be in this manner, to wit: "I bind myself, A J of B, in 
 twenty pounds, under these conditions, etc.," for if such 
 conditions be after the obligation, or upon the back, he 
 does not need to show them in his declaration. 
 
 And see in the same plea, by Martyn: If I enfeoff a man 
 upon the condition that if he pays certain moneys on a 
 certain day, etc., that he shall not have a fee if he does not 
 pay me at the day, etc., I can re-enter, etc., although no 
 such clause be in the deed, to wit: if not, that I can enter, 
 etc. See the plea because it was well argued. 
 
 Reported in Y. B. Mich. 3 Hen. VI, p. 6, pi. 6. See also Brooke, Case 9. 
 Condicions, 10. A long and often-cited case, containing many points 
 of interest. 
 
 (10) If one pleads a deed in bar simply, and the deed ^^ichaeiis 
 
 ... t t ■ -a 11 ^1 i 11 a^a. IV. 
 
 contains certain conditions, the plaintiff can well say that 
 nothing passed by the deed. By the opinion of Thirning, 
 in the Assize of Pecche, etc. Query well, etc. 
 
336 
 
 STATHAM 
 
 Case 10. 
 
 Paschal 
 19 Hen. VI. 
 
 Case 11. 
 
 The case has not been identified unless the point is contained in the 
 case reported in Y. B. Mich. 11 Hen. IV, p. 18, pi. 42. Brooke, Con- 
 dlcion, 39, abridges the case on another point. 
 
 (11) One H enfeoffed one B upon condition that he 
 would enfeoff one A and K, his wife, in tail, the remainder 
 to one F, in fee, before such a day, etc. And before the 
 day the said B, by such a one, his attorney, offered a deed 
 of feoffment to the husband according to the conditions, 
 and he refused, etc. And now if the entry of H, the feoffor, 
 be legal or not is the question. Markham: His entry 
 is legal, for the tender to the husband alone is not according 
 to the conditions, wherefore, etc. Fortescue: The tender 
 is good, for if he had tendered to the husband and his wife 
 and the husband had not agreed, that is the disagreement of 
 both. Which was conceded. And the opinion of Newton 
 was that the entry of H was legal, etc. In an Assize. 
 Well argued. And then the parties agreed. 
 
 And it was said in the same plea that if a man bind him- 
 self in a condition which is against the law, and also in 
 a condition which is impossible to be fulfilled, such a 
 condition is void. Query, if the obligation be endorsed 
 with a condition which is void in law, if the obligation be 
 single, 1 etc. 
 
 Reported in Y. B. Paschal, 19 Hen. VI, p. 67, pi. 14; and in Y. B. 
 Trinity, 19 Hen. VI, p. 73, pi. 2. See also Brooke, Condicions, 55. 
 
 Paschal 
 
 21 Hen. VI. 
 
 (12) If I lease land for a term of years upon condition 
 that he will not alienate his term, that condition is good. 
 But if I enfeoff a man upon such a condition, the condition 
 is void, for it is contrary, etc. By Newton, in a note. 
 But yet, query as to the difference. And it seems that in 
 the first case, although the lease be by deed, that the lessor 
 shall not have a writ of covenant [on the] conditions, etc. 
 Then if the plaintiff cannot enter he has no remedy. Query, 
 if the gift of a horse be upon condition, if the donor can 
 afterwards take it back upon condition broken, although 
 such a clause was not rehearsed? 
 
 ' "Simple"' in Brooke. 
 
CONDICIONS 337 
 
 Reported in Y. B. Hilary (not Paschal), 21 Hen. VI, p. 33, pi. 21. Case 12. 
 See also Brooke, Condicions, 57; and Fitzh: Condicions, 4. HANK- 
 FORD laughs over the statements in the case. 
 
 See good matter upon conditions in the title of Audita Note. 
 Querela, Mich. 44 Ed. Ill; and in the title of Detinue; and 
 in the title of Certification, Mich. 32 Ed. Ill; and in the 
 title of Debt, Mich. 46 Ed. III. 
 
 (13) In formedon, the tenant showed how one such Trinity 
 enfeoffed him upon condition, etc., and for default in the per- 
 formance of the conditions he had entered pending the writ ; 
 
 so the writ was abated, etc. And he asked for judgment 
 of the writ, and he did not show anything of the conditions, 
 to wit: no writing, and still he had the plea. And they 
 took it for reasonable because the plaintiff was a stranger 
 to the deed, and also it might be that the deed was delivered 
 when he re-entered, etc. (But yet I believe that is not the 
 law.) 
 
 There is no early printed year of 11 Ed. III. The case is printed in Case 13. 
 the Rolls Series, 11-12 Ed. Ill, p. 114. 
 
 (14) A man leased land for a life term, upon condition Anno 
 that if he granted the reversion the lessee should have a fee. '^' ' 
 And afterwards he granted the reversion by a fine, and the 
 condition was adjudged void, etc. In the case of Plesyng- 
 
 ton. 
 
 There is no printed Year Book for 6 Ric. II. No reference is found to Case 14. 
 the case elsewhere. 
 
 (15) If I am bound to a man in an obligation for twenty statham 43 b. 
 pounds, upon condition that if I pay to him ten pounds Michaeiis 
 before the feast of Michaelmas next ensuing, then etc. 
 
 And if, after that, and before the said feast, I see him 
 at a time forty days before the said feast, and after that I 
 cannot find him until the said feast is passed, my obligation 
 is forfeited, for I could at one time have paid him, when I 
 saw him, in which case I cannot be excused, etc. And it 
 was my folly to be bound in such a manner. But if I am 
 bound as above to pay a lesser sum, at such a place, before 
 such a feast, although I see him a hundred times after- 
 
338 STATHAM 
 
 wards and before the said feast, it is sufficient for me to 
 come to the said place, the last moment before the said 
 feast, to tender the money. And this by the opinion of all 
 the justices in the case of John Johnson. And see the plea, 
 for the justices were of different opinions upon the issue 
 which was joined in that case. 
 
 Case 15. Reported in Y. B. Anno 36 Hen. VI, p. 15, pi. 19. See also Brooke, 
 
 Condicions, 91. 
 
 ^ Estates upon condition were so well known to our law that we may 
 expect to find many cases covering solely the law upon such conditions, 
 but as has been said, [P. & M. Hist, of Eng. Law, 2d ed., Vol. 1, p. 408] 
 "Condition also has hard work to do in our law of property and of obli- 
 gations." In the abridgment we have to do not only with the law of 
 Estates upon Condition, but also with the law of conditions in "obli- 
 gations." No attempt is made to classify the cases into their proper 
 species in any of the old abridgments. A condition is a condition and 
 it makes no difference whether the law of real property or personal prop- 
 erty is involved, any more than it concerned the law of outlawry wheth- 
 er the person had committed a crime or had not paid a debt. Bacon 
 [Abridgment, title Conditions, 6th ed., p. 629] observes: "By the word 
 condition is usually understood some quality annexed to real estate 
 . . . also qualities annexed to personal contracts and agreements are 
 frequently called conditions," so that we have fairly late authority for 
 treating the different sorts of conditions under one head, as they are 
 treated in the earlier abridgments. The cases here abridged are many 
 of them well-known cases which have had their due share in the growth 
 of some important questions in the law; questions of contract, 
 debt and evidence, in particular. 
 
 COVENANT 2' 
 
 Michaeiis (1) One bfought 3 Writ of Covenant against the master 
 2 en. IV. ^jjj ^jjg brothers of M, and counted that a covenant was 
 made between one J, predecessor of the master, and U, 
 his ancestor, to wit : that the said master and his successors 
 should find perpetually two chaplains to sing divine services 
 in the chapel of T, for the said U and his heirs, and that 
 the successors had withheld the services for a long time, etc. 
 Thirning: The plaintiff had demised the manor within 
 which the chapel is, and had retaken an estate to himself and 
 
COVENANT 339 
 
 his wife, not named, etc. Skrene: That goes to the 
 action. Markham: This covenant is brought as heir 
 and extends to the heir, and not to him who had the manor, 
 wherefore say something else, etc. All the same some hold 
 that a man shall never have a writ of Covenant, except 
 against him who sealed the deed, neither i contra. But 
 that is to be understood of a covenant which is merely per- 
 sonal. Query? 
 
 Reported in Y. B. Hilary, 2 Hen. IV, p. 6, pi. 25. See also Brooke, Ca§e 1. 
 Covenant, 17; and Fitzh: Covenant, 13. 
 
 (2) If a man be bound in any covenant which is possible Hilary 
 to be performed, although by sudden events it is overthrown, 
 
 he is bound to fulfill it if he can do so by any possibility, for 
 that is the covenant in the deed, which will be taken strictly. 
 It is otherwise as to conditions in law, etc. Well argued, 
 in Covenant. 
 
 Reported in Y. B. Hilary, 40 Ed. HI, p. 5, pi. 11. See also Brooke, Case 2. 
 Covenant, 4; and Fitzh: Covenant, 16. 
 
 (3) One brought a writ of covenant against a prior Hilary 
 because his ancestor had made a covenant with the prede- 
 cessor of the prior, to sing for him and his servants in the 
 chapel of K, within the manor of E ; and that the successors 
 
 had withheld, and he brought action as heir, etc. Canndish : 
 The plaintiff nor his servants never dwelt within the 
 manor, etc. But he dared not demur, but said that 
 there was one H living, who is a nearer heir to that ancestor, 
 etc. Belknap : And inasmuch as he does not deny that 
 we were seised of the manor, judgment, etc. And so to 
 judgment, etc. 
 
 Reported in Y. B. Hilary, 42 Ed. HI, p. 3, pi. 14. See also Brooke, Case 3. 
 Covenant, 5; and Fitzh: Covenant, 17. 
 
 (4) In covenant against the husband and his wife. Trinity 
 because the plaintiff had leased to them a manor for a term 
 
 of years, rendering twenty pounds a year, and that the 
 defendants bound themselves to make surety to the plaintiff 
 before a certain day, and they had never, etc. And because 
 
340 STATHAM 
 
 the writ was brought against them both when it should 
 have been brought against the husband alone, the writ was 
 abated, for it is not the same as where an action is brought 
 against them upon the lease which is to the advantage of 
 the woman, for this is a collateral security not arising from 
 the land, in which case the husband alone is charged, as well 
 as by an obligation made by them, etc. 
 
 And it was said in the same plea that if I lease land to 
 the husband and his wife, rendering a certain rent, and if 
 the rent be in arrear, I can distrain in other lands of the 
 woman which are not charged, etc. 
 
 Case 4. Reported in Y. B. Mich, (not Trinity), 45 Ed. Ill, p. 11, pi. 7. See 
 
 also Brooke, Covenant, 6; and Fitzh: Covenant, 18. 
 
 Hilary (5) The Writ was that he [did not] ^ hold [a] covenant 
 
 46 Ed. III. q£ ^ji ^jjg lands that he had of the lease in such a vill; and 
 
 because he put in certain what the lands were, although they 
 were not put in certain in the deed, yet the writ was abated, 
 etc. 
 
 Case 5. Reported in Y. B. Hilary, 46 Ed. Ill, p. 4, pi. 13. See also Brooke, 
 
 Covenant, 8. 
 
 statham44a. (6) One shall havc an action of covenant against 
 Trinity executors because their testator made a covenant with the 
 
 47 Ed. III. plaintiff to send him a servant, etc. And the action was 
 
 maintained. 
 
 And it was said by Fyncheden, in the same plea, that if 
 the tenant in tail leases land to me for a term of years and 
 dies, and his issue ousts me within the term, that I shall not 
 have an action of covenant against his executor, etc. 
 
 Case 6. Reported in Y. B. Mich, (not Trinity), 47 Ed. Ill, p. 22, pi. 50. See 
 
 also Brooke, Covenant, 11; and Fitzh: Covenant, 20. 
 
 Hilary (7) A man shall not have an action of. covenant against 
 
 8 Ed. III. executors where their testator did not bind these executors 
 
 by express words, no more than the heir or vouchee shall 
 
 be barred where there not any words in the deed "dedi," etc. 
 
 ' Words from the text of the case. 
 
COVENANT 341 
 
 And it was said by Fyncheden, in the same plea, that 
 if I grant the reversion of my termor, and he attorns, and 
 then the grantee loses the land, in that case the termor 
 shall have a writ of covenant against me, notwithstanding 
 his attornment, for he cannot have an action against the 
 grantee. 
 
 Reported in Y. B. Hilary, 48 Ed. Ill, p. 1, pi. 4. See also Brooke, Case 7. 
 Covenant, 12; and Fitzh: Covenant, 21. 
 
 (8) In covenant, the plaintiff counted upon an indenture Michaeiis 
 with many covenants, and that the defendant had broken ^° ^^"- ^'• 
 the covenants, without showing which covenants, for there 
 
 was time enough for him to show them when the other 
 offered him an issue. 
 
 The case has not been identified in Y. B. Mich. 30 Hen. VI, or in the Case 8. 
 early abridgments. 
 
 (9) A man leased lands to another for a term of years, 
 by a deed indented, arid the lessee should repair the houses, 
 and do other things, rendering ten shillings rent, and 
 to fulfill all the aforesaid covenants the lessee bound himself 
 to the lessor in twenty pounds. And the lessor brought a 
 writ of debt for the twenty pounds, and declared that the 
 rent was in arrear and so he had broken the covenant, etc. 
 Choke: The deed is, "To all covenants," etc. And this 
 is not a covenant, for he could have a writ of debt for this. 
 And if I lease lands for a term of years by a deed indented, 
 rendering a certain rent, and the rent is in arrear, I shall 
 not have an action of covenant, but a writ of debt. Fortes- 
 cue: You say truly, but in this case he brought his action 
 wholly on the deed, so it shall be called a covenant. As 
 if one grants a corody to me, to wit: bread, meat, and ten 
 shillings rent, and I wish to bring an action for the rent, all 
 the same I cannot have an assize, but a writ of annuity. 
 But if I would bring an action for the whole corody, I shall 
 have an assize, as well for the rent as for the bread and meat, 
 etc. YelvertoN: I understand that a man shall have a 
 writ of debt for things which are in covenant, for it is in 
 certain, as is the case here. As if an indenture be made 
 
342 STATHAM 
 
 between us by such words, to wit: "So it is covenanted 
 between us that J C shall pay to me twenty pounds at 
 the end of Paschal, etc.," upon that I shall have an action 
 of debt. But it is otherwise as to a covenant, which is not 
 put in certain, for there a man cannot have any other 
 action but a writ of covenant ; and I think that this is the 
 reason, and not the other, to wit: the uncertainty, for a 
 contract and a covenant are of much the same effect except 
 only for this reason, for a contract is as if two persons are 
 drawn together, and a covenant is as if two persons come 
 together, etc. And the opinion was that the action well 
 lay, etc. 
 Case 9 Statham fails to give a citation for this case. It has not been pre- 
 
 cisely identified, so no citation is given, although there are many 
 similar cases to be found in the Year Books. 
 
 Note. See of covenant in the title of Debt, Hilary, 3 Hen. IV. 
 
 The citation has not been found in the title of Debt in Statham. 
 
 Paschal (iQ) If the father of the tenant makes a feoffment with 
 
 warranty and dies, and the lord recovers by a writ of ward- 
 ship, and at the full age of the infant, the infant enters, the 
 feoffees shall have a writ of covenant, or warranty of charter, 
 etc. See the Statute. Query, if an administrator shall 
 have an action for a covenant broken to him who died 
 intestate? 
 
 Case 10. There is no early printed year for 18 Ed. III. The case has not 
 
 been identified in the Rolls Series for that year. 
 
 The Statute is that of 52 Hen. Ill, cap. 6 (1267), Stats, at Large, 
 Vol. 1, p. 59. 
 
 *' Our abridgment does not give us any early cases under this title, 
 nevertheless we have evidence that it was one of the earliest actions. 
 In Bracton's Note Book we have at least fifteen such cases. [Bracton, 
 Note Book, see p. 186 of vol. 1.] Most of these are actions in which a 
 claim to land, or rents or profits from land, are involved. One of the 
 earliest actions in the Note Book was in 1225 [Brae. N. B. 1058] upon a 
 covenant made by the defendant to allow the plaintiff and his wife to live 
 with him, but it adds that if they wish to go away certain lands shall be 
 given them. In 1234 the covenant was that the plaintiff keep pigs in 
 the wood of the defendant. This may seem to be claiming a profit, as 
 Maitland says [P. & M. Hist, of Eng. Law, 2d ed.. Vol. 2, p. 218, ii. 4, 
 
COVENANT 343 
 
 where he discusses these cases], but it is not clear that the profits as 
 arising from land have anything to do with the bringing of the action, 
 and it would seem that it is the covenant strictly which gives the action. 
 Long before our time, our earliest case being in 40 Ed. Ill (1366), the 
 agreement that can be enforced has to be supported by a written and 
 sealed document. [P. & M. Hist, of Eng. Law, 2d ed., Vol. 2, p. 219.] 
 We have the assertion in Birch v. Weaver [2 Keble, 225] that "debt 
 lies on any covenant where the sum is reducible to a certainty.'' That 
 the case was looked upon as authority seems clear from the fact that in 
 a treatise on covenants published anonymously in London in 1711 
 it is cited without any question. There can be little question also 
 that the unknown author did not look up his citation to F. N. B., Law 
 of Covenants, 1711, p. 6, or he would have discovered that he could 
 not there find the point on which he relies. It appears to have been 
 over a hundred years after our last case in the abridgment that it was 
 declared in an action of debt upon an obligation: "And the words of 
 the obligation were: I am content to give to W. ten pounds at Michel- 
 mas, and ten pounds at our Lady day. It was holden by the Court 
 
 that it was a good obligation and it was also holden by the 
 
 Court that an Action of covenant lay upon it, as well as an action of 
 Debt, at the Election of the Plaintiff." [3 Leon. 119, 27 Eliz. 1584.] 
 Covenant thus became concurrent with debt; some of the interrela- 
 tions of debt, account and assumpsit have already been noticed in 
 the note on the title of Accompte. 
 
 The first Statute on the action is the Statutum Walliae [12 Ed. 1, 1284, 
 Stats, at Large, Vol. 1, p. 144], p. 163 for the writ and p. 160 for observa- 
 tions on the writ. It is evident from the words of the Statute, "quia 
 infiniti sunt contractus conventiones" (p. 160), that at that time the infi- 
 nite diversity of covenants which were enforceable was recognized, and no 
 attempt to draw them into strict limits was felt to be possible. It may 
 well be assumed that the reason actions to enforce covenants concerning 
 land, especially leases, were so common in the early days was that land 
 was the one great "real thing" of permanent value, and the people all, 
 or nearly all, were living on the land, literally getting their living from 
 it, the greater number of actions arose in regard to that one great asset, 
 the land, its leases, profits, transfers. And also it was natural that as 
 movable property became more common and more valuable the actions 
 concerning such property should increase in number. 
 
 Reeves gives us the process of the writ : "Upon pledges de prosequendo 
 being found, the defendant was to be summoned once, and, if needful, 
 a second time. If he did not come at the second summons, nor send 
 an essoin, the petitio of the plaintiff was to be heard, and the thing in 
 question, if a tenement, was to be taken into the king's hands; if a chat- 
 tel, the thing or its value; and another day was given to the parties. 
 If within fifteen days he replevied the thing so taken and came at the 
 day appointed, he was received to answer and make his defence; but 
 
344 
 
 STATHAM 
 
 if he did not appear, the claim of the plaintiff was adjudged to him 
 by default, together with damages taxed . . . and he was to be in 
 misericordia. If the defendant appeared, both parties came to allega- 
 tions and at length to an inquest of the country, by which the matter 
 was determined." [Reeves, Hist, of Eng. Law, Vol. 26, p. 263, 2d ed. 
 1787.] The old Natura Brevium gives the writ and says: "This wryt 
 lyeth where covenant is made by indenture sealed betwyxt two partyes 
 and the one of them holden at covenant, then he that feleth him grived 
 shal have the sayd wryt." [Old Nat. Brev. I. cxxii, ed. of 1528.] 
 
 Why among so many cases of covenant just exactly these few cases 
 should appear in the abridgment it is not easy to say. The use of the 
 abridgment by the students may have been the reason for selecting 
 some of them, if indeed we may claim that the book was intended pri- 
 marily for student use. If not we may assume that they were the 
 cases that seemed to Statham to contain some core of the law which he 
 felt would be needed by those who should use his book, or by himself 
 in his coming position upon the bench. 
 
 CONUSANCE" 
 
 statham 44 b. 
 
 Hilary 
 
 40 Ed. III. 
 
 Case 1. 
 
 (1) In debt, the defendant came by the exigent, and the 
 bailiffs of E asked conusance of the plea,^ and were ousted, 
 etc. And the law is the same in a Pracipe quod Reddat after 
 default, for they cannot give judgment upon the default 
 that is [recorded]^ here; and in a Quare Impedithe shall 
 not have conusance. In the same plea, etc. 
 
 Reported in Y. B. Hilary, 40 Ed. Ill, p. 2, pi. 1. See also Brooke, 
 Conusance, 8; and Fitzh: Conusance, 25. 
 
 Hilary 
 
 40 Ed. III. 
 
 Case 2. 
 
 (2) In a praecipe quod reddat, the demandant asked 
 conusance of the plea, and by the charter, which he showed, 
 he had conusance of all pleas. Thorpe : If you do not show 
 that it has been allowed here, or that it was granted to you 
 by express words of the charter, to wit: that you should 
 have conusance where you yourself are a party, you shall 
 not have the conusance, etc. Wherefore it was adjudged 
 that he be ousted of the conusance. 
 
 Reported in Y. B. Hilary, 40 Ed. Ill, p. 10, pi. 21. See also Brooke, 
 Conusance, 9; and Fitzh: Conusance, 26. 
 
 * Words from the report of the case in the Year Book. The abridg- 
 ment is so meagerly worded that it is not comprehensible by itself. 
 
CONUSANCE 345 
 
 (3) In a praecipe quod reddat for land in Lincoln, the Trinity 
 bailiff asked conusance, and showed a charter which King ^* ^'^' ^^^' 
 Henry had granted to the Burgesses of Lincoln, that they 
 should not plead nor be impleaded outside the walls oj their 
 city, but that they had "Burghmanmote. ' ' Thorpe : What 
 is this "Burghmanmote? Belknap: Jurisdiction of pleas 
 [which touch the freehold^] of land from week to week, and 
 pleas personal, as in a Court of Pie Potidre. Thorpe: 
 It is not so (but he did not explain it). And because the 
 charter did not limit it to be before any certain judges, they 
 were ousted of the jurisdiction. And the same day the 
 Abbot of Reading asked jurisdiction, and produced a 
 charter which the king had granted to the abbot and to the 
 co-monks that they should have conusance of all pleas in 
 the court of their abbey and monastery, and it did not 
 determine before what judges, but because it was "in their 
 court," it shall be understood before the judges of the abbey, 
 for it the justices of the king should serve there, that would 
 not then be the court of the abbey, wherefore they had their 
 charter allowed, etc. 
 
 Reported in Y. B. Trinity, 44 Ed. Ill, p. 17, pi. 8. See also Brooke, Case 3. 
 Conusance, 11; and Fitzh: Conusance, 27, 28. 
 
 (4) The transcript of a fine came into the Chancery Michaeiia 
 by a certiorari, out of the Court of an abbot, and it was ^* 
 delivered into the Court by the abbot himself, and sent to the 
 Bench by a mittimus, out of which issued a Scire Facias 
 against the terre-tenant, to execute the fine. And then 
 the abbot came and asked juriMiction. Thorpe: In a 
 writ of right which is removable out of the Court of a lord 
 he shall not have jurisdiction. And also the plea is at an 
 end. And although you have jurisdiction of all pleas you 
 cannot levy fines for the entry of them is, such a one "dat 
 domino rege pro licenciam concordandi." So the king will 
 be disherited, wherefore it seems that the whole fine is 
 void, etc. 
 
 Reported in Y. B. Mich. 44 Ed. Ill, p. 28, pi. 8. See also Brooke, Case 4. 
 Conusance, 12; and Fitzh: Conusance, 30. 
 
 ' Words from the case. 
 
346 
 
 STATHAM 
 
 Michaelis 
 45 Ed. III. 
 
 Case 5. 
 
 Paschal 
 46 Ed. III. 
 
 Case 6. 
 
 (5) In trespass at the distraint, a man shall not have 
 conusance because the Court is seised of the plea. And 
 he could have come on the first day and demanded it, since 
 the place is comprised within the writ, as well as in a 
 PrcBcipe quod Reddat, etc. But in debt or detinue, where 
 no place is comprised within the writ, a man comes in 
 sufficient time to have conusance before the exigent is 
 awarded, etc. But at the distress a man shall say, in 
 Trespass, that the place is within the bishopric of Durham, 
 etc. But this goes as far, merely, as to the jurisdiction, etc. 
 
 The case has not been identified in Y. B. Mich. 45 Ed. Ill, or in the 
 early abridgments. 
 
 (6) One sued an attachment upon a prohibition against 
 a spiritual judgment, and counted that he was summoned 
 to H , within the franchise of Ely, to appear at Ely, etc. And 
 after sentence was given at Cambridge, the bailiff of Ely 
 came and asked conusance, because the summons was 
 made there, and by the summons made [there] the party 
 was injured as well as by the sentence. Fyncheden : The 
 action is entire, and the greater dignity draws to it the lesser 
 dignity, wherefore stand ousted of the conusance. 
 
 And it was said in the same plea if a writ of right be 
 brought on a right of which part is in such a franchise and 
 part outside, all the writ shall abate because he could have 
 had separate writs, etc. Query, if part be in such a fran- 
 chise where there is no jurisdiction except for a return of 
 writs, shall the whole writ abate, etc. ? 
 
 Reported in Y. B. Paschal, 46 Ed. Ill, p. 8, pi. 1. See also Brooke, 
 Conusance, 14; and Fitzh: Conusance, 34. 
 
 Hilary 
 
 50 Ed. III. 
 
 (7) An attaint was brought in the King's Bench for a 
 false oath given in the franchise of the Abbot of Ramsay, 
 where the abbot came and showed a charter of the king, 
 for a conusance of all pleas, and he asked for the conusance. 
 And if he should have the conusance or not was well argued, 
 etc. Query? How would the record come into the King's 
 Bench in that case? etc. And if so be that theabbot had conu- 
 sance of the first action in which the attaint was sued, can 
 
CONUSANCE 347 
 
 the attaint be sued in the same franchise, etc.? And it was 
 said not, but the record came to them by a certiorari, etc. 
 
 The case has not been identified in Y. B. Hilary, 50 Ed. Ill, or in the Case 7. 
 early abridgments. 
 
 (8) The Abbot of Battle, who had conusance in the fran- ^ 'Ed^'/jj 
 chise of the tenant, prayed aid of the king and had it, where- 
 fore the plaintiff prayed a re-summons and had it, for it was 
 
 said that the king would not send a procedendo, except to 
 those who were his justices in his Bench, etc. And then a 
 procedendo came into the Bench, and the abbot prayed the 
 conusance again and had it (which is wonderful, since they 
 had once failed of the right belonging to the, etc.). And in 
 London, if in a bill of fresh force the tenant prays aid of 
 the king, they will let the parole come by the equity of the 
 Statute, etc. 
 
 Reported in Y. B. Mich. 21 Ed. Ill, p. 38, pi. 34. See also Brooke, Case 8. 
 Conusance, 24; and Fitzh: Conusance, 43. The Statute is that of 
 4 Ed. I, cap. 2 (1276), Stats, at Large, Vol. 1, p. 114. 
 
 (9) Conusance will not be granted where the writ is not ^i'^jH'jr 
 sued. And this in an Assize, etc. Simi/e Hilary, 13 Hen. IV, 
 
 in an Assize, where the bailiff asked conusance and the 
 tenant said, "never attached for fifteen days." And they 
 would not grant the conusance until they had examined 
 the bailiff, etc., for if it be found that he was not attached 
 for fifteen days they shall not have the conusance, etc. 
 
 There is no early printed year of 13 Ed. III. The case has not been Case 9. 
 identified in the Rolls Series for that year, or in the early abridgments. 
 
 (10) In debt, one asked conusance before the defendant ^'?fH'?, 
 
 oo r.a. 111. 
 
 made his defense, etc. Query? 
 
 The case has not been identified in Y. B. Mich. 38 Ed. Ill, or in the Case 10. 
 early abridgments. 
 
 (11) In a cessavit against one who was underage, at the 5''^''^^!,'^ 
 return of the Grand Cape the bailiffs of Oxford asked con- 
 usance. RoLFF : That cannot be, for by the awarding of 
 
 the Grand Cape the Court here is seised of the plea, etc. 
 Paston: The award is void, for the demandant shall not 
 
348 
 
 STATHAM 
 
 Case 11. 
 
 Michaelis 
 1 Ed. III. 
 
 Statham 45 a. 
 
 Case 12. 
 
 Hilary 
 
 25 Hen. VI. 
 
 Case 13. 
 
 have any advantage through this default, but he shall 
 count against the infant; consequently they shall [not] have 
 conusance. Which Babyngton conceded. 
 
 And see in the same plea that Martyn said if in a 
 PrcBcipe Quod Reddat one is essoined at the summons, that 
 on the day which he has by the essoin, they shall not have 
 conusance, etc. (Which I do not believe, unless he is de- 
 manded at the summons, for otherwise he has gone over his 
 time, etc.) 
 
 Reported in Y. B. Mich. 3 Hen. VI, p. 10, pi. 12. See also Brooke, 
 Conusance, 1; and Fitzh: Conusance,!. 
 
 (12) When conusance is granted, he who asks for the 
 conusance shall give a day to the parties, or else the jus- 
 tices cannot give a day to the parties. As appeared in 
 Trespass. 
 
 Reported in Y. B. Mich. 1 Ed. Ill, p. 23, pi. 12. 
 
 (13) When jurisdiction is granted, the pleading in the 
 franchise shall be according to the common law, because 
 they are in the place of the justices; and not according 
 to the customs of the franchise which are against the com- 
 mon law, etc. By Newton, in Trespass, etc. 
 
 There is no printed year for 25 Hen. VI. The case has not been 
 identified elsewhere. 
 
 Michaelis 
 3 Hen. VI. 
 
 Case 14. 
 
 (14) One arraigned two assizes at Gloucester for tene- 
 ments in the same vill, of which the bailiffs should have 
 conusance. And an assize was awarded, and they asked 
 conusance of the other lands ; and it was challenged because 
 they did not ask conusance of the lands for which the assize 
 was awarded, and so at that day they had lost the advantage 
 of their franchise. And upon this the assize adjourned, 
 and afterwards the conusance was granted, etc. 
 
 Reported in Y. B. Mich. 3 Hen. VI, p. 14, pi. 19. See also Brooke, 
 Conusance, 2; and Fitzh: Conusance, 2. 
 
 Hilary 
 3 Hen. VI. 
 
 (15) In detinue for writings, the bailiffs of Lincoln 
 asked conusance. Rolff : This is the second writ, where- 
 
CONUSANCE 349 
 
 fore they have over past their time, besides which they 
 desire to aver that all the vill of Lincoln is one county by 
 itself, in which case they can have conusance of the place 
 well enough, because the Statute says that actions of debt 
 and detinue shall be brought in the counties where the con- 
 tract is made; so that by the common usage the action 
 is brought on a contract or detinue within the same vill, etc. 
 Babvngton : You say well, for it is not like another county 
 which is part in franchise and part in gildable [oUt of the 
 franchise] ' for the Statute is indifferent in respect to which 
 vill the contract is made. And then by advice of all the 
 justices they were ousted of the conusance for the above 
 reason. Which note. 
 
 Reported in Y. B. Hilary, 3 Hen. VI, p. 30, pi. 18. See also Brooke. Case 15. 
 Conusance, 3; and Fitz. Conusance, 3. 
 
 The Statute is that of 6 Ric. II, cap. 2 (1382), Stats, at Large, Vol. 2, 
 p. 253. 
 
 (16) In a writ upon the Statute of Laborers, the bailiffs Hilary 
 of H had conusance on the first day, notwithstanding the 
 court was seised of the body of the defendant who was not 
 bailable, etc. See the Statute of Laborers, if he be bailable, 
 
 etc. 
 
 Reported in Y. B. Hilary, 11 Hen. IV, p. 43, pi. 15. See also Brooke, Case 16. 
 Conusance, 18; and Fitzh: Conusance, 20. 
 The Statute is that of 23 Ed. Ill (1349), Stats, at Large, Vol. 2, p. 26. 
 
 (17) Where an accountant in the Exchequer is sued in Hilary 
 the Exchequer by a bill, upon his account, a man shall not ^^' 
 have the conusance because this is a private liberty out of 
 
 the common law, etc. Query, if I have a bill against a man 
 in the King's Bench, in the custody of the marshall, shall 
 the conusance be granted? And this in a bill, etc. 
 
 Reported in Y. B. Hilary, 8 Hen. V, p. 5, pi. 23. See also Fitzh: Case 17. 
 Conusance, 66 and 89. 
 
 (18) In a recordare, the bailiff of H demanded conusance. Michaeiis 
 And the opinion of the Court was that he should not have ^* ^'^' ^^^' 
 
 ' Words from the case. 
 
350 
 
 STATHAM 
 
 Case 18. 
 
 it, because if the bailiff be named in the franchise they could 
 not award the two deliverances, etc. 
 
 Reported in Y. B. Mich. 38 Ed. Ill, p. 31, pi. 39. See also Brooke, 
 Conusance, 23. 
 
 Hilary 
 5 Ed. III. 
 
 Case 19. 
 
 (19) Conusance shall not be granted for part, and not 
 granted for part. (In a note.) 
 
 The case has not been identified in Y. B. Hilary, 5 Ed. Ill, or in the 
 early abridgments, unless it is the case abridged by Fitzh: Conu- 
 sance, 55. 
 
 Trinity 
 30 Ed. III. 
 
 Case 20. 
 
 (20) Conusance shall not be granted, by the opinion of 
 the Court, where judgment between the same parties is given 
 in Court, and he who demands the conusance has been 
 reversed for error. And this in an Assize, etc. 
 
 The case has not been identified in Y. B. Trinity, 30 Ed. Ill, or in 
 the early abridgments. 
 
 Hilary 
 7 Ed. III. 
 
 Case 21. 
 
 (21) Conusance shall not be granted to one in a writ of 
 right brought in his Court, and then removed into the 
 county Court, and then into the Bench by a pone, etc. 
 
 Reported in Y. B. Hilary, 7 Ed. Ill, p. 2, pi. 2. See also Fitzh: 
 Conusance, 49. 
 
 Hilary 
 7 Hen. VI. 
 
 Case 22. 
 
 (22) He who has conusance of all pleas shall not have 
 conusance in Attaint, etc. As was adjudged by Newton 
 (at Sarum). 
 
 The case has not been identified in Y. B. Hilary, 7 Hen. VI, or in the 
 early abridgments. 
 
 Trinity 
 12 Ed. III. 
 
 Case 23. 
 
 (23) Conusance was demanded by a charter, by these 
 words, "That they should have conusance of all pleas 
 touching the Dean and the Chapter and their men." And 
 this word "men" was adjudged to mean their villeins. 
 And this in an Assize, etc. 
 
 There is no early printed year of 12 Ed. III. The case has not been 
 identified in the Rolls Series for that year. The case is similar to that 
 cited by Brooke, Conusance, 34, as being in the Liber Assisarum, 35, 
 where I have not been able to find it. 
 
CONUSANCE 351 
 
 (24) When conusance is granted, it belongs to the Hilary 
 bailiff to examine the record at his expense, and not at that ^^ ^"^^ "'• 
 of the demandant, etc. Contrary, Anno 27 Liber Assis- 
 
 arum. 
 
 There is no printed Year Book for 32 Ed. III. The case has not Case 24. 
 been identified in the early abridgments. 
 
 (25) Conusance was granted in an action of covenant Michaeiis 
 to levy a fine, etc. Query? ™' 
 
 The case has not been identified in Y. B. Mich. 13 Hen. IV, or in the Case 25. 
 early abridgments. 
 
 (26) In an assize of common of pasture, conusance was Trinity 
 denied because the land to which, etc., was out of the ^^ ^^' ^^' 
 franchise, etc. Simile if an advowson be made in ancient 
 demesne to a free tenant in gildable, etc. 
 
 The case has not been identified in Y. B. Trinity, 16 Ed. II, or in Case 26. 
 the early abridgments. 
 
 (27) An abbot brought a Pracipe quod Reddat, and he Michaeiis 
 asked conusance of the plea, and had it, notwithstanding 
 
 he himself was a party and had brought his action in the 
 Court of the king, for he could not have any other writ 
 except one returnable in the Court of the king, etc. Simile 
 Hilary, 8 Ed. III. 
 
 The case has not been identified in Y. B. Mich. 4 Ed. Ill, or in the Case 27. 
 early abridgments. 
 
 (28) Conusance was granted in the franchise. The Hilary 
 tenant vouched a foreigner, wherefore a re-summons was 
 sued, and since the warranty was ended, the bailiffs asked 
 conusance and could not have it, for it is not the case of 
 
 the Statute of Gloucester, for they had once failed of their 
 right because of lack of power [in the Court], ^ etc. 
 
 Reported in Y. B. Hilary, 8 Ed. Ill, p. 10, pi. 29. See also Fitzh: 
 Conusance, 52. 
 
 The Statute is that of 6 Ed. I, cap. 12 (1278), Statute of Gloucester. Case 28. 
 Stats, at Large, Vol. 1, p. 117. 
 
 ' Words from the report of the case. 
 
352 STATHAM 
 
 " The word Conusance has been left in the title as it stands and retained 
 generally, but not always, in the translation. It is properly to be transla- 
 ted jurisdiction, and yet there is a flavor and a something about it which 
 seems to escape when we use the word jurisdiction. It may be because 
 originally the word was used for a jurisdiction that is not exactly our 
 jurisdiction in the modern sense. It is not a mere matter of procedure. 
 "It is intertwined with the law of property and the law of personal status, 
 and this in many different ways." [P. & M. Hist, of Eng. Law, 2d ed., 
 Vol. 1, p. 527.] So the thing, while it is jurisdiction, and deals with the 
 powers of courts, deals also with rights — rights as to property and also as 
 to persons. Jurisdiction itself is a right which may be the subject of liti- 
 gation. In our third case we have the Burgesses of Lincoln showing that 
 they have "burghmanmote." Thorpe queries, "What is this Burgh- 
 manmote?" and Belknap answers, "Jurisdiction of pleas of land which 
 touch the freehold from week to week, and pleas personal, as in a court 
 of pie poudre." Thorpe replies, "It is not so." The reporter had evi- 
 dently waited with some interest for Thorpe's reply, for there is a note 
 of disappointment in his "But he did not explain it." This was an 
 ancient name for the court, for we have regulations of the Burghmoot 
 in Edgar's day. [Edgar l,i. Leges Regis Edwardi, 11, 5. Thorpe: Ancient 
 Laws and Institutes of England, p. 609.] The moots are to be held at 
 stated times — three times a year, or if necessary more than three times. 
 But it is a weary stretch of years from Edgar to the fortieth year of Ed. 1 1 1 . 
 The ancient terminology has gone out of use, and when the old charters 
 are produced the words convey no meaning to those who read or hear 
 them. From the printed case one would judge that Thorpe was jeal- 
 ous for the jurisdiction of the king, and sought for an excuse to evade 
 the charter. 
 
 To any one interested in the old pleading many of these cases are 
 worthy of study, notably cases 4, 6, 8, 9, 13, 15, 17, 21, 24, which all 
 "moot" interesting questions. 
 
 For the only enlightening modern writing on the jurisdiction of 
 courts we must look to Pollock & Maitland in their chapter on juris- 
 diction and the communities of the land. [P. & M. Hist, of Eng. Law, 
 2d ed.. Vol. 1, Cap. Ill, pp. 527-532.] Full of original thought, it does 
 not only tell us what is known of the history of these things, but its light 
 shows us, dimly, shapes not as yet wholly known, forms as yet blurred to 
 our sight. So also the few ca.ses abridged here show the law of the time 
 shadow-like, indistinct, for all the light that has as yet been thrown 
 upon them. How would a man — a trained legal scholar — answer the 
 questions propounded in them? How much does he know of that old 
 law if he cannot? 
 
 CAUSE DE REMOVER PLEE 
 
 Statham 45 b, 
 Paschal 
 
 (1) In debt, the bailifis of H had conusance, and then the 
 45 Ed. III. plaintiff sued a re-attachment, and he said that in the 
 
CAUSE DE REMOVER PLEE 353 
 
 franchise the bailiffs can [return] ^ issues, to wit: at one 
 time one penny, another time two pence, and so on ad 
 infinitum. Fyncheden: He can have the same excep- 
 tions in the franchise, wherefore this is not to the purpose, 
 unless you say that it is by collusion between them. Where- 
 fore he said it was, etc. 
 
 Reported in Y. B. Paschal, 45 Ed. Ill, p. 7, pi. 7. See also Brooke, Case 1. 
 Cause de Remover Plee, 9; and Fitzh: Cause de Remover Flee, 9. 
 
 (2) A man cannot have any cause for removing a plea Michaeiis 
 out of ancient demesne, except for the reason that he holds 
 
 them at the common law. And the cause shall be put in 
 the writ, to wit: a cause that proves the land to be a 
 free fee, etc. See good material for this in the title of 
 Ancient Demesne, etc. 
 
 Reported in Y. B. Mich. 21 Ed. Ill, p. 32, pi. 17. See also Brooke, Case 2. 
 Cause de Remover Plee, 17; and Fitzh: Cause de Remover Plee, 18. 
 
 (3) When the plea is removed out of ancient demesne. Paschal 
 nothing shall be tried here except the cause [for the removal]'' 
 
 for they cannot hold the plea without a new original. As 
 appeared in a Recordare, etc. Query, if they will send it 
 back? etc. 
 
 There is no early printed year of 16 Ed. III. The case is found in Case 3. 
 the Rolls Series, 16 Ed. Ill, Pt. 1, p. 204. 
 
 See of causes for removal of pleas, in the title of Resum- Note. 
 mons. 
 Statham, title Resummons et Reattachment, p. 160 a and b, infra. 
 
 (4) It is no cause for the removal of a plea to say that Michaeiis 
 the bailiffs who have conusance are parties, etc., because 
 
 he could have had the plea when conusance was demanded. 
 And this in Conusance. 
 
 Reported in Y. B. Mich. 2 Hen. IV, p. 4, pi. 14. See also Brooke, Case 4. 
 Cause de Remover Plee, 11; and Fitzh: Cause de Remover Plee, 6. 
 
 (5) It is no cause [for removal of the plea]^ that the Hilary 
 bailiff in ancient demesne is a des robes to the plaintiff. And 
 
 this in an Assize of Fresh Force. 
 
 ' Words from the case. * Words from the report of the case. 
 
354 
 
 STATHAM 
 
 Case 5. Reported in Y. B. Hilary, 12 Hen. IV, p. 17, pi. 14. 
 
 Cause de Remover Plee, 8. 
 
 See also Fitzh: 
 
 Hilary (6) When the plea is removed out of the Court of the 
 
 12 Hen. IV. i^^g^ although the cause be not sufficient, still it shall 
 
 not be remanded, etc. It is otherwise in any other Court, 
 
 etc. 
 
 Case 6. Reported in Y. B. Hilary, 12 Hen. IV, p. 13, pi. 4. See also Brooke, 
 
 Cause de Remover Plee, 13; and Fitzh: Cause de Remover Plee, 7. 
 
 Hilary (7) The plea shall be remanded if the party cannot 
 
 16 Ed. II . maintain the cause. Query, how shall it be tried? etc. 
 
 Case 7. 
 
 Michaelis 
 12 Ed. III. 
 
 Case 8. 
 
 Michaelis 
 21 Ed. III. 
 
 Case 9. 
 
 There is no early printed year of 16 Ed. III. The case has not been 
 identified in the Rolls Series for that year. See Fitzh: Cause de Re- 
 mover Plee, 13. 
 
 (8) Two sued a writ of right close in ancient demesne, 
 and removed the plea for the reason that they claimed to 
 hold at the common law. And then in the Bench one of 
 them made default, and the plea was remanded, for it was 
 said that one of them could not maintain the cause with- 
 out the other, etc. It seems that the demandant did not 
 show cause, etc. 
 
 There is no early printed year of 12 Ed. III. The case has not been 
 identified in the Rolls Series for that year, or in the early abridgments. 
 
 (9) When the plea is removed out of ancient demesne, 
 with a cause that is put in the writ, the plaintiff can show 
 another cause. As appeared in a pone where Thorpe 
 said that he could show five reasons to give the Court 
 jurisdiction. 
 
 The case has not been identified in Y. B. Mich. 21 Ed. Ill, or in the 
 early abridgments. 
 
 Anno (10) A recordare was sued out of ancient demesne, 
 
 ^°' because the demandant was bailiff of the same court. 
 
 BabyngtoN: That is no reason for the removal of the 
 plea, but if the lord were a party, or if it had been of record 
 that the demandant was bailiff and also judge, that had 
 been a good reason, etc. Martvn (To the same effect) : 
 
CAUSE DE REMOVER PLEE 355 
 
 For he has not said that the bailiff is a judge; then the 
 suitors of the court are judges, etc. And afterwards a 
 procedendo was granted to those in ancient demesne, etc. 
 
 Reported in Y. B. Anno 11 Hen. VI, p. 10, pi. 22. See also Brooke, Case 10. 
 Cause de Remover Plee, 30; and Fitzh: Cause de Remover Plee, 2. 
 
 CESSAVIT ^ 
 
 (1) In a cessavit against three who waged their law statham46a. 
 of non-summons, and on the day two made default and the Michaeiis 
 third said that the land was held by an entire service, to '^^ ^'^^ "^• 
 wit: by fealty and one grain of pepper, and he offered the 
 
 arrears for all three. And the opinion was that he saved 
 the land for all, for otherwise his part would be charged 
 for the entire service, etc. But it is otherwise if the services 
 are severable, etc. 
 
 Reported in Y. B. Mich. 40 Ed. Ill, p. 40, pi. 20. See also Brooke, Case 1. 
 Cessavit, 4; and Fitzh: Cessavit, 10. The latter gives a wrong citation 
 to the case. 
 
 (2) In a cessavit, the tenant said that he did not hold of Michaeiis 
 him, and before the inquest was taken he admitted that he 
 
 did hold of him, and he offered the arrears for four years, 
 and the demandant said that he was in arrears for twenty 
 years. And the inquest was taken to say how much he was 
 in arrears. (But yet it seems that they could not charge 
 the inquest on that point, rigore juris, for it is contrary to 
 the Statute of Westminster the Second, which says that 
 they shall not be jurors unless they were summoned for 
 that at the first, and they were not summoned on that 
 point, etc.) And they found that the rent was in ar- 
 rears for nine years. And then he offered the arrears for 
 nine years, and it was received, etc. And they found 
 surety, etc. 
 
 Reported in Y. B. Mich. 41 Ed. Ill, p. 29, pi. 29. See also Brooke, Case 2. 
 Cessavit, 5; and Fitzh: Cessavit, 12. The Statute is that of 13 Ed. I 
 (1285), Stat. 1, cap. 30, Westminster the Second, Stats, at Large, 
 Vol. 1, p. 203. 
 
356 
 
 STATHAM 
 
 Hilary (3) Where the woman is endowed of a manor in gross 
 
 43 Ed. III. gj^g gj^^u ]^^yg ^Yie cessavit. 
 
 Case 3. 
 
 Trinity 
 45 Ed. III. 
 
 Case 4. 
 
 Michaelis 
 31 Ed. III. 
 
 Reported in Y. B. Paschal (not Hilary), 43 Ed. Ill, p. 15, pi. 10, and 
 in Mich. Term, p. 27, pi. 7. See also Brooke, Cessavit, 7; and Fitzh: 
 Cessavit, 14. 
 
 (4) In a cessavit against an abbot for divers services, 
 the writ did not allege that he held of him, but yet the 
 writ was adjudged good, etc. And the tenant said that he 
 did not hold of him, etc. But he dared not demur, etc. 
 See the plea, because it was well argued. 
 
 And it was said in the same plea, that if before the 
 Statute of Quia Emptores Terrarum one had given land to 
 an abbot, he would hold of him by the same services that 
 he held over, unless the gift was in free alms, etc. Query, 
 if land be given to an abbot in free alms, and to do certain 
 divine services, if that be free alms? 
 
 Reported in Y. B. Mich, (not Trinity), 45 Ed. Ill, p. 15, pi. 16. See 
 also Brooke, Cessavit, 8; and Fitzh: Cessavit, 15. The Statute is 
 that of 18 Ed. I, Stat. 1 (1290), QuiaEmptores Terrarum, Stats, at Large, 
 Vol. 1, p. 255. 
 
 (5) In a cessavit, the tenant said that one H, whose 
 estate you have in the seignory, enfeoffed one B, Prior of 
 K, in the same land, in free alms, and to his successors, by 
 this deed, etc., whose estate we have, judgment, etc. 
 And he also produced the deed by which the prior enfeoffed 
 him, etc. (But yet he did not need to do this.) Fyncheden : 
 We and our ancestors have been seised of the services 
 since the time of the limitation of the assize, and we pray 
 seisin of the land. Skipwith: Since you do not answer 
 to the deed, judgment, etc. Thorpe: If I enfeoffed an 
 abbot in free alms, who demises himself of his estate, I 
 shall have from his feoffee such services as I held over, 
 etc., for his feoffee, who is a layman, cannot hold in free 
 alms no more than the feoffee of tenant in free marriage 
 can hold in free marriage. Willoughby : He will bar you 
 of the action if he had the first deed, etc. Wherefore it 
 was adjudged that he be barred, etc. Query, shall he have 
 a writ of Mesne in that case, inasmuch as he, as it seems. 
 
CESSAVIT 357 
 
 shall do no services for him, etc.? It seems that he can 
 have a writ of Contra Formam Collationis, notwithstanding 
 it is given in pure and perpetual alms. 
 
 There is no printed year of 31 Ed. III. Fitzh: Cessavit, 22, has an Case 6. 
 abridgment of the case. 
 
 (6) In a cessavit by an abbot against one A, it was Hilary 
 alleged that the said A had no entry except by one H, *^ ^^- 1"' 
 who held these same tenements of the demandant by cer- 
 tain services which should revert to him, because this A, 
 against whom the writ is brought, had ceased for two 
 years. And the writ was challenged because the entry 
 was alleged by H, who had not ceased, etc., for he could 
 have had a writ alleging that we held of him,. Fencot: 
 He has not alleged seisin by you. And because the writ 
 seemed bad, Thorpe [said] : That is the reason that he has 
 brought this writ in the per, wherefore answer. Pershay 
 demanded the view, and had it, notwithstanding it was of 
 his own cesser, because the demandant had no seisin by 
 him, etc. Pershay : Where the abbot has alleged that we 
 hold of him by homage and suit at his court, and twenty 
 shillings of rent, we tell you that one F, his predecessor, 
 enfeoffed the said H, by whom our entry is alleged, to hold 
 of him by ten shillings for all services. And as to these ten 
 shillings, open to his distress. Fyncheden : This that he 
 pleads as to quantity of services is only protestation, and 
 the issue will be taken upon the distress, for when he comes 
 to tender the arrears it is time enough to inqure about the 
 quantity, etc. Thorpe : He should answer to the quan- 
 tity now, wherefore Wichingham offered to aver that 
 as to that part he was not ousted, etc. Pershay: Now 
 judgment, inasmuch as he has admitted his count to 
 be false in part. As if a man avows for ten shillings, and 
 the plaintiff says that he was enfeoffed to hold by five shil- 
 lings, and as to that nothing in arrear, and the avowant 
 replies to that, and immediately his avowry is wholly 
 abated ; so here. Thorpe : In neither case will it abate, 
 except for that portion. Wherefore, as to the portion it 
 
358 
 
 STATHAM 
 
 Case 6. 
 
 Michaelis 
 11 Ed. III. 
 
 Case 7. 
 
 was adjudged that it would abate, etc. Query, if in that 
 case the tenant could vouch out of the line, etc. 
 
 Reported in Y. B. Hilary, 48 Ed. Ill, p. 4, pi. 8. See also Brooke, 
 Cessavit, 10; and Fitzh: Cessavit, 16. 
 
 (7) If my tenant ceases for two years, and a stranger 
 disseises him, I shall have this writ of Pracipe quod Reddat, 
 to the demandant, etc.: "That J of B Je eo tenuit per certa 
 servicia et que, etc., reverti debent eo J of B in faciendo, etc., 
 cessavit, etc.," for he cannot have a writ that "he who is now 
 tenant of this 'terret,' " because he cannot bind seisin in 
 him, for the seisin is traversable, etc. (But it seems that 
 the writ should be in the post, etc.). Query, for it seems 
 that the seisin is not traversable, etc. 
 
 There is no early printed year of 11 Ed. III. The case is printed in 
 the Rolls Series, 11-12 Ed. Ill, p. 297. 
 
 Trinity 
 19 Ed. III. 
 
 Case 8. 
 
 (8) If I give lands to a man in tail, to hold of me, I shall 
 not have a cessavit against him, etc., unless the remainder 
 be over in fee. Query, if the lord who had only an estate 
 tail shall have a cessavit? 
 
 There is no early printed year of 19 Ed. III. The case is reported 
 in the Rolls Series, 19 Ed. Ill, p. 152. See also Fitzh: Cessavit, 30. 
 
 Michaelis 
 29 Ed. III. 
 
 Case 9. 
 
 (9) A cessavit was sued against one A, and he counted 
 how one B held of him, and that the tenements ought to 
 revert to him because this A, against whom the writ is 
 brought, had ceased for two years. And then the writ 
 was adjudged good without mentioning any entry, etc. 
 
 The case has not been identified in Y. B. Mich. 29 Ed. III. Brooke, 
 Cessavit, 28, has the case. 
 
 Hilary 
 33 Ed. III. 
 
 Case 10. 
 
 (10) Two coparceners had a tenant who ceased for two 
 years and then one of them had issue and died. The 
 opinion of WiLLOUGHBY was that the other should not 
 have the cessavit, since the action was once given to her, 
 and to the other, who is dead, and there is no survivor- 
 ship, etc. In a Cessavit, etc. 
 
 There is no printed year of 33 Ed. III. Fitzh: Cessavit, 42, has the 
 case. 
 
CESSAVIT 359 
 
 (11) In a cessavit, the tenant said that he did not hold statham46b. 
 of him. And upon that they were at issue, and it was Michaelis 
 
 qq lyj TTT 
 
 found for the demandant, and the inquest was made to 
 say for what services; who said, by lesser services than the 
 demandant had counted. And then the tenant tendered 
 the arrears according to the verdict. Sharshull: They 
 should not tender them, etc., for this plea was to disprove 
 our lordship, and at least if he tenders them he should 
 tender them according to our count, for he could aver 
 the quantity of services by protestation, and the inquest 
 would not have inquired as to that, etc. 
 
 There is no printed year of 33 Ed. III. Fitzh: Cessavit, 53, has an Case 11. 
 abridgment of a similar, if not the identical, case. 
 
 (12) In a cessavit, the demandant counted that the de- J^'*^^ 
 
 . .... 7 Ric. II. 
 
 fendant held a chantry of him, to do certain divine ser- 
 vices, and he and his predecessors had held the said chantry 
 of the demandant and his ancestors by such services, for 
 time, etc., and that the tenarit had ceased, etc. Mark- 
 ham : The Statute is, that "an action shall lie for the donor 
 or his heir," and he has not counted of any gift, wherefore, 
 etc. And for that reason it was adjudged that he take 
 nothing, etc. 
 
 There is no printed Year Book for 7 Ric. II. The case has not been Case 12. 
 identified in the early abridgments. 
 
 The Statute is that of 13 Ed. I (1285), cap. 41, Westminster the 
 Second, Stats, at Large, Vol. 1, p. 218 (269). 
 
 (13) A man shall not have a cessavit against an abbot Trinity 
 or a prior for lands which are of his foundation; by Thirn- ^ ^™" ^^' 
 ING, and Hankford, etc., in a Jure d'Utrum, etc. See the 
 Statute of Ed. Ill, Anno 9, cap. 12, etc. It seems that 
 
 they spoke truly, for in a writ on the Statute the action 
 is not given to the foundation, for those words, "eodem 
 modo," which give the cessavit, shall be considered as 
 referring to the next chapter before which commences 
 "eodem modo," which gives the Contra Formam Collationis 
 to the donor and not to the founder, for the first chapter 
 gave the action to the founder, etc. 
 
360 
 
 STATHAM 
 
 Case 13. 
 
 Haary 
 12 Ric. II. 
 
 Case 14. 
 
 Hilary 
 
 22 Ed. III. 
 
 Case 15. 
 
 Trinity 
 7 Hen. IV. 
 
 Case 16. 
 
 Reported in Y. B. Trinity, 7 Hen. IV, p. 20, pi. 30. See also Brooke, 
 Cessavit, 13; and Fitzh: Cessavit, 44. 
 
 There is some error in the citation of the Statute, which is presumably 
 that of Westminster the Second, 13 Ed. I, cap. 41 (1285), Stats, at 
 Large, Vol. 1, p. 218. The "chapters" are the paragraphs of cap. 40. 
 
 (14) A cessavit for rent adjudged good, etc. But yet, 
 query? 
 
 There is no early printed Year Book for the reign of Ric. II. Fitzh: 
 Cessavit, 45, has the case, apparently copied from Statham. The case is 
 reported in Y. B. Hilary, 12 Ric. II, p. 103, Ames Foundation, ed. 
 Deiser. The granting of the Cessavit for rent caused the judges to 
 "marvel." 
 
 (15) A cessavit was adjudged good for an advowson, etc. 
 But yet, query? 
 
 The case has not been identified in Y. B. Hilary, 22 Ed. III. Fitzh: 
 Cessavit, 46, has the case, apparently copied from Statham. 
 
 (16) A cessavit does not lie for the founder, for the lands 
 of his foundation. 
 
 Reported in Y. B. Trinity, 7 Hen. IV, p. 20, pi. 30. See supra, 
 case 13. 
 
 Michaelis 
 20 Ed. III. 
 
 Case 17. 
 
 Michaelis 
 20 Ed. III. 
 
 Case 18. 
 
 (17) A cessavit was adjudged good which was brought 
 against two by different pracipes, "that they should revert 
 to him, since the two had ceased for two years." 
 
 There is no early printed year of 20 Ed. III. The case has not been 
 identified in the Rolls Series for that year. 
 
 (18) In a cessavit it is no plea that the demandant was 
 seised after the Statute. Query as to the reason. And 
 query, if it be a plea to say that the demandant enfeoffed 
 him? 
 
 There is no early printed year of 20 Ed. III. The case has not been 
 identified in the Rolls Series. 
 
 ^ "The writ of Cessavit lieth in divers ways: For one writ is where 
 there is Lord and Tenant, and the Tenant will not pay his Rent [our 
 case 2] nor do his Services, as Suit, etc., to his Lord as he ought to do, 
 nor hath sufficient Goods or Chattels upon the Land to be distrained 
 for the Rent or Services behind; but suffereth the Land to lie fresh, not 
 occupied for two Years following together; then the Lord of whom the 
 lands are holden may have the Writ against the Tenants.'' [Fitzh. Nat. 
 
CESSAVIT 361 
 
 Brev. 478, ed. 1755.] This is a description of the writ Cessavit per Bien- 
 nium, given by the Statutes of Gloucester and Westminster the Second. 
 [Stat, of Glou., 6 Ed. I, chap 4; Stat, of West. II, 13 Ed. I, chap. 21. 
 Stats, at Large, Vol. 1, p. 117 and p. 163.] Coke, writing upon the 
 Statute of Gloucester [Coke, 2nd. Inst. 295] says, "And I reade amongst 
 ancient Records that a cessavit was brought in the raigne of King John, 
 but this Act is the first Statute that was made by authority of Parliament 
 concerning the cessavit; after this came the Statutes of West. II and 
 10 Ed. I, De Gamletto, Implacitentur de Gamlelto, which is a kind of 
 Cessavit, for gamel or gabble or gable in one of the senses is taken for 
 census, rent, etc. and gamelletum is as much as to say, cease, or let to 
 pay the rent [Coke, 2d Inst. 402] and note that the writ framed upon this 
 act doth recite the statute." The statute here mentioned seems to be 
 ignored by all other writers, but Coke refers to Vet. Mag. Cha. 122, 
 and the statute is there found fully set forth, as well as in the later 
 editions of the Statutes. 
 
 Another writ of cessavit is given in West. II, chap. 41, for the cessa- 
 tion of services due for a religious use, as to find a chaplain to sing 
 divine services. This is the writ used in our case 12, and is in very com- 
 mon use in the Year Book period. The statute allowed the heir to 
 demand the land given for "a chantry, light, sustenance of poor people, 
 or other alms, if such alms be withdrawn for the space of two years." 
 The gift doubtless was often given in order that masses might be sung 
 for the donor, and after his death his heir might very well look pretty 
 sharply after the doing of the services in order to get back the land 
 which had been given out of that which he probably regarded as his 
 just patrimony. None of the modern writers upon legal history whom 
 I have consulted touch upon the action of cessavit further than to 
 mention the Cessavit per Biennium of the Statute of Gloucester and the 
 Statute of Westminster the Second, chapter 21. It may be that the 
 actions of cessavit to recover lands against an abbot or other clerical 
 holder is not now important, yet it was very important at the period 
 covered by the histories of our early law. It is important to the his- 
 tory of the times, since it is another of the old actions which were so 
 intimately related to the customs and usages which had grown up 
 around the life of the people, and illustrate so well that intimate life 
 that history so rarely pictures, and which, therefore, leaves us cold 
 to the very things that would most move us, could we come to a closer 
 understanding of them. 
 
 At what period did the action of cessavit, true to its name, cease to 
 be? Shepard [Epitome of the Law, p. 707] says, "There is a writ called 
 Cessavit de Cantaria, of no use at this day." "This day" being some one 
 of the thirty-six years prior to 1656, in which as he tells us the Epitome 
 was in preparation. We may assume, as he does not remark upon the 
 other writs of cessavit, that they were still used. Rastell, in his Book of 
 Entries published in 1566, has much learning upon the writ, setting forth 
 
362 STATHAM 
 
 the form and the pleading and many other matters. In 1674 Brown 
 published his Formula Placitandi, or Book of Entries, in which he 
 omitted any title of cessavit, but in 1701 Booth in his book on Real 
 Actions [pp. 133-135] gives the writ and the process as well as cases 
 upon it. We may therefore assume that this writ was in use as late 
 as the year 1700, but it had become antiquated and needed to be re-cast, 
 for in 4 George II (1731), c.28, an act was passed which was thought 
 to have been founded upon the older action [Jacob Law Diet. Tomlins' 
 ed., 1809], but if so it clearly ends the old action of Cessavit per Biennium, 
 and gives an action of ejectment after the rent has ceased to be paid for 
 six months. [Stats, at Large, Vol. 16, p. 253.] There are certain phrases 
 in the new bill which upon comparison will show a sufficient likeness to 
 warrant the belief that the new bill was founded upon the old cessavit. 
 In 11 Geo. II (1738) c. 16, [Stats, at Large, Vol. 17, p. 189, cap. 19] 
 another act of the same nature was passed, giving the landlord possession 
 when any tenant at rack rent shall be one year's rent in arrear, and shall 
 have deserted the premises, leaving them uncultivated. These two 
 statutes probably provided a procedure which took the place of the 
 Cessavit per Biennium. Yet it probably is for the reason that the 
 matters which gave rise to the older writ had ceased to give occasion 
 for litigation that the cessavit in the old form ceased to appear 
 among the writs. 
 
 CONSPIRACY « 
 
 statham 47 a. (J) \ wtit of Conspiracy was brought against the Abbot 
 Paschal of s and others, because they took the plaintiff and by 
 
 44 Ed. III. . „ , , . , , , 1 
 
 force compelled him to make an attorney, who brought, 
 in his name, an assize against the same abbot, who said 
 that we were his villein. And the attorney said "free." 
 And by verdict of the assize he was found the villein of the 
 abbot. Fyncheden : It seems that such an action does not 
 lie for you until the judgment be defeated by an attaint, etc. 
 No more than upon an indictment you should be acquitted 
 before the hearing of such a writ, etc. See the plea because 
 it was well argued. 
 
 And it was said in the same plea, that he who comes shall 
 answer as in Trespass, but yet the death of one abates all the 
 writ, etc. Query, if there be more defendants than two, 
 if the death of one will abate all the writ, since two of the 
 defendants are living, and the writ is to inquire, to wit: 
 
CONSPIRACY 363 
 
 if they conspired together, etc. And see the beginning of 
 this plea, Paschal, 42 Ed. III. 
 
 Reported in Y. B. Paschal, 44 Ed. Ill, p. 14, pi. 32. Case 1. 
 
 The case referred to as in 42 Ed. Ill is to be found on p. 14, pi. 27. 
 It is a longer and better report of the case. See for that report, Brooke, 
 Conspiracy, 6; and Fitzh: Conspiracie, 10. 
 
 (2) One brought a writ of conspiracy because one H Paschal 
 and F were lords of a manor to which an advowson was 
 appendant, and of this manor they enfeoffed the plain- 
 tiff ; and then the advowson became vacant and the defend- 
 ants conspired [to make] a writ of presentation, in the 
 names of the said H arid F, to the bishop, by force of 
 which their clerk was admitted and our clerk refused, 
 wherefore we brought a Quare Impedit against the bishop, 
 
 and against H and F, and we recovered, wherefore our 
 clerk was admitted and their clerk ousted, so by their 
 false alliance we lost our possession for that time, etc. 
 And the action was maintained, etc. And it was challenged 
 because the plaintiff did not allege possession in himself nor 
 in him by whom he claimed, etc. (But yet it seems that it is 
 not necessary, for he is not to recover the advowson in 
 this case, nor to have a writ to the bishop.) 
 
 Reported in Y. B. Paschal, 40 Ed. Ill, p. 19, pi. 10. See also Fitzh: Case 2. 
 Conspiracie, 16. 
 
 (3) In a writ of conspiracy, it was alleged that they Trinity 
 were to procure a man to make a false deed, etc. Hank- 
 FORD : This man whom he alleges was procured is one of 
 
 the defendants, judgment, etc. And for this reason the 
 writ was abated. Contrary, 42 Paschal Term, etc. 
 
 Reported in Y. B. Trinity, 46 Ed. Ill, p. 20, pi. 26. See also Brooke, Case 3. 
 Conspiracy, 7; and Fitzh: Conspiracie, 17. 
 
 (4) In a writ of conspiracy comprising this matter: Trinity 
 Whereas he and his predecessors stood seised of the manor 
 
 of B, of time, etc., there the defendants such a day, etc., 
 before the justices of Oyer and Terminer conspired between 
 them, so that it was presented that we had given an advow- 
 son appendant to the same manor to a chaplain of a chantry 
 
364 
 
 STATHAM 
 
 Case 4. 
 
 to find a chaplain, etc., wherefore the king was seised until 
 we should have livery in the Exchequer, and so we were put 
 to much trouble etc. And judgment was demanded, inas- 
 much as he did not show the record of the presentation, and it 
 was not allowed. Perle : Judgment of the writ, because he 
 does not show that he had livery, to wit : by a traverse of the 
 office or otherwise, for in conspiracy upon an indictment 
 the defendant should show how he was indicted, and before 
 what justices. Fyncheden : In your case he shall say before 
 whom he was acquitted, but he shall not say how he was 
 acquitted. For I have seen a like case where the plaintifif 
 had replied that he was not acquitted, and he said that 
 he took himself to his clergy, and how he was acquitted by 
 an inquest of office, and the action was maintained; where- 
 fore answer. And then it was said that because it appeared 
 by the office that the king had no cause to seize, albeit 
 the king is seised in fact, this action is not maintainable, 
 for peradventure he had livery cum exitibus. And it was 
 also said that a Scire Facias should have been awarded against 
 this present plaintiff at the suit of the king before the king 
 was seised, etc. 
 
 Reported in Y. B. Mich, (not Trinity), 47 Ed. Ill, p. 15, pi. 22. See 
 also Brooke, Conspiracy, 10; and Fitzh: Conspiracie, 18. 
 
 Trinity 
 47 Ed. III. 
 
 Case 5. 
 
 (5) A man shall have a writ of Conspiracy against the 
 judge before whom the indictment was made, if he be not a 
 judge by commission. Simile, Liber Assisarum. 
 
 Reported in Y. B. Mich, (not Trinity), 47 Ed. Ill, p. 16, pi. 30. See 
 also Brooke, Conspiracy, 9; and Fitzh: Conspiracie, 18. 
 
 Trinity 
 47 Ed. III. 
 
 Case 6. 
 
 (6) Two brought a writ of Conspiracy against one who 
 demanded judgment of the writ brought by them in com- 
 mon, where the damage of the one could not be the damage of 
 the other, or ^ contra. But yet the writ was adjudged good. 
 Contrary elsewhere. 
 
 Reported in Y. B. Mich. 47 Ed. Ill, p. 17, pi. 32. See also Brooke, 
 Conspiracy, 10, and Fitzh: Conspiracie, 19. 
 
 Michaeiis (7) In conspiTacy against two, one came and was found 
 guilty, and the other did not come. And it was adjudged 
 
CONSPIRACY 365 
 
 that the plaintiff should recover against him [who came]. 
 Which appears strange, for if the other be acquitted after- 
 ward, then the judgment is false, for he cannot con- 
 spire with himself, wherefore it seems that he should not 
 be put to answer in that case. And they gave as the 
 reason for their judgment that the plaintiff declared that by 
 a conspiracy between the defendants the defendant who 
 was found guilty had procured the plaintiff to be indicted, ' 
 so in a manner he was the principal actor. Thorpe said, 
 in the same plea, that a writ brought against one, alleging 
 that he conspired with others not named, is of no value. 
 From this it follows that if two conspire and one of them 
 dies, my action fails, etc. 
 
 Reported in Y. B. Mich. 24 Ed. Ill, p. 34, pi. 34. See also Brooke, Case 7. 
 Conspiracy, 21; and Fitzh: Conspiracie, 20. 
 
 (8) In conspiracy against two, one pleaded in abate- Paschal 
 ment of the writ upon which the plaintiff and he were at ^"' 
 issue ; and the other pleaded in bar, upon which the plain- 
 tiff demurred in law. And then the issue was found for 
 
 the plaintiff, and the other plea was adjudged against him. 
 And the opinion was that the plaintiff should recover 
 against him who pleaded in abatement of the writ, albeit 
 the other was acquitted, for he was not acquitted by 
 verdict, but by the bad pleading of the plaintiff, etc. 
 So it might happen well enough that they conspired to- 
 gether. 
 
 Reported in Y. B. Anno 14 Hen. VI, p. 25, pi. 75. See also Fitzh: Case 8. 
 Conspiracie, 1. 
 
 (9) If the defendant justifies the felony as in self- Michaeiis 
 defense, or otherwise, or if it be found so by verdict, he shall ^° ^^"' ^^' 
 never have conspiracy for it: by Tyrwhit, etc. 
 
 And see in the Term, a bill of conspiracy in the King's 
 Bench for him who was indicted for a common trespass, 
 etc., adjudged good, etc. 
 
 The case has not been identified in Y. B. Mich. 10 Hen. IV. Fitzh: Case 9. 
 Conspiracie, 21, has a short abridgment of the case. 
 
366 STATHAM 
 
 MichaeUs (10) In Conspiracy against several because they con- 
 
 ^ ^°" ■ spired on a Monday, etc. And all except one pleaded not 
 guilty, and he said that on a Wednesday, a long time 
 after the Monday, and before the indictment, at such a 
 place, before the justices of the peace aforesaid, to wit: 
 before the same justices before whom the plaintiff had 
 counted, etc., he was sworn with others to present legally 
 Statham47b. for the king, etc., and he then swore to inform others of 
 his companions of the inquest that the plaintiff had done the 
 felony, etc. And after this information, and before the ver- 
 dict, the justices of the peace, for certain reasons which they 
 moved, ousted us of the inquest ; and we demand judgment if 
 action. Fortescue : On another day than that we have 
 counted, which is no answer to us, and he has not answered 
 us. Markham : I undersatnd that I can justify on any day 
 before the indictment, and therefore all the precedent con- 
 spiracy is saved. Newton : The plaintiff has alleged that 
 you conspired with others named in the writ. And you 
 have justified a conspiracy with others, to wit: those of 
 the inquest, which cannot be the same conspiracy. Pas- 
 TON: The conspiracy with those named is not denied by 
 him, for the justification with the others who are indicted 
 on his pretence shall be the end of all. Newton : If two 
 inquests are charged to inquire for the king, they cannot 
 well sit together, and this is the reason they are not put in 
 ward, but go at large to inquire of that which is done in 
 the county. Suppose, then, that two of one inquest 
 exhort others of the other inquest to indict a man, and by 
 their information they indict him. Now those two shall 
 be punished by a writ of Conspiracy, and yet they were 
 sworn for the king. Then there is a difference where they 
 give their verdict after such a conspiracy, and where not, 
 wherefore, etc. And, Sire, when either many or less are 
 sworn for the king, and one of them will not agree with his 
 companions the justices can discharge [him]. And we 
 think that this was the reason of his discharge. And then 
 he never agreed to indict him, and so his justification is 
 false, wherefore, etc. Paston : That reason is not bind- 
 ing, for he could disagree to the indictment of another 
 
CONSPIRACY 367 
 
 person and be discharged for that reason, and yet, per- 
 adventure, he had agreed to indict the plaintiff, wherefore, 
 etc. And they adjourned. 
 
 The case has not been identified in Y. B. Mich. 19 Hen. VI, or in the Case 10. 
 early abridgments. 
 
 See as to conspiracy, in the title of Actions on the Case, Note. 
 etc. 
 
 See Statham, Accions sur le Cas, supra, pp. 10 b-11 b. 
 
 Hilary 
 
 (11) Conspiracy brought by two was adjudged good, etc. 47 Ed. in. 
 
 The case has not been identified in Y. B. Hilary, 47 Ed. Ill, or in the Case 11. 
 early abridgments, unless it is the case adjudged supra, p. 47 a, case 6. 
 
 (12) In conspiracy, the defendant was received to plead ^""° 
 not guilty, notwithstanding he had been found guilty at 
 
 the suit of the king for the same conspiracy. And this 
 in the Book of Assizes. 
 
 Reported in Y. B. Liber Assisarum, Year 27, p. 141, pi. 59. See also Case 12. 
 Brooke, Conspiracy, 28. 
 
 (13) Conspiracy was adjudged good where the plaintiff Hilary 
 in an appeal was nonsuited, and the defendant acquitted 
 
 at the suit of the king, upon the declaration, etc. 
 
 The case has not been identified in Y. B. Hilary, 5 Ed. II. Fitzh: Case 13. 
 Conspiracie, 22, has the case, but does not complete the citation, evi- 
 dently not having been able to identify the case. 
 
 (14) Conspiracy does not lie where a man admits the fel- Anno 
 
 22 Ed III 
 
 ony, and justifies. And this in the Liber Assisarum, in a 
 Presentment, etc. 
 
 Reported in Y. B. Liber Assisarum, p. 102, pi. 77. See also Brooke, (-^gg ^4 
 Conspiracy, 26, and Fitzh: Conspiracie, 14. 
 
 (15) Where a man is indicted for a conspiracy at the Mkhaeiis 
 suit of the king, and is attached, the judgment is as in an ^"" 
 Attaint ; but at the suit of the party, it is only a common 
 judgment, etc. Hankford said that the difference was 
 because the indictment was by the common law, and against 
 
 the party the action is gi\ en by the Statute etc. Coram Rege. 
 
 There is no printed year of 4 Hen. V. The case has not been identi- Case 15. 
 fied in the early abridgments. For the Statute, see A rticuU super Cartas, 
 c. 10, Stats, at Large, Vol. 1, p. 297. 
 
368 STATHAM 
 
 " Again in this topic the question arises whether it was of statutory 
 origin solely, as Maitland asserts, [P. & M. Hist, of Eng. Law, 2d ed., 
 Vol. 2, p. 539] or whether it had been known at the common law, as Coke 
 says. [Coke, 2nd Inst. 562.] "I have read," says Coke. Maitland says 
 that Coke "relies upon the fictions in the Mirroir," and it is true that his 
 statement is accompanied by a citation to that discredited book. The 
 Year Books, however, show that there was a general understanding that 
 the writ had been used before the enactment of the Statute of Ed. I. 
 There is a case ofconspiracy in Trinity, 11 Hen. VII [p. 26, pi. 7] in which 
 the "writ of conspiracy at the common law" is spoken of. That case is 
 also authority for the statements: "For at the common law one shall 
 not have conspiracy except upon an indictment for felony." "For at the 
 common law they shall have a process of outlawry in conspiracy and in 
 trespass." We also have a case [case 14] which unfortunately is from a 
 manuscript, as there is no printed year of 4 Hen. V. But Hankford is 
 reported as saying that the indictment was by the common law, and 
 against the party the action is given by the Statute. Here are two 
 cases to sustain Coke (granting that our case 14 has authority) , showing 
 that he did not depend wholly upon the "fables in the Mirroir." Coke's 
 remarks also show that he knew the general arguments upon the sub- 
 ject, and that he did not more specifically refer to the cases which he 
 says are found "plentifully in our books" because it was the common 
 knowledge of his day. Somehow one has a certain sense of pleasure 
 in finding that Coke knew what he was talking about. He breathed 
 the atmosphere of the old law at all times, which we can only get as 
 filtered down to us through the breath of others. Every phrase of his 
 paragraph on the subject shows that he had a full knowledge of the 
 matter in hand. 
 
 We have also the case of the "villaneous Judgment" cited by Coke 
 [2nd. Inst. 562] which is in 24 Ed. Ill [Y. B. 24, Ed. Ill, p. 34 pi. 34], 
 which he says is at the common law, "for it is given by no statute." 
 This villainous judgment certainly deserves its name, for the party 
 found guilty could "never more be sworn in Juries or Assizes, nor ad- 
 mitted to give any testimony elsewhere; and if he have to do in the 
 King's Courts, he shall come by Attorney, and not in Person: that his 
 Lands, Goods and Chattels shall be seized in the King's hands, and 
 estreaped if he find not the more Favor, and his Trees digged up, and his 
 Body imprisoned." [Termes de la Ley, title Villaneous Judgment.] 
 This description is evidently taken from the case in the Liber Assisaruni 
 [27 Liber Assisarum, p. 141, pi. 59] which case is also cited by Coke. 
 [Coke, 2d Inst. p. 562.] Coke has also seen our case in 4 Hen. V (14), 
 either in Statham or in the manuscript itself. There is evidently a con- 
 flict of authorities, or rather the modern writers have not given sufficient 
 attention to the matter to put themselves exactly in line with the older 
 writers upon the subject. The matter is mooted here to call the attention 
 of those who may care to go further into it, to the fact that there is here 
 something of interest which seems to be obscure in our present law. 
 
COLLUSION AND COVYNE 369 
 
 COLLUSION AND COVYNE'" 
 
 (1) hi a writ of waste by a prior, he had judgment to Michaeiis 
 recover his damages and the place wasted, before the collu- 
 sion was tried, but execution of the land shall tarry until 
 
 the collusion is tried, etc. Query, wherefore the collusion 
 shall not be inquired into by the same inquest which found 
 the waste? 
 
 Reported in Y. B. Mich. 40 Ed. Ill, p. 37, pi. 10. See also Brooke, Case 1. 
 Collusion and Covyne, 7. 
 
 (2) In a PrcBcipe guod Reddat against one who vouched Hilary 
 an abbot to warranty, who vouched over another, who ^^ ^^' "^' 
 made default, wherefore the Grand Cape ad valenciam issued, 
 
 and he made default, wherefore the demandant had judg- 
 ment to recover against the tenant, and each one over 
 against the other, wherefore it was adjudged that the 
 collusion be inquired into by a quale jus ^ before the abbot 
 could have execution, and by the opinion of Thorpe that 
 the execution of all should cease until, etc. 
 
 The case has not been identified in Y. B. Hilary, 50 Ed. Ill, or in the Case 2. 
 early abridgments. 
 
 (3) A scire facias issued against the creditor in a statute Hilary 
 merchant, because he had raised the monies which were 
 garnished, and he made default, wherefore one J came and 
 
 said that he who made default leased to him his estate, and 
 that by covin between the plaintiff and him to make him 
 lose his term, this action was brought, and he prayed to be 
 received. HuLS: You are not in the position of the termor 
 who has a certain estate. And you are in such a position 
 that you could have an Assize if you were ousted, without 
 making yourself a party, and in that Assize the covin could 
 be tried. Wherefore let it stand over, etc. 
 
 Reported in Y. B. Hilary, 21 Ed. Ill, p. 1, pi. 1. Case 3. 
 
 (4) In a writ of dower, the tenant vouched to warranty statham 48 a. 
 the heir of the husband, as of full age and out of wardship. ^Ed!^iix. 
 
 * A judicial writ for a man of religion, before execution. 
 
370 
 
 STATHAM 
 
 Case 4. 
 
 Paschal 
 19 Ed. III. 
 
 Case 6. 
 
 Hilary 
 
 44 Ed. III. 
 
 Case 6. 
 
 Hilary 
 
 34 Ed. III. 
 
 Case 7. 
 
 Michaelis 
 9 Hen. VI. 
 
 And at the summons, one H came and said that the heir 
 was under age and in his wardship. And he said that this 
 voucher, in the manner, was by covin between the demand- 
 ant and the tenant to make him lose his wardship, and 
 he prayed to be received by the equity of the Statute 
 of Gloucester. And the opinion was that it should not 
 be, for that recovery in value did not injure him, because 
 he did not vouch in his wardship, etc. 
 
 The case has not been identified in Y. B. Trinity, 24 Ed. Ill, or in the 
 early abridgments. 
 
 The Statute is that of 6 Ed. I, cap. 2 (1278), Statute of Gloucester, 
 Stats, at Large, Vol. 1, p. 117. 
 
 (5) If an abbot sues execution by an elegit, the collusion 
 shall be inquired into: by Willoughby, etc. 
 
 There is no early printed year of 19 Ed. III. The case has not been 
 identified in the Rolls Series for that year. 
 
 (6) In an assize by a woman, the tenant said that the 
 husband of the woman enfeoffed one H, with warranty, 
 who enfeoffed us with warranty, and one J, by your covin, 
 entered upon us and endowed you in defeasance of our war- 
 ranty, upon which we entered, judgment if action. Bel- 
 knap : Inasmuch as he has admitted her title of dower to 
 be one of an elder time, etc., judgment. And so to judg- 
 ment, etc. 
 
 Reported in Y. B. Mich, (not Hilary), 44 Ed. Ill, p. 45, pi. 63. See 
 also Brooke, Collusion and Covyne, 10. 
 
 (7) A prior brought a writ of wardship and recovered; 
 and the opinion of Willoughby was that the collusion 
 should be inquired into, inasmuch as he recovered the lord- 
 ship by this recovery, etc. 
 
 There is no printed year of 34 Ed. Ill, except in the Liber Assisarum, 
 where the case has not been identified. It has not been identified in 
 the early abridgments. 
 
 (8) In a praecipe quod reddat, they were at issue, and 
 the plaintiff said that after the last continuance one A 
 brought an Assize against him, and he pleaded in bar; on 
 
COLLUSION AND COVYNE 371 
 
 which the plaintiff made title, and we traversed the title, 
 and it was found for him, wherefore he recovered and sued 
 execution. Judgment of the writ. FuL THORPE: That 
 Assize was brought by covin between you, to the intent to 
 abate our writ, besides this that you should aver that you 
 did not disseise him. Babyngton: I understand that I 
 can falsify a recovery, to which I am a stranger, on the 
 same point on which it was formerly tried, where that 
 recovery goes in bar of my action, but not where it goes 
 merely in abatement of the writ, as is the case here. Mar- 
 TVN : It is all one ; but it is to be seen if the plea is double, 
 for when one recovers upon a false title, he who is a stranger 
 can take issue upon that same title, and so falsify the recov- 
 ery without pleading of any covin. But when he recovers 
 upon a good title he should show the reason for the covin, 
 for in the common intent a man cannot falsify a recovery 
 upon a good title without alleging the covin. As if the 
 tenant makes a feoffment pending the writ, and against 
 his feoffment he disseises him, and the other brings an 
 Assize and recovers; now he recovers upon a good title, 
 and yet that recovery shall not injure me, etc. But yet it 
 seems that in that case the demandant shall not show 
 covin, but he shall show all the matter — how the title of 
 him who recovered commenced after the purchase of his 
 writ. But where he recovers upon a good title, the plaintiff 
 can say that he was seised until disseised by the tenant, 
 by covin between him and the one who recovered, to the 
 intent to make me lose my warranty, and so the recovery 
 was false. And see such matter in the Liber Assisarum, 
 Anno 22, folio 8. In an Assize, etc. 
 
 Reported in Y. B. Mich. 9 Hen. VI, p. 41, pi. 18. Case 8, 
 
 (9) The guardian is not in the purview of the Statute Paschal 
 of Gloucester, which says that the termor shall aver collu- ^ ^^"" '^' 
 sion in his action on his term : by Thirning and Hank- 
 ford, in Wardship. 
 
 The case has not been identified in V. B. Paschal, 7 Hen. IV, or in Case 9. 
 the early abridgments. The Statute of Gloucester, 6 Ed. I, cap. 11 
 (1278), Stats, at Large, Vol. 1, p. 117. 
 
372 
 
 STATHAM 
 
 Paschal 
 7 Hen. IV. 
 
 Case 10. 
 
 Hilary 
 9 Hen. IV. 
 
 Case 11. 
 
 Note. 
 
 Hilary 
 
 16 Ed. III. 
 
 Case 12. 
 
 Michaelis 
 2 Ed. III. 
 
 Case 13. 
 
 Trinity 
 2 Ed. III. 
 
 Case 14. 
 
 Michaelis 
 7 Ed. III. 
 
 Case 15. 
 
 (10) The lord shall have collusion against the feoffment 
 made by his tenant by a fine. (In a note), etc. Simile 12 
 of the same king, in Wardship. 
 
 Reported (as a note) in Y. B. Paschal,_7 Hen. IV, p. 15, pi. 22. See also 
 Brooke, Collusion and Covyne, 14; and Fitzh: Collusion and Covyne, 14. 
 
 (11) If the tenant of the king alienates other lands, 
 which are not held of the king, with the intent to enfeoff 
 his heir when he comes to his full age, in that case the king 
 shall have collusion. And yet it is not in the purview of 
 the Statute, for the land which was aliened was not held of 
 him. By Thirning and Hankford in a Scire Facias. 
 Well debated, etc. But yet the king shall have all in 
 Wardship, through his prerogative. 
 
 Reported in Y. B. Mich, (not Hilary), 9 Hen. IV, p. 6, pi. 20. See also 
 Brooke, Collusion and Covyne, 24; and Fitzh: Collusion and Covyne, 12. 
 
 See of Covin in the title of Falser de Recover. 
 Statham, title Falser de Recover, infra, pp. 101 b and 102 a. 
 
 (12) If a man of religion recovers in a writ of Annuity, 
 the collusion shall not be inquired into. As appeared in a 
 note, etc. 
 
 There is no early printed year of 16 Ed. III. The case is reported in 
 the Rolls Series, 16 Ed. Ill, Hilary Term, Pt. 1, p. 67, No. 17. See 
 also Fitzh: Collusion and Covyne, 41. 
 
 (13) If an abbot recovers against another abbot, the 
 collusion shall not be inquired into. As appeared in a writ 
 of Entry. 
 
 The case has not been identified in Y. B. Mich. 2 Ed. HI, or in the 
 early abridgments. 
 
 (14) Collusion shall not be inquired into in a Juris 
 d'Utrum, where the issue is taken upon the right, etc. 
 
 The case has not been identified in Y. B. Mich. 2 Ed. Ill, or in the 
 early abridgments. 
 
 (15) In replevin against an abbot, he shall have a recovery 
 without inquiring as to the collusion, because there was no 
 judgment by that return to recover his rent, etc. 
 
 The case has not been identified in Y. B. Mich. 7 Ed. Ill, or in the 
 early abridgments. 
 
COLLUSION AND COVYNE 373 
 
 (16) An abbot brought a writ of entry upon a disseisin Trinity 
 made on his predecessor. The tenant traversed the dis- ^^ ^^' '^' 
 seisin and it was found for the abbot. And the collusion 
 
 was inquired into by the same inquest, notwithstanding 
 the title of the abbot was found. And they said that in a 
 writ of entry on a lease made by his predecessor and found 
 for him, they would award seisin of the land without 
 inquiry as to the collusion. Query as to the difference, 
 etc.? Contra Paschal, 29 Ed. III. 
 
 There is no early printed year of 16 Ed. III. The case is reported Case 16. 
 in the Rolls Series 16 Ed. Ill, 2, p. 10. The case cited at the end of 
 the abridged case is reported in Y. B. Paschal, 29 Ed. Ill, p. 33, pi. 53. 
 
 (17) In trespass against an abbot, who said that the Paschai 
 plaintiff was his villein regardant, etc. And they examined ^^ ^*^' "^' 
 the plaintiff [to find] if he did it by collusion. But yet 
 
 that is not the case [provided for] in the Statute. 
 
 Reported in Y. B. Paschal, 29 Ed. Ill, p. 35, pi. 60. See also Fitzh: Case 17. 
 Collusion and Covyne, 13 and 45. 
 
 See as to collusion, in the title of Quale Jus. ^°^^- 
 
 Statham, infra, p. 148 b. 
 
 ^ The Statute of Westminster I, cap. 29, was passed to prevent the 
 "unlawful shifts arid devices cunningly contrived," by the "Sergeants, 
 Apprentices, Attorneys, and Clerks of the King's Courts." [Coke, 
 Inst. 2: 213.] Therefore this act was made "in affirmance of the com- 
 mon law, only it added a greater punishment." 
 
 We find that it is decided in some of the cases that the collusion is 
 one which should be inquired into; in other cases it is decided that there 
 shall be no inquiry. At first sight the decisions seem rather arbitrary; 
 but on examination we find that there are certain writs in which the 
 collusion may be inquired into; as Qttare Impedit, and Assize and the 
 like, which one corporation brings against another. [Termes de la Ley, 
 Collusion, p. 138.] In one of our cases it is a PrcBcipe qtiod Reddat in 
 which the collusion is inquired into by a Quale Jus — given by the Statute. 
 [Case 2.] In another case [case 5] an abbot sues execution by an elegit 
 and the collusion is inquired into. In our case 7 a prior brings a writ 
 of wardship and recovers. Willoughby thinks the collusion should 
 be inquired into. But in our case 12, the monk who recovers in a 
 writ of annuity is saved from the inquiry. In a Jure d'Utrum the 
 inquiry is not allowed "where the issue is taken upon the right." [Case 
 14.] In cases 13 to 15 the inquiry is not allowed, apparently because 
 it seemed that there was no harm done by the recovery. It is granted 
 
374 STATHAM 
 
 again in case 16, and yet they would refuse it in a similar case, and 
 there is a "query as to the difference." Is there any one now suffi- 
 ciently learned in the older law to tell us why it should have been allowed 
 in the one case and refused in the other? Was it in the discretion of the 
 court to inquire if one of the parties appeared to have been unjustly 
 enriched at the expense of the other? It would almost seem so from 
 the cases, and it is evidently a proceeding of an equitable nature. Fraud 
 and deceit are allied actions, but there is an indefinable difference. 
 Deceit furnishes a separate title to the abridgment. What was the dif- 
 ference in the mind of the lawyer of the day between collusion, covin 
 and deceit? Deceit, on the whole, seems to have been much more 
 technical, as we shall see when we reach the subject. If one may ven- 
 ture to sketch the difference very briefly, one may say that deceit was 
 the technical legal remedy for a certain kind of deception (deception in 
 a legal action), and collusion and covin led to a writ which was in fact 
 an equitable remedy for almost all forms of fraud. There was another 
 writ given by the Statute of Gloucester [6 Ed. I, cap. 11 (1278), 
 Stats, at Large, Vol. 1, p. 117]. This writ is referred to in cases 4 
 and 9, and it is more like the writ of deceit in that it is based upon 
 a previous action in court; that is, that there was a feigned suit to 
 make, through collusion or by fraud, the termor lose his term. The 
 interdependence of the older actions and their gradual absorption 
 by one or the other, or a division into new forms, is a part of the history 
 of the law which has never been fully investigated, except in the case of 
 a few of the better known actions. The whole field is one of great 
 interest; an interest which is stimulated to a greater activity by the few 
 selected cases such as we have in this abridgment, than it is by the more 
 crowded collections of later days. Of course these few cases are mere 
 finger posts to point the way which we must take through the larger 
 collections — the Year Books themselves and the other sources of the law. 
 But a finger post at the beginning of the way is an immense advantage 
 to the traveler who must walk in unknown paths. 
 
 COUNTREPLEE DE VOUCHER 
 
 statham48b. (1) He whom you vouch nor any, etc., never had, etc., 
 Hilary '^ except that which the father of the vouchee holds for the term 
 40 Ed. III. q£ jjjg jjfg q£ ypyj. Q,^^^ lease. Thorpe : That is not a counter- 
 plea. Belknap : Of such an estate he cannot enfeoff the 
 tenant, but it shall be called a surrender to him. Thorpe : 
 He has admitted such an estate in him upon which he can 
 make a feoffment between the tenant and the demandant. 
 
COUNTREPLEE DE VOUCHER 375 
 
 and that shall not be called a surrender. Wherefore he 
 said to the tenant, "Let the voucher stand," etc. 
 
 Reported in Y. B. Hilary, 40 Ed. Ill, p. 12, pi. 27. See also Brooke, Case 1. 
 Countreplee de Voucher, 4; and Fitzh: Counterplee de Voucher, 18. 
 
 (2) The tenant vouched one A as cousin and heir of one Hilary 
 B, son of J, son of the said B, and because he was under 
 
 age, etc., the demandant said that this J was a bastard. 
 And the opinion was that he should not have such a counter- 
 plea, because if this matter be so he can say that he who 
 vouched, nor any of his ancestors, etc. But yet it seems 
 that the counterplea is good by the common law, etc. 
 
 Reported in Y. B. Paschal (not Hilary), 40 Ed. HI, p. 22, pi. 22. See Case 2. 
 also Brooke, Countreplee de Voucher, 6. 
 
 (3) In fonnedon in the descender, it was alleged that Trinity 
 one A granted the reversion of a tenant for life to the ^ 
 ancestor of the demandant. The tenant vouched, etc. 
 Belknap: He who, etc., never had, etc., after the seisin 
 
 of our ancestor, etc. And the opinion was that this was 
 not a counterplea, for the vouchee could have possession 
 after the grant, and before the seisin before which the 
 reversion was executed, etc. 
 
 Reported in Y. B. Trinity, 41 Ed. HI, p. 15, pi. 7. See also Brooke, Case 3. 
 Countreplee de Voucher, 9; and Fitzh: Counterplee de Voucher, 20. 
 
 (4) Where the tenant vouches himself to save the tail, Michaeiis 
 the demandant shall have a counterplea to the cause, in 
 
 the same manner as the vouchee in other cases shall have 
 to the place, etc. 
 
 The case has not been identified in Y. B. Mich. 41 Ed. Ill, or in the Case 4. 
 early abridgments. 
 
 (5) "He whom you vouch," etc. Belknap: To that Michaeiis 
 you shall not be received, for after the gift your ancestor ^^ '^'*- ^^^• 
 enfeoffed this same vouchee by a fine, judgment, etc. 
 Query, etc.? In Formedon, etc. 
 
 Reported in Y. B. Mich. 41 Ed. HI, p. 29, pi. 32. Case 5. 
 
376 
 
 STATHAM 
 
 Michaelis 
 44 Ed. III. 
 
 Case 6. 
 
 (6) In formedon the tenant vouched, etc. Fencot: 
 He, etc., nor any, etc., except he who vouched jointly with 
 the tenant, and others who have released all to the tenant, 
 judgment, etc. Thorpe: Such a plea as the above, that 
 the other is dead, so that all accrues to the tenant by the 
 survivorship, has been adjudged good, etc. But yet the 
 opinion was that the counterplea was not good, etc. And 
 see Trinity, 45, of the same king, in a Prmcipe quod Reddat. 
 The demandant said that he, etc., never had, etc., except 
 jointly with the tenant, without saying that he was dead 
 or that he had released, and the opinion was that he should 
 have the plea, because he could not vouch him for such an 
 estate, etc. But yet he could release to him with war- 
 ranty, in which case the possession and the release together 
 are a cause for a voucher. Query? It seems that this 
 counterplea will abate the writ of the demandant. 
 
 The case has not been identified in V. B. Mich. 44 Ed. Ill, or in the 
 early abridgments. 
 
 Hilary 
 
 46 Ed. III. 
 
 Case 7. 
 
 (7) In a writ of cosinage, the tenant made default and 
 one was received and vouched one H to warranty. Bel- 
 knap: J, your father, whose heir, etc., was the first who 
 abated, etc. Fencot: This H was disseised and leased 
 to the tenant, who made default, and then granted the 
 reversion to us, without this that J, our father, had any- 
 thing. Belknap demurred upon the plea. (Which see, 
 for it was well argued.) 
 
 And it was said in the same plea, that it is a good plea 
 to say that at time of the levying of the fine "my father who 
 levied the fine, had nothing in the lands, but I myself was 
 seised," etc. So here, if he shows that he does not claim 
 by him who abated, it seems that it is a good plea in 
 avoidance of the counterplea, etc. 
 
 Reported in Y. B. Hilary, 46 Ed. Ill, p. 2, pi. 3. See also Brooke, 
 Countreplee de Voucher, 15; and Fitzh: Counterplee de Voucher, 29. 
 
 Hilary (8) In a Writ of escheat it was alleged that one H held 
 
 48 Ed. HI. q£ him, and committed a felony. The tenant vouched to 
 
 warranty. Spigornel: He, etc., never had, etc., after 
 
COUNTREPLEE DE VOUCHER 377 
 
 the seisin of him on whose possession we demand. And 
 the opinion of many was that he should say, "after the 
 felony was committed," etc. See the plea for it was well 
 debated, etc. 
 
 Reported in Y. B. Mich, (not Hilary), 48 Ed. Ill, p. 28, pi. 14. See Case 8. 
 also Brooke, Countreplee de Voucher, 19; and Fitzh: Counterplee de 
 Voucher, 32. 
 
 (9) "He whom you vouch is my villein," is a good Trinity 
 counterplea: by Fyncheden in a Formedon, for otherwise *^ ^'^' ■'"" 
 the villein will be enfranchised, etc. 
 
 The point is to be found in a case of Formedon in the Descender, in Case 9. 
 Y. B.Trinity, 48 Ed. Ill, p. 16, pi. 1. (Point on p. 17.) See also Brooke, 
 Countreplee de Voucher, 18; and Fitzh: Counterplee de Voucher, 31. 
 
 (10) "He whom you vouch never had anything except Hilary 
 
 at the will of my father," is a good counterplea; by the ^^^'^- "^• 
 opinion of the Court and this in Voucher. 
 
 Reported in Y. B. Trinity (not Hilary), 50 Ed. Ill, p. 12, pi. 2. Case 10. 
 
 (11) In a praecipe quod reddat one of the tenants Hilary 
 died, and therefore the writ was abated, and for journez ^^ ^^' "'• 
 accompli,^ he purchased another writ, and the tenant 
 vouched to warranty. Fyncheden: He, etc., had nothing, 
 
 etc., except by a demise made by one of the tenants in the 
 first writ, after the first writ was purchased. [This is] a 
 good counterplea, etc. 
 
 And it was said in the same plea that if the cause be put 
 without day, at the re-summons the tenant can vouch 
 other persons whom he did not vouch before. (But I 
 believe that this does not mean where it is put without by a 
 protection.) 
 
 Reported in Y. B. Hilary, 50 Ed. Ill, p. 2, pi. 5. See also Brooke, Case H. 
 Countreplee de Voucher, 20. 
 
 1 "Journez Accompt^" are called in Termes de la Ley "Journees 
 Accounts," and explained thus: "If a writ be abated without the 
 default of the plaintiff or demandant, he may purchase a new writ, 
 which if it be purchased by joumies accounts (that is, within as little 
 time as he possibly can after the abatement of the first writ) then this 
 second writ shall be as a continuance of the first, and so shall oust the 
 tenant or defendant of his voucher." Termes de la Ley, ed. of 1721. 
 
378 
 
 STATHAM 
 
 Hilary 
 21 Ed. III. 
 
 Case 12. 
 
 (12) In a praecipe quod reddat, the tenant vouched one 
 J as son and heir of B because he was under age. Fynch- 
 EDEN : B, nor any of his ancestors, never had, etc. Thorpe : 
 That is no counterplea by the Statute and by the common 
 law there was no counterplea to the possession. Sharshull : 
 It is no counterplea for another reason, for he can bind J 
 by the deed of another ancestor, etc. Wherefore Fencot 
 said that B nor any of the ancestors of J ever had anything, 
 and the plea was accepted. But yet it seems that for 
 this cause it was good enough, for he could not bind him 
 by the deed of another ancestor when the demandant 
 had suffered a delay, etc., no more than he could bind 
 him by his own deed, etc. But it seems that it is no plea 
 for another reason, for if it be a plea it is by the common 
 law to oust the delay, to wit: that the vouchee may not 
 have his age. And by the common law there is no counter- 
 plea which limits any time in certain, to wit; after the 
 title of the writ, for by the common law the tenant shall 
 have his voucher as well of a warranty made after the 
 title of the writ of the demandant as before, but it is 
 ousted by the Statute of Westminster the First, which gives 
 the counterplea to the possession after the title of the writ 
 of the demandant. 
 
 Reported in Y. B. Hilary, 21 Ed. Ill, p. 9, pi. 27. See also Brooke, 
 Countreplee de Voucher, 29; and Fitzh: Counterplee de Voucher, 85. 
 Fitzherbert calls the writ in the case a Formedon. 
 
 The Statute is that of 13 Ed. I (1275), cap. 40, Westminster the 
 First, Stats, at Large, Vol. 1, p. 74 (100), Voucher to Warranty and 
 Counterpleading of Voucher. 
 
 Hilary 
 
 21 Ed.5lII. 
 
 Case 13. 
 
 (13) In a writ of wardship, the defendant vouched one 
 because he leased the wardship to him, etc.; and he did 
 not show a deed of the lease, etc. (And so see that 
 he should show cause), etc. The plaintiff said that the 
 defendant was the first who got the wardship after the 
 death of the ancestor of the infant, etc. And the opinion 
 of Sharshull was that this was not a counterplea, for the 
 Statute is, "Where lands and tenements are demanded," etc. 
 
 Reported in Y. B. Hilary, 21 Ed. Ill, p. 10, pi. 34. See also Brooke, 
 Countreplee de Voucher, 28. 
 
COUNTREPLEE DE VOUCHER 379 
 
 (14) In a writ of dower, the tenant vouched to warranty Paschal 
 the heir of the husband, under age and in the wardship of 
 one H, for part, and for another part, in the wardship of 
 one F, and for another part, in the wardship of the king. 
 Fencot: The king never had anything in wardship. 
 Ready as to that part. Thorpe : That is no plea, for that statham 49 a. 
 issue cannot be tried without the counsellor of the king. 
 Darr: He will be inconvenienced if he has not the plea. 
 Sharshull : If this plea be true the cause will be stayed 
 against all; see the Statute of Bigamus, to wit: "De 
 dotibus mulierum," etc. And then the issue was taken. 
 Stouford said that if the issue be found against the de- 
 fendant, that the demandant shall have judgment to recover 
 all her dower ; which Sharshull denied, and said that she 
 would recover only for a part, etc. 
 
 Reported in Y. B. Paschal, 21 Ed. Ill, p. 53, pi. 1. Case 14. 
 
 The Statute is that of 4 Ed. I (1276), cap. 3, the Statute of 
 Bigamy. Stats, at Large, Vol. 1, p. 114 (115). 
 
 (15) The demandant shall not say that "he whom you Michaeiis 
 
 21 Ed III 
 
 vouched is dead," except on the first day that the tenant 
 vouches, for on another day, during the process, he cannot, 
 etc., but it comes in upon the return of the sheriff .^ And 
 this in a PrcEcipe quod Reddat. See the Statute which 
 gives this counterplea, for it gives it generally without 
 mentioning any time, etc. 
 
 Reported in Y. B. Mich. 21 Ed. Ill, p. 36, pi. 30. See also Brooke, Case 15. 
 Countreplee de Voucher, 30. The Statute is that of 3 Ed. I (1273), 
 cap. 40, Westminster the First, Stats, at Large, Vol. 1, p. 74 (100). 
 
 (16) In a juris d'utrum for rent, the tenant said that Hilary 
 he was tenant of the land of which, etc., and he vouched 
 
 to warranty. Salt: It is a rent service. Judgment if 
 the voucher. And the opinion of many was that this was a 
 good counterplea. But yet he had the voucher. Query 
 as to the reason, etc. 
 
 Reported in Y. B. Hilary, 18 Ed. Ill, p. 1, pi. 2. Case 16. 
 
 ' The sicut alias. 
 
380 
 
 STATHAM 
 
 Paschal 
 14 Ed. II. 
 
 Case 17. 
 
 (17) He who, etc., never had, etc., except by the father 
 of the vouchee jointly with the tenant, which estate they 
 continued all the lifetime of the same father, and then 
 the father died, and the tenant had all by the survivor- 
 ship, judgment, etc. And the opinion was that this was 
 a good counterplea by reason of the delay, because he said 
 that the vouchee was under age, etc. But yet it seems that 
 the continuance of the possession cannot be counter- 
 pleaded in this case, for it amounts to no more than that 
 he did not enfeoff him, or that he did not release him, 
 which is a counterplea of the place. And this well debated. 
 
 The case has not been identified in Y. B. Paschal, 14 Ed. II, or Ed. Ill, 
 or in the early abridgments. 
 
 Michaelis 
 18 Ed. III. 
 
 Case 18. 
 
 (18) In formedon, the tenant vouched the husband and 
 his wife. The demandant said that the wife nor any of 
 her ancestors ever had anything, etc. And it was adjudged 
 no counterplea. The law is the same where the tenant 
 vouches two; it is no plea to counterplead the possession 
 of one. But they said in the same plea that in a writ of 
 possession where the husband and his wife are vouched, 
 it is a good counterplea to say that the wife was the first 
 who abated after the death of the ancestor of whose pos- 
 session, etc. Simile, Anno 39 Ed. III. 
 Reported in Y. B. Mich. 18 Ed. Ill, p. 53, pi. 68. 
 
 Michaelis 
 21 Ed. III. 
 
 Case 19. 
 
 Hilary 
 23 Ric. II. 
 
 (19) One vouched himself to save the tail, and showed 
 cause, to wit: that such a one enfeoffed, etc. The demand- 
 ant said that he did not enfeoff; and he could not have 
 the counterplea, because it was a counterplea of the place; 
 wherefore he said that he who enfeoffed was never seised, 
 etc. (And against the law, as I believe, for where a man 
 shows cause the demandant shall not have the same counter- 
 plea that the vouchee has . As it appeared ,Mich.44Ed.III.) 
 
 Reported in Y. B. Mich. 21 Ed. Ill, p. 37, pi. 31. See also Brooke, 
 Countreplee de Voucher, 31; and Fitzh: Counterplee de Voucher, 91. 
 
 (20) In dower, the tenant vouched a stranger, and the 
 demandant said that he, who, etc., was the first who 
 
COUNTREPLEE DE VOUCHER 381 
 
 abated after the death of our husband, of whose posses- 
 sion, etc. And the opinion was that that was not a counter- 
 plea, because his title did not commence solely on the 
 death of her husband, for it might be that her husband 
 made a feoffment to the vouchee, and then came to the 
 land and died seised. Wherefore she said that he who, 
 etc., had nothing, etc., after the marriage. Rikhill: That 
 is no counterplea, for the title of the demandant could 
 commence after the marriage by the purchase of the hus- 
 band. Then you should say, in that case, that he had 
 nothing after the title of the writ as your title is not 
 certain, for your title is the marriage, the possession 
 and the dying. And in any case where the title is uncer- 
 tain the counterplea shall be after the title; as in a writ 
 of entry upon a disseisin, you shall say, "after the title 
 of your writ" and this shall be understood to be the posses- 
 sion before the disseisin. But where the title is certain 
 it is otherwise, as in formedon in the descender, he shall 
 say, "after the gift." And in a writ of escheat, "after 
 the felony done," and so in each case. And they adjourned. 
 
 There is no printed Year Book for 23 Ric. II. The case does not Case 20. 
 appear to have been abridged by Brooke or Fitzherbert. 
 
 (21) In dower, the tenant vouched a stranger and the Michaeiis 
 demandant said that the tenant entered by her husband. 
 
 And it was adjudged no plea, etc. Contrary, Anno Prima 
 Ed. II. 
 
 Reported in Y. B. Mich. 18 Ed. Ill, p. 55, pi. 75. Case 21. 
 
 (22) In a quod ei deforceat, it is a good counterplea Paschal 
 
 OO ■pj TTT 
 
 to say, if the demandant vouches, that he whom he vouches 
 had nothing in the reversion, for the Statute gives to him 
 the voucher of him in the reversion, and of no other. By 
 the opinion, etc. 
 
 There is no printed Year Book for 33 Ed. III. The case has not Case 22. 
 been identified in the early abridgments. 
 
 The Statute is that of 3 Ed. I (1275), cap. 40, Westminster the 
 First, Stats, at Large, Vol. 1, p. 74 (100). 
 
382 
 
 STATHAM 
 
 Micbaelis 
 32 Ed. III. 
 
 Case 23. 
 
 (23) In a praecipe quod reddat, the tenant vouched 
 to warranty, and prayed that he be summoned in another 
 county, and the demandant said that the vouchee had 
 assets within the same county where the writ was brought. 
 Fyncheden: That is no plea. Burton: It has been ad- 
 judged a plea in an eyre. Fyncheden : You speak truly 
 and the reason is because the justices in eyre cannot make a 
 process in a foreign county, so he shall have the plea, 
 because of the mischief. And the law is the same in an 
 Assize of Mort d'Ancestor which is brought in pais before 
 justices of the Assize, for the above reason, etc. 
 
 There is no printed Year Book for 32 Ed. III. The case has not been 
 identified in the early abridgments. 
 
 Trinity 
 38 Ed. III. 
 
 Case 24. 
 
 (24) In a sur cui in vita out of the degrees, nisi post 
 dimissionem quam, U de B, formerly her husband, etc., 
 Fyncheden vouched to warranty one H, as cousin and heir 
 of the said U. Fencot : H nor any of his ancestors, etc. 
 Fyncheden : To that you shall not be received, since your 
 writ alleges that A made the demise. Fencot : Although 
 you have vouched him as heir, that does not prove that he is 
 heir. Thorpe: You can say that he, etc., nor any, etc., 
 whose heir he is. Fencot : That is not warranted by the 
 Statute, to wit: "Whose heir he is." Thorpe: Showhow[he 
 is] cousin. Fyncheden : I do not show it until the vouchee 
 comes, and then I shall show it to him in ample time, etc. 
 Which the Court conceded; upon which Fencot said, "We 
 are cousin and heir to U of B, without this that H, or any 
 of his ancestors whose heir he is, ever had anything, etc. 
 And the counterplea was received. Which note, for it is 
 not warranted by the Statute. But Thorpe said that 
 when a man cannot have the counterplea by the Statute, 
 where it is contrary to his writ, as in the case above, he 
 shall aid himself by special matter, which can stand with 
 the Statute. Query, if he shall say that a stranger is heir, 
 without this (as above)? 
 
 Reported in Y. B. Trinity, 38 Ed. Ill, p. 15, pi. 19. See also 
 Brooke, Countreplee de Voucher, 24; and Fitzh: Counterplee de 
 Voucher, 11. 
 
COUNTREPLEE DE VOUCHER 383 
 
 The Statute is that of 3 Ed. I (1275), cap. 40, Westminster the 
 First, Stats, at Large, Vol. 1, p. 74 (100). 
 
 (25) In a praecipe quod reddat, the tenant vouched ^'^^^jij 
 two. The demandant said that one of them was dead, 
 
 and he had the plea. 
 
 Reported in Y. B. Mich. 39 Ed. Ill, p. 32, pi. 36. See also Brooke, Case 26. 
 Countreplee de Voucher, 36; and Fitzh: Counterplee de Voucher, 16. 
 
 (26) In a cui in vita in the post, against one J, son of H, statham 49 b. 
 it was alleged that he had no entry except after the demise ^^''^^yj 
 that one. A, the mother of the demandant, made to one A 
 
 and B. The tenant vouched the said A and B to warranty. 
 The demandant said that this J, who is tenant, recovered the 
 same land by a Cui in Vita on a demise, etc., against 
 the said A and B, and sued execution, and that estate con- 
 tinued by force of that recovery, until the day the writ 
 was purchased, and at all times thereafter, which matter 
 etc., without this that the said A and B, or any, etc., ever 
 had anything in another manner. Babyngton: That is 
 no counterplea by the Statute, and at the common law 
 there was no counterplea to the possession. And it also 
 appears by his plea that the tenant is in by title of a 
 recovery, and he has not shown that his title is older than 
 the title of the tenant, so this plea shall be taken the 
 more strongly against him, to wit: that he had no cause 
 of action, etc. And also he said, "without this that he 
 never had any other possession, and that is contrary to 
 the allegation of his writ, which alleges the demise to be 
 made to them by the husband of the mother of the demand- 
 ant, etc. Martyn: That cannot be a counterplea, for 
 the possession is the cause of the voucher, albeit he had 
 not warranted ; as if I disseise a man and then I am im- 
 pleaded, I shall vouch him, etc., and it is no counter- 
 plea to say that I never had anything except by disseisin, 
 etc. Well argued. 
 
 Reported in Y. B. Mich. 9 Hen. VI, p. 49, pi. 31. See also Brooke, Case 26. 
 Countreplee de Voucher, 2; and Fitzh: Counterplee de Voucher, 1. 
 
 The Statute is that of 3 Ed. I (1275), cap. 40, Westminster the 
 First, Stats, at Large, Vol. 1, p. 74 (100). 
 
384 
 
 STATHAM 
 
 Note. See of Counterplea of Voucher, in the title of Voucher. 
 
 (See infra, Statham, p. 182). 
 
 Hilary 
 21 Ed. III. 
 
 Case 27. 
 
 (27) If the tenant demurs in law upon a counterplea of 
 voucher, and it is adjourned until another term, it is 
 peremptory for him, for although the Statute says, "he 
 shall be further compelled to answer," it is intended that he 
 shall reply immediately, etc. Simile 20 Ed. Ill, Paschal 
 Term, in Dower. 
 
 Reported in Y. B. Hilary, 21 Ed. Ill, p. 10, pi. 34. See also Brooke, 
 Countreplee de Voucher, 28; and Fitzh: Counterplee de Voucher, 89. 
 
 The Statute is that of 3 Ed. I (1275), cap. 40, Westminster the 
 First, Stats, at Large, Vol. 1, p. 74 (100). "He shall be further com- 
 pelled to another answer." 
 
 Michaelis 
 15 Ed. III. 
 Case 28. 
 
 (28) A good counterplea is "none such in being." 
 
 There is no early printed year of 15 Ed. HI. The case has not been 
 identified in the Rolls Series for that year. 
 
 Hilary (29) A good counterplea is, "He whom you vouch is 
 
 16 Ed. III. my villein." In a Juris d'Uirum. 
 
 Case 29. There is no early printed year of 16 Ed. HI. The case has not been 
 
 identified in the Rolls Series for that year. 
 
 Paschal 
 6 Ed. III. 
 
 Case 30. 
 
 (30) A good counterplea in a writ of right of the seisin 
 of the demandant is, "He whom you vouch never had 
 anything after the seisin of which I have counted." And 
 this by the opinion of the Court, etc. 
 
 The case has not been identified in Y. B. Paschal, 6 Ed. HI, or in the 
 early abridgments. 
 
 Michaelis 
 10 Ed. III. 
 
 Case 31. 
 
 (31) A counterplea of a voucher is not peremptory in an 
 Assize of Mort d'Ancestor although the points of the writ 
 shall be examined. 
 
 Reported in Y. B. Mich. 10 Ed. Ill, p. 45, pi. 6J^. (Ihis para- 
 graph should be pi. 7, but is skipped in the numbering in the "vulgate." 
 These placita are both "notes." In the older editions of the Year 
 Books the placita are correctly numbered, and this note is placitum 7.) 
 
 Hilsiry 
 16 Ed. III. 
 
 (32) The tenant shall not be further compelled to another 
 answer upon a counterplea at the common law. And this 
 in Error. 
 
COUNTREPLEE DE VOUCHER 385 
 
 .There is no early printed year of 15 Ed. III. The case has not been Case 32. 
 identified in the Rolls Series for that year. It is very difficult to trace 
 these extremely small points through the cases, although I have little 
 doubt that if the proper amount of time could be given, nearly all these 
 points could be traced to their original cases. 
 
 (33) Where one is vouched as heir to one B, who is under Michaeiis 
 age, it is no counterplea to say that, "this B, nor any of his ^^ ^^' ^^^' 
 ancestors." Query, etc. In a Pracipe quod Reddat. 
 
 The case has not been identified in Y. B. Mich. 21 Ed. Ill, or in the Case 33. 
 early abridgments. 
 
 (34) A man shall have the counterplea against the Hilary 
 vouchee, as well where he comes by process, if he vouches 
 over, as if he entered immediately, etc. Although not by 
 
 the words of the Statute, etc. In a writ of Cosinage, etc. 
 
 Reported in Y. B. Hilary, 9 Ed. II, p. 291, pi. 3. Case 34. 
 
 The Statute is that of 3 Ed. Ill, cap. 40 (1273), Westminster the 
 First, Stats, at Large, Vol. 1, p. 74 (100). 
 
 (35) In a mort d'ancestor against a prior, it is a good Anno 
 counterplea that the predecessor of the prior was the first 
 who abated after the death of the ancestor, etc. Liber 
 Assisarum, etc. 
 
 Reported in Y. B. Liber Assisarum, 40 Ed. Ill, p. 238, pi. 2. See c^se 35. 
 also Brooke, Countreplee de Voucher, 43. 
 
 (36) A good counterplea in a writ of wardship is, "He Michaeiis 
 who vouched had nothing," etc., after the death of the 
 ancestor of the tenant. But yet it is not given by the 
 Statute, etc. 
 
 There is no early printed year of 19 Ed. III. The point abridged Case 36. 
 appears in a writ of wardship, reported in the Rolls Series, 19 Ed. Ill, 
 p. 280. 
 
 For the Statute, see supra, case 34. 
 
 COUNTREPLEE DE GARANTIE 
 
 , , _ . , ■, ^ 1 11 T Statham 50 a. 
 
 (1) In a writ of escheat, the tenant vouched one J to 
 warranty, who came and demanded of him what he had 45 Ed. in. 
 
386 
 
 STATHAM 
 
 Case 1. 
 
 to bind him to the warranty; who showed his own deed. 
 And the vouchee said that the tenant who vouched him 
 had nothing in the land the day the writ was purchased, 
 etc. And because he had demanded of him what he had 
 to bind him, it was the opinion that he should not have 
 the plea, no more than where a man demands what they 
 have for the remainder, he shall not come in afterwards 
 to plead anything in abatement of the writ. 
 
 And it was said in the same plea that in warranty of 
 charter it is a good plea to say that he had nothing in the 
 land the day, etc. But yet, query, etc.? 
 
 Reported in Y. B. Hilary, 45 Ed. Ill, p. 2, pi. 3. 
 
 Michaelis 
 5 Ed. III. 
 
 Case 2. 
 
 (2) It is a good counterplea of warranty to say that 
 "a long time after the feoffment of our father, which you 
 show, our father died seised, and you abated," etc. In 
 Dower. 
 
 Reported in V. B. Mich. 5 Ed. Ill, p. 37, pi. 18. 
 
 Trinity 
 14 Ed. II. 
 
 Case 3. 
 
 (3) It is no counterplea of warranty to say that his 
 father never had anything in the land except in tail, as to 
 which land he has a writ pending, etc. In Dower. 
 
 The case has not been identified in Y. B. Trinity, 14 Ed. II, or in 
 the early abridgments. 
 
 COUNTREPLEE DE AYDE 
 
 Michaelis 
 31 Ed. III. 
 
 Case 1. 
 
 (1) See in scire facias two counterpleas of aid, etc. 
 Good matter in Aid. 
 
 There is no printed year of 31 Ed. III. The case has no citation in 
 the early abridgments. 
 
 Michaelis 
 46 Ed. III. 
 
 (2) In a formedon, the tenant showed how the land 
 had descended to him and to one F, who made partition 
 of these acres in demand and another acre, and he prayed 
 aid, etc. Hamond: You yourself remain seised of both 
 acres, judgment if the aid. Belknap: Inasmuch as you 
 
COUNTREPLEE DE AYDE 387 
 
 deny the partition and do not show how your sister enfeoffed 
 us, judgment, etc., for although we cannot recover pro rata 
 portione we shall have the paramount warranty. Thorpe: 
 It appears that you cannot have the warranty for your 
 part alone. And in many cases the law is so, for if the action 
 be brought by two coparceners, and one admits the action 
 of the demandant, the other can vouch. Fyncheden: 
 It is true. The law is the same as to a livery made to 
 them as in the case of joint tenants, etc. Thorpe: So 
 here, for in both cases when he shows his livery he shall 
 aid himself by special matter, and show how his com- 
 panion would not vouch, or that he had made a feoff- 
 ment; and unless he shows such special matter the vouchee 
 can drive him out of the place, etc. Wherefore, to my 
 mind, the cases are all one, but yet the demandant cannot 
 take advantage of that, etc. 
 
 The case has not been identified in Y. B. Mich. 46 Ed. Ill, p. 31, pi. Case 2. 
 33, or in the early abridgments. 
 
 COUNTREPLEEZ DE RESCEIPTE 
 
 See of Counterpleas de Receipt in the title of Receipt. 
 
 COSYNAGE " 
 
 (1) In a writ of cosinage, the defendant pleaded in bar statham 50 a. 
 by a fine, to which the demandant made title, and the Paschal 
 tenant would have waived his bar, and have pleaded 
 
 to the point of the writ, to wit: that the ancestor did not 
 die seised. And the opinion was that he should not get 
 to that, because it is different from an Assize of Mort 
 d'Ancestor; and also from an Assize of Novel Disseisin, 
 if he does not admit ah ouster. 
 
 Reported in Y. B. Paschal, 40 Ed. Ill, p. 19, pi. 11. See the note Case 1. 
 which refers to Statham in the margin of the reported case. 
 
 (2) In cosinage, the tenant said that this same ancestor Michaeiis 
 had a daughter, who was the nearest heir, etc. Belknap: ^ ^^' "''• 
 
388 
 
 STATHAM 
 
 Case 2. 
 
 Michaelis 
 22 Ed. III. 
 
 Case 3. 
 
 She was not his daughter, Ready. Fyncheden : That is no 
 plea, unless you estrange her from the blood, as to say 
 that she is a bastard, or else give her another father. 
 Which Thorpe conceded. 
 
 Reported in Y. B. Mich. 44 Ed. Ill, p. 43, pi. 50. See also Brooke, 
 Cosynage Aiel or Besaiel, 2; and Fitzh: Cosynage, 3. 
 
 (3) A writ of cosinage was adjudged good upon the 
 possession of his great-grandfather, etc. Contrary, Trinity, 
 46 Ed. III,^ and Trinity, 7, of the same king.' Query as to 
 this, etc. 
 
 Reported in Y. B. Mich. 22 Ed. Ill, p. 13, pi. 28. 
 Cosynage, 7. 
 
 See also Fitzh: 
 
 Paschal 
 2 Hen. V. 
 
 Case 4. 
 
 (4) In a writ of cosinage on the possession of his uncle, 
 the opinion was that the writ should be abated, inasmuch 
 as he could have an Assize of Mort d'Ancestor, etc. 
 
 Reported in Y. B. Paschal, 2 Hen. V, p. 1, pi. 5. See also Fitzh: 
 Cosynage, 1. 
 
 "' Our first case makes the statement that this writ is different from 
 a Mort d'Ancestor. We are also told that "There is a small family of 
 actions which is marked off from all others by numerous procedural 
 distinctions; it is the family of petty assizes. . . . There is the closest 
 possible affinity between the Mort d'Ancester and the action of cosyn- 
 age. If I claim the seisin of my uncle, I use the one; if I claim the 
 seisin of a first cousin, I use the other. But procedurally the two stand 
 far apart." [P. & M. Hist, of Eng. Law, 2d ed., Vol. 2, 569.] 
 
 The writ of cosinage is of the time of Henry II. The only writ of 
 cosinage in the Note Book appears to be of the date of 1236 [20 Hen. 
 II. Bracton, Note Book, 1215]. Again in the "earliest years of Edward 
 I" [Maitland, Reg. of Writs, Sel. Essays in Anglo-American Law, Vol. 
 2, p. 583] we find the writ of cosinage. There are a number of cases 
 given in the printed Year Books of Ed. II. [See Fitzh: Cosynage.] 
 
 In Fitzherbert's Natura Brevium [221 Hale's ed. 508] we find our case 
 3 commented on, and in. the next paragraph we have the case in 66 
 Ed. Ill also noted, where the principles to be deduced from both 
 cases are stated. Fitzherbert makes this marginal note to the case in 
 22 Ed. Ill: "It is admitted that tresael is cousin.'' The critic of case 
 3 does not seem to have been aware of this. 
 
 'SeeTrinity,46Ed.III, p.l5, pl.6. ^Trinity, 7 Ed. Ill, p. 30, pi. 26. 
 
34 Ed. III. 
 
 CUI IN VITA 389 
 
 CUI IN VITA '2 
 
 (1) Land was given to a woman upon condition that she Hilary 
 should sell it, and distribute the money for the alms of the 
 feoffor. And then she took a husband and he sold the 
 same land, and distributed the money for the alms of the 
 feoffor, according to the conditions, and died. The 
 woman shall not have a Cui in Vita for any part. By the 
 opinion of Sharshull and Willoughby in a sub poena. 
 
 There is no printed year of 34 Ed. III. The case has not been identi- Case 1. 
 fied in the early abridgments under the subject Cui in Vita. 
 
 (2) If the husband and his wife and a third purchase Paschal 
 jointly and the husband alienates the whole and dies, the ^^' ^^'' 
 woman shall not have a Cui in Vita for any part of that 
 
 while the third lives, because they can join in a writ of 
 right, etc. But if the third dies, she shall have a Cui in 
 Vita for the whole. And this by Thorpe. But if it was 
 of a joint purchase before the coverture, she shall not 
 have a Cui in Vita except for the half, no more than in a 
 Cui ante Divorcium, etc. In a Cui in Vita, well argued. 
 
 There is no early printed year of 36 Ed. III. The case has not been Case 2. 
 identified in the early abridgments under the title of Cui in Vita. 
 
 ^ The innumerable cases of this writ in the Year Books show its im- 
 portance in the legal life of the period. Our abridgment gives so few 
 that they give little opportunity for comment, except to call attention 
 to the fact that this was one of the oldest writs. It is found in the 
 earliest known register [Maitland, Register of Writs, Essays in Anglo- 
 American Law, Vol. 2, p. 574, writ No. 39] but its life was not as long 
 as that of the greater number of the writs. It would appear that by 
 the Act of 32 Hen. VIII [32 Hen. VIII, cap. 28 (1540), Sec. V, Stats, 
 at Large, Vol. 5, p. 44] the alienation of the husband without the joinder 
 of the wife was void, and the wife had a writ of entry, so that there was 
 no longer any need of the Cui in Vita, and a writ which had been most 
 industriously used through the period previous to the Year Books and 
 all through their long life died, as did the books themselves, in the latter 
 years of Henry the Eighth. 
 
390 
 
 STATHAM 
 
 CERTIFICAT 
 
 Hilary 
 21 Ed. Ill 
 
 statham 51 a. (1) If an assize be adjourned for a difficulty as to the 
 verdict, where the tenant pleaded to the Assize by his 
 bailiff, and so the judgment is given in the Bench and the 
 record remains there ; and if the tenant desires to sue a certifi- 
 cate, he ought to have a writ to show to the justices, to bring 
 the record before the justices of Assize, and there he shall 
 have his certificate. The law is the same in Attaint. 
 
 Case 1. 
 
 Reported in Y. B. Hilary, 21 Ed. Ill, p. 3, pi. 8. 
 
 Michaelis 
 12 Hen. IV. 
 
 (2) One sued a certification, and first he had a Certiorari 
 against the executors of the justice of the Assize, because 
 he was dead. And upon this he had a certification upon 
 the Statute of Westminster the Second and a Scire Facias 
 to the party, and a Venire Facias to the jurors of the 
 Assize. And then, at the Venire Facias, the sheriff returned 
 that two of the jurors were dead; and upon that they 
 adjourned the parties to [be] before them at Westminster. 
 And many held that this adjournment was void, for the 
 Statute speaks only of Assizes, etc. And then, in the 
 Bench, Skrene [said] that the certification does not lie, 
 inasmuch as some of the jurors are dead, for it shall be pre- 
 sented by the same jurors, and not by others for the writ is 
 "Venire Facias jurat' ejusdem assises." And when they have 
 come, none of the parties shall have a challenge to them, un- 
 less the cause of his challenge be "Venire ex post facto" for it 
 shall be considered the same jury and in the same plea as they 
 were in the assize. Hankford denied this, as far as the 
 challenge ex post facto, and said that it seemed that in place 
 of those who were dead, others should be put in the jury 
 for them; for if an inquest be charged upon an issue, and 
 before the verdict two of them die, then a new Scire Facias 
 shall not issue, but a tales to have two to be sworn with the 
 others. So here. ThirninG: In your case a new Venire 
 Facias shall issue, but it seems here that they should 
 
CERTIFICAT 391 
 
 plead before you proceed to that matter, for if the defend- 
 ant would deny the deed upon which this certificate is 
 sued, and the plaintiff would estop him because the deed is 
 enrolled or some other reason, it seems the jury shall not be 
 taken. And if in the certification all the jurors make 
 default, still the parties shall plead, as in an Assize, etc. 
 And it seems that the certification well lies, for the writ 
 says, "Venire Facias jurat' Assisa" but it does not say 
 all the jurors of the Assize, wherefore, etc. And a man 
 shall have attaint although all the jurors are dead but one. 
 Hankford: At the common law where an Assize was 
 taken at large, and they were not well examined, in that 
 case, before judgment, the party can have a certification 
 to examine them better before judgment was rendered 
 and if one juror was dead the examination would fail. 
 And this certification shall be of the same nature, and if 
 all the jurors do not appear, you shall not award the tales 
 against the others who make default, but always proceed . 
 against the entire jury, to fulfill their first verdict. Hil- 
 ary: This certification is not like that certification at the 
 common law, of which you speak, but it is brought after 
 judgment upon new matter and is given by the Statute. 
 But in your case the verdict is not complete until the judg- 
 ment is rendered, and then it is rendered upon an entire 
 verdict, but in this case there shall be two judgments. And 
 they adjourned, etc. And Huls said further, if the jus- 
 tices did not well examine the verdict, where the Assize 
 is taken at large, the party shall have a writ of error; 
 which Hankford and Thirning denied expressly. And 
 this well argued, etc. 
 
 Reported in Y. B. Mich. 12 Hen. IV, p. 9, pi. 18. See also Brooke, Case 2. 
 Certification d' Assize, 4; and Fitzh: Certificat, 3. 
 
 The Statute is that of 13 Ed. I, cap. 25 (1285), Westminster the 
 Second, Stats, at Large, Vol. 1, p. 163 (198). "Of what things an 
 Assize shall lie. Certificate of an Assize, etc." "Venire fecerunt jurat 
 illius assisal." 
 
 (3) One had recovered in an assize in the King's Hilary 
 Bench, at York, in the time of King Richard. And then ® ^^"" ^^' 
 
392 STATHAM 
 
 the King's Bench was removed to Westminster, and the 
 tenant sued a certification out of the same Bench to the 
 sheriff of the County of York, before the king, etc. Nor- 
 ton : It is to be seen where this certification should issue out 
 of this place, or out of the Chancery. And also whether 
 it should be returned here, for by the Statute it shall be 
 taken in the county where, etc. Gascoigne: It is the 
 common course here to do as above, and when they are 
 at issue then it shall be taken to the county, etc., and 
 taken in the nature of a Nisi Prius. And the law is the 
 same as to an assize taken in the King's Bench, and then 
 remanded, etc. And then the King's Bench was removed, 
 etc., wherefore they proceeded to the matter, etc. 
 
 Case 3. The case has not been identified in Y. B. Hilary, 9 Hen. IV, or in the 
 
 early abridgments. 
 
 Statute of Westminster the Second, 13 Ed. I, cap. 25 (1285). Stats, 
 at Large, Vol. 1, p. 163 (198). 
 
 CONSCIENCE »' 
 
 stathamsib. (1) In the exchequer chamber, Kirkeby, clerk of the 
 Michaeiis Rolls, related a matter which was in the Chamber: — 
 how one had made a feoffment of trust, and declared his 
 will to the feoffee after the feoffment ; that after his decease 
 one of his daughters should have the land. And then he 
 came to the same feoffee and said that she who should have 
 the land would not be married by him, nor be well gov- 
 erned, wherefore he said that he revoked his will, and that 
 he wished the other daughter [to have] the said land after 
 his decease. And then he died, and the question is which 
 of the two daughters shall have the land? Lacon: When 
 he declared his will the daughter had immediately an 
 interest in the land, which he could not defeat afterwards; 
 no more than where a man enfeoffs me to enfeoff another, 
 who is a stranger to his blood, he cannot revoke it after- 
 wards, etc. Illington: Contra, for he does not show 
 that the feoffment should be made to the daughter for any 
 cause, so that the feoffor would have a quid pro quo, so 
 
 31 Hen. VI. 
 
CONSCIENCE 393 
 
 there was no bargain but at his mere will, which he can 
 conscientiously change well enough. For if that daugh- 
 ter will not be governed by him it is not in conscience nor 
 reason that she should have the land. And I put the case 
 that after he had declared his will, he himself had been in 
 poverty, and for that reason he would require the feoffee 
 to re-enfeoff him, is it not in conscience that the feoffee 
 would re-enfeoff him? (As if he said it was.) Prisot: 
 Contra, for when he has declared his will, then he is as 
 well the feoffee of the daughter as the feoffee of the feoffor. 
 And if the daughter declares her will to him, he is bound 
 to do it after the death of the feoffor. And I think that 
 such a declaration of his will is as strong as a condition 
 declared upon a livery of seisin, etc. Fortescue: We are 
 not arguing the law in this case, but the conscience, and it 
 seems to me that he can change his will for a special rea- 
 son, but otherwise not. And I put the case that I have 
 issue a daughter, and I am ill, and I enfeoff a man, and say 
 to him that my daughter shall have my land after my 
 decease; then I revive, and I have issue a son; now it is 
 conscience that the son shall have the land for he is my 
 heir, for if I had a son at the time, etc., I would not have 
 made such a will. And the law is the same if I will that 
 one of my sons shall have the land, and then he becomes 
 a thief. And "conscience" comes of con and scioscis. 
 And so together they make "to know with God" to wit: 
 to know the will of God as near as one reasonably can. 
 For a man can have land by our law, and by conscience 
 he shall be damned, etc. Arderun : If I enfeoff a man I 
 cannot declare my will to him afterwards. Which was 
 denied. And they adjourned. Query, was the rest of it in 
 the Chancery? 
 
 The case has not been identified in Y. B. Mich. 31 Hen. VI. Case 1. 
 
 " Although we have but one case under this title of Conscience, yet 
 that case is important because of the statement of Fortescue: "We are 
 not arguing the law in this case, but the conscience." Our case is not 
 in the Chancery, as one might well expect a case of conscience to be, 
 but in the Exchequer. Yet the Exchequer in its earlier existence did 
 
394 
 
 STATHAM 
 
 among other things, "incidental justice." [P. & M. Hist, of Eng. Law, 
 2d ed., Vol. 1: 109.] 
 
 Causes were often adjourned from the other courts to the Exchequer 
 where the barons sat to resolve the difficulties, not so much as judges 
 of the law, but, as in this case, to decide as to the right or the "con- 
 science" of the case. I have not been able to trace this jurisdiction, 
 although it does not seem that the task should be a difficult one. 
 There is confusion among the authorities and the cases themselves re- 
 quire a very careful study in order that anything definite may be gotten 
 from them. 
 
 COLOUR »* 
 
 Statham 62 a. 
 
 Paschal 
 40 Ed. III. 
 
 Case 1. 
 
 (1) An assize was brought by a woman against the 
 Prioress of Clerkenwell, who said that she leased the same 
 land to one B, and K, his wife, for their two lives. K 
 died, and B took this plaintiff to wife, and the prioress 
 confirmed their estate for the term of their two lives. 
 B died, and she remained in, and the defendant ousted 
 her. And this was held sufficient color. 
 
 It was said by Fyncheden, in the same plea, that it is 
 good color against a woman to say that her husband died 
 seised, and she entered claiming dower, etc. 
 
 Reported in Y. B. Paschal, 40 Ed. Ill, p. 23, pi. 24. See also Brooke, 
 Colour, 79; and Fitzh: Colour, 44. 
 
 Hilary 
 
 19 Hen. VI. 
 
 (2) In a writ of forcible entry, the defendant said that 
 one A enfeoffed one B and the defendant. B died, and 
 the plaintiff, claiming by color of a deed, by which the said 
 B entered, and the defendant peaceably, etc., without 
 this, etc. And the color was challenged because B died 
 before the claim. And it was not allowed. And it was 
 also challenged because the color was only as to half. 
 And it was not allowed because B could make a feoffment 
 for the whole. But it was said that such a plea is not 
 good if I say that my father died seised after whose death 
 I entered, and the plaintiff claimed, as above, because there 
 was no color to enter upon me who was in by descent, etc. 
 Query, if it be good to say that after the death of my 
 
COLOUR 395 
 
 father the plaintiff abated and by color of such a feoffment, 
 and so show his possession before my possession, etc.? 
 
 Reported in Y. B. Hilary, 19 Hen. VI, p. 49, pi. 4. See also Brooke, Case 2. 
 Colour, 19; and Fitzh: Colour, 9. 
 
 (3) In trespass for a box, the defendant said that the Paschal 
 property of the same box, a long time before, etc., was in 
 one B, who bailed the same box to one A, to keep. And 
 the plaintiff took it and carried it to the place where, etc., 
 and we, as servant of B, took it, etc. And the opinion 
 of all the Court was that this was no plea, for they said 
 that he did not give a tortious color to the plaintiff; no 
 more in this writ than in an Assize. Wherefore the plain- 
 tiff pleaded as before, and that the same A gave these 
 same goods to the plaintiff, and he as servant, etc. (as 
 above) . 
 
 Reported in Y. B. Paschal, 21 Hen. VI, p. 36, pi. 3. See also Brooke, cgge 3. 
 Colour, 22; and Fitzh: Colour, 25. 
 
 See as to colour, in the title of Assize,' and in the title ^^^^^^ 
 of Bar,^ and in the title of Trespass.* 
 
 " This title of color seems to belong simply to the older and now 
 defunct mode of pleading. Yet although colorable pleading — first 
 mentioned in the reign of Ed. Ill [Crabb: Hist, of Eng. Law, p. 407] 
 was an important part of pleading in the Year Books, the giving of 
 color as a plea survived until very recent times. The older formula 
 is of course obsolete, but the pleading founded upon it is still a part of 
 our modern procedure. Reeves [Hist, of Eng. Law, Vol. 3 : 438] seems 
 to think that the cases in which colorable pleading was used were few 
 prior to the reign of Ed. IV. Of course our cases are all of a prior period, 
 but they are also very few, and not of great value. Many of those in 
 Fitzherbert are of the period of Henry VI, so it would appear that the 
 growth of this "device," as Reeves calls it, was quite rapid. In explain- 
 ing this matter of color, Reeves [lb., Vol. 3, p. 25] cites our case 1, of 
 the prioress, [40 Ed. Ill] as a typical case. 
 
 The idea of the pleading was for the tenant in an assize to plead 
 such matter in bar as would delay the assize, so "he gives the Demand- 
 ant or Plaintiff a shew at first Sight that he hath good Cause of Action, 
 when in truth it is no just Cause, but only a Colour and Face of a 
 
 • Statham, supra, pp. 14 a-16 a. ' Statham supra, pp. 32 b-37 b. 
 ' Statham, infra, pp. 170 a-174 a. 
 
396 STATHAM 
 
 Cause. And it is used to the Intent that the Determination of the 
 Action should be by the Judges, and not by an Ignorant Jury of twelve 
 Men." [Termes de la Ley, tit. Colour.] 
 
 Stephen [Pleading, App. p. 220 and LVIII, note 51] takes us back and 
 out of the common law, and cites Juvenal to show the connection between 
 the old methods of pleading and the ancient rules of logic and rhetoric. 
 He also gives a clear and detailed explanation of express and implied 
 color, and the pleading thereon as it existed at that date. After the 
 abolition of the actions of assize and the writ of entry in the nature of an 
 assize, the device of colorable pleading could only be used in the per- 
 sonal action of trespass. We have one case [case 3] of the writ used in 
 this action as far back as 21 Hen. VI, so that we have an historical 
 continuity for this writ in a personal action for nearly five hundred 
 years. It is probable, indeed, that before it had been recognized as 
 a special form of pleading it had been gradually coming into use. 
 Reeves says, after giving some of the rules, "by which these fictitious 
 suggestions were measured," that "provided these, and some of the 
 others of less consequence, were adhered to, the defendant was at liberty 
 to state whatever happened to strike his mind; colours being as various 
 as the possible ways in which the subject in question might be trans- 
 ferred and possessed." [Reeves, Hist, of Eng. Law, Vol. 3: 441.] It is 
 probable that the fancy of the pleaders first introduced these colorable 
 pleas and that the rules were introduced to curb and keep them within 
 bounds. Indeed any one reading Year Book cases will, it is probable, 
 come to that conclusion, for the arguments in those cases in which such 
 pleading occurs inevitably leads to the conclusion that the rules concern- 
 ing these pleadings were of a slow growth, and were not over well under- 
 stood by many of those using it; or else — which may also be probable 
 — that when there was a chance of giving the plaintiff color it was taken, 
 and then, if it was not allowed, the pleading was changed, as in the case 
 from 21 Hen. VI, where Markham amended his plea, it being agreed 
 by the justices, that he had not given sufficient color to the plaintiff. 
 
 CHEMYN 
 
 Trinity (1) The Toyal road is that which leads from vill to vill, 
 
 3 Ed. III. g^j^j ^jjg common road is that which leads from the vill to 
 the fields [and] their lands. And this in Trespass, etc. 
 
 Case 1. The case is reported in Paschal, 6 Ed. Ill, p. 23, pi. 48; where Fitzh: 
 
 Chemin, 2, gives it. I have not been able to find such a case in Trinity, 
 3 Ed. III. That this citation was an error appears from the case 
 below. 
 
CHEMYN 397 
 
 (2) The franchise of the Royal Road belongs to the Trinity 
 lord of the soil, and he shall have the purpresture. As 
 appeared Trinity, 6 Ed. Ill, placitum 1. 
 
 This is apparently a reference to the case cited in the note above Case 2. 
 (case 1). The Term is not Trinity, but Paschal. 
 
 CONSULTACION 
 
 (1) Consultation shall not be granted for a thing statham 52 b. 
 done before the collector of the Pope, etc. See of the Michaeiis 
 power of the collector of the Pope, well argued, in the same ^"' 
 plea. And this in a Consultation. 
 
 Reported in Y. B. Mich. 2 Hen. IV, p. 9, pi. 45. See also Brooke, Case 1. 
 Consultation, 2; and Fitzh: Consultation, 3. 
 
 (2) If a parson of a church sues a spoliation in the Anno 
 Court Christian, by which a judicavit, which is a prohibi- AssLmum 
 tion, is directed to the spiritual judges; if the matter be 
 brought into the Chancery in a libel, and it appears that 
 
 the matter on which he sues the spoliation is pleadable in 
 the King's Court, or that the patronage will come into 
 question, upon that they will not grant a consultation. 
 As appeared in a note. Anno 4:i Liber Assisarum. 
 
 And it was said in the same plea that if one who is a 
 parson emparson6 shall not have a Quare Impedit, 
 because he cannot allege that the church was void, but 
 he shall have a spoliation, etc. But yet it was denied 
 that he should not have a spoliation, for he could have 
 an Assize of Novel Disseisin or a writ of Trespass, or a writ 
 of Right of Advowson, etc. Query. 
 
 (2, part 2) And see Anno 38 Hen. VI . Such matter in the Paschal 
 Exchequer Chamber, where it was said that where an incum- ^°' ^^' 
 bent was ousted by his patron upon a suggestion that he 
 was created a bishop, or that he had resigned, or that he 
 had accepted another church, where there was no plurality, 
 so that his patron presented another clerk who was admitted. 
 
398 
 
 STATHAM 
 
 there he shall have spoliation : but where another patron 
 claims the patronage it is different, for there the right to 
 the advowson comes into question. And see the plea in 
 Townesend's Book, because it is good. 
 
 Case 2. Reported in Y. B. Mich. 44 Ed. Ill, p. 23, pi. 19. See also Brooke, 
 
 Consultation, 1; and Fitzh: Consultation, 4. 
 
 Part 2. Reported in Y. B. Hilary, 38 Hen. VI, p. 19, pi. 1. See also 
 Fitzh: Consultation, 1. The "Book of Townesend" must have been 
 one of the reports then extant, of which we have no remnant now exist- 
 ing. It seems there is little doubt that there were many manuscript 
 ■'reports" circling about among the members of the bar, which were 
 known by the names of the reporters or owners, and were used in citing 
 cases in the courts, but were probably of very little authority. 
 
 CONTRA FORMAM COLLACIONIS 
 
 Hilary 
 
 2 Hen. IV. 
 
 Case 1. 
 
 (1) A contra formatn collationis was brought against 
 an abbot upon an alienation made by his predecessor. 
 And it was questioned if the action lay, because the writ 
 which is given by the Statute' is "et quod ad predictum a 
 reverti debet per alienationem guam predictus abbatis fecit." 
 But yet the opionion was that the writ lay well enough, 
 etc. 
 
 Reported in Y. B. Hilary, 2 Hen. IV, p. 16, pi. 24. See also Brooke, 
 Contra Formam Collationis, 1; and Fitzh: Contra Pormam Collationis, 2. 
 
 Michaelis 
 46 Ed. III. 
 
 Case 2. 
 
 (2) If an abbot alienates land which is of the foundation 
 of the king, he [the king] can enter without suing a Contra 
 Formam, etc. In a Prascipe quod Reddat. 
 
 Reported in Y. B. Trinity (not Mich.), 45 Ed. Ill, p. 18, pi. 14. See 
 also Fitzh; Contra Formam Collationis, 4. 
 
 Trinity 
 19 Ed. III. 
 
 (3) A man shall not have a Contra Formam Collationis, 
 unless the abbot alienates with the convent; by the opinion 
 of Sharshull and Herle, in a Juris d'Utrum, because 
 after the death of the abbot his successor can have it 
 without the assent of the chapter, etc. Query? 
 
 'The Statute is that of 13 Ed. I (1285), cap. 41, Westminster the 
 Second. Stats, at Large, Vol. 1, p. 163 (218). 
 
CONTRA FORMAM COLLACIONIS 399 
 
 There is no early printed year of 19 Ed. III. The case has not been Case 3. 
 identified in the Rolls Series for that year. Fitzherbert had practically 
 the same abridgment of the case. See Fitzh: Contra Formam Colla- 
 tionis, 5. 
 
 (4) When a man has judgment to recover in a Contra Hilary 
 Formam Collationis, he should have a Scire Facias against ^^ ^'^' 
 the tenant. And the opinion of Sharshull was that he 
 could have traversed the action of the demandant on the 
 same point which was tried between the demandant and 
 
 the abbot, because he was a stranger. And this in a Scire 
 Facias, etc. 
 
 There is no printed Term of Hilary, 23 Ed. III. The case appears Case 4. 
 in Fitzh: Contra Formam Collationis, 3. 
 
 (5) If a man gives an advowson to an abbot in free Hilary 
 alms, who alienates the advowson, etc., upon the next 
 vacancy the donor shall present, because he cannot have a 
 Contra Formam Collationis. By the opinion of Sharshull 
 
 and WiLLOUGHBY, in a Quare Impedit brought for the king 
 in a like case. 
 
 The case is reported in Y. B. Hilary 20 Ed. Ill of the Rolls Series, Case 5. 
 Pt. 1, p. 102. There is no early printed year of 20 Ed. III. 
 
 " "The method by which the king executed his ecclesiastical juris- 
 diction by his power of committing to commissioners of his own nomina- 
 tion under the great seal." [Hale: Analysis of the Law, p. 15.] This 
 statement is only applicable to our second case. The Commission 
 before whom the finding was made in our first case was the commission 
 which must have been issued by his letters patent under his ordinary 
 jurisdiction. The limitation of their power to simply inquire into the 
 matters brought before them is to be noted. Commissions have always 
 been a favorite mode of getting behind the law; they have had their 
 periods of prosperity and their times of desuetude. A thorough examin- 
 ation into the histories of commissions in the past is desirable in view of 
 the great popularity of the commission in the law of our present day. 
 
 CONTINUANCE 
 
 (1) In a Prcecipe quod Reddat against the husband and statham 53 a. 
 his wife, they waged their war of non-summons. And at Paschal 
 
 •^ *^ 40 Ed. in. 
 
400 STATHAM 
 
 the day, etc., the husband was essoined by a common 
 essoin, and afterwards for service of the king, and the 
 wife appeared. And then on another day the wife was 
 essoined for service of the king, and the husband made 
 default. Candish prayed seisin of the land because the 
 default of the husband is the default of the husband and 
 his wife. Fyncheden : The wife was essoined, and when 
 she comes she will be received to defend her right, where- 
 fore it seems that we should award only the Petty Cape 
 to continue the process, etc. Query? 
 
 Case 1. Reported in Y. B. Paschal, 40 Ed. Ill, p. 21, pi. 17. 
 
 8*h''^^v ^^^ ^^ trespass, the defendant said that there are two 
 Dales within the same county and neither of them without 
 an addition. JUYN: They have had "dies datum est," in 
 which case by the Statute "de Exceptionibus" he shall not 
 have any challenge to the writ, unless it is of a later time. 
 And the record was looked at, and it was "quod defendens" 
 and prayed a day for imparlance, etc., which they conceded, 
 and the same day they sent a plea to the justices saying that 
 this continuance was to emparl, to have an answer to the 
 writ. But the Statute of Exceptions is meant [to apply] 
 where their entry is "dies datum est partibus," etc., for there 
 the writ is affirmed to be good unless the entry is, "saliris 
 partibus acceptionibus suis," etc. 
 
 Case 2. Reported in Y. B. Mich. 8 Hen. V, p. 8, pi. 8. The Statute is that 
 
 of West. II, 13 Ed. I (1285), cap. 31 (Stats, at Large, Vol. 1, p. 206). 
 
 (3) If one pleads a release after the last continuance, 
 upon which they are at issue, on the next day or ever 
 after, he cannot plead a release after the last continuance, 
 for if he could do so he could delay the plea forever. Qjuery, 
 if he pleads matter of record? It seems not, unless he shows 
 it "sub pede sigilli" for otherwise there might be the same 
 delay if the record be traversed, etc. 
 
 Case 3. Statham gives no citation for ±his case. It has not been identified. 
 
CONTRACTE 401 
 
 CONTRACTE95 
 
 (1) If I make a contract with a man to marry his daugh- statham 53 b. 
 ter, and that I shall have a certain sum of money, if the Michaeib 
 contract be without deed I shall not have an action except ^^ ^'*- ^"• 
 in the Court Christian. But if it be by a deed I shall 
 
 have an action in the King's Court. And this in Debt. 
 
 The case has not been identified in Y. B. Mich. 45 Ed. III. Fitzh: Case 1. 
 Contract, 1, has a case upon a similar point, but it is apparently not the 
 case abridged here. 
 
 (2) If I make a covenant with a man to be his slaughter- Paschal 
 man, and to kill all his oxen and sows, etc., that is a con- ^°' 
 tract, and I shall have an action of debt for the salary, etc. 
 
 Reported in Y. B. Paschal, 3 Hen. VI, p. 42, pi. 13. ^^^ 2. 
 
 (3) A man shall have an action of debt and detinue Paschal 
 
 22 PH TTT 
 
 all in the same writ, for the essoin in detinue is [as] in a plea 
 of debt, etc. 
 
 Not identified in 22 Ed. III. The case has not been identified else- Case 3. 
 where. 
 
 " The few cases in the abridgment upon the subject of contract do 
 not invite us to enter the vast field of research which unfolds before us 
 in the mere appearance of the word on the printed page. We really 
 have but two cases of contract, the third case having evidently strayed 
 in from some other title, or, possibly it is a mere note never intended to 
 figure in the abridgment at all. But the bare fact that we have but 
 two cases shows us how slow had been the progress in the advance of 
 the doctrine of contract. Bracton gives us what have been called 
 "meagre chapters" [P. & M. Hist, of Eng. Law, 2d ed.. Vol. 2: 194] 
 on contract. The main thing that we learn from it all is that at the 
 end of Henry Ill's reign our King's Court had no general doctrine of 
 contract. 
 
 In our second case we seem to have an epitome of the history of the 
 law of contract. "Covenant," "debt," "contract," are all used in the 
 few words of the abridgment. The history of contract was still in the 
 making, and these cases have but little light to throw upon it. As yet 
 it was undeveloped as a law, not of the covenant, not of account, not 
 debt, but of contract as we know it in later times. 
 
402 
 
 STATHAM 
 
 COMMISSION ET COMMISSIONERS »« 
 
 Micbaelis 
 8 Hen. V. 
 
 Case 1. 
 
 (1) If it be found before commissioners that land 
 is seizable into the hand of the king, still they cannot 
 seize it unless their commission extends to it by express 
 words, for they have no power to execute their inquiries. 
 And this in a note. 
 
 Reported in Y. B. Mich. 8 Hen. V, p. 10, pi. 15. 
 
 HUary 
 5 Hen. V. 
 
 Case 2. 
 
 (2) A comtaission issued for the king, etc. And they 
 found a divorce made in another county. And because 
 the divorce so found was to the advantage of the king, 
 the opinion was that the justices should send to the bishop 
 to certify them if there was such a divorce or not; and 
 this, notwithstanding it was in another county. And 
 this well argued, etc. 
 
 Reported in Y. B. Hilary, 5 Hen. V, p. 2, pi. 5. 
 
 CORPUS CUM CAUSA" 
 
 Trinity 
 24 Ed. III. 
 
 statham54a. (1) One who was imprisoned at Newgate sued an j4«dito 
 
 Querela, to wit: a man [did so] for him by suggestion, 
 wherefore he had a Scire Facias against the party, and a 
 writ to have the body of him who was imprisoned, with- 
 out mentioning the cause. And then they were at issue in 
 the Bench upon the fact. And the sheriff of London came 
 and showed to the Court how he was condemned, etc., and 
 delivered to them in execution, so they are chargeable; 
 and he prayed that he be remanded. Willoughby: He 
 shall be remanded, but not before the plea is ended, etc. 
 
 Case 1. Reported in Y. B. Trinity, 24 Ed. Ill, p. 27, pi. 3. 
 
 Corpus cum Causa, 22. 
 
 See also Fitzh: 
 
CORPUS CUM CAUSA 403 
 
 (2) If a man be impleaded in the Marshalsea, he shall Mkhaeiis 
 have a Corpus cum Causa to the steward there, if the 
 action be pending against him in the Bench, and if he be 
 condemned there pending an action against him in the 
 Bench it shall be void. And yet it is held by many that 
 
 the Marshalsea is the oldest Court that the king has, etc. 
 Query, shall a man have a Corpus cum Causa out of the 
 Chancery to the Steward of the Marshalsea? etc. 
 
 Reported in Y. B. Mich. 4 Hen. VI, p. 8, pi. 22. See also Fitzhi Case 2. 
 Corpus cum Causa, 1. 
 
 (3) If a man be impleaded in the Bench and he departs Michaeiis 
 without leave of the Court, and is condemned in another 
 
 and lower Court, the condemnation is good. And if he 
 comes in by a Corpus cum Causa, upon showing this matter 
 he shall be remanded, or the party shall have a procedendo. 
 
 The case has not been identified in Y. B. Mich. 13 Hen. IV, or in the Case 3. 
 early abridgments. Fitzh: Corpus cum Causa, 21, gives it as in Hilary, 
 13 Hen. IV, p. 1, but it does not appear there. 
 
 (4) A corpus cum causa issued out of the Common Michaeiis 
 Bench to the sheriff of London, to have the body of one ^"' 
 W. Lucy, who was arrested there pending a suit against 
 
 him in the Common Bench, at the suit of the same person 
 who affirmed the complaint, etc. And because of this 
 the opinion of the Court was that the plaintiff should be 
 imprisoned, and should be fined for the contempt. And 
 the complaint was affirmed meanwhile between the date 
 of the writ pending in the Common Bench, and the return 
 of the same, etc. And one had another action pending 
 against the said W in the Common Bench, and would have 
 counted against him, because he was in Court, and the 
 justices would not suffer it; for Babyngton said that 
 he was in the keeping of the sheriff of London, and not 
 their charge, until the plaintiff had appeared in his action. 
 But if he was in the care of the Court he should answer 
 to every action, etc. And the plaintiff would have counted 
 against him in a writ of Account, which was pending 
 against him at the suit of this same plaintiff, and he 
 
404 STATHAM 
 
 could not until he had appeared to the writ of Debt 
 which the Corpus cum Causa had mentioned, etc. Where- 
 fore the plaintiff was demanded on this writ of Debt, 
 and was nonsuited, wherefore the defendant was dismissed, 
 etc. 
 
 And Babyngton said in the same plea that one H was 
 imprisoned in the King's Bench and was brought here into 
 the Common Bench to answer to an action pending against 
 him, and was put to answer it. Query, by what process 
 was he brought in, etc.? 
 
 Case 4. Reported in Y. B. Mich. 9 Hen. VI, p. 44, pi. 24. See also Fitzh : 
 
 Corpus cum Causa, 2. 
 
 " A word seems necessary here because of the general idea that this 
 writ was not in general use in the early years of the reign of Ed. III. 
 Hurd, Habeas Corpus, p. 131, states that "there is a case upon this ' 
 writ as early as 48 Ed. III." [See also Bouvier, Diet. Habeas Corpus.] 
 Hurd is quoting from the"Canadian Prisoners' Case" [Hill's Report, 6.] 
 Church [Habeas Corpus, 4] says the writ ''was familiarly in use between 
 subject and subject in the reign of Hen. VI, 1422-1461." Our first 
 case is in 24 Ed. III. 
 
 We can, of course, trace the writ back into the earlier law of England 
 even to its foreshadowings in Magna Charta, and perhaps back of that 
 into the Roman law; this seems not to be questioned. The only matter 
 to be cleared up here, if possible, is that of the date of the appearance 
 of the writ in the Year Books, and the period at which it came into gen- 
 eral use. I know of no data in the case except that which we have 
 in the Year Books, since such data as we have elsewhere appears to 
 be based upon an error due to a failure to examine the books them- 
 selves. The first case I have been able to find in the Year Books is 
 that in Trinity, 14 Ed. III. [Y. B. Trinity, 14 Ed. Ill, Rolls Series, 
 p. 204, case 12.] It is in a suit on a statute merchant, and seems in no 
 way to have been an unusual occurrence. The writ is issued out of the 
 Chancery and appears to be a Corpus cum Causa, since the writ was 
 granted upon the condition that "he be detained for that reason (that 
 named in the suggestions to the Chancery) and no other." This takes 
 us ten years back of the first writ of the abridgment, and goes far to 
 show that the writ was known and used in the early days of Ed. Ill, and 
 probably earlier, since there is no suggestion in either the case in 14 Ed. 
 Ill, or in that of 24 Ed. Ill, that there is anything unusual or novel in 
 the procedure. The usual name for the writ at that and even a much 
 later date was Corpus cum Causa, and we find it so termed in the 
 marginal notes to the Year Books. 
 
CORPUS CUM CAUSA 405 
 
 Corpus cum Causa being only one limited kind of habeas corpus is 
 necessarily circumscribed in its scope, but the point for us is: Are the 
 authorities in general correct in their assumption that the requisition of 
 the body with the cause is a comparatively late custom? From the testi- 
 mony of the earlier Year Books I do not believe it was. Maitland [P. & 
 M. Hist, of Eng. Law, 2d ed., Vol. 2, p. 593, note 4] speaks of "the Brac- 
 tonian Process which inserts a habeas corpus between Attachment and 
 Distress ... a little later this habeas corpus seems to disappear." 
 The question to be decided is, did it disappear? If it did disappear, at 
 what time did it re-appear? Earlier than our authorities seem to sus- 
 pect, evidently, but just how early? This habeas corpus of Bracton 
 [Bracton, Note Book, pi. 526, 527, 1370, 1376, 1407, 1408, 1420, 1421, 
 1446] is not the Corpus cum Causa, the body is to be there, but nothing 
 is said as to the cause. In these cases the defendant is attainted for 
 defaults of certain kinds, and after attachment, and before the distress, 
 this writ issued to bring his body before the Court. The Corpus 
 cum Causa is apparently used like the modern habeas corpus, to 
 bring up the body of a person detained in custody and to bring 
 the cause of the detention before the Court, very much as it is 
 done under the later writ of Charles II [31 Car. II, chap. 2.] In 
 writing the history of the writ it is usual to discuss the habeas 
 corpus as if it were the "habeas cum causa.'' If we are to assume 
 that the writers on the writ of habeas corpus are correct we have to 
 assume that the habeas corpus cum causa was founded, as far as the 
 statute law is concerned, on Magna Charta. [See Church, Habeas Corpus, 
 p. 70; Amos, Eng. Const, p. 170, etc; Hallam, Const. Hist, etc., etc.] 
 Crabb, however, speaks of the "common law writ of habeas corpus," 
 [Crabb, Hist, of Eng. Law, p. 513] the act of Charles II being only an 
 extension of that writ. Reeves is silent on the subject. Adams [Ori- 
 gin of the English Constitution p. 244] expresses the most modern view, 
 probably: "There is a sense in which it is not wrong to say that this 
 broader protection was secured to us by Magna Carta, and also to say 
 the same of the other rights once erroneously supposed to be directly 
 intended by the charter, like the jury trial. Habeas Corpus, and consent 
 to taxation." He declares that what did revive them was the steady 
 development of constitutional government. [See also p. 262.] Mr. Jenks 
 in his Story of the Habeas Corpus [18 L. Q. Rev. 64 (1902)] tells his tale 
 most entertainingly, and sheds much light upon his subject. Yet he 
 has to say that the older statutes refer to the writ "as a thing well 
 known." As we follow back the story we find the same assumption every- 
 where. The writ is accepted as a primordial fact. A few vague 
 flourishes about ancient liberties are supposed to account for its exist- 
 ence. It would almost seem as if it were indiscreet to inquire too 
 closely into the origin of the sacred instrument. But it would be very 
 well if some one would seek and find the clue to the true history of 
 the writ of Corpus cum Causa; it has not yet been written. 
 
406 
 
 STATHAM 
 
 CUSTUME 
 
 stathara54 b. (1) In tfespass against an abbot, because the plaintiff 
 Hilary held the hundred of B at fee farm of the king, by reason of 
 
 21 Ed. III. ^hich he could make an attachment and distress for the 
 debts of the king within the same hundred, etc. And he 
 said that for a certain debt of the king he took certain cattle 
 of one H, and the abbot made a rescousupon him. The abbot 
 said that he was seised of the manor of H, within which 
 manor there was such a custom, 9.nd had been time, etc., 
 that if any distress be taken within the said manor, that 
 it would be put in the pound of the abbot of this same 
 manor, and not be driven out of the manor; and the dis- 
 tress should remain there for three days, so if the party 
 would make satisfaction within the three days, that then 
 he should have his cattle, etc. And he said that the plaintiff 
 would have driven the cattle out of the manor and he would 
 not allow it. Judgment, etc. Upon which the plaintiff 
 demurred in judgment, inasmuch as there would not be a 
 profit to the abbot, but a charge for keeping another's 
 cattle. And also that the king shall not be subservient 
 [to] nor bound by such a custom as another person would 
 be, wherefore it was adjudged that the plaintiff should 
 recover his damages, etc. 
 Case 1. Reported in Y. B. Hilary, 21 Ed. Ill, p. 4, pi. 11. 
 
 Hilary 
 
 22 Ed. III. 
 
 Case 2. 
 
 (2) See the year 22 Ed. Ill, the custom of Gavelkind 
 expressed, to wit: where the father ^s hung the son shall 
 have the land, for their custom is, "The father to the bough; 
 the son to the plough." And this is taken strictly, for if the 
 father be outlawed for felony, or abjures the realm, the 
 son shall never have the lands, for the above reason, etc. 
 
 The case has not been identified in Y. B. Hilary, 22 Ed. HI. Brooke, 
 Customs, 54; abridges the case, but does not give any complete citation. 
 
 Michaelis 
 7 Hen. VI. 
 
 (3) If a man would entitle himself by a custom which is 
 restrained by a Statute, he can show that the custom 
 is conformed after that Statute; as if a man should say 
 
CUSTUME 407 
 
 that in London there is a custom that they can devise to 
 the dead hand without a license, he should show confirma- 
 tion of their customs after the Statute "de Religiosis," 
 and if he can confirm it by a deed he should show it, etc. 
 Query, if he should produce the Statute, etc? But yet it 
 was said that a general Statute does not defeat a custom, 
 unless it be by express words, etc. 
 
 The case has not been identified in Y. B. Mich. 7 Hen. VI, or in the Case 3. 
 early abridgments. 
 
 Statute for the Clergy, 14 Ed. Ill (1340), Stats, at Large, Vol. 1, 
 p. 494. 
 
 CORODIE 
 
 (1) The king sent to the Abbot of B, to receive one statham 55 a. 
 T, his manservant, to be supported as others had been HUary 
 received in the time of his progenitors, etc., and at the 
 
 sicut alias vel causam, etc., the abbot returned that he 
 held in pure and perpetual alms, by a deed and confirma- 
 tion of the progenitors of the king. And also that he who 
 was received before to such support, was [received] at the 
 instance of the queen, etc. And upon this a Scire Facias 
 issued against the abbot to bring his deeds and confirmation 
 into the Chancery. He came and demanded hearing of 
 the record. Thorpe : Your return is the record by which 
 you had notice, wherefore, etc. And he said that he did 
 not think that in this place they would force him to answer. 
 And it was not allowed. And they adjourned. It seems 
 that this return was not sufficient, for it was not denied 
 by him, although it was of the foundation of the king. 
 And although he held in free alms, still the king shall have 
 his corody, because it is of his foundation. And although 
 none of the serving men had been admitted before, that 
 shall not prejudice the king, if the abbot cannot discharge 
 himself by prescription. 
 
 Reported in Y. B. Hilary, 18 Ed. Ill, p. 2, pi. 8. Case 1. 
 
 (2) Although an abbey be not of the foundation of Michaeiis 
 the king, still if the abbey holds any lands of the king. 
 
408 STATHAM 
 
 and the king can bind possession of the corody in the time 
 of his progenitors, he shall have the corody for one of his 
 men servants, etc. By the opinion of the Court, in 
 Contempt, etc. 
 
 Case 2. Reported in Y. B. Mich. 24 Ed. Ill, p. 33, pi. 29. See also Brooke, 
 
 Corodie, 5; and Fitzh: Corodie, 6. 
 
 Paschal (3) The King sent a writ to the Prior of St. Bartholo- 
 
 ^°' ■ mew of London, to admit his manservant to the corody, 
 etc. And at the pluries the prior returned that in the time 
 of King Henry the Second the same priory was a hospital, 
 and the same King Henry made it a priory, and the same 
 King Henry by his letters patent, granted to one H, 
 then our predecessor upon the said foundation, that he 
 and his successors should hold the same priory as freely 
 as he had his crown; without this that he would aver that 
 the king nor any of his progenitors had ever had such a 
 corody after time of memory. Wampage: He shows 
 the letters-patent of Henry the Second, which are before 
 time, etc., and he does not show an allowance of them 
 after time, etc. And therefore this return is not suffi- 
 cient. For if a man has jurisdiction of the pleas, of the 
 the grant of the king, before time, and if he does not 
 show an allowance of that charter after time, etc., he shall 
 not have the jurisdiction. PortyngtoN: They cannot 
 compel the king to write to them to admit a serving man, 
 unless he will; then their charter cannot be allowed unless 
 for such matter. HoDY: If the prior had shown a con- 
 firmation after time, etc., then it had been good, but it 
 seems that such a general grant does not conclude the 
 king, for at the time of the grant he had no title to have a 
 corody. And if the king enfeoff me to hold as freely as he 
 holds his crown, still I shall hold of him by knight's service. 
 And if I alienate without license, I shall be fined. So 
 here. See the plea because it was well argued, etc. And 
 there was a difference suggested between a pension and a 
 corody; for a corody is the sustenance of a monk, and a 
 pension is for a clerk of the king. Query, if the pension 
 be all in money or in sustenance, etc.? And it was said 
 that the king shall have a pension in every abbey, although 
 
CORODIE 409 
 
 his clerk be advanced at the time of the death of the abbot. 
 Query, if he be advanced, if he shall have a pension for 
 another clerk, of the same abbey? But a corody for a 
 servinp man is for the whole life of the serving man, etc. 
 In the same plea. 
 
 Reported in Y. B. Anno 14 Hen. VI, p. 11, pi. 43. See also Brooke, Case 3. 
 Corodie, 6; and Fitzh: Corodie, 1. 
 
 CORONE ET PLEEZ DE CORONE 
 
 (1) A woman brought an appeal for the death of her statham 55 b. 
 husband against three, and one was outlawed, and the Michaeiis 
 other two came by the exigent, and the woman declared 
 
 against the two because they received the third who was 
 outlawed, who killed, etc. And the receiving was alleged 
 [to have been] in another county, and for that reason the 
 writ was abated, etc. Wherefore they prayed to be restored 
 to their goods, and could not [be], because the exigent 
 was properly awarded. And it was challenged because 
 the exigent should not have been awarded against the 
 accessories until the principal was attainted, etc. Thorpe : 
 If the appeal had been commenced before the coroner, so 
 that he could make known to us who are the principals 
 and who are the accessories, the law would then be as you 
 say, but this appeal is general, wherefore, etc. 
 
 Reported in Y. B. Paschal (not Mich.), 43 Ed. Ill, p. 17, pi. 21. See Case 1. 
 also Brooke, Corone, 8; and Fitzh: Corone, 93. 
 
 (2) Three approvers sued an appeal against a man at Hilary 
 Windsor for robberies committed in different counties *^ ^^' ^^^' 
 according to the Statute which provides that justices 
 
 of gaol delivery shall proceed through all England, who 
 was taken and led before them, and pleaded "not guilty." 
 And a Venire Facias issued to each sheriff, and the defend- 
 ant was found guilty at the suit of one of the appellors by 
 an inquest. And it was adjudged by Knyvet that he be 
 
410 
 
 STATHAM 
 
 Case 2. 
 
 hung. And the chattels of the other two appellors were 
 forfeited since he could not be attainted at their suit. 
 
 Reported in Y. B. Mich, (not Hilary), 44 Ed. III. p. 44, pi. 57. See 
 also Brooke, Corone, 13; and Fitzh: Corone, 95. 
 
 The Statute is that of 4 Ed. Ill (1330), cap. 2, Stats, at Large, 
 Vol. 1, p. 430. 
 
 Michaelis 
 44 Ed III. 
 
 Cases. 
 
 Trinity 
 47 Ed. III. 
 
 Case 4. 
 
 Trinity 
 47 Ed. III. 
 
 Case 5. 
 
 (3) A woman sued an appeal of rape against one B, and 
 against two others as accessories. B did not come but 
 the other two came, and they were indicted for the Scime 
 deed, and also for burglary and other felonies done at 
 the same time. Belknap prayed that they might be 
 arraigned for the other felonies. Fyncheden : That cannot 
 be, for they are now attainted [at the suit of the king]. 
 And on this account the action of the woman was lost, 
 etc. Query? 
 
 Reported in Y. B. Mich. 44 Ed. Ill, p. 38, pi. 35. See also Brooke, 
 Corone, 11; and Fitzh: Corone, 97. 
 
 (4) At Newgate; at the gaol delivery, one W. Pulton, 
 who was an approver, had appealed three, of whom one 
 had waged battle and the others pleaded "not guilty." 
 And then before the issue was taken the king granted to 
 the appellor a charter of pardon. And upon that, by the 
 advice of all the justices of England, the defendants were 
 delivered without more. Query, if it had been after the 
 issue, etc.? 
 
 Reported in Y. B. Trinity, 47 Ed. Ill, p. 5, pi. 10. See also Brooke, 
 Corone, 16; and Fitzh: Corone, 103. 
 
 (5) A woman sued an appeal for the death of her husband 
 against one who was acquitted ih her suit, and then this 
 same person who was acquitted and another were indicted 
 for this same death, and the woman would have sued her 
 appeal against the other, and could not, for Ludlow said 
 that if the defendant be acquitted, or if she be nonsuited, 
 she shall never have another appeal, etc. And then the 
 other was arraigned at the suit of the king, etc. 
 
 Reported in Y. B. Mich, (not Trinity), 47 Ed. Ill, p. 16, pi. 27. 
 See also Fitzh: Corone, 104. 
 
CORONE ET PLEEZ DE CORONE 411 
 
 (6) An appeal was sued before the sheriff and the coroner, Michaeiis 
 
 48 Ed III 
 for the death of a man, upon which a writ issued to the 
 
 sheriff and coroner to bring the appeal into the King's 
 Bench, who sent the appeal, etc., upon which a Scire Facias 
 issued to garnish the plaintiff, because they had no day 
 before the sheriff; and the sheriff returned that he had 
 nothing of which to be garnished, upon which a Sicut 
 AHas issued, and the sheriff returned, as above, wherefore 
 Pershay prayed that the defendant nfiight go quit, for it is 
 not reasonable that he remain in prison, etc. Fyncheden : 
 It may be that the plaintiff had [sufficient] in another 
 county, and if the defendant now goes quit he could recover 
 his damages. Query, etc. And the opinion was that he 
 should go quit. And the law is the same in a Scire Facias 
 which issues against the lord upon the reversal of an out- 
 lawry, etc. But it is otherwise in detinue, for he should 
 be garnished, or else the process might go on forever. 
 
 Reported in Y. B. Mich. 48 Ed. Ill, p. 22, pi. 2. See also Fitzh: Case 6. 
 Corone, 105. 
 
 (7) One approver appealed another, who came and Trinity 
 admitted his appeal to be true ; and he would have appealed 
 many, and could not, because his admission was an attainder 
 
 of the felony; for it is not the same where a man confesses 
 a felony before a coroner and where it is at the plea of 
 the party, etc. Which note. And also, in an appeal, the 
 defendant cannot become an approver, for he shall not do 
 anything to delay the plaintiff from execution, etc. 
 
 There is no early printed year of 15 Ed. III. There is a "note" in Case 7. 
 the Rolls Series for that year (p. 310) which may be the case abridged 
 by Statham. 
 
 (8) In an appeal by one under age, the defendant said Trinity 
 that he did not think that during his nonage, etc. And 
 
 the justices were of different opinions, etc. (But see, in 
 the case of Bullock about the eighth year of King Henry the 
 Sixth, it was adjudged by Cheyne, and all the justices of 
 England, that he shall be made to answer the appellor. 
 
412 
 
 STATHAM 
 
 under age. And they gave as a reason, because it was his 
 own act, and he had lost the advantage of waging battle; 
 just as one of full age shall not have the battle where a 
 woman brings an appeal against him, for in both cases the 
 issue shall be taken immediately by an inquest and not by 
 battle. And if he be indicted for this same death, they 
 will arraign him immediately, but they will not take the 
 inquest until the year be past, to the intent that the party 
 may sue his appeal. And if the appeal be pending against 
 him, they will arraign him on the indictment, but not 
 take the inquest, for the suit of the party will be preferred, 
 etc. But if they arraign one within the year, and he be 
 acquitted, he is well acquitted, and there is no error, and 
 the appellee shall go, etc.) 
 
 Case 8. Reported in Y. B. Trinity, 21 Ed. Ill, p. 23, pi. 16. See also Fitzh: 
 
 Corone, 114. 
 
 The portion of the case in parentheses must have been added by 
 Statham, as it dates from a period much later than the case to which 
 it is apparently a note. 
 
 Michaelis 
 13 Ed. III. 
 
 Case 9. 
 
 (9) See by Herle where the appeal abates by matter 
 apparent, the defendant shall not be arraigned at the 
 suit of the king upon that, etc. From this it follows that 
 the plaintiff shall have a new appeal in that case. And he 
 also said that in no case where the plaintiff is barred of 
 his appeal shall the defendant be arraigned at the suit 
 of the king, etc. Query? 
 
 There is no early printed year of 13 Ed. III. The case appears to 
 be that reported in the Rolls Series, 13-14, Ed. Ill, p. 12, case 10. 
 
 Hilary, 
 1 Hen. VI. 
 
 Case 10. 
 
 (10) If an appellor appeals another, who joins battle, 
 and then the approver admits his appeal to be false, the 
 defendant shall be acquitted. But if the defendant pleads 
 "not guilty," although the plaintiff admits the appeal to be 
 false, still he shall be arraigned at the suit of the king, and a 
 new Venire Facias shall issue, etc. 
 
 There is no printed Hilary Term of 1 Hen. VI. The case has not 
 been identified in Y. B. Mich. Hen. VI (the only printed term in 
 1 Hen. VI), or in the early abridgments. 
 
CORONE ET PLEEZ DE CORONE 413 
 
 (11) A man who had abjured the country came back, stathamsea. 
 
 and would have become an appellor, and could not, etc. ^^''^J m 
 
 There is no early printed year of 19 Ed. III. The case has not been Case 11. 
 identified in the Rolls Series for that year. Fitzh: Corone, 443, has the 
 
 (12) If a man be acquitted in an appeal, or upon an Paschal 
 indictment, although there is an error in the process, the ^ ^ • 
 acquittance is good, because he was arraigned upon the 
 original indictment, which was good, and not upon the 
 process. But it is otherwise where the appeal or indictment 
 
 is not sufficient, etc. Coram Rege, etc. 
 
 And in the same plea it was decided that where the 
 defendant is acquitted upon an indictment or appeal which 
 does not appear sufficient, he shall not recover his dam- 
 ages because since he was attainted upon that, the plaintiff 
 shall not have any judgment, etc., against him, etc. 
 
 There is no early printed year of 19 Ed. III. The case has not been Case 12. 
 identified in the Rolls Series for that year, or in the early abridgments. 
 
 (12a) A clerk [under] attaint escaped and killed a man, Hilary 
 
 , , 17 VA TTT 
 
 and for this he was arraigned. And he would have appealed 
 and could not, by the advice of all the justices, because he 
 was, in a manner, out of the law through the first attaint, 
 etc. 
 
 Reported in Y. B. Hilary, 17 Ed. Ill, p. 13, pi. 47. See also Fitzh: Case 12a. 
 Corone, 112. 
 
 (13) An indictment is of no value if one of the indictors HUary 
 
 be outlawed. And this in an indictment, etc. ^^ ^^^- ^^• 
 
 Reported in Y. B. Mich, (not Hilary), 11 Hen. IV, p. 11, pi. 24. Case 13. 
 See also Fitzh: Corone, 85. 
 
 (14) It is not a sufficient indictment that "felonice Anno 
 abduxit unum equum rubeum," etc. In the Eyre of Not- 
 tingham. 
 
 The case has not been identified in 8 Ed. Ill, and we have not the Case 14. 
 printed Eyre. We apparently have the case, however, in Y. B. Hilary, 
 2 Ed. Ill, p. 1, pi. 3. 
 
414 
 
 STATHAM 
 
 HUary 
 2 Ed. III. 
 
 Case 15. 
 
 Case 16. 
 
 (15) An indictment [ran] "because one led another 
 into the fields for the whole night, so that he died of the 
 frost"; and because it was not "felonice," it was held to be 
 null. And this in an indictment. 
 
 The case has not been identified in Y. B. Hilary, 2 Ed. Ill, or in 
 the early abridgments. 
 
 (16) "Felonice succidit arbores et asportavit" is not a 
 felony. 
 
 There is no citation to this case, which is apparently but a note, 
 and apparently was never intended to be inserted in the abridgment. 
 
 Hilary 
 1 Hen. VI. 
 
 (17) In an appeal the writ was, "Ad respondendum" to 
 the plaintiff "secundum formam statuti," made the year six 
 oj King Richard, etc. "Quare uxor em suam rapuit unde 
 cum appellat." Strange: Judgment of the writ, for he has 
 answered the plaintiff where the Statute gives no answer 
 to the plaintiff, for his answer was at the common law. 
 RoLFF : The Statute provides that he shall not have battle, 
 and so it determines the answer. Strange: Still, judg- 
 ment of the writ, for it is not "felonice rapuit" but "rapuit" 
 only, etc., which shall be understood to be merely a trespass. 
 And as to the felony, "not guilty," etc. Query, to what 
 effect he pleaded over, for the exception is matter apparent, 
 which is triable by the record, in which case, if the excep- 
 tion be good, he shall not be arraigned at the suit of the 
 king, etc. But it is otherwise if he pleads matter of fact 
 which is triable by an inquest; then he pleads over to 
 the felony, for these two pleas are only triable in one 
 manner, etc. But in the other case one matter is triable 
 by the record, and the other by the inquest, etc. Query? 
 
 Reported in Y. B. Mich, (not Hilary), 1 Hen. VI, p. 1, pi. 1. See 
 also Fitzh: Corone, 1. 
 
 The Statute is that of 6 Ric. II (1382), Stat. 1, cap. 6. Stats, at 
 Large, Vol. 2, p. 252 (255). 
 
 Michaeiis (jg) jf an appellee be attainted before the sheriff and 
 the coroner in the county, if it is removed the writ shall 
 go to the coroner and not to the sheriff, and yet the appeal 
 is not good unless it be arraigned before the sheriff in the 
 
 Case 17. 
 
CORONE ET PLEEZ DE CORONE 415 
 
 county, and the sheriff is judge. But that is by the 
 Statute, to wit: that the sheriff shall control the coroner, 
 etc., but the coroner has the record in his keeping. 
 
 And it was said in the same plea that if a man in an 
 appeal says that the plaintiff has another appeal pending, 
 says further that the same defendant is of Dale, and not 
 of Sale, and prays allowance, etc., he shall not have both 
 the pleas, because one is matter of record and triable in 
 another manner, but he can have twenty exceptions which 
 are of one and the same nature, and pray allowance of 
 them, "and as to the felony, not guilty." And the law 
 is the same in an Assize of Novel Disseisin. 
 
 And in the same plea the plaintiff admitted the excep- 
 tion of the defendant, wherefore it was held that the writ 
 should abate. And the defendant prayed to be dismissed. 
 Griswold: It should be by mainprize, for he shall be 
 arraigned at the suit of the king, upon the declaration. 
 Cheyne: That cannot be so, for the writ is abated, and so 
 the declaration is null, etc. But on a nonsuit it is as you 
 say. Wherefore it was adjudged that he should go quit. 
 Which note well, etc. Well argued, etc. 
 
 Reported in Y. B. Hilary (not Mich.), 4 Hen. VI, p. 15, pi. 15. See Case 18. 
 also Fitzh: Corone, 4. 
 
 The Statute is that of 3 Ed. I (1275),, cap. 10, Westminster the 
 First. Stats, at Large, Vol. 1, p. 74 (82). 
 
 (19) In an appeal of mayhem, where the plaintiff counted Michaeiis 
 that one of the defendants mayhemed him, and the others 
 
 aided and abetted him ; still all are principals, as in Tres- 
 pass. And yet the plaintiff declared that the defendant 
 "feloniously mayhemed," etc. 
 
 The case has not been identified in Y. B. Mich. 21 Hen. VI. Fitzh: Case 19. 
 Corone, 11, has the case, but gives no citation to page or placitum. 
 
 (20) He in whom the property is shall have treasure Michaeiis 
 trove. Query, if he dies before it be found, shall his execu- 
 tor have it? etc. It seems he shall, for "non competit 
 
 regi nisi guando nemo sit quis abscondit thesaurum," etc. 
 As appeared in a case in Ireland, etc. 
 
 The case has not been identified in Y. B. Mich. 22 Hen. VI, or in Case 20. 
 the early abridgments. 
 
416 
 
 STATHAM 
 
 Michaelis 
 7 Hen. IV. 
 
 Case 21. 
 
 (21) "He who incites a man to kill another is a principal," 
 if he be present at the time the felony is done. As appeared 
 in an Appeal. 
 
 Reported in Y. B. Mich. 7 Hen. IV, p. 27, pi. 4. See also Brooke, 
 Corone, 19; and Fitzh: Corone, 80. 
 
 Michaelis 
 21 Hen.VI. 
 
 Case 22. 
 
 (22) In an appeal of death against two, one as principal 
 and the other as accessory, the accused waged battle and the 
 plaintiff demurred upon the plea. Choke: The Statute is 
 that the accessory shall not be bound to answer until the 
 principal is attainted or acquitted. FoRTESCUE : The Statute 
 has always required that the accused shall answer imme- 
 diately, but the issue shall not be tried until the principal 
 is attainted or acquitted. And if the principal be acquitted 
 the other issue shall not be tried. In which all concurred. 
 And also if the accused will pray that inquest be taken, 
 and waives the advantage of the Statute, we have no power 
 to prevent it, etc. Wampage: The defendant pleaded 
 this plea by fraud, because he would not be arraigned at the 
 suit of the king. And this clearly appears, for it is no plea. 
 And if, in an Appeal, the defendant pleads a release enrolled, 
 bearing date while the writ is pending, still he shall be 
 arraigned at the suit of the king, because it was done by 
 fraud between them, to wit: the plaintiff and himself; 
 so here, etc. Query? 
 
 The case has not been identified in Y. B. Mich. 21 Hen. VI. Fitzh. 
 Corone, 10, has the case. 
 
 The Statute is that of 3 Ed. I (1275), cap. 14, Westminster the First 
 Stats, at Large, Vol. 1, p. 74 (83). 
 
 Paschal 
 
 30 Hen. VI. 
 
 (23) In an appeal of robbery against a prior, he said 
 that the plaintiff was his villein, etc. And then the plain- 
 tiff was nonsuited. The defendant prayed to be dismissed. 
 Choke: He shall be arraigned at the suit of the king, 
 because the declaration is of record. Wangford: That 
 he shall not, inasmuch as he pleaded a plea which goes to the 
 action; and when the plaintiff is nonsuited, the plea shall be 
 understood to be true ; as well as if the plaintiff had demurred 
 in law upon him, and it had been adjudged against the 
 
CORONE ET PLEEZ DE CORONE 417 
 
 plaintiff, or tried against the plaintiff by an inquest, the statham 56 b. 
 defendant in these cases shall not be arraigned. Fortescue : 
 I grant that your cases are clear, but this case is not like 
 them, for when he is nonsuited nothing concludes him. 
 Wherefore he was arraigned, etc. 
 
 And he said in the same plea that if the defendant says, 
 in an Appeal, that the plaintiff is a bastard, or pleads 
 another plea in bar, which is adjudged or tried against him, 
 still he shall not be attainted for the felony, but there 
 shall be an inquiry into the felony as well as in an Attaint, 
 or an Assize, where no ouster is expressly admitted, the dis- 
 seisin shall be inquired into. So it shall be in an Appeal, 
 when it is not expressly admitted, etc. And although in 
 an Appeal the defendant pleads in bar, and does not plead 
 over to the felony, still the felony shall be inquired into, 
 if the bar be adjudged or found against him ; as well as in 
 an Attaint or an Assize where the defendant takes an excep- 
 tion, and does not say, "And if it be found," etc., still it 
 shall be inquired into, to wit: into the indictment in an 
 Attaint, and into the disseisin in an Assize; and so in the 
 other cases, and even more because it expedites matters. 
 
 There is only a very short printed year of 30 Hen. VI. Paschal Case 23. 
 Term has only a few cases, and this case does not appear among them. 
 It has not been identified in the early abridgments. 
 
 (24) One was taken out of the sanctuary, etc., and put in Hilary 
 
 prison, since he was indicted because he killed his master. ^^ ^^- '^^" 
 
 And then he became an approver and appealed one J. 
 
 And afterwards he was nonsuited and prayed to be restored 
 
 to the sanctuary. Sharshull : That shall not be, because 
 
 you have become an approver, in which case, by the law, 
 
 you shall be hung immediately, unless the king prolong 
 
 your life for his advantage. Whereupon it was adjudged 
 
 that he be hung, but not that he be drawn, because he was 
 
 nonsuited, etc. (Query, what the nonsuit had to do with 
 
 it? For I do not know.) 
 
 Reported in Y. B. Hilary, 21 Ed. Ill, p. 17, pi. 21. See also Brooke, Case 24. 
 Corone, 38; and Fitzh: Corone, 447. 
 
 The remark at the end of the case is one of those which go to show 
 that Statham himself did not revise his work. 
 
418 
 
 STATHAM 
 
 Paschal 
 21 Ed. III. 
 
 Case 25. 
 
 (25) One was committed to prison because he was 
 attainted for a certain trespass, and he would have become 
 an approver and could not, because the cause of his im- 
 prisomnent was only a trespass, etc. In a note. Query? 
 For from this it follows that a man cannot become an 
 approver unless he be indicted for felony, or put in prison 
 upon suspicion of felony, and he who is appealed for the death 
 of a man can become an approver, etc. 
 
 Reported in Y. B. Paschal, 21 Ed. Ill, p. 18, pi. 24. See also Brooke, 
 Corone, 41; and Fitzh: Corone, 448. 
 
 Paschal 
 21 Ed. III. 
 
 Case 26. 
 
 (26) One was indicted for a felony, and pleaded not 
 guilty, and the inquest was charged, and then he would 
 have become an approver and could not, because the inquest 
 shall not be discharged, but the Court shall hear him and 
 such as he accuses, and the sheriff shall indict them in his 
 torn, etc. Query well. In a note, etc. 
 
 Reported in Y. B. Paschal, 21 Ed. Ill, p. 18, pi. 25. 
 Corone, 42; and Fitzh: Corone, 449. 
 
 See also Brooke, 
 
 Hilary 
 
 21 Hen. VI. 
 
 Case 27. 
 
 (27) One became an approver at Newgate, before Sir 
 Richard Newton, and then a coroner was assigned to him, 
 etc. And so see that he confessed the felony before the 
 justices, etc. Query, if the justices were absent if he could 
 demand the coroner, and become an approver, etc.? And 
 the justices gave him three days space with the coroner. 
 And note that he shall never more appeal after that time, 
 etc. 
 
 And on the same day another was arraigned because he 
 had abjured the realm, and he was taken out of the 
 high road. He said that he went out of the high road 
 ignorantly, and as soon as he knew that he was out of the 
 road he went to the constable and prayed him to put him 
 on the road, and he took him and arrested him, etc. And 
 this matter was found, and he went quit, and he was com- 
 manded to keep the high road, nor henceforth, etc. 
 
 The case has not been identified in Y. B. Hilary, 21 Hen. VI, or in the 
 early abridgments. 
 
CORONE ET PLEEZ DE CORONE 419 
 
 (28) One was arraigned because he received one who Hilary 
 was an attainted clerk, and the justices would not take 
 
 the inquest because the clerk might be purged, etc. 
 
 The case has not been identified in Y. B. Hilary, 41 Ed. III. Fitzh: Case 28. 
 Corone, 450, has the case. 
 
 (29) One was arraigned because he stole two sheep of the Hilary 
 price of twenty pence. And the inquest said that he was 
 guilty, but they said that the sheep were worth only ten 
 pence, wherefore he was remanded to prison to do his 
 penance, and at the next sessions he shall be delivered, etc. 
 
 The case has not been identified in Y. B. Hilary, 41 Ed. HI. Fitzh: Case 29. 
 Corone, 451, has the case. 
 
 Paschal 
 21 Ed. III. 
 
 (30) One was arraigned at the suit of the king, because 
 the appellor was an approver and was hung. The defend- 
 ant said that that approver was outlawed, and he showed 
 the record. Thorpe : He is dead ; and if he were alive he 
 could, perchance, show a charter of pardon, wherefore sue 
 in the Chancery to assure us that he had no charter, and 
 then you will be delivered. Query? For it seems that 
 the outlawry was nothing to the purpose, for that was the 
 suit of the king; then if he would plead a release of the 
 plaintiff who is dead, or a nonsuit, that would not aid 
 him, for that release does not injure the king, no more 
 than a release from the king shall injure the party. In an 
 Appeal, etc. 
 
 Reported in Y. B. Paschal, 21 Ed. HI, p. 17, pi. 20. See also Brooke, Case 30. 
 Corone, 37; and Fitzh: Corone, 452. 
 
 (31) An approver was hung through the testimony of the Paschal 
 sheriff and the coroner that he had appealed certain people 
 whom he did not know, in order to prolong his life. And 
 
 this is in a note, etc. 
 
 Reported in Y. B. Paschal, 25 Ed. HI, p. 85, pi. 34. See also Fitzh: Case 31. 
 Corone, 133. 
 
 (32) One was arraigned for the death of one H, and it Paschai 
 was found that he was not guilty. And they were charged ^^ ^^' "^' 
 
420 
 
 STATHAM 
 
 to find who killed him, etc. Wherefore they indicted 
 another. And this in a note. 
 
 Case 32. Reported in Y. B. Paschal, 21 Ed. Ill, p. 17, pi. 22. 
 
 Corone, 39; and Fitzh: Corone, 453. 
 
 See also Brooke, 
 
 Hilary 
 7 Hen. IV. 
 
 Case 33. 
 
 (33) See in a writ of Error in the Common Bench, that 
 it was held by Thirning that in every case of felony, 
 where a man is indicted as a principal and afterwards 
 has a charter of pardon, or else he abjures the realm, the 
 accessory, in that case, shall not be arraigned ; for when the 
 life of the principal is pardoned by the law in whatever 
 manner it may be, that felony is extinct in his person, 
 and consequently he is acquitted, and for the same reason 
 the accessory is acquitted, etc. Query, if the principal 
 resorts to his clergy? 
 
 The case has not been identified in Y. B. Hilary, 7 Hen. IV, or in the 
 early abridgments. 
 
 Trinity 
 43 Ed. III. 
 
 Case 34. 
 
 (34) If one be taken upon suspicion of felony, and deliv- 
 ered to a bailiff, and he suffers him to go, and then he who 
 escaped is indicted for the same felony, the bailiff shall be 
 charged for an escape. 
 
 The case has not been identified in Y. B. Trinity, 43 Ed. III. Fitzh: 
 Corone, 454, has the case. 
 
 Trinity 
 47 Ed. III. 
 
 Case 35. 
 
 (35) If a man who has lands in the right of his wife be 
 attainted of felony, his lands shall be forfeited for the 
 term of his life. And Herle said that if before the attainder 
 he and his wife are disseised, and afterwards he is attainted 
 and restored to the peace, still they cannot have the 
 Assize, etc. 
 
 The case has not been identified in Y. B. Trinity, 47 Ed. Ill, or in 
 the early abridgments. 
 
 statham 57 a. (36) If a man be attainted for felony he shall forfeit all 
 the lands that he had the day the felony was committed. 
 But it is otherwise as to his chattels, for if they are sold 
 before the attainder the sale is good, etc. In a Scire Facias. 
 
 III. The case has not been 
 
 Hilary 
 33 Ed. in 
 
 Case 36. 
 
 There is no printed year of 33 Ed. 
 identified elsewhere. 
 
CORONE ET PLEEZ DE CORONE 421 
 
 (37) If an exigent of felony be adjudged against a man, Mkhaeiis 
 and the exigent is erroneously awarded, he can have a 
 
 writ of error before the outlawry is pronounced ; but if the 
 exigent be well awarded, and afterwards he is outlawed, 
 and he reverses the outlawry, because he was imprisoned 
 at the time the outlawry was pronounced, still his goods 
 are forfeited forever. As appeared in the case of Powny- 
 ing, where an exigent of felony was awarded against him, 
 at which time, and also at the time the outlawry was pro- 
 nounced, he was imprisoned in the Tower by the King's 
 command. And he desired to have a writ of error, and he 
 assigned for error that he was imprisoned at the time the 
 outlawry was pronounced with the intention of being 
 restored to his goods. And the opinion of the justices was 
 that he should have the advantage of having been im- 
 prisoned at the time the exigent was awarded. But they 
 counselled him that after the reversal of the outlawry he 
 should sue to the king to be restored to his goods. And so 
 note that immediately after the exigent is awarded, his goods 
 are forfeited forever, etc. And from this it follows that he 
 shall forfeit all the goods that he had the day the exigent 
 was awarded; and this is contrary to the case above, to 
 wit: Anno 33, etc.' But it is otherwise where an exigent is 
 awarded in a personal action, for there, by the reversal of 
 the outlawry, his goods are saved. And also if he appears 
 the day of the return of the exigent, he will save his goods, 
 for upon such an exigent they are not forfeited. But yet 
 some say that the escheator can seize them, etc. 
 
 The case has not been identified in Y. B. Mich. 30 Hen. VI, or in the Case 37. 
 early abridgments. 
 
 (38) If one be indicted "super visum corporis" before the Michaeiis 
 coroner for the death of a man, and it be found that he ^ ^™' ^^" 
 fled, all his goods are forfeited immediately, although he be 
 acquitted afterwards, etc. Query, as to the reason, for if 
 
 one be indicted before other justices the law is otherwise. 
 But yet, if he be indicted before other justices, and is 
 acquitted and it be found that he fled, still he shall forfeit 
 his goods for that contumacy. And see that before the 
 
 ' Case 36, supra. 
 
422 
 
 STATHAM 
 
 Case 38. 
 
 Hilary 
 
 21 Hen. VI. 
 
 Case 39. 
 
 Note. 
 
 Hilary 
 
 21 Ed. III. 
 
 Case 40. 
 
 Paschal 
 34 Ed. III. 
 
 Case 41. 
 
 coroner immediately upon his indictment, the vill shall be 
 made answerable at once for his goods if it be found that 
 he fled, and otherwise not. 
 
 The case has not been identified in Y. B. Mich. 5 Hen. IV. The 
 only printed term of 5 Hen. V, is that of Hilary. The case has not 
 been identified in the early abridgments. 
 
 (39) Fortescue asked of the Serjeants: If a woman be 
 indicted because she has carried away the goods of her 
 husband, shall she be arraigned upon such an indictment? 
 PORTYNGTON: It seems to me she shall not, for tne prop- 
 erty cannot be in the wife unless it be in the husband. 
 Wampage: If she carries them away and gives them 
 to another that divests the property of the husband. 
 Fortescue: In your case it is only a trespass, and the 
 husband shall have a writ of Trespass, for the entire tort 
 shall be placed upon him who took the goods of the woman, 
 and I do not know how she can be arraigned, etc. 
 
 The case has not been identified in Y. B. Hilary, 21 Hen. VI, or in 
 the early abridgments. 
 
 See of presentment, in the title of Dower, Mich. 41 
 Ed. III. 
 
 (40) If the king has a hundred within which I have a 
 manor, and the king grants the view of frankpledge of my 
 tenants of the said manor: Query, if the ministers and 
 officers of the hundred shall take presentment of the things 
 done in my manor, etc.? 
 
 And it was said by Sharshull that of things presented 
 to me when I am lord of the same manor they shall take, 
 etc., but not of my tenants, for then they would be charged 
 twice for one and the same thing. 
 
 The case has not been identified in Y. B. Hilary, 21 Ed. Ill, or in the 
 early abridgments. 
 
 (41) Where the ordinary accepts one to his clergy who is 
 not a clerk, he shall forfeit his temporalities. By Sharshull, 
 etc. From this it follows that the ordinary can accept one, 
 although he does not know how to read. In an Appeal, etc. 
 
 There is no printed year of 34 Ed. III. The case has not been 
 identified in the early abridgments. 
 
CORONE ET PLEEZ DE CORONE 423 
 
 (42) One A beat one B upon the head so that he was in Michaeiu 
 despair of his life. A was arrested and delivered to two ^^ ^^" 
 constables who had him in keeping by their assent. And 
 afterwards they let him go. And B died, and A was 
 indicted for his death. And the opinion of many was 
 
 that the constables should be held to answer to the felony, 
 etc. Query, how and in what manner? etc., if the law 
 is so, for it seems that it is only an escape, etc. But it is 
 otherwise where one is indicted and delivered to the gaoler, 
 etc. Query? 
 
 The case has not been identified in Y. B. Mich. 11 Hen. IV, or in the Case 42. 
 early abridgments. 
 
 (43) One was indicted for certain goods carried away, Hilary 
 which belonged to the king. And because it was learned 
 
 by the Court that a general pardon was granted afterwards, 
 etc., the king counted against him in the nature of a tres- 
 pass. And the opinion was that he should not be held 
 to answer to that without a new original, since the indict- 
 ment was void; whereupon the defendant waived the 
 advantage of the pardon and said that one of the indictors 
 was outlawed at the time, etc. And for that reason the 
 indictment was annulled. Which note. But yet such a 
 general pardon is not good unless he shows a charter, etc., 
 unless it be by authority of Parliament, etc. (That was 
 the case of this pardon.) 
 
 The case has not been identified in Y. B. Hilary, 11 Hen. IV, or in Case 43. 
 the early abridgments. 
 
 (44) If a man wounds another in one county, who dies Paschal 
 of it in another county, the opinion of Hankford was 
 
 that he could have his appeal in either county, etc. 
 
 The case has not been identified in Y. B. Paschal, 11 Hen. IV, or in Case 44. 
 the early abridgments. 
 
 (45) In the exchequer chamber, Fortescue showed Paschai 
 how an approver had appealed many in different coun- ^^ ^^"- ^^• 
 ties, and that some were attainted by process, and against 
 
 some the process was still pending, and not yet determined ; 
 
424 
 
 STATHAM 
 
 and that it seemed to them of the King's Bench that his 
 appeal was suspicious, for they had inquired of the solid 
 people of the country where they were appealed, who said 
 that there are no such persons living to their knowledge. 
 And he asked them if for this the said approver should be 
 hung? GODEREDE: The appellee has two answers, one, 
 by battle ; another, by inquest ; and if the appellor be hung, 
 he has lost one of them, to wit: wager of battle. Paston: 
 So have they when the appellor is non-suited and d fortiori 
 here, when it is the act of the justices. And Fortescue 
 showed a record of the Eyre of North[ampton] [showing] 
 Statham67b. hoyr an approver had appealed many and some of them 
 were attainted by battle, and process was pending against 
 the others; and because the appellor] was suspected 
 he was hung, etc. And also an approver was demanded 
 when the sheriff returned that the appellee was not found, 
 and he said that the appellee was in Flanders. And 
 because, although the appellee was outlawed, that after- 
 wards when he came back it could be reversed for such a 
 reason — that he was out of the realm — it was adjudged 
 that he be hung, etc. And all the justices and Serjeants 
 except Goderede held that he should be hung, etc. 
 
 Case 45. Reported in Y. B. Paschal, 21 Hen. VI, p. 34, pi. 1. See also Brooke, 
 
 Corone, 49; and Fitzh: Corone, 56. 
 
 Hilary 
 
 9 Hen. IV. 
 
 Case 46. 
 
 (46) One was indicted before Justices of the Peace; 
 who admitted the felony and appealed others, and his 
 appeal was held void here in the King's Bench, because the 
 Justices of the Peace had not power to assign a coroner to 
 him, etc. 
 
 And it was said in the same plea that Justices of the 
 Peace have not power to inquire as to the death of a man 
 nor of high treason, unless they have a special commission, 
 for by their general commission they have not the power, etc. 
 
 Reported in Y. B. Mich, (not Hilary), 9 Hen. IV, p. 24, pi. 1. See 
 also Brooke, Corone, 25; and Fitzh: Corone, 457. 
 
 Trinity (47) An appeal was sued by a woman against one H, 
 
 9 Hen. IV. ^Jjq g^j^ ^j^^j. fQ^jngj-iy ^^g game woman brought an appeal 
 
CORONE ET PLEEZ DE CORONE 425 
 
 for the same death before justices of gaol delivery in the 
 county of S, against one F, who was attainted at her suit, 
 and he prayed allowance for this; and as to the felony 
 "not guilty," etc. But yet in an appeal of the year 18 
 Ed. Ill, the defendant said that the plaintiff was his 
 villein, and did not answer to the felony, and he had the 
 plea, where Sharshull said that the law is the same of 
 an outlawry or excommunication, etc. But yet the opinion 
 at this time is that he does not plead over; still if his bar 
 be found against him they shall inquire as to the felony, 
 etc. Skrene : That which he pleads is not to the purpose, 
 for the justices of gaol delivery have no power to take any 
 appeal except against those who are in their prison, so 
 we have no power to do otherwise except to have separate 
 appeals. Gascoigne: She could have sued her appeal 
 here against all, or else in the county, and had it removed 
 by a writ. Wherefore it was adjudged that she take 
 nothing. 
 
 Reported in Y. B. Mich, (not Trinity), 9 Hen. IV, p. 1, pi. 7. See Case 47. 
 also Fitzh : Corone, 77. 
 
 (48) If one rob me in one county and takes the goods Hilary 
 into other counties, I shall have my appeal in whatever ™' 
 county the goods come. And so it was held in this plea. 
 
 In an Appeal, etc. 
 
 The case has not been identified in Y. B. 9 Hen. IV. There is no Case 48. 
 printed Hilary Term for this reign. The case has not been identified 
 in the early abridgments. 
 
 (49) One was arraigned for robbery and stood mute, and Michaeiis 
 an inquest of the servants of the Marshal was taken to ™' ^^' 
 inquire if he did it of malice, etc., and they found he did, 
 
 etc. Query, if the robbery was in another county if the 
 same inquest would inquire if the plaintiff made fresh suit, 
 and if they were his goods, etc.? And if, in such a case, 
 the defendant shall forfeit his goods or chattels, etc.? 
 See the plea, because it was well argued. 
 
 Reported in Y. B. Mich. 8 Hen. IV, p. 1, pi. 2. See also Brooke, Case 49. 
 Corone, 21; and Fitzh: Corone, 71. 
 
426 
 
 STATHAM 
 
 Michaelis 
 8 Hen. IV. 
 
 Case SO. 
 
 Hilary 
 
 8 Hen. IV. 
 
 Case 51. 
 
 Michaelis 
 30 Hen. VI. 
 
 Case 62. 
 
 (50) A man who had abjured was taken, and it was 
 asked of him if he had anything to say why he should not 
 be hung. He said that he was taken out of sanctuary, 
 against his will, and he prayed to be restored. And the 
 attorney of the king averred the contrary; and upon that 
 a Venire Facias issued, returnable on a certain day; on 
 which day he stood mute, and the inquest was taken, and 
 found against the thief. And the justices commanded 
 the same inquest to inquire if he held himself mute mali- 
 ciously. They said he did. But yet Tyrwhit and others 
 said that there was no need to inquire as to that, inasmuch 
 as he had admitted the felony before, upon which admission 
 he should be hung. Wherefore it was adjudged that he 
 should be hung. And then he pleaded, and said that he 
 was a clerk and had his clergy. Which note, inasmuch as 
 it was after judgment. Simile, Anno 28 Hen. VI, where 
 one was condemned and taken away and led to the gallows, 
 and there he said that he was a clerk, and was brought 
 before Fortescue and had his clergy, etc. 
 
 Reported in Y. B. Mich. 8 Hen. IV, p. 3, pi. 5. See also Brooke, 
 Corone, 22; and Fitzh: Corone, 72. 
 
 (51) It is not mayhem to cut a man's ear, by which he 
 loses his hearing, etc., but to knock out his teeth is may- 
 hem, because they can be a defence to him in battle. 
 
 The case of Mayhem reported in Y. B. Paschal, 8 Hen. IV, p. 21, 
 pi. 1, does not contain the point made by Statham. The MS. case 
 may have it in the argument, however. Fitzh: Corone, 74, has the 
 case on a point borne out by the report. 
 
 (52) One J. Grant was indicted in the King's Bench, 
 because that at A, etc., one U beat him, etc., and twenty 
 sacks of the price, etc., feloniously took, etc. And it was 
 challenged because it should be "twenty sacks of this U," 
 for he did not allege in whom the sacks were. And not- 
 withstanding that, the indictment was adjudged good, etc. 
 
 The case has not been identified in Y. B. Mich. 30 Hen. VI, or in the 
 early abridgments. 
 
 Paschal (53) One J. Warren was indicted in the King's Bench 
 
 because he was reported to have made one hundred shillings 
 
CORONE ET PLEEZ DE CORONE 427 
 
 by alchemy "ad instar pecunie domine regis at Westmin- 
 ster." And he was arraigned and found guilty. And it was 
 moved that the indictment was not sufficient, because he 
 did not state certainly what money it was: to wit, groates 
 or pennies. Illingworth: The indictment is good, for it 
 shall be taken most favorably for the king. As if a man be 
 indicted because he has killed a certain man unwittingly, 
 that is good, and yet in an appeal it is of no value. And 
 a man shall have a writ of detinue for a bag with money, 
 sealed up, to wit: one hundred pounds, and yet it is uncer- 
 tain what money it is; and yet he shall recover the bag 
 with the money. Fortescue : In your case it is certain 
 that such a man was killed, but it is not certain in this case, 
 for if he made one penny he is a traitor. But in your case 
 of the sealed bag he shall not say how much of the money 
 was in the bag. But yet, query? For it might be that the 
 bag and the money were lost. And then the indictment 
 was annulled, etc. 
 
 There is no Paschal Term of 27 Hen. VI, in the printed year books. Case 53. 
 The case has not been identified in the early abridgments. 
 
 (54) Where the younger ^ brother kills his older brother, Michaeiis 
 the youngest brother shall have the appeal, and yet he is 
 
 not the heir. And the law is the same where the wife 
 kills the husband; the heir shall have the appeal. And 
 this is because of the heinousness [of the crime]. And this 
 by Fortescue in an Appeal. 
 
 The case has not been identified in Y. B. Mich. 28 Hen. VI, or in the Case 54. 
 early abridgments. 
 
 (55) In an appeal, the defendant said that the plaintiff SJ'^''^' yj 
 was a bastard, and he was certified to be legitimate; and 
 
 the defendant was received to plead "not guilty" because 
 
 at the beginning, when he alleged the bastardy, he could 
 
 not plead over to the felony, because it shall not be tried statham 58 a. 
 
 at the same trial that the bastardy shall be tried, etc. 
 
 As when in an Assize the defendant says that the plaintiff 
 
 is a bastard, and the bishop certifies that he is legitimate, 
 
 still the Assize shall be taken, although one record is 
 
 1 Between the oldest and the youngest. 
 
428 
 
 STATHAM 
 
 Case 55. 
 
 Michaelis 
 28 Hen. VI. 
 
 Case 56. 
 
 certified against him. For the above reason, query, if a man 
 pleads a plea in an Appeal which is triable in another 
 county, shall he plead over to the felony, etc., because it 
 demands two trials, etc.? 
 
 The case has not been identified in Y. B. Mich. 28 Hen. VI, or in the 
 early abridgments. 
 
 (56) In an appeal of robbery, can the plaintiff oust the 
 defendant from waging battle, inasmuch as he was taken 
 with the booty, or other sure proof of it, if it be a thing 
 which could not be carried there? etc. The defendant shall 
 not have anything [to say] as to that. By Fortescue, etc. 
 
 The case has not been identified in Y. B. Mich. 28 Hen. VI, or in the 
 early abridgments. 
 
 Paschal 
 30 Hen. VI. 
 
 Case 57. 
 
 (57) In the exchequer chamber, Markham held that 
 if a man be outlawed for felony he shall forfeit no lands 
 but such lands as he had the day the outlawry was pro- 
 nounced, for he is not attainted of felony, but he shall for- 
 feit his goods and lands for the contumacy; for if the king 
 pardons the outlawry, still he shall be arraigned for the 
 felony; and this proves that he was not attainted of felony. 
 Fortescue : and all the other justices held the contrary, 
 for they said that as soon as the principal in an appeal 
 is outlawed, the accessory shall be made to answer, which 
 is an attainder in law, etc. And yet if the principal be 
 dead, the accessory shall never be arraigned, etc. 
 
 The case has not been identified in Y. B. Paschal, 30 Hen. VI, or in 
 the early abridgments. 
 
 Anno 
 
 44 Ed. III. 
 
 (58) It was presented that a Lombard had increased 
 the price of merchandise by subtilty. And it was chal- 
 lenged because the presentment was not sufficient. Knyvet : 
 A man came to Cotteswold, and said in the country that 
 no wools should be sold that year, with the idea of increasing 
 the price of the wool, by which means the price was de- 
 creased through all the country. And he was taken and 
 set before the king, and could not deny it, wherefore it 
 was adjudged that he make a fine and ransom; so here. 
 
CORONE ET PLEEZ DE CORONE 429 
 
 Wherefore the defendant pleaded "not guilty." And this 
 Coram Rege. 
 
 The case has not been identified in Y. B. Anno 44 Ed. Ill, or in the Case 58. 
 early abridgments. 
 
 (59) The party shall not be restored to his goods upon Hilary 
 an indictment for robbery, although it be found that he 
 made fresh suit, unless he sues an Appeal, etc. Query, if a 
 man shall have an appeal of felony, etc., to wit: any other 
 felony than that of robbery, etc.? As of goods carried 
 away, etc., and like damage? 
 
 And see in the same plea, two were robbed who had 
 goods in common, and one of them sued an Appeal, etc., 
 but no exception was taken to the writ. Therefore, for that, 
 query, etc. ? And one of the defendants became an approver 
 and appealed two men of London upon which a writ issued 
 to the sheriff of London to take them; who returned that 
 there were not any such two persons in the city. And 
 the approver said that they were in the vill of Lincoln, and 
 he was not received to that, but was hung, etc. 
 
 The case has not been identified in Hilary, 22 Ed. Ill, or in the Case 59. 
 early abridgments. 
 
 (60) A woman was found guilty, and was a clerk, and the Hilary 
 
 QQ F"H TTT 
 
 ordinary demanded her as a member of the church. And 
 because she was indicted for other ordinary felonies, the 
 ordinary could not have her until she was arraigned for 
 them, etc. 
 
 The case has not been identified in Y. B. Hilary, 22 Ed. II, or in the Case 60. 
 early abridgments. 
 
 (61) If the thief escape and the gaoler loses sight of Hilary 
 him at any time, although he takes him, still it shall be 
 judged an escape. As appeared in an escape out of the 
 Castle of Canterbury. 
 
 The case has not been identified in Y. B. Hilary, 22 Ed. Ill, or in the Case 61. 
 early abridgments. 
 
 (62) In a franchise where they have infangthief, etc., ^"SfJ 
 although a thief be taken for larceny, and he admits it 
 
430 
 
 STATHAM 
 
 Case 62. 
 
 before the seneschal, still he cannot proceed to judgment, 
 unless he puts himself on the country for good and evil, 
 etc., for it is not in the power of any Court Baron to take 
 such jurisdiction, etc. 
 
 The case has not been identified in Y. B. Hilary, 22 Ed. III. See also 
 Fitzh: Corone, 237. 
 
 Paschal 
 22 Ed. III. 
 
 Case 63. 
 
 (63) When anyone is feloniously killed by day, unless 
 the felon is captured, all the vill shall be charged, etc. 
 By Sharshull. Query, if shall be called an Escape or an 
 Amercement? 
 
 The case has not been identified in Y. B. Paschal, 22 Ed. III. 
 Fitzh: Corone, 238. 
 
 See 
 
 Paschal 
 22 Ed. III. 
 
 Case 64. 
 
 (64) One who was indicted of a felony and thereof was 
 found guilty, said that the king took him away, and for 
 this he produced a charter that the king led him into Gas- 
 cony in the army, etc. And they said the charter should 
 be allowed. 
 
 The case has not been identified in Y. B. Paschal, 22 Ed. III. 
 Fitzh: Corone, 239. 
 
 See 
 
 Paschal 
 22 Ed. III. 
 
 Case 66. 
 
 Paschal 
 22 Ed. III. 
 
 Case 66. 
 
 Paschal 
 22 Ed. III. 
 
 Case 67. 
 
 (65) A certain woman was condemned for theft, and it 
 was counted that she was pregnant, and she was adjudged 
 to prison until she should be delivered, etc. 
 
 The case has not been identified in Y. B. Paschal, 22 Ed. III. 
 Fitzh: Corone, 240. 
 
 See 
 
 (66) The treasure found belongs to my lord the king, and 
 not to the lord of the franchise, nor is it by special words. 
 And this in a Presentment, or else in a Prescription, etc. 
 
 The case has not been identified in Y. B. Paschal, 22 Ed. III. 
 Fitzh: Corone, 241. 
 
 See 
 
 (67) A man was in prison for larceny, and his keeper 
 gave him leave to go to another vill and come back, and 
 because he was found out of the boundaries of the prison it 
 was held to be an escape, etc. 
 
 The case has not been identified in Y. B. Paschal, 22 Ed. III. Fitzh: 
 Corone, 242, has the case. 
 
CORONE ET PLEEZ DE CORONE 431 
 
 (68) Coroners can record a breaking of prison, and by ^^^^\,^ 
 that record at the JSIisi Prius prosecutors were hung 
 without having had an answer. So cases of imprisonment 
 
 made a felony, etc. 
 
 The case has not been identified in Y. B. Paschal, 22 Ed. III. See Case 68. 
 Fitzh: Corone, 243. 
 
 (69) It was presented that a certain lunatic struck him- Paschal 
 self with his knife and afterwards recovered from his 
 infirmities, and he had a jury of the church, and he died 
 because of his wounds, and his chattels were not forfeited. 
 
 The case has not been identified in Y. B. Paschal, 22 Ed. III. See Case 69. 
 Fitzh: Corone, 244. 
 
 (70) If a clergyman or rector be convicted for a felony, Paschal 
 all his goods shall be confiscated, and the tithes [he has] ^^ ^^' "^' 
 received, if they are in the sanctuary, etc. 
 
 The case has not been identified in Y. B. Paschal, 22 Ed. III. See Case 70. 
 Fitzh: Corone, 245. 
 
 (71) If the sheriff allows a man to have mainprise Hilary 
 where he is [not] mainpernable, it is an escape if the cause ^^ ^"^^ "^• 
 be a felony, etc. In a note. 
 
 The case has not been identified in Y. B. Hilary, 25 Ed. III. See Case 71. 
 Fitzh: Corone, 246. 
 
 (72) He who confesses a felony, before justices, nor he Trinity 
 who is attainted at the suit of the party in an Appeal, nor j^^^'^^g^g 
 he who was forsworn, shall not make their purgation, etc. 
 
 So it was held by all the justices. Anno 9 Hen. VI. And, 
 by the opinion of SPIGORNEL, a common thief shall not 
 make his purgation. In the Eyre of Cornwall, folio 3. 
 
 The case has not been identified in Y. B. Trinity, 1 Ed. III. See Case 72. 
 Fitzh: Corone, 247. 
 
 (73) An escape cannot be adjudged against he who stathamssb. 
 
 PSrSchs.! 
 
 himself, etc., is committed for trespass. 22 Ed. iii. 
 
 The case has not been identified in Y. B. Paschal, 22 Ed. III. See Case 73. 
 Fitzh: Corone, 248. 
 
432 
 
 STATHAM 
 
 Paschal 
 22 Ed. III. 
 
 Case 74. 
 
 (74) A certain monk was indicted for a felony, who 
 said that he was a clerk. And he who was Abbot of B, 
 who was present, took him as one professed. And he was 
 admitted to do this in the place of the ordinary, etc. 
 
 The case has not been identified in Y. B. Paschal, 22 Ed. III. See 
 Fitzh: Corone, 249. 
 
 Paschal 
 22 Ed. III. 
 
 Case 75. 
 
 (75) A clerk committed [to prison] that killed his keeper 
 and ran away, and afterwards was retaken, and notwith- 
 standing his clerkship he was hung; for Willoughby said 
 that it was against the law to invoke the aid for one was 
 legally committed. 
 
 The case has not been identified in Y. B. Paschal, 22 Ed. III. See 
 Fitzh: Corone, 250. 
 
 Paschal 
 22 Ed. III. 
 
 Case 76. 
 
 (76) One was taken at the suit of the party and led toward 
 the prison, and on the way he escaped. And when the 
 plaintiff counted against him in his Appeal, he would have 
 waged battle, and could not because he had broken prison, 
 etc., although they were at issue that he did not escape out of 
 the keeping of the ministers [of justice]. Query, if that 
 shall be the end of it all? 
 
 The case has not been identified in Y. B. Paschal, 22 Ed. III. 
 Fitzh: Corone, 251. 
 
 See 
 
 Paschal 
 22 Ed. III. 
 
 Case 77. 
 
 (77) If the principal take himself to his clergy the 
 accessory shall not be arraigned, because it may be that 
 the principal will be purged. 
 
 The case has not been identified in Y. B. Paschal, 22 Ed. III. See 
 Fitzh: Corone, 252. 
 
 Trinity 
 22 Ed. III. 
 
 Case 78. 
 
 (78) A woman was found guilty, and because she was 
 enceinte she remained in prison until, etc. And afterwards 
 she was brought to the Bar and said that she was again 
 enceinte. And because she lost her answer the first time, 
 she was hung, etc. 
 
 The case has not been identified in Y. B. Trinity, 22 Ed. III. See 
 Fitzh: Corone, 253. 
 
CORONE ET PLEEZ DE CORONE 433 
 
 (79) Although a man who is a clerk will not betake Trinity 
 
 • • 22 Ed III 
 
 himself to his clergy, and the justices know well that he 
 is a clerk, they will not give judgment to hang him. As 
 happened in the case of Lacy. 
 
 The case has not been identified in Y. B. Trinity, 22 Ed. III. See Case 79. 
 Fitzh: Corone, 254. 
 
 (80) An approver disavowed his appellee, who said that Trinity 
 he did it through duress. And the coroner said that it was 
 
 of his free will, and by the record of the coroner he was 
 hung. But yet in such cases one has such an answer. 
 And it was inquired into by the nearest neighbors to the 
 prison, etc. Anno 13 Ed. II. 
 
 The case has not been identified in Y. B. Trinity, 22 Ed. III. See Case 80. 
 Fitzh: Corone, 255. 
 
 (81) One was indicted "eo quod felonice succidit arbores Trinity 
 
 et asportavit eas." And it was moved that this could not be ^^ ^'^' ^^^' 
 called a felony, because it could not be done without tak- 
 ing much time, and also "felonice succidit" is not good, as it 
 seems, etc. 
 
 The case has not been identified in Y. B. Trinity, 22 Ed. III. See Case 81. 
 Fitzh: Corone, 256. 
 
 (82) The ordinary refused a clerk, because, before that Trinity 
 
 22 Ed III 
 
 time, he broke prison. Wherefore he was hung, etc. 
 
 And see, in the same plea, that if the ordinary challenges 
 one who is no clerk, he shall lose his temporalities, etc. 
 
 The case has not been identified in Y. B. Trinity, 22 Ed. III. See Case 82. 
 Fitzh: Corone, 257. 
 
 (83) A thief killed a merchant, and the journeymen of Trinity 
 the merchant pursued him and killed him; and this was 
 
 not held a felony, etc. 
 
 The case has not been identified in Y. B. Trinity, 22 Ed. III. See Case 83. 
 Fitzh: Corone, 258. 
 
 (84) It was presented that a man strangled himself Trinity 
 with a cord ; and it was adjudged that his goods were for- ^^ ^^' '''' 
 
434 
 
 STATHAM 
 
 Case 84. 
 
 feited and his lands, because "feh de se, non domine," causa 
 patet. 
 
 The case has not been identified in Y. B. Trinity, 22 Ed. III. See 
 Fitzh: Corona, 259. 
 
 Trinity (85) A principal had a charter of pardon, and yet the 
 
 accessory was arraigned, since the principal was acquitted 
 by grace of the king and not by course of law. 
 
 Case 86. The case has not been identified in Y. B. Trinity, 22 Ed. III. See 
 
 Fitzh: Corone, 260. 
 
 Trinity 
 22 Ed. III. 
 
 Case 86. 
 
 (86) Where a man justifies the death of another, as by a 
 warrant to arrest him and he would not obey him, etc.; 
 or that he came to his house to commit a burglary, and 
 such like matter; if the matter be so found, the justices 
 will let him go free, without the grace of the king. But 
 it is otherwise where a man kills another by accident, etc. 
 
 The case has not been identified in Y. B. Trinity, 22 Ed. III. See 
 Fitzh: Corone, 261. 
 
 Trinity 
 12 Ed. 111. 
 
 Case 87. 
 
 (87) An attainted clerk who has broken prison shall 
 not have his clergy if the ordinary refuses it, etc. Query, 
 if the ordinary refuses a man who knows how to read, etc.? 
 For in Trinity, 9 Ed. Ill, he was put to his penance in that 
 case, etc. 
 
 There is no early printed year of 12 Ed. III. The case does not 
 appear in the Rolls Series for that year. 
 
 Case 88. 
 
 (88) If the principal be arraigned and found guilty, and 
 then the king pardons him, shall the accessory be arraigned? 
 Query, etc.? 
 
 There is no citation given for this case in Statham. It is probably 
 incorrect to call it a case, for it is evidently but a note for the editor's 
 own use. 
 
 (89) The coroner cannot hold Pleas of the Crown by the 
 Statute of Magna Carta, cap. 15. But yet he can com- 
 mence appeals and indict many, but not proceed, etc., 
 for that Statute is a supersedeas to him, etc. 
 
CORONE ET PLEEZ DE CORONE 435 
 
 There is no citation to this case, but this is apparently an abridgment Case 89. 
 from a reported case. 
 
 The Statute of Magna Charta, Stats, at Large, Vol. 1, p. 1. The 
 chapter should be 17, not 15. 
 
 (90) Two were arraigned for the death of one A, and it was Trinity 
 found that they were quarrelling and arguing, and one ^^ ^^' "^" 
 would have thrust the other with his knife, and the other 
 
 [would have treated] him in the same manner, and this A 
 came between them to stop them, and between them he 
 was killed, wherefore they were both hung, because each 
 of them would have killed the other, so it cannot be said 
 to be an accident, etc. 
 
 The case has not been identified in Y. B. Trinity, 22 Ed. III. See Case 90. 
 Fitzh: Corone, 262. 
 
 (91) One was indicted because he killed an infant in Michaeiis 
 the mother's womb. And the opinion was that he should ^^ ^'^' ^^^' 
 not be arraigned upon that because there was no name of 
 baptism in the indictment. (And also it is hard to know 
 
 if he did kill it, etc.) 
 
 The case has not been identified in Y. B. Mich. 22 Ed. III. See Case 91. 
 Fitzh: Corone, 263. 
 
 (92) Burglars are those who break into houses or churches m ichaeiis 
 
 • 29 F*H TTT 
 
 with the intent to carry away goods, in which case, although 
 they do not carry away anything, they shall be hung, etc. 
 
 The case has not been identified in Y. B. Mich. 22 Ed. III. See Case 92. 
 Fitzh: Corone, 264. 
 
 (93) Punishment for treasure trove taken and carried MichaeUs 
 
 22 "Fd ITT 
 
 away, wreck of the sea and waifs, shall be by imprison- 
 ment and fine, and not of life and of member. 
 
 Reported in Y. B. Liber Assisarum, 22 Ed. Ill, p. 107, pi. 99. At the Case 93. 
 end of an Appeal of Mayhem. See Brooke, Corone, 96; Fitzh: Corone, 
 265. 
 
 (94) In an appeal for the death of a man, the defendant Hilary 
 was outlawed, and had a charter of pardon. And it was the ^^ ^^^- ^^^ 
 opinion of Hankford that the heir of the plaintiff should 
 
 sue execution because the plaintiff was dead. 
 
 Reported in Y. B. Mich, (not Hilary), 13 Hen. IV, p. 6, pi. 14. See also Case 94. 
 Fitzh: Corone, 266. 
 
436 
 
 STATHAM 
 
 HUary 
 
 13 Hen. IV. 
 
 Case 95. 
 
 (95) See by Hankford, if one be indicted quod clausum 
 J. B. felonice f regit [ad ipsum interficiendum] ^ that is no 
 felony, but "quoddomum" etc., is felony, for that is burglary. 
 But if it be "quod domutn fregit ad ipsum verberandum" etc., 
 that is only a trespass. And it was said that if a man be 
 indicted because he "lay in wait ad ipsum depredandum," 
 although he took no money from him, still that is a felony. 
 
 Reported in Y. B. Mich, (not Hilary), 13 Hen. IV, p. 7, pi. 20. See 
 also Fitzh: Corone, 229 and 267. 
 
 Hilary 
 
 13 Hen. IV. 
 
 statham 59 a. (96) In an appeal of robbery, if the defendant wages 
 battle the plaintiff can bring in the booty, and oust him 
 of thie battle; then the defendant can claim property in 
 the goods, and so they are at issue for the property. 
 Query, if it be peremptory? And see, by Gascoigne, 
 in the same plea, that if the defendant wages battle the 
 plaintiff may oust him: as by saying that the defendant 
 injured him at the time of the robbery, and show his injury 
 to the Court. 
 
 Case 96. 
 
 The case has not been identified in Y. B. Hilary, 13 Hen. IV. 
 Corone, 230, has the case. 
 
 Fitzh: 
 
 Michaelis 
 10 Hen. IV. 
 
 Case 97. 
 
 (97) In an appeal, it is no plea that the plaintiff has 
 another appeal for the same death pending in the county 
 or in London, etc. But in that case the Court will send 
 for the appeal, etc. Query, to what effect, etc.? Query, 
 if it be a plea to say that the plaintiff was appealed of this 
 same death in the county in which the appellee was non- 
 suited? 
 
 Reported in Y. B. Mich. 10 Hen. IV, p. 4, pi. 14. See also Fitzh: 
 Corone, 269 and 465. 
 
 Michaelis 
 10 Hen. IV. 
 
 Case 98. 
 
 (98) The principal took himself to his clergy, and the 
 accessory was arraigned and hung, notwithstanding the 
 principal might make his purgation, etc. 
 
 Reported in Y. B. Mich. 10 Hen. IV, p. 5, pi. 18. See also Fitzh: 
 Corone, 466. 
 
 1 These words are not in the reported case, and evidently should be 
 omitted in reading the abridgments. 
 
CORONE ET PLEEZ DE CORONE 437 
 
 (99) A man who is outlawed does not forfeit his goods Hilary 
 
 Ifi TTrl TTT 
 
 which he had in common with another. And this in a 
 note, etc. 
 
 There is no early printed year of 15 Ed. III. The case has not been Case 99. 
 identified in the Rolls Series for that year, or in the early abridgments. 
 
 (100) If a gaoler procures a prisoner [to be] an appellor Anno 
 it is a felony. By Scrope. And see in the same plea, 
 
 it is no felony if a juror who passes upon such a felony 
 betrays their counsel. And this by the opinion of the 
 Court in the Eyre of Nottingham, etc. 
 
 The cases cited as from the Eyres appear neither in the Year Books Case 100. 
 nor in the abridgments, although under some heads there are other cases 
 cited as from various Eyres. 
 
 (101) One brought an appeal of rape and counted that Michaeiis 
 he ravished his wife against the form of the Statute of ^^ ^^"" ^^' 
 Richard, etc. Rolff: He has not counted that after the 
 ravishment the woman assented to the ravishment, in 
 
 which case he should have had an action upon the Statute 
 of Westminster the Second, for otherwise his action is not 
 warranted by the Statute of Richard, etc. Tyrwhit: He 
 has concluded that he ravished her "against the form of 
 the Statute of Richard the Second," wherefore answer, etc. 
 Rolff : The action is brought against two, and he counts 
 against both as principals, in which case the ravishment 
 of the one cannot be the ravishment of the other. Tyrwhit : 
 He who assisted him and aided him, is a principal in this 
 case, wherefore answer. And then she said that she was 
 never joined in legal matrimony. Hankford: She was 
 his wife in possession, and he shall have this action, where- 
 fore that is no plea. But the plaintiff was put to answer 
 to that plea, against the opinion of many, etc. 
 
 The case has not been identified in Y. B. Mich. 10 Hen. IV, or in the Case 101. 
 early abridgments. 
 
 The Statutes are: The Statute of 6 Ric. II (1382), cap. 6, Stats, at 
 Large, Vol. 2, p. 252 (255); and 13 Ed. I (1275), Stats, at Large, 
 Vol. 1, p. 163. 
 
438 
 
 STATHAM 
 
 Hilary 
 5 Ed. III. 
 
 Case 102. 
 
 Michaelis 
 8 Hen. V. 
 
 Case 103. 
 
 Hilary 
 7 Hen. VI. 
 
 Case 104. 
 
 Michaelis 
 1 Hen. V. 
 
 Case 105. 
 
 (102) A daughter shall not have an appeal for the death 
 of her ancestor. In an Appeal, etc. 
 
 The case has not been identified in Y. B. Hilary, 5 Ed. Ill, or in the 
 early abridgments. 
 
 (103) A man was indicted before the sheriff in his tourn 
 at Holbom in the county of Middlesex, for an encroach- 
 ment made on the highway. And the indictment was 
 sent into the King's Bench, and the distraint issued against 
 the party, who came arid said that the indictment was not 
 sufficient inasmuch as no day was put in the indictment. 
 And Hankford said that a Venire Facias should issue 
 against the indictors to amend this, since the indictment 
 was taken in the same county where that place is. Which 
 was conceded, etc. 
 
 Reported in Y. B. Mich. 8 Hen. V, p. 8, pi. 4 or in the early abridg- 
 ments. 
 
 (104) It was presented that one had entered upon 
 another with force, and he was made to answer to it. 
 And the law is the same if it be presented that a man took 
 my horse with force, albeit I can have an action because 
 of the contumacy exhibited against the king, it is a good 
 indictment. Query, then, what evil the Statute of For- 
 cible Entry [would cure] which was made after that time, 
 etc.? 
 
 The case has not been identified in Y. B. Hilary, 7 Hen. VI, or in the 
 early abridgments. 
 
 The Statute is that of 8 Hen. VI (1429), cap. 9. Stats, at Large, 
 Vol. 3, p. 121. 
 
 (105) If a man be indicted for felony [or] treason, he 
 answers to that has he one name or another. But it is 
 otherwise in an appeal. Query, if it be in the baptismal 
 name? By Hankford in a Scire Facias. 
 
 Reported in Y. B. Paschal (not Mich.), 1 Hen. V, p. 5, pi. 8. See also 
 Brooke, Corone, 201; and Fitzh: Corona, 274. 
 
 (106) A woman abjured the land in the Iter of Kent, 
 etc. Query, if a man is adjudged to be hung and escapes 
 
CORONE ET PLEEZ DE CORONE 439 
 
 from the sheriff and tJikes sanctuary, query if he shall 
 have abjuration since judgment is given upon the same 
 felony? 
 
 There is no citation for this case given by Statham. It has not been Case 106. 
 identified elsewhere. 
 
 (107) In an appeal, the defendant stood mute, and it Paschal 
 was found that he could speak; therefore he was hung. ^ ' ^' 
 
 The case has not been identified in Y. B. Paschal, 21 Ed. Ill, or in Case 107. 
 the early abridgments. 
 
 (108) If a man robs me in one county, and carries the Paschal 
 goods into another county, I shall have an appeal in the ^*°' '^" 
 one county or the other, as in Trespass. And this in an 
 appeal Coram Rege, etc. 
 
 Reported in Y. B. Paschal, 7 Hen. IV, p. 43, pi. 9. See also Fitzh: Case 108. 
 Corone, 79. 
 
 (109) An approver appealed a man of Flanders, and Paschal 
 therefore he was hung. 
 
 The case has not been identified in Y. B. Paschal, 1 Ed. Ill, or in the Case 109. 
 early abridgments. 
 
 (110) An appeal of robbery lies for the warden of a church Anno 
 for the goods of the church. By the opinion of all the ^ ^™' ^' 
 Court; and in an Iter of Kent it was adjudged good, etc. 
 
 The case has not been identified in Y. B. Anno 2 Hen. V, or in the Case 110. 
 early abridgments. 
 
 (111) In an appeal for mayhem, it is a good plea to say Paschal 
 "By his own consent," etc. But if he says that the ^^ ^^- "'• 
 plaintiff assaulted him in another place in the same county, 
 
 and the evil which he has, etc., that is no plea, but he 
 should agree with him as to the place, because a mayhem 
 is done in one place and cannot be continued as a battery, 
 as appeared in an appeal of Mayhem, Coram Rege, Anno 
 41 Ed. III. 
 
 The case has not been identified in Y. B. Paschal, 25 Ed. Ill, or in Case 111. 
 the early abridgments. 
 
440 
 
 STATHAM 
 
 Hilary 
 
 22 Ed. III. 
 
 Case 112. 
 
 (112) In an appeal for rape after nonsuit, the defendant 
 was arraigned at the suit of the king and acquitted. And 
 they inquired as to the abettors, etc. Simile, Anno 40, 
 Coram Rege. 
 
 The case has not been identified in Y. B. Hilary, 22 Ed. III. 
 
 HUary 
 
 22 Ed. III. 
 
 Case 113. 
 
 (113) In an appeal against a monk who was acquitted, 
 the justices would not suffer them to inquire as to the 
 abettors, because the monk could [not] recover damages, 
 etc. And they said that the law is the same in an appeal 
 against a married woman, etc. 
 
 The case has not been identified in Y. B. Hilary, 22 Ed. Ill, or in the 
 early abridgments. 
 
 Hilary (114) The accessory shall not be bound to answer to the 
 
 7 Hen. IV. party, notwithstanding the principal was acquitted at the 
 suit of the king, and not at the suit of the party. 
 
 Case 114. Reported in Y. B. Mich, (not Hilary), 7 Hen. IV, p. 27, pi. 4. See also 
 
 Brooke, Corone, 19; and Fitzh: Corone, 80. 
 
 Michaelis 
 9 Hen. IV. 
 
 Case 115. 
 
 (115) Justices of the Peace cannot take appeals nor assign 
 coroners. And this in an Appeal. 
 
 Reported in Y. B. Mich. 9 Hen. IV, p. 24, (1) pi. 1. 
 Corone, 25; and Fitzh: Corone, 457. 
 
 See also Brooke, 
 
 Anno 
 
 11 Ed. III. 
 
 Case 116. 
 
 (116) In the meantime between the charging of the 
 inquest and the going out and their return, the defendant 
 would have become an approver and could not. In an 
 indictment, etc. Contrary at Newgate, Anno 4 Ed. III.' 
 
 The case has not been identified in Y. B. Anno 11 Ed. Ill, or in the 
 early abridgments. 
 
 Anno 
 
 28 Hen. VI. 
 
 statham59 b. (117) If a man be arraigned for a felony within the year, 
 at the suit of the king, the appeal is gone, etc., be he 
 acquitted or attainted, etc. Coram Rege. 
 
 Case 117. The case has not been identified in Y. B. Anno 28 Hen. VI, or in the 
 
 early abridgments. 
 
 ' Ed. iiii in the text, but it is a clear error for "Ed. III." 
 
CORONE ET PLEEZ DE CORONE 441 
 
 (118) The principal had a charter of pardon and the Trinity 
 accessory was arraigned, etc. But yet, query well, etc. 
 
 The case has not been identified in Y. B. Trinity, 3 Ed. Ill, or in the Case 118. 
 early abridgments. But see Y. B. Trinity, 2 Ed. Ill, p. 27, pi. 17. 
 
 (119) The principal resorts to his clergy, the accessory Tg^^^jj 
 shall not be arraigned, because the principal might make 
 
 his purgation. 
 
 The case has not been identified in Y. B. Trinity, 5 Ed. Ill, or in the Case 119. 
 eariy abridgments. 
 
 (120) One was arraigned upon an indictment for felony, Anno 
 notwithstanding the appeal was pending for the same ^^ ^^"" ^^' 
 felony, by an infant under age, etc. Before Newton at 
 Sarum. (I believe that he was credibly informed that he 
 
 was not guilty, etc.) ' 
 
 There is no early printed year of 13 Hen. VI. Case 120. 
 
 (121) Where a man is acquitted as principal, he shall Trinity 
 not be arraigned for the same felony as accessory after- 
 wards. And this in an indictment. 
 
 Reported in Y. B. Trinity, 2 Ed. Ill, p. 26, pi. 14. See also Fitzh: Case 121. 
 Corone, 150. 
 
 (122) A man was arraigned for the death of an unknown Trinity 
 
 1 Ed. III. 
 man, etc. 
 
 Reported in Y. B. Mich, (not Trinity), 1 Ed. Ill, p. 25, pi. 26. Case 122. 
 
 (123) Where a man becomes an approver and then an Anno 
 appeal is sued against him, he shall be arraigned upon the ^ ^^°- ^• 
 appeal, etc. From this it follows that a man cannot 
 become an approver in an appeal against him. 
 
 The case has not been identified in Y. B. Anno 2 Hen. V, or in the Case 123. 
 early abridgments. 
 
 'The note is apparently put in by Statham from contemporary 
 authority, probably a fact known to those who were in Court when 
 the case was tried. 
 
442 
 
 STATHAM 
 
 Anno 
 
 32 Ed. III. 
 
 Case 124. 
 
 (124) One was arraigned at the suit of the king, notwith- 
 standing an infant under age had an appeal against him 
 for the same felony. And Sharshull gave as a reason that 
 it might be that he who was indicted would by fraud make 
 an infant within the age of three or four years appeal him, 
 and thus the suit of the king shall perish, which is not 
 reasonable. And this Coram Rege. 
 
 There is no early printed year of 32 Ed. III. 
 32 Ed. Ill, p. 196, pi. 8, a like case appears. 
 
 In the Liber Assisarum, 
 
 Anno 
 
 40 Ed. III. 
 
 Case 125. 
 
 (125) In an appeal of mayhem. Knyvet: The plain- 
 tiff brought another appeal for this same mayhem and those 
 whom he now assigns as principals he then assigned as 
 accessories, upon which writ he was nonsuited, judgment, 
 etc. Wherefore it was adjudged that he take nothing. 
 AVhich note. And also see that he assigned principals and 
 accessories in this appeal of mayhem, which is not legal, 
 as I think, etc. Coram Rege. 
 
 Reported in Y. B. Liber Assisarum, 40 Ed. Ill, p. 238, pi. 1. 
 
 Anno 
 
 40 Ed. III. 
 
 Case 126. 
 
 (126) When the principal was attainted, the accessory 
 was held to answer, and he found mainprise because acces- 
 sories, etc. In an appeal Coram Rege, etc. Query, if he 
 shall do so before Justices of Gaol Delivery, etc.? 
 
 Reported in Y. B. Liber Assisarum, 40 Ed. Ill, p. 240, pi. 8. See also 
 Brooke, Corone, 117. 
 
 Anno 
 
 40 Ed. III. 
 
 Case 127. 
 
 (127) In an appeal by a woman for the death of her 
 husband, the defendant said that her husband was alive, 
 and it was tried by provers, etc. Coram Rege. (It seems 
 that the plea amounts to no more than "not guilty," etc.) 
 
 Reported in Y. B. Mich. 40 Ed. Ill, p. 42, pi. 24. See also Fitzh: 
 Corone, 90. 
 
 Anno 
 
 41 Ed. III. 
 
 (128) A man was indicted and arraigned because he 
 beat a man in Westminster Hall. And he was found 
 guilty, and it was adjudged that his right hand be cut off, 
 
CORONE ET PLEEZ DE CORONE 443 
 
 and his lands and chattels forfeited, etc. (Which was 
 strange as to the lands, etc.) 
 
 The case has not been identified in Y. B. Anno 41 Ed. Ill, or in the Case 128. 
 early abridgments. 
 
 (129) In an appeal, if the defendant breaks prison and Paschal 
 is retaken, he will be ousted of battle for that reason. But ^ 
 
 if he have the king's charter [of pardon] for that breaking, 
 it is otherwise. As appeared Trinity, 1 Ed. Ill, in a note. 
 
 The case has not been identified in Y. B. Anno 1 Ed. Ill, or in the Case 129. 
 early abridgments. 
 
 (130) A presentment that one is a common thief is not 
 good, etc. For apparent reasons. 
 
 DAMAGES 
 
 (1) In debt against one, the plaintiff declared upon statham60a. 
 two obligations in different counties. The defendant Hilary 
 admitted one, and they were at issue upon the other. And 
 
 the plaintiff had to wait for the damages on the first obli- 
 gation until the issue should be tried by the same inquest. 
 All the damages shall be inquired into albeit they are in 
 another county. And this by the opinion of the Court, 
 in Debt, etc. 
 
 The case has not been identified in Y. B. Hilary, 41 Ed. Ill, or in the Case 1. 
 early abridgments. 
 
 (2) In a writ of wardship, at the proclamation the Hilary 
 defendant made default, and a writ issued to the sheriff 
 
 to inquire if the infant was married and all the circum- 
 stances, which the inquest gave in their verdict; who 
 returned the damages accordingly. 
 
 Reported in Y. B. Hilary, 42 Ed. Ill, p. 1, pi. 5. Case 2. 
 
 (3) In a writ of entry upon a disseisin made on the Paschal 
 father of the demandant, he shall not recover damages ^ ^^' ^ 
 because the Statute says only that the disseisee shall 
 
444 
 
 STATHAM 
 
 recover damages against him who is found tenant after 
 the disseisin, etc. And this is a writ of entry in the per, 
 for a disseisin made on the disseisee, and not on his heir. 
 
 Case 3. Reported in Y. B. Hilary (not Paschal), 42 Ed. Ill, p. 7, pi. 30. See 
 
 also Brooke, Damages, 20; and Fitzh: Damages, 68. 
 
 The Statute is the Statute of Gloucester, 6 Ed. I (1378), cap. 1. 
 Stats, at Large, Vol. 1, p. 117 (119). 
 
 Paschal 
 42 Ed. III. 
 
 Case 4. 
 
 (4) In a writ of warranty of charter, they were at 
 issue upon the charter, and it was found for the plaintiff. 
 The opinion was that he should recover damages for the 
 delay. 
 
 The case has not been identified in Y. B. Paschal, 42 Ed. Ill, or in 
 the early abridgments. 
 
 Michaelis 
 43 Ed. III. 
 
 Case 5. 
 
 (5) If the tenant has repaired the tenements of which 
 the disseisin was made, the damages shall be recovered 
 according to the rate, etc. In an Assize. (But yet that was 
 against the opinion of Fortescue and others, etc.) 
 
 The case has not been identified in Y. B. Mich. 43 Ed. Ill, or in the 
 early abridgments. 
 
 Trinity 
 45 Ed. III. 
 
 Case 6. 
 
 (6) In a quare impedit against two, the plaintiff and 
 all the defendants made title to the advowson, and their 
 titles were traversed, to wit: each one traversed the other's 
 title; and it was found for one of the defendants, and he 
 had a writ to the bishop, and judgment to recover his 
 damages against the plaintiff, and against his companion 
 named with him. But yet, query? For it seems that when 
 the title of the plaintiff was found against him that they 
 should not inquire further, etc. 
 
 Reported in Y. B. Mich, (not Trinity), 45 Ed. Ill, p. 14, pi. 12. See 
 also Brooke, Damages, 173; and Fitzh: Damages, 38. 
 
 Michaelis 
 45 Ed. III. 
 
 Case 7. 
 
 (7) A man shall not recover damages against the incum- 
 bent except in the cases where he pleads a plea which 
 proves him to be a disturber, etc. In a Quare Impedit. 
 
 The case has not been identified, but it is possibly the same case 
 which is digested in case 6, supra. 
 
DAMAGES 445 
 
 (8) In an attaint against two for a false oath in a Qitare Michaeiis 
 Impedit, it was found that the Petty Twelve had made a 
 
 false oath, and one hundred pounds were recovered in a 
 Quare Impedit. And then the Grand Jury taxed this one 
 hundred pounds, and another hundred pounds as dam- 
 ages. And it was adjudged that the plaintiff should recover 
 one hundred pounds against one of the defendants, who 
 recovered, etc., this one hundred pounds in common against 
 both, because the other was now tenant of the advowson, 
 etc. And this attaint was brought by a woman, where 
 the first damages in the Quare Impedit were recovered 
 against her husband and herself, and the husband died, 
 etc. (All the same some think that the action is given to 
 the executors of the husband, and not to the wife, but 
 Fyncheden said that by the same reasoning, if she had 
 survived her husband, the execution of the damages would 
 be sued against the wife, and not against the executors, 
 and by this same reasoning she shall have the attaint, and 
 not the executors, etc.) 
 
 Reported in Y. B. Mich. 46 Ed. Ill, p. 23, pi. 5. See also Brooke, Case 8. 
 Damages, 174; and Fitzh: Damages, 78. 
 
 (9) In a writ of trespass brought by tenants "pro indi- Michaeiis 
 visa," where one is tenant of three or four parts, and the 
 
 other is tenant of only one part: upon the finding of this 
 matter their damages were severed, etc., by Fyncheden 
 in Trespass. 
 
 The case has not been identified in Y. B. Mich. 46 Ed. Ill, or in the Case 9. 
 early abridgments. 
 
 (10) Damages were [recoverable] in an Attaint at the Paschal 
 common law. By HuLS in an Attaint. ™' ^^' 
 
 Reported in Y. B. Paschal, 3 Hen. IV, p. 14 (15), pi. 3. See also Case 10. 
 Brooke, Damages, 187; and Fitzh: Damages, 55. 
 
 (11) Damages were recovered in an Attaint where there Hilary 
 
 1R TTrl TTT 
 
 were no damages in the first action. (But I believe that 
 these damages were only the profits in the meantime), etc. 
 
 There is no early printed year of 16 Ed. III. The case has not been Case 11. 
 identified in the Rolls Series for that year, or in the early abridgments. 
 
446 
 
 STATHAM 
 
 Trinity 
 34 Ed. III. 
 
 Case 12. 
 
 (12) In a writ of admeasurement of dower, a man 
 shall recover damages for the profits in the meantime, but 
 in admeasurement of pasture no damages shall be recov- 
 ered. As appeared in an Amercement. 
 
 There is no printed year of 34 Ed. III. The case has not been iden- 
 tified in the early abridgments. 
 
 Anno 
 
 16 Ed. III. 
 
 Case 13. 
 
 Anno 
 43, Liber 
 Assisarum. 
 
 Case 14. 
 
 (13) In an appeal, the plaintiff was nonsuited and the 
 defendant acquitted at the suit of the king, upon a declara- 
 tion; and he recovered his damages against the plaintiff, 
 etc. 
 
 There is no early printed year of 15 Ed. III. The case has not been 
 identified in the Rolls Series for that year, or in the early abridgments. 
 
 (14) A woman who had lost her dower by a tried action, 
 where she had vouched the heir, now had the record brought 
 into the Chancery because she was endowed there, and she 
 had a Scire Facias against the heir to be newly endowed, 
 and was newly endowed, but she recovered no damages, for 
 they do not award damages in the Chancery. And also 
 there was no default in the heir, unless it be for the delay 
 after the recovery against the woman. 
 
 Reported in Y. B. Liber Assisarum, 43 Ed. Ill, p. 274, pi. 32. See 
 also Brooke, Damages, 116. 
 
 Hilary 
 
 50 Ed. III. 
 
 Case 15. 
 
 (15) In gavelkind, one had issue two sons, and died 
 seised of certain lands, and they entered [the sons] against 
 whom their mother brought a writ of dower and recovered 
 half by the action, and twenty pounds damages. And 
 then she married, wherefore the sons entered, because 
 she had forfeited [her dower], by the customary law. And 
 her husband and herself sued execution of the damages, 
 by a Scire Facias, etc., and recovered the twenty pounds 
 notwithstanding they had forfeited the principal. 
 
 The case has not been identified in V. B. Hilary, 50 Ed. Ill, or in the 
 early abridgments. 
 
 Michaelis 
 31 Ed. III. 
 
 (16) In a quare impedit, because the defendant caused 
 himself to be essoined after appearance, he was adjudged 
 
DAMAGES 447 
 
 a disturber. All the same he would have averred that there 
 was not any disturber named, and could not for the above 
 reason. But the plaintiff recovered damages against him. 
 
 And it was said in the same plea, if in a Quare Impedit 
 the plaintiff causes himself to be essoined, and the six 
 months pass so that the bishop presents through the lapse; 
 still if the plaintiff avers that the defendant is a disturber, 
 he shall recover his damages. Query, why, etc.? 
 
 There is no printed year of 31 Ed. II. The case has not been identi- Case 16. 
 fied in the early abridgments. 
 
 (17) In a cessavit brought by the lord against the tenant. Trinity 
 it is necessary to tender the arrears with the damages as 
 
 well as where a Cessavit is brought for the cesser, for lands 
 leased in fee farm. And still the Statute of Westminster 
 the Second does not give damages in that case. But he 
 cited the Statute of Gloucester, which gives a Cessavit 
 for a fee farm, and says, "in the same manner," etc. 
 
 Reported in Y. B. Trinity, 21 Ed. Ill, p. 23, pi. 17. See also Brooke, Case 17. 
 Damages, 147. 
 
 Statute of Westminster the Second, 13 Ed. 1 (1285). Stats, at Large, 
 Vol. 1, p. 163. Stat, of Gloucester, 6 Ed. I (1278), cap. 4. Stats, at 
 Large, Vol. 1, p. 117 (121). 
 
 (18) In an annuity against an abbot , the plaintiff declared ^^''j. , 
 the damage to the amount of forty pounds. The attorney 
 
 of the abbot admitted the action, so he recovered the annu- 
 ity and the damages were taxed at ten pounds, and not 
 according to his count. But it is otherwise where a man 
 recovers as "non dejendam," etc. And so see that he stathameob. 
 recovered damages in a writ of annuity, which is against 
 the opinion of many, etc., who say that a man shall recover 
 the annuity with the arrears, and not damages, etc. 
 
 Reported in Y. B. Hilary, 1 Ed. Ill, p. 3, pi. 12. Case 18. 
 
 (19) In a writ of wardship, at the return of the dis- Michaeiis 
 tress, because the defendant made default at the proclama- 
 tion, the plaintiff had a writ to inquire as to the damages. 
 
 But yet the Statute does not speak of the damages, etc. 
 
448 
 
 STATHAM 
 
 Case 19. 
 
 Paschal 
 3 Hen. IV. 
 
 Case 20. 
 
 Reported in Y. B. Mich. 24 Ed. Ill, p. 33, pi. 21. See also Fitzh: 
 Damages, 162. 
 
 Statute of Westminster the Second, 13 Ed. I (1285), cap. 35. Stats, 
 at Large, Vol. 1, p. 163 (209). 
 
 (20) A man shall recover damages in an attaint at the 
 common law, and in an attaint given by the Statute, and 
 yet the Statute does not speak of damages, etc. 
 
 Reported in Y. B. Paschal, 3 Hen. IV, p. 14, pi. 3. See case 10, supra. 
 See also Brooke, Damages, 187; and Fitzh: Damages, 55. 
 
 The Statute of Westminster the First, 3 Ed. I (1275), cap. 38. Stats, 
 at Large, Vol. 1, p. 74. 
 
 Paschal 
 14 Hen. VI. 
 
 Case 21. 
 
 (21) In trespass for a forcible entry, the party shall 
 recover treble damages, and the costs of his suit shall also 
 be trebled, for it is included in the damages. And it is so 
 in every case where a man shall have his costs, except in the 
 case of the Statute of Gloucester, for that is given by a 
 special form, etc. 
 
 Reported in Y. B. Anno 14 Hen. VI, p. 13, pi. 44. See also Brooke, 
 Damages, 88; and Fitzh: Damages, 23. 
 
 The Statute of Gloucester, 6 Ed. I (1278). Stats, at Large, Vol. 1, 
 p. 117. 
 
 Hilary 
 8 Hen. IV. 
 
 Case 22. 
 
 (22) In an appeal by a woman for the death of her hus- 
 band, the defendant said that she formerly brought an appeal 
 for this same death against one H, who was hung at her 
 suit, judgment, etc. And she could not deny it, wherefore 
 it was adjudged that she take nothing, etc. And the 
 defendant prayed his damages against the plaintiff, and 
 could not, etc. 
 
 The case has not been identified in Y. B. Hilary, 8 Hen. IV, or in the 
 early abridgments. 
 
 Hilary 
 5 Ed. III. 
 
 (23) In an appeal, the defendant said that this same 
 ancestor of whose death, etc., had a daughter who was his 
 heir, judgment, etc. And for this reason the writ was 
 abated. And yet his daughter could have had the appeal, 
 etc. And the defendant prayed his damages and could 
 
DAMAGES 449 
 
 not have them, because she might be found guilty at the 
 suit of the king by an indictment. 
 
 And it was said in the same plea that the defendant shall 
 not be arraigned at the suit of the king, albeit the plaintiff 
 has declared, because the plaintiff had no cause of action, 
 etc. 
 
 The case has not been identified in Y. B. Hilary, 6 Ed. Ill, or in the Case 23. 
 early abridgments. 
 
 (24) In a quare itnpedit, where the plaintiff recovered Paschal 
 damages for half a year, he recovered no other damages, 
 
 etc. 
 
 Reported in Y. B. Paschal, 24 Ed. Ill, p. 25, pi. 13. See also Brooke, Case 24. 
 Damages, 151; and Fitzh: Damages, 4. 
 
 (25) The patron shall not have damages to the value Trinity 
 
 of two years, where the six months have passed, if he ' * 
 
 wishes to have a writ to the bishop, etc. In a Quare Im- 
 
 pedii, etc., for such damages are not given, except where 
 
 the bishop can present after the time when the other had 
 
 a writ to the bishop, as it seems, etc. Query, then can 
 
 the other, when this matter is shown, have his damages for 
 
 two years, etc. ? 
 
 The case has not been identified in Y. B. Trinity, 39 Ed. Ill, or in Case 25. 
 the early abridgments. 
 
 (26) In a writ of entry in the per, the tenant vouched Hilary 
 
 33 Ed III 
 
 the disseisor, by whom his entry was alleged, and the 
 opinion of WiLLOUGHBY was that the demandant should 
 recover damages against him, albeit no damages were recov- 
 ered against the tenant. And he gave as a reason that 
 because the demandant counted against the vouchee in the 
 guibus, and so in the purview of the Statute, because it is 
 of his own tort, etc. 
 
 There is no printed year of 33 Ed. III. 
 
 The Statute is that of Marlbridge, 52 Hen. Ill (1267), cap. 29 (de Case 26. 
 qaibus). Stats, at Large, Vol. 1, p. 55 (73). See also Fitzh: Damages, 6. 
 
 (27) In waste, the inquest found the waste to the damage Hii^y 
 of forty pounds, where the plaintiff only declared to the 
 
450 
 
 STATHAM 
 
 Case 27. 
 
 Michaelis 
 15 Hen. VI. 
 
 Case 28. 
 
 Trinity 
 
 15 Hen. VI. 
 
 Case 29. 
 
 Michaelis 
 38 Hen. VI. 
 
 Case 30. 
 
 Michaelis 
 8 Hen. VI. 
 
 value of ten pounds, and the forty were treble, etc. (And I 
 believe that the reason is because the Statute provides that one 
 shall recover treble of that which the inquest shall tax, for 
 in other actions he will not recover more than he counts) , etc. 
 
 There is no printed year of 34 Ed. III. 
 
 Statute of Gloucester, 6 Ed. I (1278), cap. 5. Stats, at Large, 
 Vol. 1, p. 117 (123). See also Fitzh: Damages, 7. 
 
 (28) In trespass for a close broken and certain ash trees 
 cut down, the defendant was found guilty, and the inquest 
 would have severed the damages, to wit: for the breaking 
 so much, and for the cutting so much, etc. Paston : All 
 that is but one entire trespass, for if he answers to the 
 cutting he answers to the other. Wherefore give entire 
 damages, etc. 
 
 There is no printed year of 15 Hen. VI. The case has not been 
 identified in the early abridgments. 
 
 (29) In trespass for forcible entry, the justices omitted 
 the damages and also the costs, and besides that the plain- 
 tiff recovered the third of that which he would have after he 
 had the increase, as well of the damages as of the costs, etc. 
 
 There is no printed year of 15 Hen. VI. The case has not been 
 identified in the early abridgments. 
 
 (30) A man shall recover damages in an Avdita Querela; 
 by Thorpe, etc. 
 
 The case has not been identified in Y. B. Mich. 38 Hen. VI, or in the 
 early abridgments. 
 
 (31) In detinue, the plaintiff declared to the damage 
 of twenty pounds. And afterwards the plaintiff and the 
 garnishee were at issue. And at the Nisi Prius the inquest 
 found for the plaintiff to the damage of a hundred pounds. 
 And it was the opinion that he should recover a hundred 
 pounds, notwithstanding he counted for only twenty pounds 
 against the defendant, etc. 
 
 Martyn said in the same plea: If the lord joins his 
 bailiff in the avowry, the plaintiff shall recover damages 
 
DAMAGES 451 
 
 against the lord and not against the bailiff, for the bailiff 
 is at once out of Court. 
 
 Reported in Y. B. Mich. 8 Hen. VI, p. 4, pi. 11. See also Brooke, Case 31. 
 Damages, 18; and Fitzh: Damages, 21. 
 
 (32) In an appeal against the husband and the wife, they Hilary 
 were acquitted. And it was the opinion of Rikhill that ^^ R'c.ii. 
 .their damages should be severed, for if the husband dies 
 
 the wife shall have the damages and not the executor, and 
 that cannot be unless they are severed, etc. 
 
 There is no early printed year for 12 Ric. II. The case has not been Case 32. 
 identified in the early abridgments, or in the Ames Foundation Year 
 Book of 12 Ric. II, ed. by Deiser. 
 
 (33) A man shall recover damages in a writ of annuity, Michaeiis 
 and also in an Assize for rent. As appeared in a judgment ^"' 
 for a writ of annuity by the tenant against the queen, etc. 
 
 Reported in Y. B. Trinity (not Mich.), 9 Hen. VI, p. 12, pi. 1. Case 33. 
 
 (34) If the judges increase or diminish the damages, the Paschal 
 plaintiff shall never have attaint, for they will not do the 
 
 one or the other except at the special prayer of the party, 
 which shall be entered upon the record. And this by 
 Babyngton, etc. 
 
 The case has not been identified in Y. B. Paschal, 9 Hen. VI, or in the Case 34. 
 early abridgments. 
 
 (35) In replevin, the sheriff returned that the defendant Michaeiis 
 had carried away the cattle, upon which the plaintiff took ^^ ™' 
 the cattle of the defendant in withernam.^ And then the 
 defendant came and claimed property, upon which they 
 
 were at issue. And the plaintiff waged deliverance of the 
 cattle that he had in withemam,i ^nd the defendant had a 
 writ to have them delivered, etc. To which the sheriff 
 returned that they were carried away, wherefore he had 
 a withernam, to which the sheriff returned that he had no 
 goods or chattels, wherefore he had a capias against the 
 plaintiff. And then the issue was tried and found for the 
 
 > Took the cattle which were distrained out of the county so that 
 the sheriff could not replevy them. 
 
452 
 
 STATHAM 
 
 Case 35. 
 
 plaintiff, wherefore he prayed judgment to recover his 
 damages. Norton : You will not give him judgment until 
 we have judgment of the withernam. And it was not 
 allowed. Wherefore he had judgment and the defendant 
 prayed an exigent against the plaintiif since the capias 
 pluries was returned, and he had it. And so note that the 
 plaintiff will be outlawed upon his own judgment, etc., 
 and if he comes, the defendant shall recover damages against 
 him, and each shall recover damages against the other. 
 
 Reported in Y. B. Mich. 11 Hen. IV, p. 10, pi. 21. See also Brooke, 
 Damages, 50; and Fitzh: Damages, 58. 
 
 Hilary (36) In dower, if the tenant says that he has been at all 
 
 times ready to render dower, and still is, he shall have the 
 plea to excuse himself from the damages, if he comes at 
 the summons. But in a writ of Cosinage it is not so, 
 
 statham 61 a. because the occupation of the abator is not legal, as it is 
 in the other case by the presumption of the writ, etc. 
 
 Case 36. Reported in Y. B. Hilary, 11 Hen. IV, p. 40, pi. 5. See also Brooke, 
 
 Damages, 52. 
 
 Paschal 
 11 Hen. IV. 
 
 Trinity 
 7 Hen. IV. 
 
 Case 38. 
 
 (37) In trespass for goods carried away, the defendant 
 pleaded an arbitration in a foreign county, which was 
 tra,versed, and found against the defendant. And the 
 opinion was that those of the same inquest should tax the 
 damages, for it is not like a foreign plea pleaded in an 
 Assize, where an ouster is confessed; there those of the 
 foreign county do not tax the damages, because they have 
 no notice of them, since no damages were declared in the 
 Assize, etc. But in this case, when the damages are de- 
 clared in certain, to which the defendant has pleaded a 
 false plea, without any protestation or anything to excuse 
 him from the damages, they can tax them well enough. 
 By Thorpe, etc. Simile, Paschal 44 Ed. III. 
 
 (38) In an assize of waste, in Annuity, and other such 
 writs, a man shall recover his damages for the arrears 
 incurred pending the writ, as well as those incurred before 
 the writ. By Thirning, in Annuity. 
 
 Reported in Y. B. Trinity, 7 Hen. IV, p. 16, pi. 4. See also Brooke, 
 Damages, 43. 
 
DAMAGES 453 
 
 (39) If in an appeal the principal is acquitted, the acces- 
 sory shall not recover damages against the abettors, because 
 they have never put his life in jeopardy, etc. 
 
 There is no citation for this case given by Statham. The case has Case 39. 
 not been identified. 
 
 (40) One J sued a praemunire facias against three, MichaeUs 
 against one as principal, and against the others as acces- ^"' 
 sories, who pleaded "not guilty"; and were found guilty, 
 
 and the plaintiff had a general judgment for his damages 
 against all three, etc. And the law is the same in an 
 appeal of mayhem, where it is sued against the principal 
 and accessories, etc. 
 
 And it was said in the same plea, that the plaintiff can 
 sue execution against which of them he will. Query, if 
 the principal dies, pending the writ, if the writ shall abate? 
 etc. And so see if he can have a PrcBtnunire Facias against 
 the accessory? And see similar material, Mich. 30 Hen. 
 VI, in the case of Thwaites, etc. 
 
 Reported in Y. B. Mich. 8 Hen. IV, p. 6, pi. 9. See also Brookei Case 40. 
 Damages, 46; and Fitzh: Damages, 66. The statements in the 
 abridgments and in the reported case itself contradict Statham. 
 
 (41) If my tenant for a term of years be ousted by Michaeiis 
 
 a stranger, against whom I recover by an action, and the ^^ ^^"- ^^• 
 termor afterwards brings a writ of ejectione fermae, etc., 
 against the stranger, he recovers no damages, for he barred 
 himself by the recovery in the Assize; but he can enter 
 upon me and have a writ of Trespass, and in that way he 
 can get to his damages, etc. (It seems that he can have 
 an ejectione fermae, and recover all his damages, etc.) 
 
 Statham and Fitzherbert (Damages, 8) cite this case as in Mich. 12 Case 41. 
 Hen. VI. Fitzherbert gives it as on p. 4 of the Y. B. for that year, 
 but I have not been able to identify the case. 
 
 (42) In detinue for charters, the garnishee was gar- Michaeiis 
 nished and did not come, wherefore it was adjudged that ^"^ ^^"" ^^' 
 the plaintiff should recover the writings but not the 
 damages, because the defendant had done what in him lay. 
 
454 
 
 STATHAM 
 
 Case 43. 
 
 Paschal 
 
 27 Hen. VI. 
 
 etc. And so see that the defendant can save himself from 
 the damages, etc., although the plaintiff delivered the 
 writings to him alone, for the plaintiff shall have no answer 
 to that matter, etc. Query? 
 
 Case 42. Reported in Y. B. Mich. 27 Hen. VI, p. 4, pi. 27, and p. 2, pi. 11. 
 
 See also Brooke, Damages, 11 and 191; and Fitzh: Damages, 27, 28. 
 
 (43) One disseises me and dies seised, his heir being 
 under age. The lord seises the wardship; then I bring a 
 writ of entry; shall I recover for the time that he was in 
 wardship, since his possession was legal? etc. 
 
 Statham gives no citation for this case; it has not been identified. 
 
 (44) In a quare impedit, the plaintiff can have judg- 
 ment to recover his damages, to wit : the value of the church 
 for two years. And he prayed the costs of his suit and 
 could not have them. And that is against those who say 
 that in every case where the woman recovers her damages 
 she shall recover the costs of her suit, etc. It seems that 
 he should recover his costs when he recovers only for the 
 disturbance, etc. 
 
 Reported in Y. B. Trinity (not Paschal, there being no printed 
 Paschal Term for this year), 27 Hen. VI, p. 10, pi. 7. See also Fitzh: 
 Damages, 29. 
 
 See as to damages, in the title of Actions on the Statutes, 
 Hilary, 30 Ed. III. 
 
 The case in 30 Ed. Ill is abridged by Statham under the title Accions 
 sur lez Estatutz, supra, p. 10 a, case 4. 
 
 (45) In an assize for rent, it was found that the tenant 
 of the lands made a rescue with force and with a multitude 
 of people, and the plaintiff prayed treble damages, by the 
 Statute of the year 8. And the opinion of all the justices 
 was that he should not have them because it was not in 
 the purview of the Statute, for the Statute is, "If the tenant 
 enter and disseise him with force," or, "enter peaceably and 
 detain with force," so it is necessary that there shall be an 
 entry in any case, and a man cannot enter in rent when 
 he is tenant of the land, to make a rescue, wherefore, etc. 
 
 Case 45. Reported in Y. B. Hilary (not Mich.), 34 Hen. VI, p. 26, pi. 4. 
 
 Case 44. 
 
 Note. 
 
 Michaelis 
 34 Hen. VI. 
 
DAMAGES 455 
 
 The Statute is that of 8 Hen. VI (1429), cap. 9, Stats, at Large, 
 Vol. 3, p. Ill (121). See also the Statute of 5 Ric. II (1381), cap. 7, 
 Stats, at Large, Vol. 2, p. 234 (240). 
 
 (46) In debt by executors, on an obligation made to their Anno 
 testator, the release of the testator was pleaded in bar, ^^ ^^' ^''' 
 which was found false, and the damages were inquired into, 
 
 as well for the time of their testator as after, because they 
 represented the estate of their testator, and they recovered 
 to the use of the testator and not to their own use, etc. 
 
 There is no early printed Y. B. for 19 Ed. III. The case has not Case 46. 
 been identified in the Rolls Series for that year. 
 
 (47) In detinue, the defendant said that he was at all Trinity 
 
 12 FH TTI 
 
 times ready to deliver and still is. And the plaintiff would 
 have undertaken to aver that he was not, but could not 
 because the defendant came on the first day, etc. 
 
 There is no early printed year of 12 Ed. III. The case appears in Case 47. 
 the Rolls Series, 11 & 12 Ed. Ill, p. 641. 
 
 DEFAUTE 
 
 (1) The default of the husband was adjudged the statham 6i b. 
 default of himself and his wife. In Dower, etc. Contrary Michaelis 
 elsewhere, etc. 
 
 The case has not been identified. Brooke, Defaut et Appearance, Case 1. 
 5, gives the citation as Mich. 41 Ed. Ill, p. 24. There is no case of 
 dower to be found there, and no question of default arises there, nor 
 does the point appear in any case reported in Y. B. 41 Ed. Ill, so far as I 
 have been able to ascertain. 
 
 (2) The demandant cannot waive the default of the Paschal 
 tenant unless he will agree to it. 
 
 Reported in Y. B. Hilary (not Paschal), 42 Ed. Ill, p. 8, pi. 36. See Case 2. 
 also Fitzh: Defaut, 14. 
 
 (3) If an infant under age makes default at the summons Trinity . 
 upon the return of the Grand Cape, the demandant shall ^^ ^'*- '"■ 
 
456 
 
 STATHAM 
 
 Case 3. 
 
 Michaelis 
 12 Ric. II. 
 
 Case 4. 
 
 Note. 
 
 have no advantage because of that default, but shall count 
 against him, etc. 
 
 There is no printed year of 32 Ed. III. The case has not been iden- 
 tified in the early abridgments. 
 
 (4) In a cessavit against the bishop, the dean, and the 
 chapter of B, the chapter answered by attorney, and the 
 dean made default. Hankford : We pray seisin of the 
 land, for the default of the dean is the default of them all, 
 etc. And they adjourned. Query, to what intent was the 
 bishop named? etc. 
 
 There is no early Year Book for the reign of Ric. II. The case 
 appears in the Y. B. of the Ames Foundation, ed by Deiser, 12 Ric. II, 
 Hilary (not Mich.), p. 128. It shows a nonsuit at the end. 
 
 See as to default, in the title of Process, and also in the 
 title of Saver de Defaute, etc. Many matters. 
 
 See Statham, title of Process, infra, pp. 138 b-141 a, and also in the 
 title of Saver de Defaute, infra, pp. 166 b-167 a. 
 
 DEFENCE 
 
 Hilary 
 
 44 Ed. III. 
 
 Case 1. 
 
 Michaelis 
 12 Ric. II. 
 
 (1) If a man pleads a plea which goes to the jurisdiction 
 of the Court, he cannot make a full defence, but shall say 
 this, to wit: to defend the tort and the force and demand 
 judgment if the Court will take jurisdiction for, etc., and 
 plead this plea, etc. Query, if he shall do so when he pleads 
 to the disablement of any person through profession or 
 villeinage? And it seems he can, for if he makes a full 
 defence he cannot disable the person but he can plead the 
 same matter to the action, after a full defence, etc. 
 
 The case has not been identified in Y. B. Hilary, 44 Ed. Ill, or in the 
 early abridgments. 
 
 (2) In trespass against one H, who made a full defence, 
 and said he was a professed monk, and his abbot was not 
 named, and he demanded judgment of the writ. Crosse: 
 He has made a defence, wherefore, etc. Wade : He is the 
 defendant, wherefore he does well, wherefore it is necessary 
 to answer him. 
 
DEFENCE 457 
 
 There is no early printed Year Book for the reign of Ric. II. The Case 2. 
 case has not been identified in the early abridgments, or in the Y. B. 
 12 Ric. II, Ames Foundation, ed. Deiser. 
 
 See how a man shall defend himself in a writ of right, Note, 
 in the title of Right. 
 
 See Statham, infra, title of Droit, pp. 73 b-74 a. 
 
 DECIES TANTUM 
 
 (1) An inquest was taken by Nisi Prius in pais, in a statham 62 a. 
 
 Quare Impedit, before which justices a bill was shown xrinity 
 
 [which showed], that the jurors had taken [bribes] from both 4i Ed. in. 
 
 parties. And it was immediately inquired into according 
 
 to the Statute, and it was found that they had taken [bribes], 
 
 wherefore the jurors were adjudged to prison, and given a 
 
 day in the Bench. And then it was challenged because 
 
 the justices of Nisi Prius sent the jurors to prison before 
 
 judgment. Thorpe : For that sue a writ of error if you 
 
 will, for we award that the king and the party shall recover. 
 
 And they tendered the half to the party. Fyncheden: The 
 
 king shall be first served. Thorpe: No, sir, for that which 
 
 the king shall have is only in the way of a fine, in which 
 
 case the parties shall be always first served. And so it 
 
 was. And for that which belonged to the king they found 
 
 sureties, etc. And a Venire Facias was awarded against the 
 
 embracers, because they were not in the bill, etc. This 
 
 Statute does not give a Decies Tantum only, but a bill against 
 
 the jurors or the parties, and that the party shall recover 
 
 his damages. And the party shall have a fine, etc. And 
 
 if another than the party sues for the king he shall have half 
 
 of the fine, etc. (And the Statute was made in the year 34 of 
 
 Ed. Ill, cap. 7. And the Decies Tantum was given in the 
 
 year 38 of the same king, and the year 8 of Henry the Sixth, 
 
 etc. But that was only for a certain time, which is past) , etc. 
 
 Reported in Y. B. Paschal (not Trinity), 41 Ed. Ill, p. 9, pi. 3. See 
 also Brooke, Decies Tantum, 5, where he says that the case is badly 
 reported, but does not improve upon it; and Fitzh: Decies Tantum, 9. Case 1. 
 
 The Statutes are those of 34 Ed. Ill, cap. 8 (1360), Stats, at Large, 
 Vol. 2, p. 134 (139), and 38 Ed. Ill, cap. 12 (1363), Stats, at Large, 
 Vol. 2, p. 169 (172), and not 8, but 18 Hen. VI, cap. 14 (1439), Stats, 
 at Large, Vol. 3, p. 218 (236). The words I have placed in paren- 
 
458 
 
 STATHAM 
 
 theses were evidently added by the editor, as the date of the last 
 statute is later than the case. 
 
 Trinity 
 44 Ed. III. 
 
 Case 2. 
 
 Michaelis 
 44 Ed. III. 
 
 Case 3. 
 
 (2) In a decies tantum, the sheriff returned to the dis- 
 traint that they had nothing, etc. And the plaintiff prayed, 
 for the king, that he might have a distress against him 
 for the lands that he had on the day the inquest passed, and 
 he could not have it except for the lands that he had on 
 the day of the purchase of the writ, etc. 
 
 Reported in V. B. Paschal (not Trinity), 44 Ed. Ill, p. 12, pi. 18. 
 See also Brooke, Decies Tantum, 7. 
 
 (3) If he who is attainted in a Decies Tantum offers the 
 money, they shall not take the part of the king, but put it 
 in the receipts with the penalties, with a writ, etc.; 
 or else they will command the serjeant of the king to go 
 with them and he shall be delivered from the Fleet. 
 
 Reported in Y. B. Mich. 44 Ed. Ill, p. 36, pi. 28. See also Brooke, 
 Decies Tantum, 8. 
 
 Paschal 
 
 21 Hen. VI. 
 
 Case 4. 
 Note. 
 
 Michaelis 
 50 Ed. III. 
 
 Case 6. 
 
 (4) A man shall not have a Decies Tantum against one 
 who is empanelled unless he be sworn, although he took 
 money, etc. : By the opinion of Newton. Query, if he 
 shall have the Decies Tantum before verdict passes, etc.? 
 
 And see in the same plea, that a man can sue a Decies 
 Tantum in whatever county he will. 
 
 Reported in Y. B. Paschal, 21 Hen. VI, p. 54, pi. 9. 
 
 See as to decies tantum, in the title of Actions on the 
 Statutes, etc. 
 
 See Statham, supra, title of Accions sur lez Estatutz, p. 10 a. 
 
 (5) A decies tantum was adjudged good where the writ 
 alleged that the juror took [bribes]. And yet it seems that 
 the receipt of one juror cannot be the receipt of the others. 
 The Statute which gives the Decies Tantum says that he 
 shall be sued by a bill, etc., and that it shall not be in- 
 quired into by an inquiry brought by the king, etc. 
 
 The case has not been identified in Y. B. Mich. 50 Ed. Ill, or in the" 
 early abridgments. 
 
 Statutes of 34 Ed. Ill, cap. 7 (1360), Stats, at Large, Vol. 2, p. 134 (139) 
 and also 18 Hen. VI, cap. 14 (1439), Stats, at Large, Vol. 3, p. 218(236). 
 
DISCLAYMER 459 
 
 DISCLAYMER = 
 
 (1) One vouched a bishop to warranty, and bound stathatn62b. 
 him for the reason that his predecessor enfeoffed him in the Trinity 
 
 tail ; so by reason of that reversion he bound him. And the **' ^^' ^^^' 
 bishop would have disclaimed and could not, because his 
 predecessor gave it with the assent of the dean and chapter, 
 in which case it shall be prejudicial to the chapter and to 
 his successors. 
 
 And it was said by Fyncheden in the same plea, that if 
 the tenant in tail brought a writ of mesne against him who 
 was in the reversion that he cannot disclaim. (And it 
 seems that none in the reversion can disclaim, for I do not 
 know in whom it would vest.) 
 
 Reported in Y. B. Trinity, 40 Ed. Ill, p. 27, pi. 4. See also Brooke, Case 1. 
 Disclaimer, 7; and Fitzh: Disclaimer, 10. 
 
 (2) In replevin brought by one who was tenant for a Paschal 
 term of years, the defendant avowed upon a woman ^^ ^'^' ^^^' 
 who was the lessor of the plaintiff, for rent, etc. Kyrton: 
 
 Sir, you have here the woman who is tenant of the freehold, 
 who is ready to join the party who is her lessee, and they 
 both disclaim. Belknap: She cannot join, for she is not 
 injured, for the joinder shall be in place of an acquittance, 
 and the termor cannot have a writ of mesne, etc. Fynch- 
 eden. He can have a writ of covenant, and discharge 
 himself of the damages, which are so much in value, etc. And 
 therefore the joinder was admitted. And because the 
 termor put his term in jeopardy, as well as the lessor, they 
 were admitted to disclaim together, etc. And the termor, 
 who was plaintiff, had judgment to recover his damages 
 immediately, etc. 
 
 And it was said in the same plea, that in an Assize against 
 the tenant of the freehold and the termor, that if the tenant 
 of the freehold pleads to the Assize, that the termor may 
 plead the release of the plaintiff of all actions. Query, if 
 he can plead the release of all the right, etc.? For it was 
 
460 
 
 STATHAM 
 
 Case 2. 
 
 said he shall plead no other plea, unless he be a tenant by 
 a Statute Merchant or Elegit. See the Statute of Glouces- 
 ter, etc. Query, how shall the writ of right upon a dis- 
 claimer be brought in that case, and against whom, etc. ? 
 
 Reported in Y. B. Paschal, 45 Ed. Ill, p. 7, pi. 9. See also Brooke, 
 Disclaimer, 10; and Fitzh: Disclaimer, 12. 
 Statute of Gloucester, 6 Ed. Ill (1278), Stats, at Large, Vol. 1, p. 117. 
 
 Trinity 
 47 Ed. III. 
 
 Case 3. 
 
 (3) A man cannot disclaim in a writ of recaption, where 
 the defendant avows for other causes, but he should main- 
 tain his writ, etc. 
 
 Reported in Y. B. Mich, (not Trinity), 47 Ed. Ill, p. 7, pi. 3. 
 also Fitzh: Disclaimer, 20. 
 
 See 
 
 Trinity 
 31 Ed. III. 
 
 Case 4. 
 
 (4) In a formedon against three, one said that he dis- 
 claimed in the lands, saving that the reversion was in him. 
 Query? For it seems that he should not disclaim unless 
 he devested all his right. (But it seems that his plea was 
 only a nontenure.) But yet he had the plea, and then 
 by the default of the others he was received to defend his 
 right, etc. 
 
 There is no printed year of 31 Ed. III. The case has not been iden- 
 tified in the early abridgments. 
 
 Michaelis 
 13 Ed. III. 
 
 Case 5. 
 
 (5) In an assize against two, one disclaimed in the free- 
 hold; the other pleaded jointly with him who disclaimed. 
 And the plaintiff was forced to answer that, for his dis- 
 claimer was not to the purpose, for it could not vest in his 
 companion, as in a Prmcipe quod Reddat. Query as to 
 the reason, etc.? 
 
 There is no early printed year of 13 Ed. III. The case has not been 
 identified in the Rolls Series, or in the early abridgments. 
 
 Hilary 
 4 Ed. III. 
 
 Case 6. 
 
 (6) If a praecipe quod reddat be brought against one 
 he cannot disclaim, for it cannot vest in no one, etc., 
 wherefore he shall plead nontenure, etc. 
 
 The case has not been identified in Y. B. Hilary, 4 Ed. Ill, or in the 
 early abridgments. 
 
DISCLAYMER 461 
 
 (7) In a praecipe quod reddat against one who vouched Hilary 
 
 OO tj»J TTT 
 
 two to warranty, and bound them by reason of the reversion, 
 because they leased the lands to him for the term of his life. 
 And one of them disclaimed. And the Court was in doubt 
 whether the reversion by this disclaimer would vest in the 
 other in the reversion, or in the tenant for life, etc. But 
 yet, query, if the disclaimer lies in that case, etc.? 
 
 And it was moved in the same plea; if a writ be brought 
 against two, where one had only a term for life, the reversion 
 to a stranger, and he disclaimed, will it vest in the stranger 
 who had the reversion, or in his companion? 
 
 There is no printed year of 33 Ed. III. Fitzh : Disclaimer, 21, has the Case 7. 
 case. 
 
 (8) See in a formedon against several, and one of them Trinity 
 disclaimed, and he showed how he had the wardship of ^"' 
 the land, because he was bound to him, and, saving to 
 
 him his seignory, be disclaimed in the tenancy. And 
 so to this effect he showed this matter, but if he had dis- 
 claimed generally he had lost his seignory, etc. 
 
 There is no printed year of 15 Hen. VI. The case has not been Case 8. 
 identified in the early abridgments. 
 
 (9) If the avowry be made upon the mesne, and he joins Hilary 
 himself to the plaintiff who is tenant, and they disclaim, ^^ ^'^' ^^^" 
 the lord shall have a writ of right upon the disclaimer 
 against the tenant of the land: By Fyncheden, in 
 Replevin, etc. (But yet it seems that he shall not have 
 
 such an action in that case, etc.) 
 
 There is no printed year of 35 Eki. III. The case has not been Case 9. 
 identified in the early abridgments. 
 
 (10) See by Sharshull, the reason why, when one dis- Hilary 
 
 ^'^ 'PH TTT 
 
 claims, it shall vest in his companion. For the law looks 
 upon them as joint tenants by the feoffment, then if one 
 of them takes seisin for both, the tenancy is in the one 
 who was not there as well as in the other, until he has dis- 
 sented in a court of record. Then when an action is 
 brought against them, and he disclaims having anything 
 
462 
 
 STATHAM 
 
 Case 10. 
 
 in the land, then the land shall vest in his companion; 
 and this by force of the feoffment, etc. And each of them 
 shall be estopped from afterwards saying the contrary. And 
 yet the suit shall not abate, for the plaintiff cannot have 
 another writ, inasmuch as both were tenants until one dis- 
 claimed in a court of record. And he said further that 
 they could not disclaim unless they were joint tenants by a 
 feoffment, for if they were joint tenants by descent or by a 
 fine, the demandant could show it and extort a disclaimer 
 from him, because, if the case be so, he cannot disclaim. 
 (But yet it seems that the law is the other way, for a man 
 can waive a descent if he sees that he will be charged, or 
 else that he had no title, etc. And so, as to the descent, 
 it seems that the law is not so, for the writ lies against them, 
 although they did not enter in fact. But yet it seems that 
 it does not vest in the other in that case, although the 
 demandant shall have seisin of the land upon a "nihil 
 dicit," etc. Query, if they are joint tenants by a disseisin, 
 etc.? Study well. In a Scire Facias.) 
 
 There is no printed year of 35 Ed. III. Fitzh: Disclaimer, 23, has 
 the case. The evident bewilderment of the maker of the notes will be 
 shared by the student, for the law is left in a confused state. 
 
 Trinity 
 
 IS Hen. VI. 
 
 Case 11. 
 
 (11) See of disclaimer in the title of Dower, where 
 one, upon whom the avowry was not made, disclaimed. 
 And yet the avowry is not made upon any person, but 
 upon the lands charged, etc. Hilary, 15 Hen. VI. 
 
 There is no printed year of 15 Hen. VI. The case has not been iden- 
 tified in the early abridgments. 
 
 Trinity 
 34 Ed. III. 
 
 (12) Where my tenant disclaims in an avowry, I shall 
 have a writ of right of Wardship, and a writ of right of 
 Customs and Services, for by this disclaimer my lordship 
 is not gone in law, unless at my will, but the possession 
 of my lordship is gone through it, for I cannot make an 
 avowry nor have an Assize, etc. And Sharshull and 
 WiLLOUGHBY Said that all my lordship was gone, and I 
 must be put to my action for the lands, etc. Well argued, 
 in an Avowry. It seems that the disclaimer is no bar in 
 
DISCLAYMER 463 
 
 a writ of Wardship, nor in an Escheat, because no judgment 
 is given upon that disclaimer, etc. 
 
 There is no printed year of 34 Ed. III. Fitzh: Disclaimer, 24, has Case 12. 
 the case. 
 
 (13) See by Grene, that the husband cannot disclaim Hilary 
 for his wife, for if he could, the judgment that the plaintiff ^^ ^*^' ^^^' 
 shall have will be of no force, for after death of the husband statham 63 a. 
 the woman can enter or have the assize, for it is not 
 reasonable that she shall be disinherited where she has 
 
 not been examined, etc. And also, if the disclaimer be 
 admitted, she cannot be received after the default of her 
 husband, for by this disclaimer she is out of Court. And 
 this well argued in a Prcecipe quod Reddat, etc. 
 
 There is no printed year of 32 Ed. III. Fitzh: Disclaimer, 25, has Case 13. 
 the case. 
 
 (14) In a per que serricia, the tenant would have dis- Trinity 
 claimed and could not, etc. ^^ ^^"- '^• 
 
 Reported in Y. B. Trinity, 11 Hen. IV, p. 72, pi. 10. See also Brooke, Case 14. 
 Disclaimer, 12; and Fitzh: Disclaimer, 8. 
 
 (15) If one vouches another to warranty and binds him Paschal 
 by reason of the reversion, he can disclaim as to the reversion ^"' 
 and then the tenant has lost his lands, for he has failed 
 
 of his voucher, etc. And they said that such a disclaimer 
 lies in every case where the tenant binds him by reason 
 of the reversion, in case the tenant is in by the lease of him 
 who is vouched. And yet many say that if that lease 
 be without a deed that he may disclaim well enough. And 
 they said that where the reversion had been granted by 
 a fine that he has been received to disclaim in the reversion, 
 etc. Query, as to that sort of disclaimer, for it cannot 
 vest in any person, but it remains in him who granted the 
 reversion, etc. Query? For the reversion was out of his 
 person and in the grantee until he disclaimed, and con- 
 sequently it vested, through the disclaimer, in the grantor 
 of the reversion, etc. 
 
 The case has not been identified in Y. B. Paschal, 20 Hen. VI, or in Case 15. 
 the early abridgments. 
 
464 
 
 STATHAM 
 
 Hilary 
 8 Hen. V. 
 
 Case 16. 
 
 (16) In replevin , the defendant avowed upon the plaintiff, 
 and he disclaimed. Rolff : To that you shall not be received 
 for you have made a feoffment of the land, etc., so there 
 is no power to have a writ of right upon a disclaimer against 
 you. And this was held a good plea to oust him of the 
 disclaimer. Wherefore the plaintiff said that he was 
 seised of the land in fee, without this that he had made 
 a demise, etc. Query, if he could get to plead anew, rigore 
 juris, inasmuch as the other had forced him to disclaim, 
 etc. But I believe that he should say that his feoffor had 
 given notice to the avowant, etc. 
 
 Reported in Y. B. Hilary, 8 Hen. V, p. 2, pi. 4. See also Fitzh: 
 Disclaimer, 26. 
 
 Paschal 
 26 Hen. VI. 
 
 Case 17. 
 
 Note. 
 
 (17) In a formedon against two, one disclaimed; the 
 other vouched to warranty. Danby (for the demandant) : 
 We pray seisin of the land, as to which he has disclaimed, 
 for as to that the other has not undertaken the tenancy. 
 Pole : He has no need to, for it is vested in him immediately 
 by the disclaimer. Prisot: That is not so, for you can 
 choose whether you will plead in bar of the whole or of the 
 half, wherefore Pole took upon himself the tenancy of the 
 whole, and vouched to warranty, which note, etc. 
 
 And see, in the same Term, that he who is in the reversion 
 cannot disclaim where the tenant by the curtesy or in dower 
 vouches him, and binds [him] by reason of the reversion. 
 And this by Portyngton and Assheton in a Forme- 
 don, etc. 
 
 Apparently the case reported in Y. B. Anno 36 Hen. VI, p. 28, pi. 
 30. Brooke, Disclaimer, 17, has the case; and Fitzh: Disclaimer, 9, 
 has it, although he calls it a Precipe quod Reddat. 
 
 One avows upon two; one disclaims, 
 be done? 
 
 Query, What shall 
 
 Hilary 
 4 Hen. V. 
 
 (18) In a writ of entry de guibus, on a disseisivit of 
 the demandant or his ancestors: one of the tenants would 
 have disclaimed, and could not because he was in of his own 
 wrong, etc. 
 
 And it was said in the same plea that in a Pracipe quod 
 Reddat against two, where one disclaims and the other 
 
DISCLAYMER 465 
 
 cannot disclaim also, because it could not vest in anyone, 
 but he can plead specially and say that he never agreed 
 to the feoffment, etc. Or, if he be in by descent, he can 
 say that he waived the possession. And this by Hals, etc. 
 
 There is no printed Hilary Term for 4 Hen. V. Brooke, Disclaimer, Case 18. 
 36, has the case. 
 
 (19) A man cannot disclaim in a Per que Servicia. Trinity 
 As appeared in a note. ^^ ^^°' '^' 
 
 Reported in Y. B. Trinity, 11 Hen. IV, p. 72, pi. 10. See also Brooke, Case 19. 
 Disclaimer, 12: and Fitzh: Disclaimer, 8. See supra, case 14. 
 
 (20) An infant under age cannot disclaim in a Nuper Paschai 
 Obiit, etc. (The contrary seems true, etc.) ^ ^'^- ^^^• 
 
 Reported in Y. B. Paschal, 9 Ed. HI, p. 14, pi. 21. Case 20. 
 
 (21) After a day taken for a Prece Partium, the tenant Trinity 
 cannot disclaim. And this in a Cui in Vita. 
 
 There is no early printed year of 14 Ed. HI. The case has not been Case 21. 
 identified in the Rolls Series, or in the early abridgments. 
 
 (22) The tenant disclaimed in a quo jure, and the justices Paschal 
 said that his common was extinguished by this. And 
 
 this in the Eyre of Nottingham. 
 
 And in the same Eyre one brought a quo jure for estovers, 
 and it was adjudged good. Query as to the reason why 
 a man shall not have a quo jure for rent? etc. 
 
 The case has not been identified in Y. B. Paschal, 12 Ed. H, or in Case 22. 
 the early abridgments. 
 
 s^This is a plea known to Britton [Britton, 107, 120, b, 128, b, 173, b, 
 175, b.) Coke tells us of it in quaint language. Where the lord has 
 received homage he is not free to disclaim when vouched by the tenant, 
 for "he has accepted his humble and reverent acknowledgment to 
 become his man of life and member and terrene honour." [Coke, 1st 
 Inst., sec. 145, b.] There are various sorts of disclaimers, Coke tells us, 
 mostly disclaimers in the tenancy in the "bloud" and in the seignory. 
 Most of our cases are disclaimers in the tenancy. Again we have a 
 subject of which the Year Books are full. Litigants and persons 
 vouched are always disclaiming. It was a matter to be handled care- 
 fully, because there was danger — as in our case 2 — that the termor 
 
466 
 
 STATHAM 
 
 might put his term in jeopardy. The facts as to just how and when one 
 could disclaim are vague and puzzling to the modern reader. These 
 cases of the abridgment do little more than suggest the subject; yet 
 they do suggest it, and few as they are they serve to show that the 
 pleading of this plea raised many important points. Our case 10 is an 
 interesting example of the arguments used in the cases, and the manner 
 of carrying on such arguments. Case 15 shows where the tenant 
 stands to lose his lands if his voucher disclaims, and again we have an 
 argument showing that the law did not appear to be well settled even in 
 the twentieth year of Henry VI. 
 
 DENZINE" 
 
 Michaelis 
 14 Hen. IV. 
 
 Case 1. 
 
 (1) Although an alien be sworn in a Leet or Sessions 
 to be loyal to the king, still he is not thereby made com- 
 petent to purchase lands nor to be put in a jury, unless he 
 be made capable by the letters of the king. And this in a 
 Challenge, etc. 
 
 Reported in Y. B. Hilary (not Mich.), 14 Hen. IV, p. 19, pi. 23. See 
 also Brooke, Denzine and Alien, 2 and 11. 
 
 " The alien could not hold lands, but there was a way of making him 
 something less than a citizen and yet to give him more powers than were 
 given to the alien. This was by way of letters patent from the king, 
 making him capable of purchasing lands, as in our sole case, or to acquire 
 them by gift. He cannot inherit lands, however [Coke, 1st Inst., sec. 
 198, p. 129; and P. & M. Hist, of Eng. Law, 2d ed., Vol. 1: 460], in 
 case a child was born, except by act of parliament. 
 
 Apparently a denizen, by these letters, acquired all the other rights 
 of citizens, including as a matter of course, the right to "be put on a 
 jury." [Coke, supra, § 198, p. 129.] 
 
 DISCONTINUANZ DIVERSEZ 
 
 Michaelis 
 40 Ed. Ill, 
 
 statham63b. (1) The tenant vouched himself to save the tail, and 
 process issued against him as vouchee, and because the 
 charter was omitted in the process, the tenant prayed that 
 it be discontinued. And because it was his own suit he 
 was not received to allege a discontinuance, wherefore the 
 vouchee pleaded in bar, etc. 
 
 Reported in Y. B. Mich. 40 Ed. Ill, p. 36, pi. 7. See also Brooke, 
 Discontinuance de Process, 46: and Fitzh: Discontinuances Diverses, 42. 
 
 Case 1. 
 
DISCONTINUANZ DIVERSEZ 467 
 
 (2) In an oyer and terminer, one was outlawed and sued Paschal 
 a charter of pardon, and had a Scire Facias against the 
 plaintiff, who came and counted upon the first original. And 
 
 then the defendant alleged a discontinuance in the process 
 of the first original, and the opinion of Willoughby was that 
 he should not get to that inasmuch as he had sued a charter 
 of pardon where he could have had a writ of error, etc. 
 
 The case has not been identified in Y. B. Paschal, 24 Ed. Ill, or in Case 2. 
 the early abridgments. 
 
 (3) In a praecipe quod reddat, the tenant vouched Trinity 
 to warranty. Process was continued until the seguatur, 
 
 on which day the sheriff did not return the writ, wherefore 
 the demandant prayed seisin of the land. Markham: 
 To judgment you should not go, for the case is this: 
 To the summons ad warrantizandum the sheriff returned 
 "mandavi bdllivo liberlatis de B, qui mihi nullum 
 dedit responsum," upon which a non omittas issued, to 
 which he returned "nihil habet nee est inventus," upon 
 which a pluries issued; on which day the sheriff returned 
 as before, so the alias was omitted, and the process dis- 
 continued. For in a writ of debt where the sheriff returns 
 to the capias, as above, whereupon a non omittas is awarded, 
 that first capias cannot be counted, wherefore, etc. 
 Strange : From that it follows (by your reasoning) that a 
 new seguatur shall issue where the sheriff has not served 
 any of the other writs, and returns the seguatur, to wit: 
 the mandamus, as above. Wampage: It has been seen 
 that two seguaturs have been awarded, as, if the tenant 
 vouches one who is under age, and the demandant says 
 he is of full age, then process shall issue against him to wit : 
 Summon another pluries and a seguatur, and if he comes 
 at the seguatur, and is adjudged to be of full age, a new 
 process shall issue against him, for the other process could 
 not be seen. Goderede: It seems that the process is 
 discontinued, for the non omittas does not say prcecepimus 
 tibi sicul alias, etc., wherefore after the non omittas, the 
 sicut alias and pluries shall issue. Juyn: The tenant 
 is out of Court, because he cannot allege that matter. 
 
468 
 
 STATHAM 
 
 Case 3. 
 
 Michaelis 
 15 Hen. VI. 
 
 Case 4, 
 
 HUary 
 1 Hen. V. 
 
 Case 6. 
 
 Trinity 
 
 18 Hen. VI. 
 
 HoDY: He can plead a release after the last continuance, 
 or that the demandant has entered, etc. And consequently 
 he ran allege a discontinuance in the process against the 
 vouchee, for this is the suit of the demandant, etc. Tres- 
 HAM: There is a difference between a case of debt and 
 the case here, for in the case here, if four writs be awarded, 
 although one of them be served, the land is lost, but the 
 exigent does not issue until one writ is first served, etc. 
 And they adjourned, etc. 
 
 Reported in Y. B. Anno 14 Hen. VI, p. 19, pi. 60. 
 
 (4) If a protection be put forward after issue all is dis- 
 continued, as well as where it is put without day by the 
 death of the king; for in the case here at the Venire Facias 
 the tenant made default, upon which the Petty Cape 
 issued, on which day the tenant produced a protection, 
 and after the year the demandant was resummoned, and 
 was forced to count anew, for all was discontinued, etc. 
 But if he had sued a special resummons, reciting the whole 
 case, peradventure it had been otherwise. 
 
 There is no printed year of 15 Hen. VI. The case has not been 
 identified in the early abridgments. 
 
 (5) See a like case in a Formedon, Michaelmas, 1st Hen. 
 V, well argued ; where they made a distinction, where the 
 process is discontinued until it be put without day, by a 
 protestation, or by the death of the king. For if it is prop- 
 erly continued and a Venire Facias issues, on which day it 
 is put without day by the death of the king, at the resum- 
 mons the demandant shall sue a Habeas Corpus against 
 the jurors, etc. (But I believe this cannot be unless the 
 resummons specially recites the whole case, etc.) 
 
 Reported in Y. B. Hilary, 1 Hen. V, p. 2, pi. 3. 
 
 (6) In a formedon they were at issue, and on the return 
 of the Venire Facias the tenant made default, upon which 
 a petty cape issued, on which day the plea was put without 
 day by a protection. And then the demandant was re- 
 summoned, and the tenant made default, upon which the 
 
DISCONTINUANZ DIVERSEZ 469 
 
 Great Cape issued, and the demandant released the defend- 
 ant from the Great Cape, and prayed that the tenant 
 save the default of the petty cape. Newton: That 
 is reasonable, for the resummons says that he shall be 
 in the same position in which he was on the day that the pro- 
 tection was thrown, and on that day the default was not 
 saved, consequently, etc. Fortescue: That cannot be, 
 for, if on the return of the Great Cape the demandant be 
 essoined, the tenant shall never save his default, for he 
 had no day on which to do it. And the law is the same 
 where the tenant essoins himself for service of the king, 
 and he fails of his record, etc. And if one pleads to the 
 assize, and it remains for lack of jurors, and a general re- 
 attachment is sued, the tenant shall plead in bar, for the 
 default is discontinued, and all that is dependent upon it. 
 AscouGH: To the same effect. For by the default the 
 issue is discontinued and the default is gone through the 
 protection. And this is clearly proved, for now a Great 
 Cape is awarded at the resummons, and that proves clearly 
 that the first default does not remain of record, for a man 
 cannot have the Great Cape after the petty cape, unless 
 the petty cape is discontinued. And also the resummons 
 runs "ad audiendum record'." And this default was never 
 recorded. And also it was wholly discontinued before 
 the protection was thrown, wherefore, etc. Well argued. 
 Reported in Y. B. Trinity, 18 Hen. VI, p. 14, pi. 3. Case 6. 
 
 (7) In a quare impedit against two. Strange: Process Mkhaeiis 
 is discontinued, for the pone was served against one, and not ^ ^^"' ^^■ 
 against the other. Hankford : Although in a writ of Tres- 
 pass the pone be served against one, and not against the 
 other, yet he who appears shall be forced to answer, and that 
 in an action of the same nature, wherefore answer, etc. 
 
 The case has not been identified in Y. B. Mich. 9 Hen. VI, or in the Case 7. 
 early abridgments. 
 
 (8) A man shall not get to allege a discontinuance in Hilary 
 
 38 Ed 
 
 the process after he has made his defence and emparled, 
 etc., but before the imparlance and after the defence, he 
 
470 
 
 STATHAM 
 
 Case 8. 
 
 can, etc. By Thorpe, in Trespass. (But yet it seems 
 for anything that appeared, that a man shall get to allege 
 a discontinuance at any time, etc.) 
 
 The case has not been identified in Y. B. Hilary, 38 Ed. Ill, or in 
 the early abridgments. 
 
 Michaelis 
 7 Hen. VI. 
 
 Case 9. 
 
 (9) In trespass against two, a discontinuance against 
 one is a discontinuance against both. And the law is the 
 same in Debt by several pracipes, because it is only an 
 original writ, which cannot be discontinued in part, and 
 stand good for the remainder, etc. For it cannot stand good 
 in part unless the process be determined against the other, 
 etc. Contrary above, and also below in the next plea, etc. 
 
 Reported in Y. B. Paschal (not Mich.), 7 Hen. VI, p. 21, pi. 1. 
 also Brooke, Discontinuance de Process, 19. 
 
 See 
 
 Hilary 
 7 Hen. VI. 
 
 statham64a. (10) In txespass against two who pleaded not guilty. 
 And on the return of the Venire Facias one came and said 
 that the other was dead, and prayed that the writ should 
 abate. Martyn: It seems that the writ should abate, 
 for they have become joint defendants by their plea, for 
 by the issue of their joint Venire Facias the discontinuance 
 against one of them is a discontinuance against both. It 
 is otherwise if they had had a separate Venire Facias, for 
 then a protection thrown by one shall serve only for himself. 
 But upon a joint Venire Facias the plea is put without 
 day for all. Strange: There is a difference between 
 your cases, for where a protection is thrown for one, 
 and the inquest shall be taken for the other, he shall be 
 discharged. And afterward, when the year has passed, 
 they shall come back to give their verdict between the 
 plaintiff and the other defendant, and so they will be 
 harassed. But when one is dead they can give their 
 verdict and be discharged forever, and so it seems that 
 the writ is good. Goderede : And so it seems to me that 
 a Venire Facias shall issue, for this Venire Facias is dis- 
 continued. And it was said in the same plea that a man 
 cannot relinquish his suit in such a case, where a protection 
 
DISCONTINUANZ DIVERSEZ 471 
 
 is thrown by one, because a man cannot relinquish his suit 
 before it has been adjudged, etc. Query, etc. ? 
 
 Reported in Y. B. Paschal (not Hilary), 7 Hen. VI, p. 21, pi. 1. See Case 10. 
 also Brooke, Discontinuance de Process, 19. See supra, case 9. 
 
 (11) See by Martyn, in a Qtiare Impedii, [that there Michaeiis 
 is a] difference where judgment is given upon process, and ™' 
 where it is given upon the verdict; as if a man be outlawed 
 
 in Debt, where there were only two capias awarded or where 
 a Grand Cape is awarded instead of a petty cape and the 
 demandant recovers by default; in all such cases the 
 tenant or defendant can have error, or allege a discon- 
 tinuance, if he had a day in court, etc. But it is otherwise 
 where the defendant comes upon such process wrongly 
 awarded, and pleads, and the plaintiff and he are at issue 
 and it is found for the plaintiff, the defendant shall not 
 have any advantage for that, because he has passed the 
 step, in that he has admitted the process to be good when 
 he appeared and pleaded, etc. But yet, query as to that, 
 for it seems, for anything that appeared, that the defendant 
 should have all the said advantage of the discontinuance, 
 or else have a writ of Error, etc. 
 
 Reported in Y. B. Mich. 3 Hen. IV, p. 8, pi. 9. See also Brooke, Case 11. 
 Discontinuance de Process, 1. 
 
 (12) In a recordare, the defendant said that the plea Hilary 
 was discontinued in the county. Martyn : What is that ^ "^"' ^^" 
 to the purpose? For when we plead, it shall be answered 
 
 as if it had been here [first]. Which the Court conceded. 
 Reported in Y. B. Hilary, 3 Hen. VI, p. 30, pi. 17. Case 12. 
 
 (13) Although the processes in the judicial writs are Hilary 
 badly awarded, and the defendant appears upon them, ^^ "^°' ^^• 
 he shall be forced to answer, for the original is good, and 
 
 the other shall be amended. And this in Trespass. 
 Reported in Y. B. Hilary, 11 Hen. IV, p. 40, pi. 3. Case 13. 
 
 (14) At the nisi prius the inquest passed against the Hilary 
 defendant, and then he came and said that he who appeared ^^ "^"- '^• 
 as attorney for him never had any warrant of attorney. 
 
472 STATHAM 
 
 wherefore you should not go to judgment. Hankford: 
 It has been held in such cases that the demandant shall 
 recover, and the defendant shall have a writ of Error. 
 Thirning: That he cannot, as his own act. But to my 
 mind, if he be ousted by such a judgment, he shall have 
 the assize, for he is not a party to that. Query well, etc. 
 In Trespass, etc. It seems that there is no other remedy 
 in a personal plea, except a writ of deceit, and no more is 
 there in a plea of land, etc. 
 
 Case 14. Reported in Y. B. Hilary, 11 Hen. IV, p. 44, pi. 16. 
 
 Michaeiis (^5) i^ ^ ^y^it ^f debt, the defendant as to part waged 
 
 18 Hen. VI. , . ', , , . , , . . 
 
 his law, and as to the remainder they were at issue, and 
 
 he had a day to make his law. And the Venire Facias 
 was returned on the same day, on which day his attorney 
 was essoined, and the essoin was awarded, and they ad- 
 journed until now, and [had] a habeas corpus returnable the 
 same day. And now the plaintiff showed how the attorney 
 of the defendant was essoined where the defendant himself 
 should have been essoined, and he prayed his debt, for which 
 he [had] waged his law. Portyngton: The process is dis- 
 continued against him as to that part, and consequently as to 
 all since it is upon one and the same original, etc. Mark- 
 ham: It is only mis-continued; no more than in a Scire 
 Facias where the tenant is essoined when an essoin does not 
 lie, and yet it is not a discontinuance, inasmuch as he has 
 had a day for that; but it is mis-continued and shall be 
 amended. Newton : It is not the same, for in your case 
 a day is given between the parties, but in this case not any 
 on the part of the defendant, for the attorney in this case 
 is only the same as a stranger, because he should have 
 appeared always in his own person. Brown: As to that 
 which is pleaded to the country, the process is not dis- 
 continued, for when the habeas corpus issued, the entry 
 was "juraiores prosuni in respectu" which shall be under- 
 stood to refer to the acts of the parties, etc. Which New- 
 ton conceded, etc. 
 
 Case 16. The case has not been identified in Y. B. Mich. 18 Hen. VI, or in 
 
 the early abridgments. 
 
DISCONTINUANZ DIVERSEZ 473 
 
 See of discontinuance, in the title of Entry Congeable, ^ote. 
 etc. And see how rent can be discontinued, Mich. 48 Ed. 
 Ill, in the title of Per que Servicia, etc. 
 
 Statham, title of Entre Congeable, infra, pp. 84 a, b. Statham, 
 title of Per que Servicia, infra, p. 142 b. 
 
 (16) If the tenant in tail leases for life and dies, and ^"°° 
 his heir releases all his right and dies, it was said that this 
 is a discontinuance, because by the lease a new reversion 
 of the fee was reserved, which descended to the heir; and 
 although the estate tail had descended in law, yet it is dis- 
 continued, by the opinion of many. In an Assize. But 
 it was not adjudged, etc. 
 
 There is no printed year of 5 Hen. VI. The case has not been iden- ^^^^ ^^■ 
 tified in the early abridgments. 
 
 DETTE « 
 
 (1) A man brought an action of debt against executors statham 64 b. 
 because he was retained by their testator for the term of Hilary 
 
 his life to take one hundred shillings a year in peace and ^ ^™' ^^' 
 war; and that his salary was in arrear for two years, 
 amounting, etc. And it was held that he should not take 
 anything by his writ. 
 
 Reported in Y. B. Hilary, 2 Hen. IV, p. 14, pi. 12. See also Brooke, Case 1. 
 Dette, 53. 
 
 (2) In debt against two upon a joint contract, if one be Paschal 
 outlawed and the other appears, he shall answer for the *° ^^' ^^^" 
 whole debt, and for that he shall be charged, etc. 
 
 And see, in the same plea, that he who appeared said 
 that the other was dead before the outlawry was pronounced 
 and for that reason the writ was abated, etc. 
 
 Reported in Y. B. Trinity (not Paschal), 40 Ed. Ill, p. 26, pi. 1. Case 2. 
 
 (3) In debt against two upon a joint contract, they Michaeiis 
 
 J X.1- • 1 • J ..I. J . J 40 Ed. III. 
 
 waged their law m common, and on the day, etc., one made 
 
474 
 
 STATHAM 
 
 Case 3. 
 
 Michaelis 
 40 Ed. III. 
 
 Case 4. 
 
 Hilary 
 
 41 Ed. III. 
 
 Case 5. 
 
 Hilary 
 
 41 Ed. III. 
 
 his law, and the other made default; and the plaintiff 
 prayed his debt against him who made default. Fynch- 
 EDEN: You abated your writ by the acceptance of the law 
 of one of them, wherefore you take nothing, etc. Query, 
 if he had held him to the default, if the default of one 
 would be the default of both? etc. 
 
 Reported in Y. B. Mich. 40 Ed. Ill, p. 35, pi. 4. 
 
 (4) In debt, the plaintiff counted partly upon an obliga- 
 tion and partly upon a contract. The defendant admitted 
 the obligation, and as to the contract "nothing owing him." 
 Ready by the country, etc., wherefore he had judgment 
 for that which was admitted, but not for the damages, until 
 the issue should be tried, because the same inquest shall 
 tax all. And at the Nisi Prius the plaintiff did not come, 
 and then, in the Bench, he prayed judgment for the damages 
 admitted, etc. Thorpe: You are nonsuited, wherefore, 
 etc. And also it was your folly at first, for you could 
 have released your damages for that portion. But yet 
 it was held that he should have a writ to inquire as to the 
 damages, etc. Which note. 
 
 The case has not been identified in Y. B. Mich. 40 Ed. Ill, or in the 
 early abridgments. 
 
 (5) In debt against the Prior of St. Johns, the plaintiff 
 counted on a loan to the prior by the hands of one J, his con- 
 frere, besides this that he would aver that the monies came 
 to the use of the house, etc. And the count was held good. 
 
 The case has not been identified in Y. B. Hilary, 41 Ed. Ill, or in 
 the early abridgments. 
 
 (6) In debt upon arrears in an account, the defendant 
 said that by a deed indented, which he produced, the 
 plaintiff had agreed to take, for the same sum, the manor 
 of D, judgment if action. And the opinion was that this 
 was no plea, without answering to the debet. 
 
 Case 6. 
 
 Reported in Y. B. Hilary, 41 Ed. Ill, p. 7, pi. 11. 
 Dette, 120. 
 
 See also Fitzh: 
 
 Paschal 
 41 Ed. III. 
 
 (7) In debt against several by separate prmcipes, all 
 acknowledged the debt, and the plaintiff had judgment 
 
DETTE 475 
 
 to recover the entire debt against each of them, but he did 
 not have execution, except against one of them at his election. 
 
 Reported in Y. B. Paschal, 41 Ed. Ill, p. 9, pi. 1. See also Brooke, Case 7. 
 Dette, 30. The report of the case states that he recovered against "all 
 in common." 
 
 (8) "Assets descended to him after the death of his ^^^^\„ 
 
 , . . . 42 Ed. III. 
 
 ancestor, ' is no plea in debt against the heir, unless he says, 
 "Assets by descent the day the writ was purchased," for by 
 the alienation before the writ was purchased, that descent 
 would not injure him, because he could not have execution 
 on that, and other execution he shall not have. But it is 
 otherwise if he waives the possession, for the law throws the 
 possession on him, etc. But in a Formedon the plea is 
 good that assets descended to him after the death of his 
 ancestor, without saying more, etc. 
 
 Reported in Y. B. Paschal, 42 Ed. Ill, p. 10, pi. 12. Case 8. 
 
 (9) Debt is not maintainable against executors of a warden Anno 
 who allowed a condemned prisoner to escape, as appears 
 
 in a note Coram Rege, etc. But yet, query? For an action 
 of debt lies against the warden at the common law. And 
 by the Statute an action is given against the warden of the 
 Fleet if he allows a condemned prisoner to go on bail, or on 
 security, etc. And in that case if the warden of the Fleet 
 dies, it seems that the action of debt lies against his execu- 
 tors ; and so it seems in the other case. Query? For there 
 is no specialty, nor record that the prisoner has gone, etc. 
 
 The case has not been identified in Y. B. 40 Ed. Ill, or in the early Case 9. 
 abridgments. 
 
 The Statute is that of Westminster the Second, 13 Ed. I (1285), 
 cap. 11. Stats, at Large, Vol. 1, p. 163 (188), pi. 8. 
 
 (10) A man shall have a writ of Debt for the damages Hilary 
 recovered in a writ of Waste ; for damages recovered in a ^^ ^''"'" 
 writ of Aiel, Cosinage, Mort d'Ancestor, and Assize. 
 
 And in a writ of Entry, but not for the arrears of rent 
 recovered, etc. Well argued. 
 
 The case has not been identified in Y. B. Hilary, 45 Ed. Ill, or in the Case 10. 
 early abridgments. 
 
476 
 
 STATHAM 
 
 Hilary 
 
 46 Ed. III. 
 
 Case 11. 
 
 (11) In debt, the plaintiff counted that he sold a horse 
 to the defendant for forty shillings, etc. The defendant 
 said that he did not admit the contract to have been for 
 so much as he alleged, but he said that it was for only 
 four shillings, which he had been at all times ready to pay, 
 and still is, etc. And as to the forty shillings, "nothing 
 owing him." And the other demanded judgment, inas- 
 much as he had admitted the contract, in a manner, in 
 which case he shall not get to his law in another plea, 
 without showing an acquittance. Fyncheden: If he had 
 paid all except four shillings, he cannot plead otherwise, for 
 if he does not confess the contract with you, he shall not 
 allege payment without showing an acquittance, wherefore, 
 to my mind, he pleads wisely, etc. Query? 
 
 Reported in Y. B. Hilary, 46 Ed. Ill, p. 6, pi. 16. 
 
 Trinity 
 47 Ed. III. 
 
 Case 12. 
 
 (12) In debt against the husband and his wife, damages 
 were recovered against the wife before the coverture, and 
 the writ was "debet et detinet," and it was held good. 
 
 Reported in Y. B. Mich, (not Trinity), 47 Ed. Ill, p. 23, pi. 56. 
 See also Brooke, Dette, 44. 
 
 Trinity 
 47 Ed. III. 
 
 Case 13. 
 
 (13) The Prior of B brought a writ of debt upon an 
 obligation made to one J, his predecessor, and the obligation 
 was not to him and to his successors, but to the prior solely. 
 And still the action was maintained. And also the writ 
 was "debet," etc. Query, if he showed in his count that 
 it was made for goods or duties due to his house. 
 
 Reported in Y. B. Mich, (not Trinity), 47 Ed. Ill, p. 23, pi. 57. See 
 also Brooke, Dette, 45; and Fitzh: Dette, 134. 
 
 Michaelis 
 10 Ed. III. 
 
 Case 14. 
 
 (14) If a man has nothing by descent, except in Gavel- 
 kind, a writ of debt shall be brought against him and his 
 co-heirs, and specially counted. Query, if he alleges in 
 his declaration that the defendant had nothing by descent 
 except there, etc.? 
 
 The case has not been identified in Y. B. Mich. 10 Ed. Ill, or in the 
 early abridgments. 
 
DETTE 477 
 
 (15) In debt against two by one prcecipe, one came and Hilary 
 the other came not, and the plaintiff declared against him *^ ^'^' ^"' 
 who came, upon an obligation by which each was bound, 
 
 "pro toto ei insolido." And because he had but one prcecipe, 
 it was adjudged that one should not answer without the 
 other, but the same day was given, etc. 
 
 Reported in Y. B. Hilary, 48 Ed. Ill, p. 1, pi. 2. See also Brooke, Case 15. 
 Dette, 197. 
 
 (16) In debt upon an obligation, if the plaintiff declares Hilary 
 for a lesser sum than is comprised within the obligation, he 
 should acknowledge that he is satisfied as to the remainder. 
 
 And see in the same plea, where the obligation was 
 endorsed upon conditions, the defendant alleged a payment 
 without showing an acquittance. 
 
 Reported in Y. B. Trinity (not Hilary), 48 Ed. HI, p. 18, pi. 3. Case 16. 
 
 (17) In debt upon an obligation for twenty pounds, the statham 65 a. 
 defendant said, "not his deed," Ready: and the other Hilary 
 alleged the contrary. And it was found that the defendant ' 
 borrowed ten pounds of the plaintiff, and that he made 
 
 this obligation, and it was delivered to the defendant for 
 ten pounds and the defendant sealed it, and so not his 
 deed. And upon this they were adjourned. (And whether 
 he recovered the whole, or ten pounds, or nothing, I do not 
 know.) 
 
 The case has not been identified in Y. B. Hilary, 50 Ed. HI, or in the Case 17. 
 early abridgments. 
 
 (18) In debt, the plaintiff counted that he leased land Paschal 
 to the defendant for the term of his life, rendering a certain 
 
 rent, and if the rent was in arrears that he could enter and 
 retain it until satisfaction should be made with him for the 
 arrears. And he showed how the rent was in arrear for a 
 year, wherefore he entered and brought this action for the 
 arrears. Newton : The deed says that he shall retain 
 it until, etc., wherefore he has no other remedy but to 
 retain it until, etc. And the action was maintained, etc. 
 
 The case has not been identified in Y. B. Paschal, 24 Ed. HI, or in the Caae 18. 
 early abridgments. 
 
 1 "Plaintiff" in the text, but a patent error. 
 
478 
 
 STATHAM 
 
 Michaelis 
 18 Ed. III. 
 
 Case 19. 
 
 (19) In debt against the warden of a prison because he 
 had allowed a prisoner to go, who was delivered to him by 
 reason of a Statute Merchant. He was not named warden 
 in the writ, and yet the writ was held good, for the Statute 
 does not say that he shall be named warden, etc. 
 
 Reported in Y. B. Mich. 18 Ed. Ill, p. 35, pi. 18. The Statute is 
 that of Westminster the Second, 13 Ed. I (1285), cap. 11, Stats, at 
 Large, Vol. 1, p. 163 (188). 
 
 Michaelis 
 46 Ed. III. 
 
 Case 20. 
 
 Paschal 
 3 Hen. IV. 
 
 Case 21. 
 
 (20) In debt, the plaintiff declared upon an obligation 
 for two hundred pounds. The defendant said that the 
 obligation was endorsed that if the defendant would pay 
 twenty pounds to the plaintiff before the feast of Easter, 
 etc., that then, etc., and we have paid him the twenty 
 pounds, etc. FynCHEDEn: You do not say that you paid 
 him before the day, wherefore your plea shall be more 
 strongly against you, to wit: that you paid him after the 
 day, which cannot be in performance of the conditions, since 
 the conditions are at an end ; so your plea amounts to no 
 more than that you have paid him twenty pounds, and 
 for that you do not show any acquittance. Wherefore it 
 was adjudged that the plaintiff should recover two hundred 
 pounds and his damages, etc. And so see that it is not 
 the same as where a man alleges pajonent in another place 
 than that which plaintiff has alleged, and that the plaintiff 
 received them ; for that is good, if it be paid before the day 
 of payment, but after the day the conditions have expired, 
 etc. But if the defendant had pleaded wisely, in that case 
 he could have barred the plaintiff by that matter, etc. (But 
 yet it were not easy to do it, etc.) 
 
 The case has not been identified in Y. B. Mich. 46 Ed. Ill, or in the 
 early abridgments. 
 
 (21) In debt upon a contract, the defendant said that 
 the plaintiff had an obligation for the same debt, etc. And 
 the plaintiff said that the obligation was made for another 
 cause. And he was forced to say for what cause, etc. 
 
 Reported in Y. B. Paschal, 3 Hen. IV, p. 15, pi. 14. See also Brooke, 
 Dette 67. 
 
DETTE 479 
 
 (22) Where my father leases lands for a term of years, Michaeiis 
 rendering a certain rent, and dies, I shall have a writ of ^* **^"' ^^' 
 debt for the arrears which accrued after the death of my 
 
 father. And this by Paston, etc. 
 
 The case has not been identified in Y. B. Anno 14 Hen. VI, or in the Case 22. 
 early abridgments. 
 
 (23) In debt against the warden of Newgate, because Paschal 
 he allowed a condemned prisoner to go at large; he was ^^ ^*^' ^^^' 
 not named warden in his writ but in his count, and it was 
 
 held good. 
 
 There is no early printed year of 11 Ed. III. The case has not been Case 23. 
 identified in the Rolls Series for that year. See supra, case 19, for a 
 similar case. 
 
 (24) In debt in the Common Bench, the defendant said Hilary 
 that the plaintiff had a bill for the same debt pending ^* ^"^^ ""• 
 against him in the Exchequer; and it was not allowed, etc. 
 
 There is no printed year for 34 Ed. III. The case does not appear Case 24. 
 in the early abridgments. 
 
 (25) The tenant in dower leased land for a term of years. Trinity 
 rendering a certain rent, and died ; and he who was in the ^^ ^^"- ^'• 
 reversion agreed to the lease, and for rent in arrear after- 
 wards he brought a writ of debt. And it was the opinion 
 
 of many that it was not maintainable because there was no 
 privity, etc. Query, how could he declare in that case? 
 
 There is no printed year of 15 Hen. VI. The case has not been Case 25. 
 identified in the early abridgments. 
 
 (26) If an obligation be made to the husband and his Michaeiis 
 wife, and the husband makes the same woman his executrix * ^^°' ^^' 
 and dies, she can choose to bring the action on the obliga- 
 tion as executrix, or else in her own name ; by the opinion 
 
 of Paston, etc. Query, if she made a release after the 
 death of her husband, in her own name, omitting the name 
 of executrix, would that bar her when she brought an action 
 as executrix? 
 
 Reported in Y. B. Mich. 4 Hen. VI, p. 5, pi. 16. See also Fitzh: Case 26. 
 Dette, 24. 
 
480 
 
 STATHAM 
 
 Paschal 
 4 Hen. VI. 
 
 Case 27. 
 
 HUary 
 35 Ed. III. 
 
 Case 28. 
 
 Michaelis 16, 
 Paschal 
 21 Ed. III. 
 
 Case 29. 
 
 Paschal 
 
 18 Hen. VI. 
 
 Case 30. 
 
 (27) In debt, [if] the plaintiff declares upon a lease for 
 a term of years, without a deed, it is a good plea to say that 
 the plaintiff had a deed indented for the same lease, in 
 which case he should count upon the lease, etc. 
 
 Reported in Y. B. Paschal, 4 Hen. VI, p. 17, pi. 1. 
 
 (28) In debt upon a contract, it is no plea to say that the 
 plaintiff had an obligation from a stranger for the same 
 duty, etc. But to say that he had an obligation from the 
 defendant for the same duty is good: by Sharshull, etc. 
 
 Thereisnoprintedyearof 35 Ed. III. Fitzh: Dette, 83, has thecase. 
 
 (29) In debt against the heir, the writ was challenged 
 because he was not named heir, and also because the writ 
 was "debet et detinet," whereas it should be "detinet" as 
 against executors. And it was adjudged good as a whole. 
 
 The case has not been identified in Y. B. Paschal, 21 Ed. Ill, or in the 
 Rolls Series, 16 Ed. Ill, for Michaelmas Term. 
 
 (30) In debt, the plaintiff counted that he leased certain 
 lands to the defendant to hold at will, rendering ten shillings 
 a year, and for so much in arrear, etc. Markham: 
 Judgment of the count, for you have not counted that we 
 occupied for that time, etc., and if we did not occupy you 
 shall not have an action, for such a lease is as well at the will 
 of the defendant as at the will of the plaintiff. Portyngton 
 (agreeing) : For if you make me your bailiff, etc., pledging 
 by the year, etc., and I bring an action of debt for my salary, 
 I shall count that I occupied, etc. Fortescue: In your 
 case it is reasonable, for you are by way of an action, but 
 here the action is brought against the occupier, wherefore, 
 if he would have the advantage of that, he is bound to show 
 it. Paston : If the law is as Markham says, that the lease 
 shall be at the will of both, the case had been colorable, but 
 I understand it to be at will of the lessor solely: then if 
 the defendant did not occupy, it is his folly, for he could 
 have an action against a stranger as well as the tenant for 
 a term of years, etc. 
 
 Reported in Y. B. Paschal, 18 Hen. VI, p. 1, pi. 1. 
 
DETTE 481 
 
 (31) If a man grants a rent charge to another for the Trinity 
 term of his life, and then the grantor alienates the land to ^^ ^"" 
 another; then the rent is in arrear; the grantee dies; 
 
 the tenant aliens over. Now it was asked of Hankford, 
 against whom the executors of the grantee would have a 
 rent of debt for the arrears? It seems against the tenant 
 of the land; which Thirning denied, and said that the 
 action fails. And this in a note, etc. 
 
 The case has not been identified in Y. B. Trinity, 11 Hen. IV, or in Case 31. 
 the early abridgments. 
 
 (32) In debt against the heir, he was not named heir ~o pj^'r.r 
 in the writ, but in the count. And the writ was held good. 
 
 And the writ was "debet," etc. 
 
 There is no printed year of 32 Ed. III. The case has not been Case 32. 
 identified in the early abridgments; it seems identical with our case 29. 
 
 (33) In debt upon the arrears of a lease for a term of stathamesb. 
 years, the defendant said that "your wife was tenant in Michaeiis 
 dower of these same lands by the inheritance, etc., and 
 
 you yourself leased them to us for a year, within which 
 year your wife died, and this same person in the reversion 
 entered, wherefore your estate is ended," judgment, etc. 
 Fyncheden: To that we say that you yourself sowed the 
 land in the lifetime of our wife, and had the land all the year 
 for which you sowed, so you have the profit and occupation 
 of the land, etc. But he did not say, "without this that 
 he who had the reversion entered," and for this reason it 
 does not seem a plea, etc. Thorpe: If my father leased 
 to you for a term of years, and died, I shall have the rent 
 incurred in the lifetime of my father, because I cannot 
 oust you, for the executor of my father cannot have it, 
 because the rent descends to me in the reversion. Fynch- 
 eden : In your case no one would have it, because it is a rent 
 service, and his wife is dowable of that; but in this case it 
 seems that the lessor shall have the rent, for the heir of 
 the woman shall not have it, nor her executor, nor can the 
 woman make a devise of it, etc. 
 
482 
 
 STATHAM 
 
 Case 33. There is no printed year of 32 Ed. III. See also Fitzh: Dette, 9, 
 
 where he has abridged a case which may be this case or one very 
 like it. 
 
 Michaelis 
 8 Hen. VI. 
 
 Case 34. 
 
 Paschal 
 12 Ric. II. 
 
 Case 36. 
 
 Trinity 
 
 22 Hen. VI. 
 
 Case 36. 
 
 Michaelis 
 7 Hen. VI. 
 
 (34) In debt upon the arrears of an account. The plain- 
 tifif was examined and it was found by the examination 
 that it did not lie in account, wherefore it was said to him 
 that he should amend his count, and so he did and he 
 counted upon a contract, etc., which note, for it seems that 
 the writ should abate. See the Statute, which gives an 
 examination in that case, etc. Query, if the defendant 
 wages his law and prays that the plaintiff might be 
 examined, and it is found that it lies in account, shall the 
 defendant plead in bar, etc.? 
 
 Reported in Y. B. Mich. 8 Hen. VI, p. 10, pi. 25; and see also more 
 of the case on p. 15, pi. 36. See also Brooke, Dette, 89. 
 
 The Statute is that of Westminster the Second, 13 Ed. I (1285), 
 cap. 11. Stats, at Large, Vol. 1, p. 163 (188). 
 
 (35) In debt upon an amercement imposed by a present- 
 ment in a Court Baron, it is no plea to say that no such 
 presentation, etc. But yet, query? For if he cannot wage 
 his law, the plea is good (but he can wage his law), as it 
 seems, etc. 
 
 There is no early printed Year Book for the reign of Ric. II. The 
 case is reported in Y. B. Paschal, 12 Ric. II, p. 180. Ames Foundation, 
 ed. Deiser. 
 
 (36) Where the judgment was given, etc. Query, if he 
 removes the record, etc.? But on a recognizance a writ 
 is well brought in each county. Query, if the jurisdiction 
 be special, to wit: "et nisi fecerit quod de catalUs suis in 
 London'," etc. 
 
 The case has not been identified in Y. B. Trinity, 22 Hen. VI, or in 
 the early abridgments. 
 
 (37) One recovered a debt in the Exchequer and the 
 defendant was put in prison for the fine to the king, at 
 the prayer of the attorney of the king upon the said facts, 
 and the warden let him go at large because he had made a 
 fine. And the plaintiff brought an action of debt against 
 
DETTE 483 
 
 him, and it was questioned if such an action lay, because 
 the Statute of Richard gives an action of debt against 
 the warden if he lets a prisoner go at large on "bail or by 
 baston." But [some say that] where he lets a prisoner go 
 at large it was at the common law; and some held that this 
 was not in debt, but upon the case. But yet the action was 
 held good, etc. Then, inasmuch as the plaintiff did not pray 
 execution, some held that he should not have this action, 
 and some held the contrary, because it shall not be ended 
 until the party is satisfied, and at least that he shall not let 
 him go until the party is satisfied, etc. And they adjourned. 
 Simile, Anno 28 Hen. VI, in the case of the Lord Cromwell 
 against Tallboys. 
 
 Reported in Y. B. Mich. 7 Hen. VI, p. 5, pi. 9. See also Fitzh: Case 37. 
 Dette, 26. The Statute of I Ric. II (1377), cap. 12, Stats, at Large, 
 Vol. 2, p. 204 (211). 
 
 (38) If one lease land to another for a term of years, Trinity 
 rendering a certain rent, and then ousts him and enfeoffs me, 
 
 and the termor re-enters and claims his term, I can then 
 distrain for my rent; but I shall not afterwards have an 
 action of debt for that, because there is no privity between us. 
 
 But yet it was said in the same plea that I shall have an 
 action of waste, etc. 
 
 And it was said in the same plea, that if the lord ousts 
 his tenant and enfeoffs a stranger, the lordship is extinct. 
 Query, in that case, if the tenant when he has re-entered 
 shall have a writ of Mesne against him who has thus extin- 
 guished his lordship, for otherwise he is injured, etc. 
 
 Reported in Y. B. Trinity, 9 Hen. VI, p. 16, pi. 7. See also Fitzh: Case 38. 
 Dette, 31. 
 
 (39) If I recover a debt against one who is condemned, Michaeiis 
 and his body is in execution on the suit of another, if the 
 warden lets him go I shall have a writ of debt against him : 
 
 by Hankford, notwithstanding he was not in execution 
 at my suit. 
 
 The case has not been identified in Y. B. Mich. 11 Hen. IV, or in the Case 39. 
 early abridgments. 
 
484 
 
 STATHAM 
 
 Paschal 
 11 Hen. IV. 
 
 Case 40. 
 
 (40) Where a man had judgment to recover against 
 executors for the goods of the deceased, he shall not have 
 an action of debt against them upon that recovery, but 
 he shall sue the execution accordant to the [judgment]. For 
 if he should have such an action of debt, he would have a 
 general judgment against them, which is contrary to the 
 first receipt. And this in Debt. 
 
 Reported in Y. B. Mich, (not Paschal), 11 Hen. IV, p. 5, pi. 11. 
 
 Paschal 
 
 11 Hen. IV, 
 
 Case 41. 
 
 (41) In debt, the plaintiff counted for part of the arrears 
 on a lease, and part upon a contract, and part upon another 
 contract. HoRTON : As to the first plea, he did not lease, 
 and as to it he waged his law. And as to the other contract, 
 he has been at all times ready, and still is, etc. Norton: 
 As to the first plea, we leased, etc. Ready. And as to 
 the second plea, as to which you waged your law, we have 
 no more to do with that. And as to the remainder, we pray 
 delivery of the money. Hankford : You have admitted 
 your writ to be false in part, and so you have abated all 
 your writ. And notwithstanding this the issue was taken 
 upon the lease; and as to that which he admitted, he had 
 judgment to recover; and as to that with which he would 
 have no more to do, it was adjudged that he take nothing 
 but be in mercy. (And if the issue be found against him I 
 think he will be again amerced, etc.) 
 
 The case has not been identified in Y. B. Paschal, 11 Hen. IV, or in 
 the early abridgments. 
 
 Paschal (42) In debt, the defendant said that he had been at all 
 
 11 Hen. IV. times ready, etc. HoRTON: This is the second distress, 
 wherefore to that you shall not be received, etc. Skrene: 
 It is not like dower, for there the demand is certain, but 
 here he might owe money upon different contracts. Thirn- 
 ING : So he could say in dower that he did not acknowledge 
 the lands, etc. And they adjourned. 
 
 Case 42. The case has not been identified in Y. B. Paschal, 11 Hen. IV, or in 
 
 the early abridgments. 
 
DETTE 485 
 
 (43) Debt is maintainable against a man on an attach- Paschal 
 ment made by his servant, if the goods came to his use, "^' 
 notwithstanding the servant had no warrant from his 
 master to do that, if so be he be known as his servant: 
 
 By the opinion of the Court, in Debt, etc. Query, if he 
 shall count thus? etc. 
 
 There is no printed Year Book for 11 Ric. II. The case has not been Case 43. 
 identified in the early abridgments. 
 
 (44) Debt was brought against two executors, and it Paschal 
 was counted that their testator was found in arrears before ^^ ^^"' ^^' 
 the assigned auditors. Norton prayed that the plaintiff 
 
 be examined. Hankford: To what effect? For they 
 cannot wage their law upon the contract of another. Thirn- 
 ING: It seems that the action does not lie against them, statham66a. 
 for this is neither on a specialty nor record. But if their 
 testator had been committed to the prison, and had sued 
 ex parte talis and it had been found against him, then it 
 had been of record, and otherwise not. Hankford: 
 If my tenant for life dies, I shall have an action of debt 
 against his executors for the arrears. Thirning: I doubt 
 it. But against the executors of your tenant for years 
 you shall have it, because they represent his estate, etc. 
 Hankford : I think that in all cases where their testator 
 could not wage his law, that the action is plainly main- 
 tainable against his executors, without a specialty, etc. 
 And they adjourned, etc. 
 
 Reported in Y. B. Paschal, 11 Hen. IV, p. 64, pi. 17, and continued in Case 44. 
 Trinity Term, p. 91, pi. 48. See also Brooke, Dette, 67. 
 
 (45) If a parson of a church grants an annuity by the Trinity 
 assent of the patron and of the ordinary, to a man in fee, ^^ ^^"' ^^• 
 and grants further that if the rent be in arrear for one 
 
 month after the feast when the payment, etc., that he shall 
 lose one hundred shillings in the name of a penalty totiens 
 quotiens, etc., and the rent is in arrear for one month, 
 the grantee shall not have an action of debt for the penal 
 sum, because it is inheritable, and of the same nature that 
 
486 
 
 STATHAM 
 
 Case 45. 
 
 Michaelis 
 18 Hen. VI. 
 
 Case 46. 
 
 Trinity 
 
 19 Hen. VI. 
 
 the annuity was, but he shall have a writ of Annuity for it, 
 etc. By Hankford and Huls. 
 
 And it was said in the same plea that if a man grants 
 to me a rent charge in fee, with distress, and if the rent be 
 in arrear, as above, that he shall pay a hundred shillings 
 in the name of a penalty, and that I shall distrain for the 
 hundred shillings, albeit no distress is given to me for the 
 said hundred, which is the penalty, for the above reason, 
 because the accessory follows the principal. 
 
 Reported in Y. B. Trinity, 11 Hen. IV, p. 84, pi. 34. 
 
 (46) If one leases land to a man for a term of years, 
 rendering ten pounds rent by the year, and he leases the 
 same term to his lessor, rendering to him ten marks, the 
 opinion of Newton was that the surplus is extinguished. 
 But he said that he should have a writ of Debt for that 
 which was in arrear before he retook the estate, etc. 
 Which Paston denied, and said that he should not have an 
 action, etc. From this it follows that if my tenant for 
 years surrenders to me, to which I agree, that I shall 
 not have an action of debt for that which was in arrear 
 before the surrender, etc. Query? 
 
 The case has not been identified in Y. B. Mich. 18 Hen. VI, or in the 
 early abridgments. 
 
 (47) If a parson of a church, who has an annuity from me 
 in fee, to him and to his successors, makes an exchange of 
 his church, he shall have a writ of Debt for the arrears 
 of the annuity accruing before the change, and yet the 
 freehold is continued; that is to say, in his alienee, who 
 is his successor: By the opinion of Newton, etc. 
 
 And he also said that if I grant the reversion of my 
 tenant for life, where a rent is reserved upon the reversion, 
 and the tenant attorns, still I shall have a writ of Debt 
 for the arrears accruing before the grant; and the law 
 is the same if I grant the services of my tenant, and he 
 attorns, and yet the fee and the freehold are continued 
 in both parties. And he also said that if I disseise a man 
 of a manor, which is part in mesne and part in service, and 
 
DETTE 487 
 
 I continue the possession "years and days," and then he 
 brings an Assize against me and recovers, I shall have an 
 action of debt against the tenant, for the arrears for which 
 I have paid the damages. (But yet all the case were 
 refused him), etc. But it was said that when the freehold 
 is ended that then the action well lies, as for executors 
 against executors, and also for me myself, where I lease 
 lands for the term of another's life, and he for whose life 
 [I leased] is dead, etc. And in every case where the free- 
 hold is continued ; as if I recover by a writ of Waste against 
 my tenant for life, I shall have a writ of Debt for the arrears 
 before the recovery, and yet his estate is continued in law, 
 etc. 
 
 Reported in Y. B. Mich, (not Trinity), 19 Hen. VI, p. 41, pi. 85. Case 47. 
 
 (48) In debt against an abbot, the plaintiff counted by Hilary 
 PoRTYNGTON, that on such a day the plaintiff loaned to 
 one B, his predecessor, twenty pounds, for which debt the 
 said predecessor bound himself by the deed (which he pro- 
 duced), without this that he would aver that the said sum 
 was converted to the use of the house. Markham: 
 Your count is double; one, the contract; the other, the 
 obligation. Newton : We cannot do otherwise, for if we 
 committed ourselves to the contract, you would say that 
 we had an obligation for this same debt; and if we counted 
 upon the obligation, that would not bind you who are his 
 successor, unless we showed, as above, etc. Yelverton: 
 When you took the obligation by that fact you discharged 
 him from the contract, and so your action is gone by your 
 own folly. Markham : It is no plea to say that the plain- 
 tiff had an obligation for the same sum, unless for him who 
 is a party to the contract; and he who is a party to the 
 contract shall not say that the plaintiff had sued [on] an 
 obligation for the same sum for another person, but for 
 himself it is a good plea, etc. He could have counted 
 upon the contract and shown that the sum had come to the 
 house ; as where a man sells a horse to a married woman 
 which comes to her husband, he shall have an action of debt 
 against the husband. Newton : Yes, sir, if the horse was 
 
488 STATHAM 
 
 sold to the use of the husband, and otherwise not. 
 AscouGH : It seems to me that the contract is not defeated 
 by the obligation; for if a man be bound to me and then 
 he enters into religion, now then his community shall be 
 charged against me, etc., and then he dies; now the abbot 
 is discharged, and his executor or his heir are charged: so 
 here, although the abbot was charged for his life on the 
 obligation, still by the death of the abbot the obligation 
 is ended, and the house charged by reason of the con- 
 tract, etc. Yelverton: The executor of him who enters 
 into religion is charged, and not the abbot. Ascough: 
 Lord, no! No more than where a woman is bound to me 
 and then takes a husband; now the husband is charged; 
 then the husband dies ; now the woman is charged, and the 
 heir and the executor of the woman, and not the executors 
 of the husband. And if a woman commits a trespass on 
 me and enters into religion; now the abbot is charged as to 
 me, and if the monk dies the abbot is discharged, etc. And 
 they adjourned. Query, etc.? 
 
 Case 48. Reported in Y. B. Hilary, 20 Hen. VI, p. 21, pi. 19. See also Fitzh: 
 
 Debt. 1. 
 
 Paschal (49) Debt was sued by the Dean and Chapter of Saint 
 
 Stephen's Chapel of Westminster. And it was counted 
 that they leased to the defendant a wallhouse, rendering 
 to them twelve pence by the week so long as they occupied 
 it; and he showed exactly how long he had occupied it, 
 which amounted to the sum in demand. And the action 
 
 statham66b. was maintained, etc. NewtoN said that such a tenant 
 at will shall have fealty; which the Court conceded. 
 
 Case 49. Reported in Y. B. Paschal, 20 Hen. VI, p. 26, pi. 15. 
 
 Paschal (50) A man brought a writ of Debt in the Exchequer 
 
 "quo minus," etc., and he counted upon an obligation as 
 executor, etc. And it was said that since his writ alleged 
 that he could not pay the king unless he was paid by the 
 defendant, and by the intendment of the law he cannot 
 satisfy the king with such money as she received as executor, 
 wherefore it was adjudged that he take nothing by his writ, 
 
DETTE 489 
 
 etc. And so see that if a man be accounting in the 
 Exchequer, that this is a good way to get his debt, for the 
 defendant cannot wage his law in this action, albeit he 
 declares upon a simple contract; and this is to the advan- 
 tage of the king, etc. 
 
 There is no Paschal Term in the printed year of 8 Hen. V. The Case 50. 
 case is reported in Y. B. Mich. 8 Hen. V, p. 10, pi. 19. 
 
 (51) An executor brought a writ of Debt against an abbot, Hilary 
 and he counted that the abbot had granted a corody to his ^^ ^™- '^• 
 testator for the term of his life, and that his testator had 
 granted his estate in the corody to the said abbot, rendering 
 
 to him ten shillings a year. And for rent in arrear for four 
 years in the life of his testator he brought action. Skrene : 
 The grant of the corody cannot be without a deed, nor, 
 consequently, is the reservation of the rent without a deed 
 to the purpose; wherefore, inasmuch as he shows no 
 deed, judgment, etc. As if I lease a common to a man for 
 a term of years, without a deed, rendering a certain rent, 
 that is of no value, etc. 
 
 Reported in Y. B. Hilary, 12 Hen. IV, p. 17, pi. 13. See also Fitzh: Case 51. 
 Dette, 116. 
 
 (52) In debt, the plaintiff declared upon a contract for Michaeiis 
 forty shillings. The defendant said that the contract was ^* *^™' ^'• 
 for twenty shillings, which he is ready, etc., and as to the 
 remainder he waged his law. Danby : The contract was for 
 
 forty shillings, as we have counted ; and since he has admitted 
 the contract, judgment, etc. Portyngton : You can pray 
 judgment for that which he has admitted, for he shall have 
 his law for the remainder, since you cannot have the plea 
 as you have pleaded it. Which Assheton conceded, etc. 
 
 The case has not been identified in Y. B. Mich. 28 Hen. VI, or in the Case 52. 
 early abridgments. 
 
 See as to debt on the arrears of an annuity, in the title Note. 
 of Annuity, etc. 
 See Statham, supra, title of Annuite, pp. 12 a-12 b. 
 
 (53) One had recovered a debt against another in the Trinity 
 Cinque Ports, and had his body in execution, and then the ^^ *^^"' ^'" 
 
490 
 
 STATHAM 
 
 Case 53. 
 
 warden to whom he was committed in the Cinque Ports 
 let him go at large in Middlesex, wherefore the plaintiff 
 brought an action of debt against this same warden; and 
 the writ was brought in Middlesex, and he declared upon 
 this matter, and he did not show the record. Moile : He 
 can have an action within the Cinque Ports upon the record 
 there, wherefore the action is not maintainable here. 
 Prisot : The writ is that he permitted him to go at large at 
 D, within the county of Middlesex, and that action thus 
 conceived cannot be tried within the Cinque Ports. He 
 shall have a Quare Impedit for it [churches in Wales] ' in 
 this Court, etc. And all the justices held that the action 
 was maintainable, etc. 
 
 Reported in Y. B. Trinity, 30 Hen. VI, p. 6, pi. 5. See also Fitzh: 
 Dette, 53. 
 
 Michaelis 
 19 Hen. III. 
 
 Case 54. 
 
 (54) In debt against one as heir, he says that he had 
 nothing by descent, and it is found that he had one 
 acre, the plaintiff shall have execution of all his goods for 
 his false plea. Simile, Hilary, 5 Ed. HI, and in Trinity, 
 7 Ed. n, in Debt. The contrary was held by FoRTESCUE, 
 etc. 
 
 There is no early printed year of 19 Ed. III. 
 identified in the Rolls Series for that year. 
 
 The case has not been 
 
 Trinity 
 7 Ed. III. 
 
 Case 55. 
 
 (55) Debt was brought against an abbot upon an obliga- 
 tion made by the prior in a time of vacancy. And it was 
 adjudged good because it was for a thing which came to 
 the use of the house, etc. 
 
 The case has not been identified in Y. B. Trinity, 7 Ed. Ill, or in the 
 early abridgments. 
 
 Michaelis 
 22 Hen. VI. 
 
 Case 56. 
 
 (56) Where an abbot and the convent make an obliga- 
 tion, and the abbot is made bishop, he is not charged by that 
 obligation, but his successor who is abbot shall be charged. 
 And this in Debt. 
 
 Reported in Y. B. Mich. 22 Hen. VI, p. 4, pi. 6. See also Fitzh: 
 Dette, 46. 
 
 ' Words from the case. 
 
DETTE 491 
 
 (57) Debt was adjudged good against a man notwith- ?l'„^^''iv 
 standing another was jointly bound with him, who was 
 
 alive ; but he was under age, etc. 
 
 The case has not been identified in Y. B. Mich. 14 Hen. IV, or in the Case 57. 
 early abridgments. 
 
 (58) Debt upon an obligation made to one as executor. Paschal 
 was in the "<fc6e<" and was adjudged good, etc. 
 
 The case has not been identified in Y. B. Paschal, 25 Ed. Ill, or in the Case 58. 
 early abridgments. 
 
 (59) In debt, it is a good plea that another was bound Michaeiis 
 with him, and the plaintiff had broken the seal of the other, 
 
 so his debt was extinguished, etc. Simile, Anno 7 Hen. VI, 
 in Debt. 
 
 There is no printed Year Book of 33 Ed. III. Fitzh: Dette, 84, Case 59. 
 has the case. 
 
 (60) Debt was brought in the name of an executor upon Paschai 
 an obligation made to the plaintiff "as executor of my will," 
 
 etc. And notwithstanding the defendant by his deed called 
 the plaintiff "executor," the plaintiff was forced to show 
 the testament. 
 
 The case has not been identified in Y. B. Paschal, 25 Ed. Ill, or in Case 60. 
 the early abridgments. 
 
 (61) Debt against a gaoler because he suffered the con- Paschal 
 demned prisoner to go. "Nothing owing him" is no plea, ^ ^'^- ^^■ 
 but he should show an acquittance. And this in Debt, etc. 
 
 There is no printed Year Book for 2 Ric. II. The case has not been Case 61. 
 identified in the early abridgments. 
 
 (62) Debt brought for tithes sold was abated because Paschal 
 it belonged to the Court Christian. 
 
 There is no early printed year of 19 Ed. III. The case has not been Case 62. 
 identified in the Rolls Series. 
 
 (63) In debt upon a sealed tally, "Nothing owing him" ^rmity^^ 
 is a good plea. But yet, query? etc. 
 
492 STATHAM 
 
 *• A note on the action of debt could be of no value unless it were 
 much more than a note. The subject of debt has been so widely and 
 deeply discussed that it would be useless to take it up here. 
 
 There are one or two matters, however, directly brought up by the 
 abridged cases themselves which may call for very brief mention. Our 
 first case is an action against an executor. It is in the second year of 
 Hen. IV. By that time the action of debt has already had a long 
 history, and is working itself out. Bracton says that "Actions cannot 
 be bequeathed." [Bracton, f. 107, b; P. & M. Hist, of Eng. Law, 2d 
 ed.. Vol. 2: 346.] The struggle between the ecclesiastical courts and 
 the secular courts was still going on in the time of Edward I, but "A 
 change as momentous as any statute could make was made without 
 statute very quietly. Early in Edward I's reign the Chancery had 
 framed and the King's Court had upheld a writ of debt for executors 
 and a writ of debt against executors." [P. & M. Hist, of Eng. Law, 
 Vol. 2: 347; 2d ed., 341.] We have seen in a note upon account [supra, 
 p. 20] that the Statute of West. II, cap. 23, had given the action of 
 account to the executor. Before the fourteen hundreds the executor 
 is often sued and often sues; hehasnot fully come into his own; in fact 
 in the division of rights between the heir and the executor the early 
 custom has survived in our law to the present time. The reason for it 
 may have vanished long since but the thing itself has been most tena- 
 cious of life. In a reported case in the Year Books, Hankford waxes 
 indignant that this servant of the law is put in no better position than 
 "a common laborer." A good deal earlier, in Edward I's reign it 
 is possible that the plaintiff might have recovered without a sealed 
 writing or "specialty" if the cases reported in Y. B. 21 and 22 Ed. I 
 [Rolls Series p. 456] and in Y. B. 30, 31 Ed. I [R. S. p. 238] may be 
 thought strong enough to prove this. Holdsworth [Hist, of Eng. Law, 
 Vol. 3: 455] seems to think them sufficient to support the proposition, 
 but it seems at best somewhat doubtful. Apparently, without a 
 specialty, the executor was not liable at this period or for some time 
 to come. This state of the law was very unsatisfactory, but this dis- 
 satisfaction probably gave rise to the general custom, still very com- 
 mon in wills, of directing a payment of all the debts of the deceased. 
 The ecclesiastical courts did sometimes enforce these obligations, but 
 it is quite' a different thing to have a court with the power to coerce 
 persons to do a thing, and to have that power in the person's own hand. 
 The action of Assumpsit, founded upon an equitable doctrine, finally 
 came to the relief of the claimants. 
 
 Our case 50 is a writ of Quo Minus. The commentator says, "And 
 so see that if a man be accounting in the Exchequer, that this is a good 
 way to have his debt." However, in our case, he took nothing by his 
 writ. The case explains that he was indebted to the king by his own 
 deed, therefore the king could not have execution of the money he had 
 as executor. Thus this case is no argument against the use of the Quo 
 
DETTE 493 
 
 Minus to recover debts from an executor, the theory of this action 
 which is that the king would be injured if the debt was not paid would 
 in this case, as in others, make for the granting of the writ. 
 
 DETENU" 
 
 (1) In detinue, the garnishee showed other conditions statham67a. 
 than those which the defendant showed. And the opinion Hilary 
 
 was that he should not be received to do that, for he was 
 not injured. For if the defendant had showed false con- 
 ditions he had charged himself against the plaintiff, and 
 also against the garnishee, etc. But he need not have 
 shown the conditions when he prayed for the Scire Facias, 
 but he should have said that the writings were delivered 
 to him by the plaintiff and another, etc., and not have 
 expressed the conditions, etc. 
 
 Reported in Y. B. Hilary, 40 Ed. Ill, p. 11, pi. 24. Case 1. 
 
 (2) In detinue, the plaintiff counted that the defendant Michaeiis 
 detained from him an obligation in which he was bound 
 
 to one H, upon certain conditions which were performed. 
 The defendant said that this same H had another writ 
 for this same obligation returnable on this day, and he is 
 ready to deliver to whom, etc. Whereupon H was de- 
 manded and did not come, wherefore it was adjudged that 
 he be nonsuited, and the plaintiff prayed delivery of the 
 obligation. Thorpe: That you cannot have, but the 
 Court awards a Scire Facias against H because the obligation 
 was made to him ; in which case, if it was delivered to the 
 plaintiff and the conditions were not performed, H is 
 without recovery, but although it had been delivered to H, 
 if he had appeared and this plaintiff had been nonsuited, 
 still he who is now plaintiff could be aided by way of a plea 
 when H brought an action upon the obligation, etc. Where- 
 fore a Scire Facias was awarded against H. 
 
 The case has not been identified in Y. B. Mich. 41 Ed. Ill, or in the Case 2. 
 early abridgments. 
 
494 
 
 STATHAM 
 
 Michaelis 
 46 Ed. III. 
 
 Case 3. 
 
 Trinity 
 31 Ed. III. 
 
 Case 4. 
 
 Hilary 
 30 Ed. III. 
 
 Case 5. 
 
 (3) In detinue for certain chattels, the defendant said 
 that the plaintiff was indebted to him for his table, in a 
 certain sum of money, and that the plaintiff bailed to him 
 the chattels in pledge for the same debt, at London, etc. 
 Kyrton : Our action is brought in Surrey. And he shows 
 a bailment in pledge, etc., at London, which cannot be 
 understood to be the same bailment upon which our action 
 is founded, etc. Thorpe: That is not denied by him, 
 and if you have delivered it to him afterwards this plea 
 is good. Fyncheden : He should admit the bailment to 
 the plaintiff and show that after that bailment he bailed it 
 to the defendant in pledge at London; or else plead over, 
 as above, "without this that he bailed it in Surrey, etc." 
 And then the plaintiff said that he did not bail them in 
 pledge ; Ready, etc. And the other alleged the contrary. 
 Query? etc. 
 
 Reported in Y. B. Mich. 46 Ed. Ill, p. 30, pi. 29. 
 
 (4) Detinue was brought against executors, and he 
 counted as heir to one H. And the writ did not mention 
 the heir, but it was adjudged good. And the writ was 
 brought against executors, showing that a chest of muni- 
 ments came to their possession after the death of their 
 testator. And he said that there were several executors 
 not named. And it was not allowed because the possession 
 charged them individually, etc., in which case there was 
 no need to have named them executors in the writ, etc. 
 
 Thereisnoprintedyearof 31Ed. III. Fitzh: Detinue, 50, has the case. 
 
 (5) Where the custom is that the heir shall have the 
 principalities^ after the death of his father, he shall have a 
 writ of Detinue for the same principalities if he be deforced 
 of them, and count upon the custom, and how, after the 
 death of his father, they came into the hands of the defend- 
 ant as executor. Query, if a stranger took them, how 
 should he declare, etc.? 
 
 Reported in Y. B. Hilary, 30 Ed. Ill, p. 2, pi. 9. See also Fitzh: 
 Detinue, 51. 
 
 'The "'principalities" were: in the chamber the best bed; in the 
 hall the better table with trestles, basin and pitcher; in the kitchen the 
 best pot, etc. 
 
DETENU 495 
 
 (6) In debt, the plaintiff declared upon a bailment made Michaeiis 
 to the defendant of an obligation made by this same defend- '* ^^"' ^^' 
 ant to the plaintiff. MartyN: It seems that the action 
 
 does not lie between those who are parties. RoLFF: Be 
 it of what value it may, that is my case, etc. 
 
 Reported in Y. B. Mich. 4 Hen. VI, p. 5, pi. 11. See also Fitzh: Case 6. 
 Detinue, 2. 
 
 (7) In detinue. Yelverton : Judgment of the writ, Hilary 
 for he has counted as to three tallies, and the writ is "goods ^"" 
 and chattels" where it should be "prcecipe quod reddat 
 three tallies," etc., as upon an obligation, etc. ASCOUGH: 
 Both are good enough in both cases, wherefore answer. 
 Yelverton : He has declared the value of the tallies, and 
 
 he does not recover the value, because he can receive them 
 back in the Exchequer. NewtoN: Answer. Wherefore 
 he waged his law, etc. 
 
 Reported in Y. B. Hilary, 21 Hen. VI, p. 29, pi. 13. See also Brooke, Case 7. 
 Detinue, 24. 
 
 (8) In detinue for charters, the plaintiff counted how Michaeiis 
 he himself and one T delivered the charters to the defendant 
 
 into his own hand, upon certain conditions between the 
 plaintiff and the said T, to re-deliver to him who performed 
 the conditions, etc. (Query if this declaration is good?) 
 The defendant said that he did not know if the conditions 
 were performed, and said that T was dead, and had issue 
 one J, to whom certain lands, which the said charters con- 
 cerned, had descended ; and he prayed a Scire Facias, and 
 had it, notwithstanding the death of T was not returned, 
 etc. 
 
 Reported in Y. B. Mich. 21 Ed. Ill, p. 41, pi. 44. Case 8. 
 
 (9) In detinue, where they are at issue upon the detinue, iter of Nor- 
 the justices of Nisi Prius, it being found that he detained 7°Ed^iii° 
 them, shall inquire if it was burned, or else the plaintiff 
 
 shall not have judgment in the Bench, unless a new inquiry, 
 etc. Contrary elsewhere, etc. 
 
 The cases cited in this way are rarely to be distinguished in the Year Case 9. 
 Books. Some of the Iters are being published by the Selden Society. 
 
496 
 
 STATHAM 
 
 Paschal 
 30 Ed. III. 
 
 Case 10. 
 
 Note. 
 
 Hilary 
 38 Ed. III. 
 
 Case 11. 
 
 Michaelis 
 7 Hen. VI. 
 
 Case 12. 
 
 Hilary 
 9 Hen. VI 
 
 (10) In detinue for a writing, the defendant said that the 
 plaintiff, by the same deed that he demanded, had released 
 to one T, who was a party to the bailment, and many others. 
 And he prayed a Scire Facias against all, and could not have 
 it, except against T, because a man shall not have a Scire 
 Facias against any except against him who was a party 
 to the bailment, or his heirs or executors, etc. 
 
 There is no printed Paschal Term for the year 30 Ed. III. The case 
 has not been identified in the early abridgments. 
 
 See garnishee, in the title of Excommunication, etc., 
 Paschal, 3 Hen. VI. 
 
 See infra, Statham, title Excommengement, p. 79 b. 
 
 (11) In detinue against a husband and his wife, for a 
 bailment made to them after the coverture, the writ was 
 abated because it should have been brought against the 
 husband alone, for no bailment during the coverture shall 
 charge the wife. Query, if the husband dies, against whom 
 shall I have an action? etc. 
 
 Reported in Y. B. Hilary, 38 Ed. Ill, p. 1, pi. 1. See also Brooke, 
 Detinue, 22; and Fitzh: Detinue, 36. 
 
 (12) If I bail a deed to one to rebail to me, and he is 
 enfeoffed by the same deed, by a stranger, so that the deed 
 belongs to him by feoffment, or by descent, he can bar me 
 in a writ of Detinue. As appeared in Detinue, etc. 
 
 The case has not been identified in Y. B. Mich. 7 Hen. VI, or in the 
 early abridgments. 
 
 (13) In detinue, the plaintiff counted that his father, 
 whose heir he is, bailed the deed to one B, to re-bail to 
 him and to his heirs, etc. And how the same deed came 
 into the possession of the defendant, as executor of B, etc. 
 And the opinion was that the declaration was of no value 
 because he had not commenced the title to the land to 
 statham 67 b. which the deed was a covenant, to him as heir, etc., for 
 otherwise the deed belonged to the executors of his father, 
 because the property was in his father as a chattel. But 
 where a man bails a deed to bail to a stranger, the stranger 
 
DETENU 497 
 
 shall have an action of detinue, because the property is 
 out of him who bailed it. Rolff : If the declaration had 
 been good, and the heir had recovered, then the executors 
 shall be twice charged, for they are charged against the 
 executors of his father. MartyN: It is not so, for no bail- 
 ment was made to the defendant, so he is not chargeable, 
 except against him who had the right. As if one A bails to 
 me a deed concerning land and I lose it ; and one B finds it 
 and delivers it to the said A, it is clear that I shall not have 
 an action against B . But if I deliver the deed to B , to re-bail 
 to me, and he bails it to A, now by his own deed he has 
 discharged himself against both of us, etc. 
 
 Reported in Y. B. Hilary, 9 Hen. VI, p. 58, pi. 4. See also Brooke, Case 13. 
 Detinue, 7; and Fitzh: Detinue, 7. 
 
 (14) In detinue against two, for a bag with one hundred Trinity 
 pounds contained in the same. Fortescue: Judgment 
 
 of the writ, which does not allege that the bag was sealed ; 
 in which case he should have had a writ of Debt. Paston : 
 How shall a man have a writ of Debt when the property is 
 in him? Fortescue: If you borrow money from me, the 
 property is in you, and yet you shall, have an action of 
 debt. So here. Ascough: You shall not have the bag 
 by a writ of Debt. Newton, to Fortescue: Answer. 
 Fortescue, for one, said that he did not detain; and 
 a like plea was pleaded for the others. Markham : Inas- 
 much as the action is conceived against them jointly, to 
 such several pleas, no law, etc. And so to judgment, etc. 
 
 Reported in Y. B. Mich, (not Trinity), 18 Hen. VI, p. 20, pi. 5. See Case 14. 
 also Fitzh: Detinue, 13. 
 
 (15) In detinue, the defendant said that the obligation Michaeiis 
 was delivered to him and one B, who is still living, not 
 named; judgment of the writ. Rikhill: Inasmuch as 
 
 you do not deny that you detained it, judgment, etc. 
 And then it was adjudged that the writ should stand. 
 And this was against the opinion of Thirning. Query, 
 as to tlie cause, etc. 
 
 Reported in Y. B. Mich. 7 Hen. IV, p. 6, pi. 37. See also Brooke, Case 15. 
 Detinue, 16. 
 
498 
 
 STATHAM 
 
 Hilary 
 
 7 Hen. IV. 
 
 Case 16. 
 
 (16) In detinue for a box, sealed, with charters, where 
 the defendant had a Scire Facias against certain persons, 
 they were at cross purposes as to a deed within the box. 
 The Court opened the box, for it would be in vain to take 
 issue upon the deeds if there were no such deeds within the 
 box. And this in Detinue, etc. 
 Reported in Y. B. Hilary, 7 Hen. IV, p. 7, pi. 4. 
 
 Paschal (17) If two bail writings to a man, to re-bail to them, 
 
 12 Hen. IV. ^j. ^q ^jjg q£ tj^em, one of them cannot have an action with- 
 out the other: By the opinion of Thirning, etc. For if 
 they could, each of them could bring an action, and the 
 Court could not know to whom the delivery should be 
 [made], etc. 
 
 Case 17. Reported in Y. B. Hilary (not Paschal), 12 Hen. IV, p. 18, pi. 19. 
 
 See also Brooke, Detinue, 20. 
 
 Paschal 
 7 Hen. IV. 
 
 Case 18. 
 
 (18) In detinue, if the plaintiff entitles himself to a deed 
 concerning tailed land, and the defendant entitles himself 
 to the land ; he shall have a traverse to the gift, by Hank- 
 FORD, and Thirning said that he should answer to the 
 Detinue, etc. 
 
 The case has not been identified in Y. B. Paschal, 7 Hen. IV, or in 
 the early abridgments. 
 
 Paschal (1^) See by Ascough, that a man shall have a traverse 
 
 28 Hen. VI. to the bailment, by special matter ; as to say that the plain- 
 tiff gave him the deeds, without this that he bailed them 
 to him to re-bail, etc.; or that the plaintiff bailed them 
 to him to re-bail to himself, and that he delivered them to 
 one B, without this that he bailed them to re-bail to him, 
 etc. And so of similar things, etc. In Detinue. 
 
 Case 19. The case has not been identified in Y. B. Paschal, 28 Hen. VI, or in 
 
 the early abridgments. 
 
 Note. See as to detinue, in the title of Law, M. 3 Hen. VI ; and 
 
 in the title of Count, M. 18 Hen. VI; and in the title of 
 Counterpleader, M. 18 Hen. VI; and in the title of Attor- 
 ney, Hilary, 8 Hen. VI ; and in the title of Conditions, in 
 
DETENU 499 
 
 different places; and also in the title of Garnishee and 
 Garnishment, which will be made here.^ 
 
 See Statham, title of Ley, infra, p. 118 b, case 14. Statham, title 
 Connte, supra, p. 38 b, case 11. Statham, title of Attourney, supra, 
 p. 18 b, case 10. 
 
 (20) If in detinue the plaintiff entitles himself to the char- Michaeiis 
 
 18 Ed III 
 
 ters as heir, it is a good plea to say that he is a bastard, etc. 
 
 The case has not been identified in Y. B. Mich. 18 Ed. Ill, or in the Case 20. 
 early abridgments. 
 
 (21) In detinue for charters, it is no plea to say that the Anno 
 house to which, etc., is in ancient demesne. In the Iter 
 
 of Northampton, etc. 
 
 We have no early printed year of 13 Ed. III. The cases printed in Case 21. 
 the Rolls Series are from the regular Year Books. 
 
 (22) A plea of detinue was removed out of Chester 
 because the defendant said that the charters were delivered 
 to him by the plaintiff and another, who was out of the 
 jurisdiction of Chester, and the Court held that they could 
 not proceed, etc. Query, when a man pleads such a plea 
 shall he show the deed to the Court before the garnishee 
 comes, etc. ? Query, if the plea shall be removed upon such 
 a plea in London? etc. 
 
 Statham gives no citation for this case, and it has not been identified. Case 22. 
 
 (23) If one bails a deed to a man to re-bail to himself, Hilary 
 which deed comes to another and not to him, and he to 
 whom the bailment was made dies, so that the deed comes 
 
 to his executors, he shall not have an action of detinue 
 against them, without a specialty: By Hankford, in 
 Detinue, etc. (But yet the contrary would appear, because 
 the detinue is the cause of the action, and the other is only 
 a continuance, etc. But for charters it is clear that a man 
 shall have a writ of Detinue, without a specialty, because 
 the testator cannot wage his law, etc.) 
 
 Reported in Y. B. Hilary, 11 Hen. IV, p. 45, pi. 20. See also Brooke, Case 23. 
 Detinue, 19. 
 
 ' Evidently referring to titles which were to appear in the Digest, 
 but which were still in the making. The note was evidently not 
 intended to appear in the finished work. 
 
500 STATHAM 
 
 Michaeiis (24) In detinue, the defendant asked judgment of the 
 ^ ^"" ■ count because he counted on a chest with charters and 
 muniments, and he did not say that it was either sealed or 
 locked. Prisot: Did he not declare for any certain deed? 
 MoiLE: No, sir, but they are concerning a manor of which 
 he is seised, etc. Prisot : Then the count is worth nothing 
 at all ; which Portyngton conceded, for if it was not sealed 
 he might have had notice, but if it be sealed he could choose, 
 etc. But yet, although it be sealed, they usually count 
 of a writing in special, concerning certain lands, for other- 
 wise he could wage his law, etc. 
 
 Case 24. j^^ ^^^^ ^^^ ^^^. ^^^^ identified in Y. B. Mich. 31 Hen. VI, or in the 
 
 early abridgments. 
 
 " The two subjects of debt and detinue are so closely related that to 
 speak of one is almost of necessity to speak of the other, so far as their 
 early development is concerned. Of course by the time our Year Book 
 cases are being reported, the distinction is plain enough. Debt has 
 separated from detinue, and the latter action has become common. 
 Possibly in the beginning the action was given only against the bailee 
 [Holmes: Common Law, 169; P. & M. Hist, of Eng. Law, 2d ed.. Vol. 
 2: 175], although this is a proposition not so firmly established that a 
 deeper search may not prove its undoing. Holdsworth [Vol. 3: 275, 
 n. 2, and the cases cited by him on pp. 276-7] argues that the action 
 of detinue very naturally took the place of the old action for res adiratae. 
 Our own cases do not cover sufficient ground for us to take up the ques- 
 tion here, but it seems best to note that it is not safe, in spite of good 
 authority to the contrary, to settle down upon the statement that the 
 action of detinue was only given against bailees, or one who had tem- 
 porarily parted with the goods. A careful search through the cases, 
 in the light of the advantage given such a search by the cases cited by 
 Holdsworth, might very probably show that the action of detinue was 
 given against everyone to whose hands the property had come. So far 
 as it is revealed by our cases, the argument that the action cannot be 
 maintained because no bailment is shown is merely the argument pointed 
 out by Holdsworth, that there was a bailment claimed and that the 
 claim being on the bailment, and no privity shown in the defendant, the 
 case must fall. 
 
 One interesting point about the actions of debt and detinue is that 
 the "special peculiarity" of these two actions is the wager of law. There 
 have been numerous guesses at the reason for this peculiarity, but that 
 of Maitland appears the most reasonable. He says: "The simple truth 
 is that they are old actions, older than trial by jury." [P. & M. Hist, of 
 
DETENU 501 
 
 Eng. Law, 2d ed., Vol. 2: 634.] The cases in Bracton's Note Book are 
 numerous. [Bracton, Note Book, 7, 143, 396, and Bracton, fo. 366.] They 
 are trying to get beyond the wager of law in our period; only one of the 
 abridged cases ends with a wager of law [case 7]. To get away from 
 the wager of law is a thing so desirable, even necessary if justice is to 
 be done, that it is interesting to trace through all these old actions 
 the attempts to discover some action which is free from this evil. 
 
 DISCEIPTE 
 
 (1) In deceit, the plaintiff was restored to his lands, with statham 68 a. 
 the issues in the meantime, etc. Ti 'eX hi 
 
 Reported in Y. B. Hilary, 41 Ed. Ill, p. 2, pi. 4. See also Brooke, Case 1. 
 Deceit, 8. 
 
 (2) In deceit, upon examination it was found that the Paschal 
 bailiff of the sheriff held the plea on the day that the tenant 
 was garnished, and not the garnishor, wherefore it was 
 awarded that the tenant be restored, etc. 
 
 The case has not been identified in Y. B. Paschal, 42 Ed. Ill, or in Case 2. 
 the early abridgments. But it appears in Mich. 43 Ed. Ill, p. 31, pi. 27. 
 Fitzh: Deceit, 27, has the case. 
 
 (3) A man recovered damages in a writ of Deceit, where Michaeiis 
 he was impleaded for certain lands through malice of the 
 defendant, although he who impleaded him was nonsuited. 
 See [this case] for it was well argued. 
 
 Reported in Y. B. Trinity (not Mich.), 43 Ed. Ill, p. 20, pi. 6. See Case 3. 
 also Brooke, Deceit, 9; and Fitzh: Deceit, 28. 
 
 (4) In deceit it was found that he was summoned by Hilary 
 only one summons, and for this reason he was restored to 
 the lands, but not to the issues in the meantime, etc. 
 
 Reported in Y. B. Trinity (not Hilary), 50 Ed. Ill, p. 16, pi. 9. Case 4. 
 
502 
 
 STATHAM 
 
 Paschal 
 18 Ed. III. 
 
 Case 5. 
 
 (5) One brought a writ of deceit because the defendant 
 had put the plea without a day by a protection "quia 
 profecturus est," whereas he remained at all times thereafter 
 in England, in such a place, etc. And the action was 
 maintained. 
 
 There is no early printed year of 18 Ed. III. 
 the Rolls Series, 18 Ed. Ill, p. 12, No. 6. 
 
 The case is printed in 
 
 Michaelis 
 3 Hen. IV. 
 
 Case 6. 
 
 Michaelis 
 9 Hen. VI. 
 
 Case 7. 
 
 Trinity 
 
 20 Hen. VI. 
 
 (6) In deceit, the plaintiff counted that the defendant 
 was seneschal of the manor of D, and that a covenant was 
 made between the defendant and the plaintiff at B, in the 
 county of M, that the defendant should arrange that the 
 plaintiff should have certain acres of land to hold at will 
 of the said manor, to fulfill which covenant he received 
 from the plaintiff five shillings at the same place. And 
 then the defendant got the lord of the manor to enfeoff one 
 L of the same lands, in deceit of the plaintiff, wrongfully, 
 and to the damage, etc. And the writ was brought in 
 another county than that where the land was, and it was 
 the opinion that it was good, etc. 
 
 Reported in Y. B. Mich. 3 Hen. IV, p. 3, pi. 12. 
 
 (7) In deceit, the plaintiff counted that he bought a pipe 
 of romany of the defendant, and the same defendant, 
 knowing it to be spoiled and decayed, etc., warranted it 
 to be useful, etc. And the opinion was that the action had 
 been maintainable without any warranty. And the defend- 
 ant said that he sold to the plaintiff by one who was his 
 servant, without this that he sold it in any other manner. 
 And upon that they demurred in law. And the action was 
 taken against the defendant and not this B, etc. Query? 
 
 Reported in Y. B. Mich. 9 Hen. VI, p. 53, pi. 37. 
 
 (8) One brought an action upon the case because the 
 plaintiff and the defendant bargained that the defendant 
 should enfeoff the plaintiff of a manor before such a day, 
 for which the plaintiff should pay him one hundred pounds 
 in his hands; and that the defendant before the said day 
 had enfeoffed one J of the same manor in fee, so he had 
 
DISCEIPTE 503 
 
 disabled himself from keeping our covenant. And the 
 opinion of many was that the action did not lie because 
 the action sounded in covenant, of which covenant nothing 
 is fulfilled, etc., in which case he cannot be deceived in 
 fulfilling the covenant, inasmuch as no part of it is fulfilled. 
 And Paston said, in the same plea, that a man shall have 
 an action of deceit where there was not any covenant ; as 
 if a man sell me a horse without saying that he warranted 
 it, still I shall have an action of deceit against him, since 
 he sold me a horse knowing him to be unsound. 
 
 Reported in Y. B. Trinity, 20 Hen. VI, p. 34, pi. 4. See also Brooke, Case 8. 
 Deceit, 2; and Fitzh: Deceit, 14. 
 
 (9) In a quare impedit against an abbot, who held the Hilary 
 church to his own use, he made default at the distress, ^^ ^^"' ^^" 
 wherefore the plaintiff had a writ to the bishop ; and then 
 the abbot brought a writ of Deceit against thes heriff, and 
 the summoners and mainpernors. And the sheriff returned 
 that one of the summoners was dead, and that the others 
 were summoned. And so many of the summoners appeared 
 and were examined, and said that the abbot was not sum- 
 moned. And now the case is: Shall the abbot be restored 
 or not? Danby: It seems to me that he shall be restored 
 for the process in this writ is, by summons, attachment and 
 distress at the common law, in which case he should be 
 summoned, attached and distrained before the writ was 
 awarded to the bishop for his default. As in a writ of Ward- 
 ship, the Statute is that he shall be summoned, attached 
 and distrained, and if he be not summoned then there shall 
 never be a distraint, for if the sheriff returns "nihil" to the 
 summons, the plaintiff shall never have any other process 
 but the summons until he be summoned. And this is 
 clearly proved in a writ of Debt, where, if the sheriff returns 
 "nihil" to the summons, a Capias shall issue immediately 
 and not the distress; then in this case when he was not 
 summoned, the attachment and the distress were erronously 
 awarded, etc. Ascough: Then he would have alleged 
 this matter when he was distrained, in which case he would 
 have saved his advowson, for that which is error cannot be 
 
504 STATHAM 
 
 reversed by a writ of Deceit. And a writ of Deceit does 
 not lie in this action, which is personal, for it does not lie 
 except where it can save the default of the summons, so 
 that upon that default the judgment is given. But in this 
 case the judgment was not given upon the whole process. 
 And in this Quare Impedit the plaintiff does not recover 
 the advowson, but the possession, to which the defendant 
 cannot be restored. PoRTYNGTON : If he wasnot summoned 
 attached, nor distrained, then it is reasonable that he have 
 this writ. Then when it is found upon examination that 
 he was not summoned, we do not need to inquire further, 
 for it appears to us that the attachment and the distraint 
 were wrongfully awarded. And also the abbot held the 
 same church to his own use, in which case he cannot 
 have another action to recover the advowson, except 
 a writ of right. And although the plaintiff recovers only 
 the possession still the defendant loses the advowson, for 
 he is out of possession by this recovery, and that is the 
 fault of the sheriff, wherefore, etc. Assheton : In a PrcBcipe 
 quod Reddat, if it be found upon examination of those first 
 summoned that the tenant was not summoned, the justices 
 shall not inquire further, because upon that first summons 
 the land was lost. But in this case the advowson is lost 
 on all three writs, and so it is not the same. Fulthorpe : 
 Although this action be mixed in the personalty, still it 
 is not like a personal action, for in no action which is merely 
 personal can a man recover by default before appear- 
 ance. But in this Quare Impedit he can recover by default 
 before appearance. And also the abbot holds to his own use, 
 which is yet stronger, etc. And also we have found upon 
 examination that he was never summoned, attached or 
 distrained, wherefore the Court awards that the abbot 
 be restored to the church, to hold to his own use, as he held 
 it before the judgment, and that he recover his damages 
 that he lost in the Quare Impedit, and that he have a writ 
 to the bishop to oust the clerk of him who recovered in the 
 Quare Impedit, etc. Query, what writ he would have 
 to recover his damages, etc.? I believe that it would be a 
 Fieri Facias, or an Elegit, or a Capias, etc. Well argued, etc. 
 
DISCEIPTE 505 
 
 The case has not been identified in Y. B. Hilary, 27 Hen. VI, or in Case 9. 
 the early abridgments. The Statute is Marlbridge, 52 Hen. HI (1267), 
 cap. 2, Stats, at Large, Vol. 1, p. 55 (60). 
 
 See as to deceit, in the title of Action on the Case. Note. 
 Many matters, etc. 
 
 Statham, supra, title of Accions sur le Cas, pp. 10 b-11 b. Statham 68 b. 
 
 (10) 111 deceit, the plaintiff was restored to the land and Michaeiis 
 to the issues, and he also recovered his damages, etc. ^"' 
 
 The case has not been identified in Y. B. Mich. 18 Hen. VI, or in the Case 10. 
 early abridgments. 
 
 (11) Ttie tenant by his warranty had a writ of Deceit Michaeiis 
 against the demandant, who recovered against the tenant, 
 
 upon his warranty, in a writ of Dower, because he had 
 assets in the same county, and he was not summoned, 
 etc. Query, if the vouchee brings a writ of Deceit against 
 the tenant, or against the demandant? etc. 
 
 The case has not been identified in Y. B. Mich. 3 Ed. Ill, or in the Case 11. 
 early abridgments. 
 
 (12) In deceit the one who was summoned made default, Trinity 
 and the other appeared and was examined, and the exam- 
 ination was [held] good. Query, if one were dead? etc. 
 
 The case has not been identified in Y. B. Trinity, 18 Hen. VI, or in Case 12. 
 the early abridgments. 
 
 (13) In deceit, if the defendant pleads joint tenure in a Paschal 
 plea which is tried against him, he will lose his land without 
 
 any examination. And this by the opinion of the Court. 
 And they also said that the writ is well brought against 
 him who recovers, although he is not a tenant; as in 
 a writ of Error. 
 There is no printed year for 18 Ric. II. Fitzh: Deceit, 49, has the Case 13. 
 
 (14) The lieir of him who lost by default had a writ of Michaeiis 
 Deceit. And it was adjudged good. ^® ^"^- "• 
 
 There is no printed Year Book for 18 Ric. II. Fitzh: Deceit, 60, Case 14. 
 has the case. 
 
506 
 
 STATHAM 
 
 Michaelis 16 
 and Hilary 
 17 Ed. III. 
 
 Case 16. 
 
 Paschal 
 17 Ed. III. 
 
 Case 16. 
 
 (15) One sued a Scire Facias upon a recognizance, and 
 had an execution by default, and he sued a writ of Deceit, 
 and was restored to that which he lost, with the issues, etc. 
 Which note, since no freehold was lost, or put in execution, 
 etc. 
 
 And it was said in the same plea, that although the sheriff 
 returned at the petty cape that the tenant was summoned, 
 when he was not summoned, that the tenant shall not have 
 a writ of Deceit, although the lands be lost, etc. 
 
 There are no early printed years of 16 or 17 Ed. III. The case is 
 found in the Rolls Series, 16 Ed. Ill, p. 292, Pt. 2, No. 9; and in the 
 same series, 17 Ed. Ill, p. 204, No. 44. See also Fitzh: Deceit, 36. 
 
 (16) In deceit by the lord of ancient demesne, to annul 
 a fine levied of lands which were held of the manor, which 
 fine was annulled. And the opinion of the justices was 
 that notwithstanding the annulment the fine was good 
 between the parties, and the party could take advantage 
 of the fine, etc. But yet, query? 
 
 There is no early printed year of 17 Ed. III. The case is found in the 
 Rolls Series, 17 Ed. Ill, p. 444, No. 35. See also Fitzh: Deceit, 37. 
 
 Trinity 
 19 Ed. III. 
 
 Case 17. 
 
 (17) Where a writ issued to the sheriff to inquire as 
 to waste, the defendant had an action of deceit, and said that 
 he was not summoned nor attached, etc. Simile, 19 Ed. II. 
 
 There is no early printed year of 19 Ed. III. The case is found in the 
 Rolls Series, 19 Ed. Ill, p. 146, No. 8. 
 
 Paschal 
 29 Ed. III. 
 
 Case.lS. 
 
 (18) In deceit, the first summoners came, and the viewers 
 and pernors, and the second summoners made default, 
 and the first summoners were examined, and they said 
 that no summons was made, wherefore the tenant was 
 restored, etc. Although if he had said that he was sum- 
 moned, then it seems that they should have awarded process 
 against the others, to wit: the second summoners, etc. 
 Query? etc. 
 
 Reported in Y. B. Trinity (not Paschal), 29 Ed. Ill, p. 42, pi. 33. 
 See also Fitzh : Deceit, 59. 
 
DISTRESSE 507 
 
 DISTRESSE 
 
 (1) A man cannot distrain for com in sheaves, while statham69a. 
 they are in the field or in the grange, for the sheriff cannot Hilary 
 replevy them, because he cannot notice one sheaf or any ^* ^'^' ^''' 
 other any more than a man can distrain for silver in 
 pennies, etc. And also in the carriage of the sheaves he 
 
 may lose part of the grain, in which case he cannot restore 
 them in as a good condition as they were when he took 
 them, etc. In rescous, etc. 
 
 The case has not been identified in Y. B. Hilary, 18 Ed. Ill, or in Case 1. 
 the early abridgments. 
 
 (2) If the king gives or sells his wardship to a man, Hilary 
 or leases a manor or castle to him, to hold for life or a term 
 
 of years in fee, he cannot distrain out of his fee, as the king 
 could when it was in his hand, etc. 
 
 There is no early printed Year Book for the reign of Ric. II. The Case 2. 
 case has not been identified in the early abridgments. The case has not 
 been identified in Y. B. 12 Ric. II, Ames Foundation, ed. Deiser. 
 
 (3) A writ issued out of the Exchequer to return certain Trinity 
 
 J , • 1 , r TT , . J 12 Ric. n. 
 
 goods which were the property of one H, who was attamted 
 
 of treason, who said that he leased certain lands to the 
 
 said H for the term of his life, rendering a certain rent, and 
 
 for so much in arrears before the attainder and before the 
 
 treason done, he took the goods, judgment, etc. Wade: 
 
 Inasmuch as you have admitted the property to be in him 
 
 at the time, judgment, etc. And so to judgment. Query, 
 
 if he need say "before the treason," etc.? 
 
 There is no early printed Year Book of Ric. II. The case is printed Case 3. 
 
 in the Y. B. of 12 Ric. II, Ames Foundation, ed. Deiser, p. 3. 
 
 (4) The sheriff can distrain for an amercement in his Trinity 
 
 , ,, , , , . . T> X ,1 2 Hen. IV. 
 
 torn for all the county, and this m an avowry. But the 
 lord of a leet cannot distrain out of his precinct. And 
 this by Hankford, etc. Query? 
 
 Reported in Y. B. Trinity, 2 Hen. IV, p. 24, pi. 17. See also Brooke, Case 4. 
 Distress, 13; and Fitzh: Distress, 10. 
 
508 
 
 STATHAM 
 
 HUary 
 
 33 Ed. III. 
 
 Case 5. 
 
 (5) Distress does not lie against the heir of the mesne 
 who has acknowledged the acquittance, in a Scire Facias, 
 etc. And distress against him who acknowledges, etc. 
 By Herle, in a Scire Facias, etc. 
 
 There is no printed Hilary Term of 33 Ed. III. The case has not 
 been elsewhere identified. 
 
 Hilary 
 8 Hen. V. 
 
 Case 6. 
 
 Michaelis 
 3 Ed. HI. 
 
 Case 7. 
 
 (6) On the day for the pleadings in Trespass, if the 
 defendant makes default, distress "ad atcdiendum judicium" 
 shall issue. And if he makes default then, there shall issue 
 a writ to inquire as to the damages. But in debt he shall 
 have judgment to recover immediately. Which the Court 
 conceded, etc. 
 
 The case has not been identified in Y. B. Hilary, 8 Hen. V, or in the 
 early abridgments. 
 
 (7) Distress ad audiendum judicium issues when the 
 defendant makes default on the next day after issue, 
 etc. Query, if he does not come at that distress? 
 
 The case has not been identified in Y. B. Mich. 3 Ed. IH, or in the 
 early abridgments. 
 
 DISCENT 
 
 Paschal 
 49 Ed. III. 
 
 (1) If a man purchases land in fee, and dies without 
 heirs de parte paterna, the land shall descend to his heir 
 de parte materna. But if the land came to him by descent 
 on the part of his father, it shall never go to the heirs on 
 the part of the mother, nor i contra, but it shall rather 
 escheat, etc. And so it was decided in an Assize, etc. 
 And a man can be heir to his son by a mesne; as if the son 
 dies without issue, then his uncle on his father's side shall 
 be his heir. And if the uncle dies without issue, his brother, 
 who is father to the son, is heir to his brother, and so by this 
 mesne he shall be heir to his son, etc. And my uncle may 
 well be my heir, for I have not come from him, for the 
 issue of one brother does not come from the other brother, 
 nor i contra. And that is the reason that they can inter- 
 
DISCENT 509 
 
 marry within certain degrees, etc. But all have come from 
 the stock and he cannot be heir to any of them; and there- 
 fore my father cannot be my heir, as can my brothers, 
 uncle, nephew and the like, for I did not descend from any 
 of them, but my father, grandfather and great-grandfather, 
 nor my mother's grandfather or great-grandfather shall 
 never be my heir, because I lineally descended from them, etc. 
 
 Reported in Y. B. Paschal, 49 Ed. Ill, p. 11, pi. 5. See also Brooke' 
 Discent, 7; and Fitzh: Discent, 7. 
 
 DEUX PLEEZ LOU UNE VA A TOUT 
 
 (1) In a writ of dower, the tenant as to part pleaded statham69b. 
 a joint tenancy, and as to the remainder, "never married," Trinity 
 
 etc. And the opinion was that he should have both *" ^^' ''"• 
 the pleas, although one went to all. Well argued, etc. 
 Michaelis, 43, in Formedon, etc. 
 
 Reported in Y. B. Trinity, 40 Ed. Ill, p. 31 , pi. 13. See also Brooke, Case 1. 
 Deuz Pleez, 7. 
 
 (2) In a resummons upon a writ of Wardship against Hilary 
 the heir, the defendant pleaded, as to the body, non-tenure; ^^ ^'^' "^' 
 and as to the land, that he did not hold of him ; and he had 
 
 both the pleas, notwithstanding the last plea went to all, 
 etc. 
 
 The case is reported at length in Y. B. Hilary, 18 Ed. Ill, p. 4, pi. 15. Case 2. 
 The point is to be found on p. 16, near the end of the case. 
 
 (3) In trespass for a horse taken and killed. Pole: Michaelis 
 As to the taking of the horse, we found him doing damage 
 
 in our several soil. And as to the killing, "not guilty." 
 Danby: Your last plea goes to all, for our action is founded 
 upon the killing. MoiLE: No sir, for although he did 
 not kill the horse, still, if he took the horse without cause, 
 he did you a wrong, wherefore he shall have both the pleas. 
 Which Newton and Paston conceded. 
 
 The case has not been identified in Y. B. Mich. 30 Hen. VI, or in the Case 3. 
 early abridgments. 
 
510 
 
 STATHAM 
 
 Michaelis 
 40 Hen. IV. 
 
 Case 4. 
 
 (4) In account, it was alleged that the defendant was 
 his bailiff of his house and had the care and administration 
 of certain goods. The defendant said as to the house, 
 "never his bailiff," and as to the goods of the plaintiff he said 
 that the plaintiff was indebted to him in twenty pounds, and 
 assigned the same goods, etc. Hankford : The first plea 
 goes to all. Which the Court conceded. And also the last 
 plea is no plea, for he could have had it upon the account, 
 etc. Wherefore the issue was taken whether he was his 
 bailiff or not. And it was said that the law is otherwise 
 now, to wit : that this plea does not go to all, for if he had 
 the care of my goods, as wine to sell, and things of that 
 sort, I cannot have any other writ except as above. 
 
 The citation to 40 Hen. IV is palpably an error, as Henry IV reigned 
 only fourteen years. The case can be found in Y. B. Hilary, 14 Hen., 
 IV, p. 20, pi. 25. 
 
 Trinity 
 2 Hen. VI. 
 
 Case 5. 
 
 (5) In replevin for cattle taken in P, in the vill of B, 
 against one F and others. Rolff said (for F) : P is in the 
 view of T, and not in B ; Ready, etc. And upon the return 
 he avowed the taking in B for damage feasant. And for 
 the others he said that the property in them was in one A 
 at the time of the taking, and not in the plaintiff. Cottes- 
 more : The first plea is no plea, for the place is not travers- 
 able any more than in battery. Martyn : Not the same, 
 for a man cannot justify a battery. And in trespass for 
 battery the freehold cannot come into question, but here 
 it can, wherefore, etc. Cottesmore : P is the in vill of B, 
 and not in T, Ready. And the other alleged the contrary. 
 And as to the cattle the property was in the plaintiff at the 
 time, etc. And the others alleged the contrary, etc. 
 
 The case has not been identified in Y. B. Trinity, 2 Hen. VI, or in the 
 early abridgments. 
 
 Michaelis 
 7 Hen. VI. 
 
 (6) In dower against two, one said that he had assigned 
 to her ten shillings in allowance for all her dower, to 
 which she agreed. The other said that he is and has been 
 at all times ready, etc. To which the demandant, as to 
 the first plea said, that she did not agree, and alleged the 
 
DEUX PLEEZ LOU UNE VA A TOUT 511 
 
 contrary. And she prayed judgment against the other. 
 Martyn: The first plea goes to all, and if it be found 
 against you, you will be barred ; as if in a Formedon against 
 two, one says that the demandant is a bastard, and the 
 other admits the action, the demandant shall not have 
 judgment against him who admits the action until the other 
 is tried. (Query? For it seems the contrary, for each 
 can plead and lose his portion, for it is not like a joint action 
 of debt, etc.) 
 
 The case has not been identified in Y. B. Mich. 7 Hen. VI, or in the Case 6. 
 early abridgments. 
 
 (7) In wardship of the body and of land, against Michaeiis 
 one F, who said, as to the body, that one H leased to him ^ ^^"' ^'■ 
 etc., and he vouched him to warranty. And as to the lands 
 he pleaded joint tenancy. Cottesmore: The last plea 
 goes to all. As in a writ of Cosinage the tenant, as to part, 
 vouched to warranty, and as to another part, he said that 
 the demandant was a bastard; and he did not have both 
 the pleas. Martyn : He pleaded no plea as to the body, 
 but he thinks to put the plea on another vouchee. And 
 as to the land, he shows such matter as he has, and that 
 is the case where a man pleads non-tenure as to part, and 
 "never married" to the remainder for no other purpose 
 except to excuse himself as to the damages, because he 
 pleaded non-tenure. So here, by his plea, he is to charge 
 the vouchee with the damages. And the opinion of the 
 Court was that he should have both the pleas, etc. 
 
 Reported in Y. B. Mich. 7 Hen. VI, p. 14, pi. 23. See also Brooke, Case 7. 
 Deuz Pleez, 13. 
 
 DROITS 
 
 (1) In a writ of right after the battle is waged or the statham 70 a. 
 plea joined, the demandant or his attorney should come oh Paschal 
 the first day after with his champion and offer himself, and 
 repeat the words upon which the battle is joined. And if 
 he does not come, judgment shall be given for the demand- 
 
512 
 
 STATHAM 
 
 Case 1. 
 
 ant on the fourth day, and not before. And if the 
 demandant does not do (as above) on the first day, the 
 justices will award a nonsuit on the fourth day, etc. 
 
 Reported in Y. B. Paschal, 42 Ed. Ill, p. 15, pi. 28. See also Brooke, 
 Droit, 3; and Fitzh: Droit, 9. 
 
 Michaelis 
 44 Ed. III. 
 
 Case 2. 
 
 (2) See in a writ of right against the husband and his 
 wife, if they would make a surrender the woman shall be 
 examined: By Thorpe. Query? 
 
 And in the same plea [the woman] was received upon 
 the default of her husband and oyer of the count, but there 
 was no declaration against her, because she was a party to 
 the first declaration. 
 
 The case has not been identified in Y. B. Mich. 44 Ed. Ill, or in the 
 early abridgments. 
 
 Michaelis 
 30 Ed. III. 
 
 Cases. 
 
 (3) In a writ of right, the tenant made a defeasance 
 under this form, "You have here H, etc., who defends, etc.," 
 and whereas G demands against him the manor of B, 
 and he counted that this was his right, and he repeated 
 all the count, defending the tort and force and the right 
 of G outright, and the seisin, etc., word for word according 
 to the count, and this his freeman, R by name, who is 
 here, is ready to defend with his body, and so if this R, 
 whom God defend, does not come, he is ready to defend by 
 another who can, etc. And he took the champion by the 
 right hand, and then he went out and came back with the 
 champion, with but one glove upon the hand of the champion 
 and under his fingers a penny, repeating all, and makihg 
 defence to all, as above. And he waged battle, to wit: 
 each champion gave his glove to the other as a gage of 
 battle, and then a day was given them, and they were 
 commanded that the champions should not go into fair or 
 tavern, etc., and that they should offer the money in five 
 different places, in honor of the five wounds of God, etc. 
 
 Reported in Y. B. Mich. 30 Ed. Ill, p. 19, pi. 23. See also Fitzh: 
 Droit, 13. The account of the manner of waging battle is fuller and 
 more accurate in the case itself, as well as much more dramatic, than 
 it is in the abridgment. Fitzherbert's account is also full and good. 
 
DROIT 513 
 
 (4) The king brought a writ of right and recovered by Hilary 
 default, etc. And so note, etc. ^* ^^- ^"• 
 
 There is no printed year of 34 Ed. III. The case has not been iden- Case 4. 
 tified in the early abridgments. 
 
 (5) In a writ of right, it is a good bar to say that formerly Paschal 
 
 u u^ ^. • ^t- , 1 1 ,34 Ed. III. 
 
 one brought an action against him who now demands, and 
 this present tenant ; and you disclaim in this same land, 
 judgment if you should have this action. And not to rely 
 upon the right, for by his disclaimer his right is gone. And 
 the law is the same as to a release of the plaintiff, etc. By 
 WiLLOUGHBY. But Sharshull said the opposite, for he 
 said that the nature of this writ of right is to have the right 
 tried, and a final judgment; then when the plea of the 
 tenant proves that he has the right, he shall say thus: "and 
 so he has the better right," etc. But where it appears by 
 his plea that he has no right, but his plea is a bar by reason 
 of a covenant, as of a collateral warranty, there he shall not 
 conclude upon the right, for he has no more right by reason 
 of that; in which case, if he relies upon the right, it will 
 be found against him ; and so because of the hardship for 
 the tenant he shall have the plea, without concluding to 
 the right: For by the same reason that if he was impleaded, 
 by a stranger he could vouch him and recover in value, 
 for the same reason he could plead the same warranty 
 in bar, etc. And the law is the same as to a lineal warranty, 
 or a warranty by the plaintiff himself, if he relies upon the 
 warranty, since he cannot get to the warranty without 
 pleading the feoffment or release, etc. And it may be that 
 he had no right to the land, and still he could bar the 
 demandant by reason of the warranty, which is a real 
 covenant by which the demandant is bound, etc. 
 
 And it was said in the same plea that a fine upon a 
 conusance of right is a good bar without relying on the 
 right, because it has extinguished his right by matter of 
 record. (But yet this is contrary to the reason given above, 
 etc.) 
 
 There is no printed year of 34 Ed. III. See Fitzh: Droit, 29. Case 5. 
 
514 
 
 STATHAM 
 
 Paschal 
 35 Ed. III. 
 
 Case 6. 
 
 (6) The lord of the court, when the parties are joined 
 at the Great Assize, cannot do anything, for he cannot 
 have a process against the four knights who make the 
 array, by which it shall be removed. But if he wages 
 battle it shall be determined before the lord himself, etc. 
 In Droit, etc. 
 
 And it was said in the same plea, that the demandant 
 should count for all who possibly could hold an estate. 
 
 And it was said in the same plea, that where a man enters, 
 where his entry is not legal, but is defeated afterwards by 
 entry or by a recovery, still he shall have a writ of right 
 on his possession, if he had a right before; and yet if he 
 had not entered he had been without a remedy. 
 
 And it was said in the same plea, that it is a plea for the 
 tenant to say that he in whom the demandant found seisin 
 was never seised. And if it be found he had no right, etc. 
 (But I believe that that is not law, to wit: to say, "And if 
 it be found," etc.) 
 
 There is no printed year of 35 Ed. III. Fitzh: Droit, 30, has the 
 case. 
 
 Trinity 
 
 34 Hen. VI. 
 
 Case 7. 
 
 (7) In a writ of right, the tenant vouched one A to 
 warranty, who entered into the warranty and said that he 
 had a better right, etc., without making any title in him- 
 self. And the tenant could say the same, to wit: that he 
 had a better right, without making title in himself, etc. 
 
 The case has not been identified in Y. B. Trinity, 34 Hen. VI, or in 
 the early abridgments. 
 
 Hilary 
 
 1 Hen. VI. 
 
 (8) See a writ of right against the Count of Northumber- 
 land, where there is good matter and all the form of the 
 trial by battle, etc. 
 
 And in the same plea, when the battle was joined, the 
 parties were commanded to find sureties for their cham- 
 pions to do battle; and so they did, to wit: each of them 
 two pledges. And I believe that this was for the amerce- 
 ment, for if the tenant makes default after battle, he shall 
 be amerced, etc. 
 
 And it was said in the same plea, that it is a good plea to 
 
DROIT 515 
 
 say that the champion is a villein, etc. Query, if he shall 
 say that he is an outlaw, or excommunicated? 
 
 And they were clothed in red leather and had long 
 staves, but the staves had no knobs upon the end, as the 
 staff of an appellor, nor their heads shorn like that of an 
 approver. 
 
 And it was said in the same plea, that it is a good plea 
 to say that the demandant leased him the same lands for 
 the term of his life, judgment if action, for he has admitted 
 that the plaintiff had the right by reason of the reversion; 
 so he shall say, "and so he had more right to hold the land 
 for the term of his life by force of the lease," etc. And 
 although the lease be made by indenture, that does not 
 change the case, for an estoppel is no bar in this writ of right, 
 etc. 
 
 Reported in Y. B. Mich, (not Hilary), 1 Hen. VI, p. 6, pi. 29, where Case 8. 
 the ceremony of the wager of battle is very fully set forth. See also 
 Brooke, Droit, 20; and Fitzh: Droit, 1. 
 
 (9) In [a writ of right] the writ was, "who claims to hold ^i'™'*^^, 
 of the king iw ca^7e." Kyrton: The land is held of one 
 
 R, and not of the king, judgment of the writ. Fyncheden : 
 That is nothing to you, for it does you no harm, because 
 you can be saved by protestation. But if the lord of the 
 Court was here, he could demand his Court. (Query as 
 to this?) AVherefore he passed over, etc. 
 
 Reported in Y. B. Trinity, 38 Ed. HI, p. 13, pi. 10. See also Brooke, Case 9. 
 Droit, 9; and Fitzh: Droit, 5. 
 
 (10) If a man recovers a rent service against me by statham 70 b. 
 a tried action, and I bring the ne injuste vexes against him, J^'^y^^^ 
 
 ••11 'j. ^° ji/d. 111. 
 
 and he pleads that recovery, I cannot jom the plea agamst 
 that recovery, but it shall bar me: By Grene, etc. In 
 the Scire Facias of the Abbot of [Lincoln], etc. 
 
 And see the title Ne Injuste Vexes, for the lord against 
 whom the writ was brought made a defence, and besides 
 that he entitled himself to the rent, and bound seisin, etc. 
 And then the demandant made a defeasance to him and had 
 become tenant, etc. And these are the two negatives 
 
516 
 
 STATHAM 
 
 of which the Natura Brevium speaks, etc. As appears in 
 the title. 
 
 Case 10. The case has not been identified in Y. B. Trinity, 38 Ed. Ill, or in 
 
 the early abridgments. 
 
 The title of Ne Injuste Vexes in the old Natura Brevium is supposed 
 to be referred to. There is no such title in Statham, and the later 
 Natura Brevium, known as Fitzherbert's, was not then printed. 
 
 Anno 
 
 4 Ed. III. 
 
 Case 11. 
 
 (11) A man shall not have a writ of right for a rent 
 charge, nor for rent seek, nor or of any rent except a rent 
 service : By Herle, in the Eyre of Nottingham, etc. 
 
 And see in the same plea that he held clearly that in a 
 writ of right it is a good bar to plead a fine upon a conusance 
 of the right of the demandant, or his ancestor, because the 
 judgment in such a fine is final, etc. Query? And also 
 he held clearly in the same plea that in a writ of right 
 it is a good bar to plead a recovery against the demandant 
 or his ancestor by a writ of Cessavit by default, for when 
 he recovers by default in a Cessavit, the judgment is final 
 by the Statute, which says that the land incurs the remedy, 
 etc. But if he pleads the recovery in the Cessavit by a 
 tried action, it is no bar, but he shall conclude to the 
 right, etc. 
 
 The case has not been identified in Y. B. Anno 4 Ed. Ill, or in the 
 early abridgments. 
 
 The Statute is that of West. II, 13 Ed. I (1285), cap. 41, Stats, at 
 Large, Vol. 1, p. 163. 
 
 Paschal 
 3 Ed. II. 
 
 Case 12. 
 
 (12) Where a man grants to me the services of his tenant, 
 by a fine upon a conusance of the right, I shall have a writ 
 of customs and services, notwithstanding the tenant did 
 not attorn, etc. But I cannot avow, etc. But it seems 
 hard to maintain this writ of customs and services, for 
 he should bind possession in himself, or in his ancestor. 
 And in that case there was no possession in fact, as it seems, 
 etc. In Replevin : By the opinion of the Court, etc. 
 
 There is no Paschal Term in the printed year book of 3 Ed. II (the 
 Maynard). Fitzh: Droit, 33, has the case. 
 
DROIT 517 
 
 (13) In a writ, the tenant vouched to warranty, and the Michaeiis 
 demandant counted against him, and he emparled, and ^ ^®"' ^^" 
 then went away in despite of the Court, and final judgment 
 
 was given against him. 
 
 The case has not been identified in Y. B. Mich. 9 Hen. VI, or in the Case 13. 
 early abridgments. 
 
 (14) If the tenant makes default in a writ of right, at Hilary 
 
 3 Kd III 
 
 the return of the Grand Cape, final judgment will not be 
 given. And so see that no final judgment shall be given 
 unless the pleas are joined upon the right, except in the 
 case where the tenant departs in despite of the Court, as 
 in the above case, etc. 
 
 The case has not been identified in Y. B. Hilary, 3 Ed. HI, or in the Case 14. 
 early abridgments. 
 
 (15) In [a writ of] right against the husband and his ^^^'^'i^'jjj 
 wife, who joined the plea, and the demandant emparled 
 
 until another day, on which day defendants made default, 
 and the demandant had a final judgment, notwithstanding 
 the pleas were never entirely joined, etc. Query, if the 
 demandant could be nonsuited inasmuch as the offer of 
 the pleas cornes entirely from the part of the tenants, etc.? 
 And they paid no attention in this case [to the fact that] 
 the woman tenant was a married woman. 
 
 There is no early printed year of 11 Ed. HI. The case is found in the Case 15. 
 Rolls Series of 11 Ed. Ill, p. 5. An allusion is made in the case to the 
 facts that the tenant was a married woman. 
 
 (16) In a writ of right, the tenant held to the right, 
 for it is the point of the writ, to wit: "He holds full right," 
 etc. As in a writ of Entry upon a Disseisin, the point of the 
 writ is the disseisin, which shall be answered; and yet he 
 declares on the possession, as in a writ of right, etc. And 
 if it be a prcecipe in capite, it is "which he claims to be his 
 right," which is the point, etc. 
 
 There is no citation given by Statham for this case, and it has not Case 16. 
 been identified. It seems more like a general note than an abridgment 
 of any specific case. 
 
518 
 
 STATHAM 
 
 " This is, of course, the writ of right, named from the words of the writ : 
 "Quod sine dilatione plenum rectum teneas." [Coke, 1st Inst. 115, a.] 
 The writs of right are: The writ of right patent; the prcecipe in capite, 
 and the little writ of right. [Holdsworth, Hist, of Eng. Law, Vol. 3: 3.] 
 It seems to have been "the highest real action." [Booth: Real Actions, 
 p. 84.] Booth [lb., p. 87] says, "it is called in the Books 'Droit' because 
 it hath the greatest respect, and the most assured judgment." For 
 all interested in this action, Booth in his book upon Real Actions 
 gives every part of the action in full. 
 
 The writ of right close was peculiar to tenants in ancient demesne, 
 and we frequently meet with it in "the books." We have one case of a 
 ne injuste vexes [case 10]. This was an old common-law writ given to 
 the tenant against the lord [Booth: Real Actions, 125, 126] to restrain 
 the lord that he "unjustly vex not, or permit to be vexed," his tenant, 
 by a demand for services which the tenant did not owe, or was not used 
 to do. 
 
 DONNE « 
 
 statham7ia. (1) A man Cannot give land to himself by way of a 
 
 Hilary reservation, for he cannot reserve a lesser estate, etc., 
 
 consequently his heir shall not have a Formedon for such 
 
 a reservation, etc. As appeared in a Scire Facias. Well 
 
 argued, etc. 
 
 Case 1. Reported in Y. B. Hilary, 42 Ed. Ill, p. 5, pi. 17, at the end of the 
 
 case. See also Brooke, Formedon, 9. 
 
 Hilary 
 
 50 Ed. III. 
 
 Case 2. 
 
 (2) If lands be given to two men in tail, he who survives 
 shall have it by the survivorship, although he dies without 
 issue, and the other has issue; that issue shall not have it, 
 but he should preferably re-enter, etc. 
 
 The case has not been identified in Y. B. Hilary, 50 Ed. Ill, or in the 
 early abridgments, unless it is the case in Y. B. Hilary, 50 Ed. Ill, 
 p. 50, pi. 3. 
 
 Trinity 
 50 Ed III. 
 
 (3) A man was seised of lands, the remainder to his right 
 heirs, and the tail was to him and his wife and to their heirs 
 male, etc. And he had issue a son and a daughter, and a 
 son by another wife, and died, so that the reversion of the 
 fee descended to the elder son. And then the elder son 
 died without issue; and the opinion of Thorpe was that 
 
DONNE 519 
 
 the sister should have the land, because the fee was in her 
 brother, etc. But the possession of the fee was not in him, etc. 
 
 The case has not been identified in Y. B. Trinity, 50 Ed. Ill, or in the Case 3. 
 early abridgments. 
 
 (4) A gift to the sacristan of such a house is good. Hilary 
 Fyncheden: And by such a gift the house shall inherit, *^ ^'^' ^^^' 
 as well as where land is given to the house and to the 
 convent, without naming any certain person. And this in 
 
 a Scire Facias. But yet, in the first case, although the 
 gift be good, it seems that he had only a life term, etc. 
 
 The case has not been identified in Y. B. Hilary, 49 Ed. Ill, or in Case 4. 
 the early abridgments. 
 
 (5) In a fortnedon, a deed was produced which read, "I Paschal 
 give, etc., to R, and K, his wife, and their heirs and to the ® ^™" ^" 
 other heirs of the aforesaid R, if the said heirs of the said 
 
 R and K die without heirs by them begotten." And this 
 was adjudged a good tail, etc. Well argued, etc. 
 
 Reported in Y. B. Hilary 5 Hen. V, p. 6, pi. 13. The only printed Case 5. 
 term for that year is Hilary Term. 
 
 See of gift in the title of Free Marriage, and in the title Note. 
 of Feoffment, and in the title of Devise. 
 
 SeeStatham, title of Frank Marriage, infra, p. 96 b.; Statham, title 
 Feoffments et Faitz, infra, p. 96 b, and Statham, title of Devise, infra, 
 71 b and 72 a. 
 
 (6) If lands be given to a man in tail, the remainder to Paschai 
 the right heirs of one J, who is living; if J dies while the ^^ ^^"- ^^• 
 donor is living, the remainder is good, and otherwise not. 
 
 By the whole Court in an Avowry. 
 
 There is no printed Paschal Term for the year 32 Hen. VI. The Case 6. 
 case has not been identified in the early abridgments. 
 
 (7) Where land is given to a man, and to her who shall Michaeiis 
 be his first wife, in tail, although he had no wife at the time ^^ "^'^^ ^^• 
 of the gift, yet it is a good tail : By the opinion of Thirning. 
 
 In a note, etc. 
 
 The case has not been identified in Y. B. Mich. 11 Hen. IV, or in the Case 7. 
 early abridgments. 
 
520 
 
 STATHAM 
 
 Trinity 
 
 11 Hen. IV. 
 
 Case 8. 
 
 (8) If lands be given to an abbot and to the convent, 
 and there is no mention of their successors, still they shall 
 have the lands by an impropriation: By Hankford. And 
 this in Debt, etc. 
 
 Reported in Y. B. Trinity, 11 Hen. IV, p. 84, pi. 34. 
 
 [There has been much difficulty in tracing the citations under this title, 
 as the writs are not given, though they may presumably be writs of Forme- 
 don, and points are apparently taken from cases not brought upon the 
 gift, or upon writs related to the Formedon. The points are very 
 probably to be found somewhere in the printed Year Books, but time 
 is lacking to trace them through all their mazes.] 
 
 *' The gift, as we have it in these cases in the abridgment, is solely the 
 gift of land, which is a very ancient form of alienation. Bracton treats 
 of it in his Second Book [Bracton, Book 2, De Acquirendo Rerum Dom- 
 inio]. Reeves gives us a great deal of learning upon it [Reeves, Hist, of 
 Eng. Law, Vol. 2: 289-303]. It has been said [P. & M. Hist, of Eng. 
 Law, 2d ed., Vol. 1: 12]: "In the thirteenth century every sort and kind 
 of alienation (that word being used here in its very largest sense) is a 
 gift, and yet it is a gift which always, or nearly always, leaves some 
 rights in the giver." And again, "The mediaeval 'gift' is almost as 
 wide as our modern 'assurance.' " [P. & M. Hist, of Eng. Law, 2d ed.. 
 Vol. 2: 13, note 1.] The subject naturally runs into that of the form of 
 the gift, the "Formedon," and some of our cases in the abridgment may 
 be taken from cases in which that writ was brought; one we know, 
 however, to be a writ of Scire Facias [case 1]. It is most probable that 
 had these cases come up in a Formedon they would have been placed 
 under that subject, yet our case 6 is a Formedon, so we have no means 
 of judging by the cases themselves why they were thus separated and 
 part placed under Gift, part under Formedon. 
 
 The common form of the gift of land is given by Britton [99, b., Nich- 
 oU's edition, Vol. 1, p. 252]: "In single gifts it is sufficient to say this, 
 'Know all men present and to come that I, John, have given to Peter 
 so much land with the appurtenances in such a town'; and it is proper 
 to specify between what boundaries." 
 
 DEVISE 
 
 Statham 71 b. 
 
 Michaelis 
 44 Ed. III. 
 
 (1) In an assize, the tenant pleaded in bar, by force of a 
 devise made by the father of the plaintiff, and the plaintiff 
 entitled himself as heir, etc. The plaintiff said that his 
 father, after the devise, made a feoffment to defeat the 
 
DEVISE 521 
 
 devise, and retook an estate and died seised, after whose 
 death, etc. Thorpe: Inasmuch as you do not deny the 
 testament, and that this was his last will, judgment, etc. 
 WiLLOUGHBY (to the plaintiff) : You should show as special 
 matter that he did not agree, etc. And so he did. 
 
 Reported in Y. B. Mich. 44 Ed. Ill, p. 33, pi. 18. See also Brooke, Case 1. 
 Devise, 8; and Fitzh: Devise, 16. 
 
 (2) If I lease lands for the term of another's life, which Trinity 
 are devisable, and my lessee devises them in fee, and dies, * " 
 living him for whose life [etc.], and the devisee enters; the 
 opinion of Willoughby was that I cannot enter, because 
 
 my reversion was not discontinued by that devise, inasmuch 
 as he died in possession. And this in a Precipe quod Reddat. 
 (But I believe that the law is the other way. But if my 
 tenant for life devisees in fee, I cannot enter in his lifetime 
 because he can disagree to that and it does not take effect 
 until he is dead), etc. 
 
 There is no printed year of 33 Ed. III. Fitzh: Devise, 21, has the Case 2. 
 case. 
 
 (3) Land was devised for a term of life, the remainder Trinity 
 to John, son of one R, and to his heirs male of his body ^"' 
 begotten; and in default of issue, the remainder to the next 
 heirs male of the said R, and to the heirs male of their bodies 
 begotten. R died; the first devisee for a term of life 
 entered; John, the son, died without issue male in the life 
 
 of the tenant for life. The tenant for life died, and one 
 Alice, cousin and heir of the said R, entered and enfeoffed 
 one H in fee. And the said Alice had issue male and died. 
 The opinion was that this issue should not have the land, 
 because at one time the remainder was void, living the 
 tenant for life, because no issue male was living who was 
 heir to R ; and also the remainder was to the right heirs of 
 R, and not "of his body begotten." Then it seems that 
 these words "to the right heirs male" are void, for the heirs 
 female would inherit as well by these words as the heirs 
 male. Then if it be not tailed to the right heirs male of 
 R, it cannot be tailed to the heirs of their heirs. As if I 
 
522 STATHAM 
 
 give land to a man and to his heirs male, he has a fee. 
 Then, although I say further, "and to the heirs of the 
 body of his heirs male begotten," that cannot be a tail in 
 the issue, since their father had a fee, etc. So here. See 
 the plea, because it was finely argued. 
 
 And see in the same plea, that by the custom of London 
 a man can devise that his executors sell his lands; and 
 in that case they can give a man a fee, and still they have 
 no fee nor freehold, but they give it as attorneys, in a 
 manner, etc. 
 
 And see in the same plea, by Paston : If a man devises 
 as above, that his executors sell his lands, and dies seised, 
 his heir is in by descent: still by the sale of the executors 
 he will be ousted, and in the same manner his heir after 
 him. But if a man devises his lands to his executors, 
 so that the freehold passes to them by the devise, and then 
 the heir of the devisor abates, and dies seised, and his heir 
 is in by descent, in that case the executors cannot oust 
 the heir who is in by descent, etc. 
 
 And it was said in the same plea, by GoDEREDE, that 
 if a man devises to a man for the term of his life, who is 
 not a person who is capable of taking, as a monk, or who 
 is not in being, the remainder over in fee, the remainder 
 is good. And I believe that the reason is because it re- 
 quires no livery of seisin, so at whatever time the remainder 
 falls in he can enter, etc. Query? 
 
 Case 3. Reported in Y. B. Trinity, 9 Hen. VI, p. 23, pi. 19, and Mich. 11 
 
 Hen. VI, p. 12, pi. 28. See also Brooke, Devise, 5 and 32; and Fitzh: 
 Devise, 2. 
 
 Trinity (4) If a man devises land to his son and heir in tail, the 
 
 ^°' ■ remainder over in fee, and dies, his son cannot disagree 
 to the devise; and this is because of the remainder: By 
 the opinion of Paston in a Cui in Vita. 
 
 Case 4. Reported in Y. B. Trinity, 3 Hen. VI, p. 46, pi. 1. See also Brooke, 
 
 Devise, 4. Paston does not appear in the report of the case, nor does 
 it stand strongly for the point in question, the report only going as far 
 as the joinder of issue. Brooke's report differs greatly from that of 
 Statham. 
 
DEVISE 523 
 
 (5) Where the land is devisable, if a man devises the ^'^?^^"^„ 
 
 • r, • r IT , . . , < . .18 Hen. VI. 
 
 reversion of his tenant tor hf e, to be sold by his executor, and 
 
 dies, and the executor sells the reversion, that is good 
 
 enough without a deed, and without attornment of the 
 
 tenant; for if the testator himself devised the reversion 
 
 to a stranger and died, immediately after his death the 
 
 reversion is out of his heir, and that is without deed. And 
 
 when he devises that it shall be sold by his executors and 
 
 they sell it, it passes by that contract, for they have not 
 
 the reversion but their power is limited, etc. And since 
 
 the sale, which is only a personal thing, is good without 
 
 a deed, consequently there is no need of attornment. But 
 
 yet it seems that the grantee cannot avow without an 
 
 attornment, any more than where the reversion is granted 
 
 by a fine, etc., for that devise is executory, by an "ex gravi 
 
 querela," as well as in a fine by a Scire Facias, etc. Well 
 
 argued. 
 
 The case has not been identified in Y. B. Mich. 18 Hen. VI, or in the Case 5. 
 early abridgments. 
 
 (6) If a man devises a horse to me, or a robe, after the Paschal 
 death of the devisor I can take it out of the possession of en. v . 
 the executors, but if a stranger takes it before I take it, 
 
 I cannot have an action of Trespass, for it is not like a gift 
 which is immediately executed, etc. But if a man devises 
 "the third part or the fourth part" of his goods, I cannot 
 take them because it is not certain, but I should sue in the 
 Court Christian. 
 
 Reported in Y. B. Hilary (there is no printed Paschal Term), 27 Case 6. 
 Hen. VI, p. 8, pi. 6. The facts differ somewhat from those in the abridg- 
 ment but on the whole the law appears to be to the same effect. See 
 also Brooke, Devise, 6, where he queries the sweeping statement as to 
 the executor. 
 
 (7) See of devise in the title of Waste, and in the title ^'=^^^1;?, 
 
 ^ 49 Ed. III. 
 
 of Issue, etc. 
 
 See Statham, Waste, pp. 179 b-181 b; and Statham, Issue, pp. 115 b- 
 117 b, infra. 
 
 (8) In the exchequer chamber, Illyngworth told how Trinity 
 
 a citizen of London, by his testament enrolled in the hust- ^° "^'"^ ^^- 
 
524 
 
 STATHAM 
 
 ings of London, had devised certain tenements within the 
 same city to his son, and to three others in fee, and his will 
 was, by this same testament, that one of the three should 
 have all the profits of the said lands during his whole life. 
 And then, because he who should have the profits was dead, 
 the heir, who was another of the feoffees, brought a bill 
 in the Chancery, comprehending this matter, and that 
 the said devise was in trust, etc., and prayed that the others 
 should release to him, etc. Wangford: When by his 
 statham72a. testament he devised the land to all the four in fee, and 
 by the same devise it was his will that one of them should 
 have all for life, it appears clearly that after the death of 
 him who was to have the profits, that the others shall have 
 the fee. And they shall not release to the heir, for it is not 
 like a feoffment in which no will is expressed. But when 
 his will is expressed it shall be considered wholly his will, 
 in which case they hold to their own use, etc. Fortescue : 
 I can see no difference between a feoffment and a devise 
 as to the intent, wherefore if you will not deny it, to wit: 
 that it was a trust, it is reasonable that you release to the 
 heir, etc. Which all the justices conceded, etc. 
 
 Case 8. The case has not been identified in Y. B. Trinity, 30 Hen. VI, or in 
 
 the eariy abridgments. 
 
 Anno 
 
 10 Ed. III. 
 
 Case 9. 
 
 Michaelis 
 22 Ed. III. 
 
 Case 10. 
 
 Michaelis 
 25 Hen. VI. 
 
 (9) "Devised" and "not devised" shall be tried by a 
 jury, notwithstanding the testament be shown, etc. But 
 yet it seems that he shall answer to the testament, etc. 
 In the Iter of Northampton. 
 
 This is one of the unidentified cases from the Iter of Northampton. 
 
 (10) If lands be devised to a man, he has only an estate 
 for life, [but if] be to have to him "forever," although 
 no mention be made of his heirs, still he shall have a fee, 
 etc. The law is the same as to a devise to a man and his 
 assigns, etc. 
 
 Reported in Y. B. Mich. 22 Ed. Ill, p. 16, pi. 59. See also Brooke, 
 Devise, 33; and Fitzh: Devise, 20. 
 
 (11) If a man devises lands of which he is not seised, 
 and afterwards he purchases these same lands and dies 
 
DEVISE 525 
 
 seised, the devise is good. Query, if the law will be the same 
 in regard to a fine? etc. 
 
 There is no printed year of 25 Hen. VI. The case has not been iden- Case 11. 
 tified in the early abridgments. 
 
 (12) If lands be devised to a man and his heirs male of Trinity 
 his body, etc., and he has issue a daughter, who has issue 
 
 a son, this son shall inherit. And yet of a gift in the tail 
 the law is otherwise. And this by the opinion of all the 
 justices in the Exchequer Chamber. 
 
 The case has not been identified in Y. B. Trinity, 28 Hen. VI. Fitzh : Case 12. 
 Devise, 18, has the case in almost the same words as Statham. 
 
 (13) If goods be devised to the king, he shall have a writ Anno 
 
 of Debt, or he shall have upon suggestion a Venire Facias Assisarum, 
 or a Scire Facias according to the form of the Exchequer »" ^ Scire 
 and upon that a Fieri Facias, etc., notwithstanding that 
 for other persons it belongs to the law of the Church, etc. 
 
 Reported in the Liber Assisarum, p. 24, pi. 35, Anno 40. The case Case 13. 
 does not give the details as given by the abridgment. See also Brooke, 
 Devise, 44; and Fitzh: Devise, 19. Fitzherbert differs from the other 
 abridgments and from the case. 
 
 (14) If a man entitles himself to land by a devise, he shall Anno 
 say that the vill in which the land is, is an ancient borough, Assisarum, 
 for if it be an "uplandish vill" ^ it will have no such custom, etc. 
 
 for such lands devisable are pleadable in the same borough, 
 so he shall say it is a borough or else ancient demesne. 
 By the opinion of the Court in an Assize. 
 
 Reported in Y. B. Liber Assisarum, 40 Ed. Ill, p. 250, pi. 41. See case 14. 
 also Brooke, Devise, 20. 
 
 DOUBLE PLEE 
 
 (1) A prior brought a Quare Impedit and counted statham 72 b. 
 that his predecessor was seised, etc., and presented. And Hilary 
 then the king seised the temporalities by reason of war 
 
 1 The vill of Uplands according to the report of the case. This case 
 is interesting historically. 
 
526 
 
 STATHAM 
 
 Case 1. 
 
 Hilary 
 
 40 Ed. III. 
 
 Case 2. 
 
 and presented. And afterward we had restitution by 
 reason of an accord between the kings, and the church is 
 now vacant. And the title was held sufficiently single, etc. 
 
 Reported in Y. B. Hilary, 40 Ed. Ill, p. 10, pi. 22. See also Brooke, 
 Double Plee, 122; and Fitzh: Double Plee, 72. 
 
 (2) In a resummons, the demandant assigned certain 
 points in which the Court of his franchise had failed to do 
 right, and the bailiffs offered to aver the contrary upon all 
 the points, and because the king was in a manner a party, 
 to wit: to maintain the jurisdiction of his Court, the issue 
 was taken upon all the points, etc. 
 
 Reported in Y. B. Hilary, 40 Ed. HI, p. 11, pi. 23. See also Brooke, 
 Double Plee, 119; and Fitzh: Double Plee, 73. The latter has much 
 the longest and best digest of the case, which has some important 
 points upon jurisdiction. 
 
 Michaelis 
 42 Ed. III. 
 
 Case 3. 
 
 (3) In replevin, the defendant avowed upon the plaintiff 
 because the father of the plaintiff held of him, etc., by 
 homage, fealty, and ten sjiillings of rent; and for the 
 homage after the death of his father he avowed , etc. Cann- 
 DiSH: We hold by fealty and all services. Ready. And 
 as to the homage and rent, our father was not of age, etc. 
 And by excessive distress you were seised by the hands of 
 [your] father, etc. Belknap: That plea is double. Fynch- 
 EDEN: Answer both, etc. But it seems he did not need 
 to speak of the excessive distress, and also that he was not 
 of age, for one of them is sufficient reason to render the 
 seisin void, etc. 
 
 Reported in Y. B. Mich. 42 Ed. HI, p. 26, pi. 11. 
 
 Michaelis 
 30 Hen. VI. 
 
 (4) In trespass for goods carried away, the defendant 
 said that the plaintiff was indebted to him in twenty shill- 
 ings, and that the same plaintiff delivered to him the said 
 goods in satisfaction of the twenty shillings, and then he 
 delivered the same goods to the plaintiff to keep, and then 
 took the same goods out of his possession, for which taking 
 he has brought this action. And the opinion clearly was 
 that it was no plea, because of the doubleness. 
 
DOUBLE PLEE 527 
 
 The case has not been identified in the printed Y. B. Mich. 30 Hen. Case 4. 
 VI, which is a very short report, consisting of only eight short placita, 
 none of them cases of Trespass. 
 
 (5) W and K, his wife, brought a Scire Facias out of a Trinity 
 fine by which the said K, before the marriage, had given 
 
 the same lands to one M, saving the reversion, and that M 
 died without issue, etc. And the writ was challenged 
 because it was that it ought to revert to the wife and not 
 to the husband.* FynchedeN: It is good here, but it is 
 otherwise in regard to a remainder, etc. Fyncheden : We 
 tell you that W and K were seised after the death of H, 
 and enfeoffed one H, whose estate, etc. Welloughby: 
 We say that formerly we brought a Scire Facias against 
 you for the same land, and recovered by default, and made 
 the feoffment to H, upon condition, etc., which conditions 
 were broken and we entered, and then you brought a writ 
 of Deceit against us, because you were never garnished, 
 and it was found for you, wherefore you were restored to 
 the lands, and we pray execution, etc. (Query, if he need 
 to show the deed in that case?) etc. FynchedeN: The 
 plea is double. Thorpe : He cannot do otherwise, for if 
 the feoffment had been simple, he could never have execu- 
 tion, because by the feoffment his right is gone, wherefore 
 the plea is good. Ufflete : The feoffment was simple, with- 
 out this. Ready. And the other alleged the contrary, etc. 
 
 Reported in Y. B? Trinity, 38 Ed. Ill, p. 16, pi. 21. Case 5. 
 
 (6) In a praecipe quod reddat or other action, if the Trinity 
 deferidant shall plead a sufficient plea in bar, and he also 
 traverses the point of the writ, that is not double, for the bar 
 
 is not to the purpose, but the plea which traversed the point 
 or title of the writ shall be taken. By Paston, and this 
 in a note, etc. 
 
 Reported in Y. B. Trinity, 9 Hen. VI, p. 26, pi. 23. See also Brooke, Case 6. 
 Double Plee, 11; and Fitzh: Double Plea, 40. Statham gives much 
 the best abridgment of the case. 
 
 1 The case has it that the proper form should have been that the land 
 should revert to the wife, not to the husband. 
 
528 
 
 STATHAM 
 
 Michaelis 
 3 Hen. VI. 
 
 Case 7. 
 
 (7) In debt against executors who said, "Nothing in 
 their hands and fully administered the day the writ was 
 purchased." And the opinion was that this was not a 
 double plea, since they are both of one substance, and one 
 plea answers both. Wherefore the plaintiff said, "Assets 
 in their hands." And it was adjudged that the issue was 
 good, etc. 
 
 And it was said in the same plea, that if the defendant 
 pleaded a double plea, and the plaintiff rejoined only to 
 one matter, and upon that the issue was taken, it was well 
 taken, and the other matter was waived. And it was also 
 said if the plaintiff answers all, and all are found for him, 
 that he shall recover. Which was conceded, etc. 
 
 Reported in Y. B. Mich. 3 Hen. VI, p. 3, pi. 4. The point as to the 
 double plea does not come until the middle of p. 4. See also Brooke, 
 Double Plee, 3. 
 
 Hilary 
 3 Hen. VI. 
 
 Case 8. 
 
 Michaelis 
 11 Hen. IV. 
 
 Case 9. 
 
 (8) See by Martyn, in Dower, that if a man pleads two 
 or three matters, and relies upon one of them, that the plea 
 is single enough, for then that upon which he relies is his 
 plea, and the other but a convenience; and if it be not a 
 convenience it will not be entered. 
 
 Reported in Y. B. Hilary, 3 Hen. VI, p. 28, pi. 11. See also Brooke, 
 Double Plee, 4. He is correct in making it an Avowry, not Dower. 
 
 (9) In detinue, the garnishee showed certain conditions, 
 to wit: that the plaintiff came on such a day to West- 
 minster, after a reasonable warning, and levied a fine, etc., 
 to the costs, etc., [of J E, and if he did not come.] ^ And 
 he showed how he sued a writ of Covenant, and the sheriff 
 returned that he was garnished and that he did not come; 
 and also we notified him on such a day, etc., fifteen days 
 before, etc. And the opinion was that the plea was not 
 double, for the return of the sheriff was only to show that 
 he could come by course of law to levy the fine. Query, 
 if the garnishment of the sheriff is a good plea if the plaintiff 
 is distrained, since he was not summoned, etc.? 
 
 Reported in Y. B. 11 Hen. IV, p. 18, pi. 42. Brooke, Double Plee, 
 127, comes to a different conclusion from Statham, i.e., that the plea 
 
 ' Words from the case. 
 
DOUBLE PLEE 529 
 
 was declared to be double. The case is not over clear, but a careful 
 reading seems to show that Statham is correct, and that Brooke took 
 an argument of counsel for the decision. 
 
 See as to double plee, in the title of Escheat, Michael- Note. 
 mas 11 Hen. IV; and in the title of Atidita Querela, Michael- 
 mas, 44 Ed. III. 
 
 Statham, Escheat, infra, p. 80 n, has no citation to Mich. 11 Hen. 
 IV. Statham, title Audita Querela, supra, p. 20 a. 
 
 (10) In account, the defendant said that at the time of Paschal 
 the receipt he was under age and still is, and they said that ^® ^^' ^'^' 
 this plea was double because it demanded two trials, to wit: 
 
 that he is still under age is triable by the judges by their 
 inspection ; and that he was under age at the time is triable 
 by the jury. (But yet the last mentioned goes to all) , etc. 
 
 There is no early printed year of 16 Ed. III. The point has not been Case 10. 
 identified in the Rolls Series for that year. 
 
 I have taken this citation to 16 Ed. Ill to be for this case, as the 
 case beside which it appears is evidently a note, and would naturally 
 have no citation. 
 
 (11) In trespass for cutting wood, the defendant jus- Anno 
 tified because he was seised of a house in the same vill, ^^ ^^°' ^^" 
 to which there was common of estovers in the same wood, 
 appendant to the said house, and that he and all those 
 
 whose estate [he had] had been accustomed, time, etc., to 
 cut iinderbrush in the same wood, to burn on their hearths 
 in the same house, and how he cut, etc., as well he might. 
 And the opinion was that the plea was double, to wit: 
 one, the appendancy; and the other, that he and all those 
 whose estate [he had], etc., for it might be that he could have 
 the estovers there, time, etc., of one who was tenant of the 
 house; and that he and all the tenants by force of that 
 grant had used the estovers, still this did not prove them 
 to be appendant ; then each of them is a good plea for him, 
 wherefore, etc. (But yet it seems that if such a grant is 
 beyond time of memory, it shall be understood to be append- 
 ant.) 
 
 Reported in Y. B. Mich. 11 Hen. VI, p. 11, pi. 27. See also Brooke, Case 11. 
 Double Plee, 115. 
 
530 
 
 STATHAM 
 
 DOWERS* 
 
 Michaelis 
 2 Hen. IV. 
 
 statham 73 a. (1) The Lady of M was in the Chancery to be endowed 
 of certain lands of which her husband died seised ; as ap- 
 peared by a diem clausit extremum returned there, etc. And 
 because the king had allowed and committed the guardian- 
 ship of the heir of her husband and of his lands to this same 
 lady during the nonage of the heir, it was adjudged that 
 she should not be endowed until the coming of age of the 
 infant. 
 
 Case 1. Reported in Y. B. Mich. 2 Hen. IV, p. 
 
 Dower, 27; and Fitzh: Dower, 23. 
 
 7, pi. 30. See also Brooke, 
 
 Michaelis 
 2 Hen. IV. 
 
 Case 2. 
 
 (2) In dower against one who vouched the heir of the 
 husband to warranty. At the sequatur sicut alias ^ he did 
 not come, wherefore it was adjudged that the woman 
 should recover her dower against the vouchee, if he had 
 [assets] in the same county, and that the tenant should 
 hold in peace. And if he had not, then that she should 
 recover against the tenant, and he over, etc. 
 
 Reported in Y. B. Mich. 2 Hen. IV, p. 7, pi. 35. (The placitum 
 was skipped in the numbering of the Year Book.) See also Brooke, 
 Dower, 28. 
 
 Paschal 
 40 Ed. III. 
 
 Case 3. 
 
 (3) A woman shall not be endowed unless the fee and 
 the freehold be united in her husband in fact. Well argued, 
 etc. In Dower. 
 
 Reported in Y. B. Paschal, 40 Ed. Ill, p. 15, pi. 2. See also Brooke, 
 Dower, 6; and Fitzh: Dower, 37. Both give fuller and better digests 
 than Statham, yet his point is the clearer for its brevity. 
 
 Paschal 
 41 Ed. III. 
 
 (4) In dower against the heir, who said that she detained 
 certain muniments, etc. The woman said that she was 
 great with child with one who should be the heir if God, etc. 
 And the tenant is brother to our husband, etc. And this 
 was adjudged a good plea. Belknap: She is not enceinte 
 
 ' Sequatur sub suo periculo sicut alias. Brooke notes the examination 
 by the court as to the facts, before judgment. 
 
DOWER 531 
 
 by her husband, Ready. Thorpe: You shall have no 
 such issue to bastardize the child, etc. Wherefore he said 
 she was not enceinte the day her husband died: Ready. 
 And the others alleged the contrary. Query? How shall 
 this be tried — by women or otherwise? 
 
 Reported in Y. B. Paschal, 41 Ed. Ill, p. 11, pi. 9. The text of Case 4. 
 the case differs from Statham in some points, but the law is the same. 
 See also Brooke, Dower, 8; and Fitzh: Dower, 47. The latter ignores 
 the plea as to the child. 
 
 ' (5) Where the heir is bound by his own deed and does Paschal 
 not know how to bar the demandant of her dower, she shall 
 recover against the wife and not against the heir, although 
 he had assets in the same county. But it is otherwfse if 
 he is bound by the deed of his father, etc. Query, as to 
 the difference? 
 
 And see in the same plea, when she shall have judgment 
 to recover her dower against the heir, she shall change her 
 demand, for even if it be so that it agrees with the writ 
 since it is general, to wit: reasonable dower of the freehold, 
 etc., still the demand is special, and that can be changed 
 before judgment, as well as abridged: By Thorpe and 
 Sharshull. (And study this well.) 
 
 And see in the same plea that if she vouches a stranger 
 who is not the heir, even if the vouchee had assets within 
 the same county, still she shall not recover against the 
 vouchee, and this is against the reasoning of some who say 
 that the reason that the woman recovers her dower against 
 the heir who is vouchee is because the recovery in value of 
 the land is uncertain since it is of the third part, etc. 
 
 There is no early printed year of 19 Ed. III. The case has not been Case 5. 
 identified in the Rolls Series for that year. The case is confused but 
 there is no printed case by which to correct it. 
 
 (6) Where the husband is enfeoffed upon a condition Trinity 
 
 ^4 Fd III 
 
 which is fulfilled in his lifetime on the part of the feoffor, 
 so that the feoffor enters and defeats his estate, still the wife 
 of the feoffee shall be endowed: By Sharshull. And the 
 law is the same if I enfeoff a man upon condition that he 
 shall enfeoff another before such a day, and before that day 
 
532 
 
 STATHAM 
 
 he makes the feoffment, still his wife shall be endowed, etc. 
 (But yet the first case is not law, etc.) 
 
 Case 6. There is no printed Year Book for 34 Ed. III. Fitzh: Dower, 127, 
 
 has the case. He makes the same remark that the first statement is 
 not law, probably copying from Statham. He gives the Liber Assis- 
 arum as authority for his remark. 
 
 Michaelis 
 44 Ed. III. 
 
 Case 7. 
 
 (7) If the tenant for life leases his estate in reversion 
 for the term of his life, rendering a certain rent, and for 
 default of payment one re-enters, shall the wife of the 
 reversioner be endowed of this possession or not was well 
 argued in Dower, etc. See the adjudication, to wit: that 
 she shall be endowed. A like case was adjudged in Trinity, 
 45, in Dower, but there no entry was reserved for default 
 of payment, etc. 
 
 Reported in Y. B. Mich. 44 Ed. HI, p. 31, pi. 12. See also Fitzh: 
 Dower, 44. 
 
 Paschal 
 19 Ed. III. 
 
 Case 8. 
 
 (8) If in dower against the committee of the king he 
 prays aid, he shall not have aid for he is ousted by the 
 Statute of Bigamies. 
 
 There is no early printed year of 19 Ed. HI. The case has not been 
 identified in the Rolls Series for that year. 
 
 The Statute of "Bigamus," 4 Ed. I (1276), cap. 3, Stats, at Large, 
 Vol. 1, p. 114 (115). 
 
 Trinity 
 46 Ed. III. 
 
 Case 9. 
 
 (9) If the tenant vouches one in the wardship of the 
 king, in Dower, for which a day is given ad inierloquendum 
 cum Rege, and then a procedendo in loguela comes, they 
 shall proceed to judgment without a procedendo ad judi- 
 cium well enough, because the matter will be examined in 
 the Chancery before any procedendo issues. In Dower, 
 etc. In all other writs the law is the other way. 
 
 Reported in Y. B. Trinity, 46 Ed. HI, p. 19, pi. 23. See also Brooke, 
 Dower, 20. 
 
 Michaelis (10) Out of the fee of the husband is no plea in a writ 
 5 Ed. III. q{ Dower for rent, for it does not belong to the wife to show 
 title, etc. 
 
DOWER 533 
 
 The case has not been identified in Y. B. Mich. 5 Ed. Ill, or in Case 10. 
 the early abridgments. 
 
 (11) If the tenant in a writ of Dower vouches one in Trinity 
 the wardship of the king for part, and for another part, ^ 
 
 in the wardship of another; against the king a day shall 
 be given ad interloquendum cum Rege, and against the other 
 the common process. And although a writ of Procedendo 
 does not come, still the plea shall be continued all the time 
 against the stranger. But yet, query? For it seems when 
 the aid is granted that it is discontinued against the other 
 guardian, etc. Query? And if the heir be vouched in 
 wardship, and is under age, even though the demandant 
 recovers against the tenant, still he shall not have judgment 
 in value against the heir until he is of full age, for it is not 
 the same as where a writ of Dower is brought against the 
 guardian, for there, even if the guardian renders dower of 
 that of which she is not dowable, the heir shall have an 
 Assize of Mort d'Ancestor at his full age. But if the 
 tenant should recover in value against him, he could not, 
 at his full age, have an Assize of Mort d'Ancestor, wherefore 
 it shall be saved to him by way of answer in a Scire Facias, 
 etc. For in no case will process issue against the infant 
 where he is vouched in wardship, etc. 
 
 Reported in Y. B. Trinity, 46 Ed. Ill, p. 19, pi. 23. A second Case 11. 
 digest of case 9. See also Brooke, Dower, 20. 
 
 (12) Tenant in tail alienated, and retook an estate to Michaeiis 
 himself and to his wife in tail, and had issue. Shall the 
 second wife be endowed or not was well argued; and the 
 opinion was that she should not be endowed, for the heir 
 
 can choose to claim which estate he will. But if land be 
 given to a man and to his wife in tail, and for default of 
 issue the remainder to the right heirs of the husband, 
 and the wife dies, and their issue dies, the second wife of 
 the husband shall be endowed against the collateral heirs 
 of the husband, for after the death of his issue he had a fee 
 simple, and no other estate. (But yet in the first case it 
 seems that "to their issue" is a general tail, etc.) 
 
 Reported in Y. B. Trinity (not Mich.), 46 Ed. Ill, p. 16, pi. 11. Case 12. 
 
534 
 
 STATHAM 
 
 Hilary 
 50 Ed. III. 
 
 Case 13. 
 
 (13) In a scire facias against a woman, who said that 
 she was tenant in dower of the inheritance of one J, and 
 prayed aid of him. And she was driven to show upon 
 whose assignment she was endowed, for to that the demand- 
 ant shall have an answer. Wherefore she said that it was 
 on the assignment of one H, who was guardian, and she 
 showed how, etc. 
 
 The case has not been identified in Y. B. Hilary, 50 Ed. Ill, or in 
 the early abridgments. 
 
 Paschal (14) In dowef, the tenant said that the land was given 
 
 to the husband and his first wife, in tail. Fyncheden: 
 
 Statham 73 b. Seised so that he could endow her, etc. And he could not 
 have the plea without answering the special matter, etc. 
 
 Case 14. There is no printed Year Book of 31 Ed. III. The case has not been 
 
 identified in the early abridgments. 
 
 Michaelis 
 31 Ed. III. 
 
 Case 15. 
 
 (15) If a woman be endowed in the Chancery, be it 
 legally or tortiously, a man cannot defeat it by way of 
 answer, but he should sue in the Chancery to defeat it, etc. 
 In a Quare Impedit. 
 
 There is no printed year of 31 Ed. III. Fitzh: Dower, 128, has the 
 case. 
 
 Trinity 
 5 Ed. III. 
 
 Case 16. 
 
 (16) If land be recovered [in value] against the husband by 
 reason of a warranty made by his ancestor before the mar- 
 riage, still his wife after his death shall be endowed, for 
 her husband could have alienated the lands before he was 
 vouched, and then it shall not be rendered to the value, 
 consequently the title of the woman is the elder, for the 
 title of him who vouches does not commence till the day 
 of the voucher. And that in Dower. 
 
 The case has not been identified in Y. B. Trinity, 5 Ed. III. Fitzh: 
 Dower, 129, has the case. Perkins: Prof. Book, has a case of Dower in 
 this year and term, which is contrary to this. Perkins: Prof. Book, 
 p. 61. 
 
 Hilary (17) In dowCF against the heir, he said that she held 
 
 21 Kd III 
 
 certain muniments, etc. And she could say that she had 
 
DOWER 535 
 
 delivered them to him, and not answer to the detinue, as 
 in a writ of Detinue, etc. 
 
 And see in the same plea, that if there are two heirs who 
 have made partition, and she delivers the deeds to one of 
 them, that is good enough. Query? etc. 
 
 Reported in Y. B. Hilary, 21 Ed. Ill, p. 8, pi. 24. Case 17. 
 
 (18) A woman brought a writ of Dower against one T, Hilary 
 who vouched to warranty the heir of the husband, as of 
 full age and out of wardship, as to one part, and produced 
 a deed to that effect; and as to the other part, he vouched 
 the heir under age and in the wardship of one F, who had 
 part of the lands with the body. And he prayed that he 
 be summoned in the same county, and also that the heir 
 be summoned in the same county, because he was vouched 
 as of full age. And he vouched the same heir in the ward- 
 ship of one H, who had the wardship of other lands, and 
 prayed that he be summoned in another county. And 
 process was made against the guardians to that effect, etc., 
 until now, when the guardian who was vouched in the 
 foreign county came, and the other guardian made default. 
 Arid the heir, as of full age, was essoined, because he who 
 came said that the lands were held of the king, who granted 
 to us the wardship of the body and of the lands by his 
 letters patent, and we do not think that of this part without 
 the counsel of the king, etc. Belknap: It is necessary 
 that you have the same days until the other guardians 
 come. Fyncheden : It seems that he shall enter into the 
 warranty for his portion, for the voucher is severed, and each 
 one answers for his portion, etc. But yet if he who appears 
 be sufficient, peradventure he will render in value for all. 
 Thorpe: No, sir, only for his portion: no more than in a 
 Statute Merchant. And then the Great Cape ad Valenciam 
 was awarded against each for his portion, and a writ to 
 the sheriff to extend the lands. But the Great Cape did 
 not issue until after the extent was returned. And the 
 same day was given to the lessor; and they would be 
 advised if the same day should be given to that guardian 
 who appeared, or should he answer immediately? Query? 
 
636 
 
 STATHAM 
 
 Case 18. 
 
 For it was said before, that execution shall not be made in 
 value until the full age of the heir, and that is contrary to 
 the reasoning of Fyncheden, etc. 
 
 Reported in Y. B. Hilary, 48 Ed. Ill, p. 5, pi. 9. See also Brooke, 
 Dower, 98, but the digest of Brooke is of little value. 
 
 Trinity 
 31 Ed. III. 
 
 Case 19. 
 
 (19) In dower, the tenant vouched the heir in the ward- 
 ship of one H, and of one F, and at the summons they said 
 that they had nothing in wardship. And it was found 
 that one had so much, and the other nothing; and against 
 him who had, he had judgment to recover in value, and 
 against the other, nothing, etc. But yet it seems that he 
 had failed of his voucher. 
 
 There is no printed year of 31 Ed. III. The case has not been identi- 
 fied in the early abridgments. 
 
 Trinity 
 24 Ed. III. 
 
 Case 20. 
 
 (20) In dower, the tenant showed how his predecessor 
 granted the rent to the husband of the demandant, and 
 to his heirs, upon condition that when any of his heirs 
 should be under age that the rent should cease until his age. 
 And he said that "the heir of your husband is under age," 
 wherefore, etc. And it was adjudged that she should 
 recover her dower, but execution should cease until the 
 full age of the heir, etc. And it was said that should she 
 recover her dower, and then another heir was under age, 
 that her dower should cease for the time of his nonage. 
 Query, etc.? 
 
 Reported in Y. B. Trinity, 24 Ed. Ill, p. 29, pi. 18. This is but a 
 "residuum," however. The principal case is reported in Y. B. Mich. 
 22 Ed. Ill, p. 19, pi. 86. 
 
 Michaelis 
 21 Ed. III. 
 
 (21) In dower, the tenant vouched to warranty the heir 
 of the husband, in the wardship of the demandant by reason 
 of nurture, and he produced a deed, etc. Burton: For 
 the same reason he could plead in bar. And he did so; 
 and said that she was guardian in socage, and could endow 
 herself of the best, etc. 
 
 And it was said in the same plea, that the heir shall be 
 vouched in the wardship of the guardian, as in the wardship 
 
DOWER 537 
 
 of another, but yet it seems that it is not so, for a writ of 
 Dower does not lie against a guardian in socage, conse- 
 quently, etc. And if it were so, query if the process shall 
 issue against the guardian in socage? etc. 
 
 Reported in Y. B. Mich. 21 Ed. Ill, p. 28, pi. 2. See also Fitzh: Case 21. 
 Dower, 84. Fitzherbert apparently had access to a different report 
 of the case from that given in the printed Year Books. 
 
 (22) Lands were given to H, and M, his wife, in tail, Trinity 
 who had issue F. And H died, and M leased the same 
 lands to F for a term of years, and then released to him all 
 her right, etc.; and then F had issue S, and died, while M 
 was living; and then M died, and S died without issue, 
 wherefore G, who was brother to the said F, entered, against 
 whom one K, who was the wife of F, brought a writ of 
 Dower, and recovered her dower against the opinion of 
 many, for the estate tail cannot commence in F, living 
 M, his mother, then he had only an estate for the term of 
 another's life, for it is not like a surrender to him who has a 
 fee in the reversion, etc. 
 
 Reported in Y. B. Trinity, 24 Ed. Ill, p. 28, pi. 14. See a further Case 22. 
 report of the case on pp. 58, 59, pi. 47. See also Brooke, Dower, 50; 
 and Fitzh: Dower, 98. The Court said that the reason for the grant 
 of dower was that the mother had such an estate that by the release 
 she could make a fee to F. Brooke disagrees with this. 
 
 (23) If the heir enters after the death of his father, and Michaeiis 
 takes a wife, and then endows his mother, his wife shall be ^^ ^'^' ^^ ' 
 endowed of that part of which his mother was endowed, 
 because he was seised of the same lands at one time in fee; 
 and the woman who was his mother only demanded a 
 freehold against him, so the fee continued at all times, etc. 
 And it was said in the same plea, that if the lord pur- 
 chases the demesne, and then the tenant dies, and his wife 
 brings a writ of Dower, and recovers her dower, that she 
 shall not pay the third part of the rent, for by the purchase 
 of the lord her rent was extinct, etc. And although she 
 recovers her dower, still she cannot avow for her rent, 
 for there was no tenant in dower. 
 
538 
 
 STATHAM 
 
 Case 23. 
 
 And WiLLOUGHBY said in the same plea, that if a man 
 takes land in exchange and dies, his wife shall be endowed 
 of both, etc. 
 
 The case has not been identified in Y. B. Mich. 23 Ed. Ill, or in the 
 early abridgments. Perkins: Prof. Book, p. 83, states a like case. 
 
 Trinity 
 
 36 Hen. VI. 
 
 statham 74 a. (24) If the tenant in Dower recovers against the heir 
 of the husband, her entry shall be alleged [as] by her husband 
 to wit: in the per. And if she recovers against a stranger 
 who disseised the husband, the heir shall allege his entry 
 in the post: And this by Fortescue in the Assize of 
 Baildon, etc. Query, if another stranger has title to the 
 lands, how he shall allege his entry, etc.? 
 
 Case 24. The case has not been identified in Y. B. Trinity, 36 Hen. VI, Fitzh: 
 
 Dower, 30, has a very short digest of the case. 
 
 HUary 
 
 22 Ed. III. 
 
 (25) Lord, mesne and tenant: The tenant held of the 
 mesne by one penny, and the mesne over for twenty pence. 
 The mesne released to the tenant all the right that he had 
 in the lands, and the tenant dying, his wife is endowed of 
 the lands: now she shall attorn to the heir for the third 
 part of the penny, and not for the third part of the twenty 
 pence, for she shall be endowed of the better possessions 
 of her husband. And it was said in the same plea, if I 
 give land to a man before the Statute, or on that day, in 
 the tail, to hold of me by a penny of rent, and then, after 
 his decease, his heir shall pay me twenty shillings forever; 
 he dies and his wife is endowed of the lands; she shall 
 attorn to the heir for the third part of the twenty shillings, 
 for it is all one rent, and for the same rent the land is 
 charged by the conditions in the deed, etc. And she cannot 
 have an acquittance from the heir, because the land is 
 charged by the deed of his father, of whose possession 
 she claims dower, etc. 
 
 And it was said in the same plea that if the tenant fore- 
 judges the mesne, still the wife of the mesne shall have a 
 writ of Dower for the rent that the mesne had from 
 the tenant; and she shall hold of the tenant, because 
 between her and the tenant the services are revived. But 
 
DOWER 539 
 
 yet, query as to this, for then she does not hold in the same 
 course in which her husband held, etc. In Dower. 
 
 The case has not been identified in Y. B. Hilary, 22 Ed. Ill; Fitzh: Case 25. 
 Dower, 131, has the case. See also Perkins: Prof. Book, pp. 64 and 83. 
 
 Statute of Westminster the Second, 13 Ed. I (1285), cap. IV, Stats, 
 at Large, Vol. 1, p. 163 (171). 
 
 (26) In dower, the tenant pleaded "never married," etc. Trinity 
 And the bishop certified "married," on which day the 
 tenant made default, and it was adjudged that the demand- 
 ant should have seisin of the land, without awarding any 
 petty cape, for that contradicts the verdict; for in an 
 Assize after such a verdict the wife has been ousted of the 
 receipt, etc. 
 
 The case has not been identified in Y. B. Trinity, 18 Ed. Ill, or in the Case 26. 
 early abridgments. 
 
 (27) The husband and wife acknowledged by a pone Hilary 
 
 • 9*^ FH TTT 
 
 the tenements which were in the husband to be the right 
 of a stranger, and bound themselves and the heirs of the 
 woman to warrant the same lands, to the intent that the 
 wife should not afterwards have her dower. And after 
 the death of her husband she brought a writ of Dower; and 
 upon this matter shown she had judgment to recover her 
 dower, because the Court was deceived at the time the fine 
 was levied ; for if they had perceived that the land was 
 the right of the husband, they would not have taken war- 
 ranty of the woman for other lands, etc. 
 
 The case has not been identified in Y. B. Hilary, 25 Ed. III. Fitzh: Case 27. 
 Dower, 132, has the case. 
 
 (28) If a woman be endowed against the common law Michaeiis 
 as of a manor in gross, and so of other like things, etc., 
 
 she shall take the land so charged, etc. In Dower, etc. 
 
 The case has not been identified in Y. B. Mich. 26 Ed. III. Fitzh: Case 28. 
 Dower, 133, has the case. 
 
 (29) In a writ of Dower ex assensu patris, the tenant said Michaeiis 
 that one H was the son and heir of his father, and your ^^ ^^- '"• 
 
540 STATHAM 
 
 husband was the younger son, etc. And it was adjudged 
 a good plea. From this it follows that a man cannot endow 
 his wife ex assensu of another ancestor than his father, for 
 his wife shall not have a writ of Dower "ex assensu con- 
 sanguinii," etc. Wherefore the woman said that H was a 
 bastard. But yet, query if she could have that plea, 
 for her husband could not have said that he was a bastard 
 generally, where he had admitted the marriage. But 
 peradventure the woman could, for she was not privy in 
 blood, etc. 
 
 Case 29. The case has not been identified in Y. B. Mich. 29 Ed. III. Fitzh: 
 
 Dower, 134, has the case. See also Perkins: Prof. Book, p. 85. 
 
 Hilary (30) If my viUein purchase lands, and I am seised, the 
 
 13 Ed. III. ^j£g q£ ^j^g villein shall be endowed. And this by Herle, 
 in Dower, etc. 
 
 Case 30. There is no early printed year of 13 Ed. III. The case has not 
 
 been identified in the Rolls Series, 12 and 13 Ed. III. 
 
 (31) In dower, the tenant said that the husband of the 
 woman took other lands in exchange, in the Bishopric of 
 Durham, in the vill of H, of which the wife had her dower, 
 judgment, etc. Stouford: Inasmuch as the writ of the 
 king does not run there, judgment, etc. And it was not 
 allowed, for Herle said that it had been a good plea to say 
 that her husband took lands in exchange in Ireland, of which 
 she was endowed, etc. (From this it would follow that 
 an exchange for lands in another county is good.) The 
 woman said that she had never recovered her dower. Ready, 
 etc. And it was tried by people of Northumberland, which 
 was next adjoining, etc. And it was said by Herle, in the 
 same plea, that where a woman is endowed against the 
 abator, and then the heir brings a writ for the two parts 
 and recovers, that the reversion of the third part of which 
 the wife is endowed is in him ; which Seton denied, and said 
 that he could claim the reversion in a Court of record ; as 
 to bring an action of waste against the woman, and if she 
 
DOWER 541 
 
 said that he has nothing in the reversion and he shows this 
 matter, then the Court will award that she should attorn 
 to him, to wit: from that day forward. And in this same 
 manner one can claim the reversion which his villein had, 
 etc. 
 
 Statham gives no citation for this case. It has not been identified. Case 31. 
 
 (32) If I enfeoff a man to enfeoff another, and he per- Michaeiis 
 
 27 Ed III 
 
 forms the conditions, [the wife of] the feoffee of my feoffee 
 shall be endowed, but if he does not make the feoffment, 
 so that I or my heir enters for conditions broken, then she 
 shall not be endowed. As was adjudged in the Liber 
 Assisarum. 
 
 The case has not been indentified in Y. B. Mich. Liber Assisarum. Case 32. 
 The Liber Assisarum is not divided into terms. Fitzh: Dower, 135, 
 has the case. 
 
 (33) If a man before the espousals makes a feoffment Michaeiis 
 in tail, rendering a certain rent, and for default of payment 
 
 one re-enters, and then takes a wife, and he is seised of the 
 rent and dies, and the heir enters because the rent is in 
 arrear, the wife in that case shall not be endowed of the 
 rent or of the lands either. By Fyncheden and Thorpe 
 in Dower, etc. 
 
 The case has not been identified in Y. B. Mich. 44 Ed. Ill, unless it is Case 33. 
 in a case on p. 25, pi. 1, in a point made in the long argument there 
 reported. Brooke, Dower, 14; and Fitzh: Dower, 43, have the case 
 here cited but not the point made by Statham. 
 
 (34) In dower against the guardian, who said that the Hilary 
 demandant was guardian in socage of the other lands, and 
 could endow herself of the very best. And because she 
 could not deny it, it was adjudged by the Court that she 
 should take the lands of the heir into her custody, being 
 
 to the value of the third part with the appurtenances, to hold 
 in the name of dower for her aforesaid third part, for which 
 she prays. Query? For she had no right to hold, as above, 
 until the age of the heir, to wit : fourteen years. And from 
 this it follows that she shall not be newly endowed at the 
 
542 
 
 STATHAM 
 
 statham 74 b. age of the heir, which is contrary to law, as they said, and 
 so the whole charge will fall upon the husband, etc., as in 
 other cases, to wit: where my very tenant makes a lease 
 for a term of years, and dies, his heir under age, and I am 
 seised of the wardship, I shall oust the termor. Still when 
 the heir comes to his age, the termor shall have his entire 
 term, etc. 
 
 Case 34. There is no early printed year of 16 Ed. III. The case has not been 
 
 identified in the Rolls Series for that year, or in the early abridgments. 
 Coke (Dower, 1st Inst. 39) refers to this case, but has no complete 
 reference. 
 
 Michaelis 
 16 Ed. III. 
 
 Case 35. 
 
 Paschal 
 28 Ed. III. 
 
 (35) In dower, the tenant vouched to warranty the heir 
 of the husband of the demandant, in the wardship of the 
 demandant. And the justices were in doubt what should 
 be done, for process could not issue against her, because 
 she was the demandant who could not plead with herself. 
 But I believe that the demandant should recover her dower, 
 and that the tenant should demur upon the warranty until 
 the coming of age of the infant, for it is no plea to say that 
 she can endow herself of the very best, inasmuch as she is 
 guardian in Chancery, for she holds it in her own right, 
 etc. See the matter below in this same title, etc. 
 
 There is no early printed year of 16 Ed. III. The case has not 
 been identified in the Rolls Series, or in the early abridgments. 
 
 (36) In dower as to part, one vouched the heir of the 
 husband as of full age, and prayed process against him; 
 and for another part he vouched him under age and in the 
 guardianship of one H, within the same county, and he had 
 process against the guardian. And for another part he 
 vouched him in the wardship of one F, in another county, 
 and prayed process against the guardian. And from this it 
 follows that it is in the election of the tenant to vouch the 
 heir in wardship or out of wardship, for if the heir has lands 
 which are not in wardship he shall have execution of them, 
 and where they are in wardship he shall have execution 
 against the guardian. By Sharshull and Willoughby, 
 that judgmentin value against the guardian will bind the heir 
 as well as where the demandant recovers her dower against 
 the guardian, for the one depends upon the other, and when 
 
DOWER 543 
 
 one estate is determined, the other is determined. Then 
 if the demandant has more upon her dower against the 
 tenant than she should have, and he has as much in value 
 against the heir, by the conusance of the guardian the heir 
 is injured, for he cannot have a writ of Admeasurement, 
 etc. But I believe that the heir can have an assize of Mort 
 d 'Ancestor; as well as where the guardian endows the 
 wife of lands of which she is not dowable ; in that case the 
 heir shall have, at the common law, an Assize of Mort 
 d'Ancestor. Query? (And examine this case, for the 
 summons which issued against the guardian provided that 
 he should bring the heir with him. And from this it follows 
 that the heir shall plead, and if so, then the tenant may 
 show the place of his ancestor, and he shall be made to 
 answer, and that under age, which cannot be, for WiL- 
 LOUGHBY said clearly, that the guardian shall have an 
 answer to the place and not the heir.) 
 
 And see in the same plea, that as to this that he vouched 
 the heir in wardship within the same county, the judgment 
 was that she should recover against the guardian if he had 
 sufficient lands from the same father, and that the tenant 
 should hold in peace; and if not that he should recover 
 against the tenant. And if the guardian has but a part, that 
 the demandant shall recover that part against the guardian, 
 and the remainder against the tenant. And still the guar- 
 dian in whose wardship the heir was vouched entered into 
 the warranty as he who never had anything in the wardship 
 of the same father. And with that judgment the Register 
 agrees, and a writ, to wit: Habere Facias Seisinam,^ etc. 
 Query, if by this writ of Habere Facias Seisinam the sheriff 
 shall have the extent of the lands of the heir, and if he 
 delivers more than the value, what remedy, etc. ? And as 
 to this that he was vouched in a foreign county, the demand- 
 ant recovered against the tenant and he over against 
 
 ^The writ of Habere Facias Seisinam is "a judicial writ which lies 
 where one has recovered certain lands in the King's Court; then he 
 shall have the said writ directed to the sheriff, commanding him to 
 give him seisin of the land." Termes de la Ley, 1721. See also 
 Cowell, Interpreter, ed. 1672. 
 
544 
 
 STATHAM 
 
 Case 36. 
 
 Hilary 
 
 20 Ed. III. 
 
 Case 37. 
 
 Michaelis 
 18 Ed. III. 
 
 Case 38. 
 
 Trinity 
 18 Ed. III. 
 
 the guardian. And for that for which the heir was vouched 
 as of full age within the same county, that the demandant 
 should recover against the heir, and that the tenant should 
 hold in peace, etc. 
 
 The case has not been identified in Y. B. Paschal, 28 Ed. Ill, or in the 
 early abridgments, which is much to be regretted, as some of the points 
 in the case are rendered obscure by the brevity of the language used. 
 
 (37) In dower, the tenant vouched one who vouched the 
 heir of the husband within the same county: in that case 
 she shall not have judgment against the heir but against 
 the tenant, and he over, etc., for Herle and Seton said 
 that she shall not have judgment against the heir, except 
 in that case where he is vouched by the tenant in demesne, 
 etc. 
 
 There is no early printed year of 20 Ed. III. The case has not been 
 identified in the Rolls Series for that year, or in the early abridgments. 
 
 (38) In dower, the tenant vouched the heir of the husband 
 in the same county and in another county, and yet the 
 judgment was given against the heir, and that the tenant 
 should hold in peace, etc. But yet it seems that that is 
 not warranted by the writ, as to that which is in another 
 county, etc. 
 
 A report of a like case appears in Y. B. Mich. 18 Ed. Ill, p. 55, pi. 74, 
 but in the case the demandant is given a judgment against the heir, 
 and if he has not sufficient in that county, against the tenant. 
 
 (39) In dower, the tenant vouched the heir of the husband 
 in the same county, who came and demanded judgment 
 of the voucher, for he said that the day of the voucher he 
 was in the guardianship of one H, who was his guardian 
 in chivalry, in which case he should have been vouched in 
 his wardship, etc. The tenant said that he was out of 
 wardship, and upon that they were at issue, etc. Query, 
 if the tenant could not have said, "enough of other lands 
 out of the wardship to give him in value, etc." And the 
 demandant prayed judgment immediately against the heir, 
 and could not have it before the issue was tried, for Herle 
 said that if the issue be found for the heir, that then she 
 
DOWER 545 
 
 should have her judgment against the tenant, and the 
 tenant had failed of his voucher. And if it be found against 
 the heir, then she would have her judgment against the 
 heir, and so it was uncertain. But it is otherwise when 
 the heir is vouched in a foreign county, who comes and he 
 and the tenant are at issue as to the place. In that case 
 the demandant shall recover her dower immediately, for 
 even if the issue be found for the tenant or against the 
 tenant, it is certain that the judgment will be given against 
 the tenant; and Perle(?) said that when the heir is vouched 
 in a foreign county, that the demandant shall have judgment 
 immediately, which Herle and Willoughby denied '' 
 expressly, and said that she should not have judgment 
 before the vouchee came, because the vouchee could bar 
 her, etc. But if they are at issue (as above) then as 
 above. The reason appears, etc. 
 
 The case has not been identified in Y. B. Trinity, 18 Ed. Ill, or in the Case 39. 
 early abridgments. 
 
 (40) In dower, the tenant vouched the heir of the husband Hilary 
 within the same county, who entered into the warranty as ^^ ^'^' ^^^' 
 he who had nothing by descent. And the tenant said that 
 he had [assets] by descent. And because the heir had 
 admitted the warranty, the demandant had judgment to 
 recover against the heir immediately, for the judgment 
 is conditional, to wit: that if the heir had [assets] by 
 descent, then she would recover- against him, and if not, 
 against the tenant. And a writ accordingly issued to the 
 sheriff to extend the lands of the heir, if, etc., and deliver 
 them to the demandant, and if not, etc., to extend the lands 
 of the tenant, so, etc., and deliver them to the demandant, 
 etc. But yet, query to what purpose he would extend statham75a. 
 the lands of the tenant? For it might be extended upon 
 the Habere Facias ad Valenciam against the heir, etc. And 
 note that this extent, so made by the sheriff, does not con- 
 clude the parties or their issue, etc. 
 
 There is no early printed year of 16 Ed. III. The Rolls Series, 16 Ed. Case 40. 
 Ill, Pt. 1, p. 16, has a similar case, but there are enough differences to 
 prevent identification from being complete. It seems that the author 
 of the query misunderstood the decision in the case. 
 
546 
 
 STATHAM 
 
 Trinity 
 49 Ed. III. 
 
 Case 41. 
 
 Trinity 
 1 Ed. III. 
 
 Case 42. 
 
 Hilary 
 
 15 Ed. III. 
 
 Case 43. 
 
 Paschal 
 33 Ed. III. 
 
 Case 44. 
 
 (41) In dower, the tenant said that he himself brought 
 a writ of right against the husband of the demandant, of 
 whose seisin, etc., "and your husband vouched himself 
 to warranty, because his father gave the same lands to 
 himself in tail, etc. To which we said that he did not give 
 them, and it was found against your husband, wherefore 
 we recovered judgment, etc." Belknap: Answer, etc. 
 Thorpe: It seems that she shall recover her dower, for 
 although the tenant recovered against her husband by a 
 tried action, still that trial was not to the point of her 
 action, but upon something which was dilatory, which 
 shall be taken as the act of the husband. And the posses- 
 sion which the husband had was not put to trial, but it can 
 stand well enough with that which was tried, wherefore, etc. 
 
 Reported in Y. B. Trinity, 49 Ed. Ill, p. 23, pi. 9. The case has 
 some unlikenesses with the abridged case, but cites both Statham and 
 Brooke, Dower, 24, in the margin. 
 
 (42) In a writ of dower upon separate prcBcipes, the 
 demandant made several demands. 
 
 The case has not been identified in Y. B. Trinity, 1 Ed. Ill, or in the 
 early abridgments. 
 
 (43) And see like matter as above in Hilary, 15 Ed. Ill, 
 in which a PrcBcipe quod Reddat was brought against the 
 husband, who pleaded joint tenure or some other dilatory 
 plea, which was found against him, wherefore the demand- 
 ant recovered, still his wife shall be endowed, etc. 
 
 There is no early printed year of 15 Ed. III. The case has not been 
 identified in the Rolls Series for that year. 
 
 (44) If a woman be endowed of a rent service in gross, 
 and the tenant of the land dies, his heir being under age, 
 she shall have a writ of Wardship; but if the tenant dies 
 without an heir, she shall not have a writ of Escheat, no 
 more than any other tenant for a term of life, etc.; but 
 she shall have the rent as a rent seek, etc. Query? For 
 it was not decided, etc. In a writ of Escheat. 
 
 There is no printed year of 33 Ed. III. The case has not been 
 identified in the early abridgments. 
 
DOWER 547 
 
 (45) If a woman is endowed by the guardian, she shall Paschal 
 be held to the guardian for the third part of the services ^^ ^'^' ^^^' 
 which he holds over in right of the heir, etc. And if the 
 guardian dies, she shall hold to his executors during the 
 nonage of the infant. And when he comes of age she shall 
 
 hold to him, etc. 
 
 There is no printed year of 33 Ed. III. Fitzh: Dower, 138, has Case 45. 
 the case. 
 
 (46) In dower, the demand was for rent. Tillesley: Trinity 
 Who could endow her? HortoN: One F granted the rent ^^ ^^°' ^^' 
 to our husband in fee, by a deed, and before any day of 
 payment our husband died, and we pray our dower, 
 because the rent was in him, etc. Hankford : It is better 
 
 for you to say generally, "Seised so he could endow her," 
 and put this matter in evidence. Horton : It is matter 
 inlaw. Thirning: What has that [to do with it]? Where- 
 fore Horton said, "Seised, etc." Ready. And the other 
 alleged the contrary. And Thirning said that she should 
 be endowed. Query? etc. 
 
 Reported in Y. B. Trinity, 11 Hen. IV, p. 88, pi. 39. The report Case 46. 
 has verbal differences from the digest. See also Brooke, Dower, 35; 
 and Fitzh: Dower, 29, where the digests differ also. 
 
 (47) In dower, if the tenant vouches in a foreign county, Hilary 
 the demandant shall have judgment to recover her dower 
 immediately. And the reason is because the judgment 
 cannot be otherwise, for she cannot recover her dower 
 except in the same county ; but she shall not sue execution 
 until the voucher be determined : By Norton and Hank- 
 ford, etc. But yet, query? For the same reason could 
 
 be given in a PrcBcipe quod Reddat, etc. 
 
 The case has not been identified in Y. B. Hilary, 13 Hen. IV, or in the Case 47. 
 early abridgments. 
 
 (48) In dower, if I show that her husband never had Paschai 
 anything except for life, it is sufficient for him to say, ^"^"' 
 "Seised so that he could endow her." But if I show an 
 estate of inheritance in her husband, to wit: that the 
 
548 
 
 STATHAM 
 
 lands were given to him and to his first wife in tail, then 
 she should answer the special matter, for that is matter 
 in law, which does not lie in the notice of lay people, etc. 
 
 Case 48. Xhe case has not been identified in Y. B. Paschal, 2 Hen. V, or in the 
 
 early abridgments. 
 
 (49) In dower, if I show that her husband had only a 
 term for life, etc. As above. 
 
 There is no citation to this case. It has not been identified. 
 
 (50) A woman shall be endowed as well of the villeins 
 in gross as of the villeins appendant : By Martyn, etc. 
 
 The case has not been identified in Y. B. Paschal, 2 Hen. V, or in the 
 early abridgments. There are one or two like cases, but they do not 
 appear identical. 
 
 (51) In dower, the tenant vouched to warranty the heir 
 of the husband of the demandant in the wardship of the 
 king. Broun: When you vouch the king in wardship, 
 you should show cause. Which the Court conceded. 
 Query, if he should show cause when he vouches him in 
 the wardship of other persons, etc.? 
 
 Case 51. Reported in Y. B. Mich. 3 Hen. VI, p. 17, pi. 24. See also Brooke, 
 
 Dower, 2; and Fitzh: Dower, 19. 
 
 Case 49. 
 
 Paschal 
 2 Hen. V. 
 
 Case 50. 
 
 Michaelis 
 3 Hen. VI. 
 
 Paschal 
 10 Ed. II. 
 
 Case 52. 
 
 (52) Assignment of dower is good for the husband alone, 
 who holds jointly with his wife, etc. In Dower. But 
 where one holds jointly with another person, it is other- 
 wise. By Channterel and others, etc., Mich. 18 Hen. VI. 
 
 The case has not been identified in Y. B. Paschal, 10 Ed. II, in 
 Mich. 18 Hen. VI, or the early abridgments. 
 
 Michaelis 
 16 Ed. II. 
 
 (53) If the husband enfeoffs me and dies, and one dis- 
 seises me and endows his wife, and I bring an Assize against 
 the disseisor and the woman, I shall recover against the 
 woman: By the opinion of Herle; for otherwise I have 
 lost my warranty, and then she would recover her dower 
 against me, etc. And I recover damages against her if 
 the disseisor be not sufficient, etc. Query, if she should 
 
DOWER 549 
 
 recover her dower against the disseisor, would that change 
 the case? etc. Michaelmas, 16 Ed. II. (All the same I 
 think that the law is not so, etc., but that the endowment 
 by the disseisor is good, etc.) 
 
 There is no printed Michaelmas Term of 16 Ed. II. The case has Case 53. 
 not been elsewhere identified. 
 
 (54) If land be given to a man and to the heirs begotten Michaelis 
 of the body of such a one, formerly his wife, and at the ^^ ^^"' ^^' 
 time of the gift that wife is dead, and the second wife of 
 
 the donee brings a writ of Dower against the issue of the 
 husband, who was begotten upon the first wife before the 
 gift [was the question]. And it was the opinion of many 
 that she should not be endowed. And yet she was not in the 
 case of the Statute, for no gift was made to the first wife, 
 but it shall be taken upon the equities, etc. In Dower, etc. 
 
 Reported in Y. B. Michaelis, 12 Hen. IV, p. 1, pi. 3. See also Brooke, Case 54. 
 Dower, 36. 
 
 The Statute is that of Westminster the Second, 13 Ed. I (1285)> 
 cap. 1, Stats, at Large, Vol. 1, p. 163. The case is long and interesting. 
 
 See of dower at the church door, in the title of Trial, Note. 
 Mich. 40 Ed. Ill and in the writ of Engettement of Ward- 
 ship, in the same term; and in the title of Scire Facias, 
 Paschal, 45 Ed. Ill ; and in the title of Remitter, Mich. 21 
 Ed. III.^ Good matter, etc. 
 
 (55) In dower, the tenant vouched one J to warranty, who Hilary 
 entered into the warranty and vouched the heir of the 29 Ed. in. 
 husband of the demandant, who was under age and in the 
 wardship of the demandant and her husband, now demand- 
 ing, who entered into the warranty and answered to the 
 
 action themselves, wherefore it was adjudged that they 
 should have, of the lands of the heir in wardship, what 
 would amount to the value, etc., and that they should have 
 execution of that to the value, and that the tenant should 
 hold in peace, and if they had not that which amounted, etc., 
 
 ' Statham in these various titles does not give cases with these 
 citations. 
 
550 
 
 STATHAM 
 
 then against the tenant, etc., and he over in value against 
 J, and he over in value against the heir, etc. ; and if he had 
 not to the value of the part as demanded, then so much 
 Statham75b. to that part, and so much of the remainder against the 
 tenant, as above, etc. And see a writ in the judicial 
 Register in accordance with that judgment. Query, in 
 that case, if the tenant shall sue execution against the heir 
 of the lands descending to him afterwards by the same 
 ancestor, before he comes to his full age? For the Register 
 made no mention as to that, but said that he should recover 
 in value against the heir, when summoned, etc. 
 
 And see in the same plea, that she shall not recover her 
 dower against the heir who is vouched, in any case, except 
 for lands that he had by descent by her husband ; and this 
 the writ of execution shall mention. 
 
 Case 55. 
 
 Michaelis 
 17 Ed. II. 
 
 Case 56. 
 
 Michaelis 
 23 Ed. III. 
 
 Case 57. 
 
 Case 58. 
 
 The case has not been identified in Y. B. Hilary, 29 Ed. Ill, or in the 
 early abridgments. 
 
 (56) In dower ex assensu patris, the tenant shall have 
 the averment that the father did not assent, notwithstanding 
 that the deed of the father giving the assent was shown. 
 And it was tried by process, etc. 
 
 Reported in Y. B. Mich. 17 Ed. II, p. 507. This is one of the very 
 few of Bereford's decisions we get in Statham. The phrase, "his cousins 
 and his aunts," seems to have been in common use before Gilbert made 
 it his own. See the report of the case. 
 
 (57) Writ of dower for free tenements. And she counted 
 a count, etc. It seems that she could have made demand, 
 etc. It seems that she should have a writ of Dower of 
 common, as well as an Assize of common. All the same they 
 are not alike, for in an Assize nothing is demanded, and one 
 has never seen a Pracipe quod Reddat for a common, etc. 
 
 The case has not been identified in Y. B. Mich. 23 Ed. Ill, or in the 
 early abridgments. 
 
 (58) If a man takes his tenant to wife and dies, query 
 if she shall be endowed? etc. 
 
 The case has not been identified as there is no citation for it in Statham. 
 It seems much more like a note than a case. 
 
DOWER 551 
 
 (59) Dower was brought against the tenant by elegit, Hilary 
 and it was abated. And a difference was noted between ^ ^'*' "^■ 
 this case and that where a writ of Dower is brought against 
 
 the guardian, for there the Pracipe is "Pmcipe such a one, 
 in the custody," etc. So the heir is named, etc. 
 
 Reported in Y. B. Hilary, 1 Ed. Ill, p. 2, pi. 7. Case 59. 
 
 (60) It is a good plea in Dower against the guardian Michaeiis 8, 
 that she detains the heir, etc. ^±ni. ^ 
 
 Reported in Y. B. Mich. 8 Ed. Ill, p. 71, pi. 39. There is no early Case 60. 
 printed year of H Ed. Ill, and the case has not been identified in the 
 Rolls Series for that year, although there are a number of cases of dower 
 in the volume. 
 
 (61) In a writ of dower, the heir of the woman's husband Michaeiis 8, 
 was vouched and entered into the warranty, and said that Ed"in ^^' 
 she withheld certain charters concerning his inheritance 
 
 of these same lands, etc. ; and he could not have the plea 
 unless the action were brought against him; no more than 
 a strange tenant, etc. And the law is the same when the 
 heir is received to defend his right, etc. 
 
 Reported in Y. B. Mich. 8 Ed. Ill, p. 55, pi. 3. There is no early Case 61. 
 printed year of 16 Ed. III. The case has not been identified in the Rolls 
 Series for that year and term. 
 
 ** There is ample knowledge of the law of Dower, but one feels like 
 saying with Perkins of the Profitable Book, "But yet by the grace of 
 God something should be said here concerning dower." [Perkins: Prof. 
 Book, p. 60, b.] Our old friend Britton says that "it is expedient that 
 married women should be endowed, in order to give women the better 
 disposition to love matrimony." [Britton, 246, b., Nich. ed., p. 236.] 
 The fear of an indisposition toward matrimony is not often urged in the 
 utterances of the writers upon the common law, yet a sentence like this 
 of Britton's sometimes comes to the surface, indicating, it might seem, 
 an undercurrent of suspicion in the minds of the time that the law laid 
 its hand a little heavily on the married woman and that if that weight 
 were felt too much there might come a breaking point — in other words, 
 the average woman might fall out of love with matrimony. 
 
 In all the writings upon the law of dower which I have been able to 
 consult, I have never found the faintest suggestion of the real under- 
 lying fact which made some sort of dower an absolute necessity in the 
 life of a community which had become sufficiently settled to acquire 
 
552 STATHAM 
 
 any sort of capital, and which had emerged from that family life in 
 which the married woman had a right to the support of the family 
 upon the inability, defection, or death of her husband. Where the 
 property was family property, the family, of necessity and of right, took 
 upon itself the support of the woman no longer supported by the 
 labor or capital of her husband. In such communities the case was 
 usually no hardship, for the woman, if young and active, was a com- 
 mercial asset; she earned her own living whether married or unmarried. 
 If old it was the duty of all, except in the least advanced communities, 
 to care for the aged, be they men or women. But when society emerged 
 from that stage we find everywhere some provision made for the support 
 of the woman who has made the bearing and rearing of the children of 
 a marriage, their care and education, and the care of the home in which 
 they are reared, her work in life. When the husband dies, society has 
 not left it in the discretion of the husband to leave the wife to freeze or 
 starve or become a burden upon that society. It has provided in one 
 way or another that the husband shall provide for the wife, after his sup- 
 port is withdrawn, some modicum at least of comfort, whether he has 
 desired to do so or not. Not, indeed, in spite of Britton, to make the 
 woman love matrimony the more, but in order that the social economy 
 might not be upset. The true reason for dower in all its forms is an 
 economic reason. A society fashions its laws, and naturally a society 
 protects itself. In community life it protects itself by making the kin 
 responsible; in capitalistic communities it protects that capital by seiz- 
 ing — if one may so phrase it — a part of the capital of the husband 
 and using it for the support of the widow who would otherwise be 
 thrown upon that community and its capital for support. The same 
 idea is now breaking through our law of master and servant. The 
 master must use some of his capital for the support of his injured 
 servant, not because of any delict upon his part, not because it is 
 necessary to make the laborer more in love with labor, not for any 
 humanitarian idea or any sentiment whatever, but simply because the 
 community refuses any longer to be financially responsible for the sup- 
 port of a man who has given his life or his earning power to the support 
 of his employer, and who for generations had been thrown back by the 
 employer upon the community for that support which he alone owed to 
 that workman. The community, upon realizing this situation, placed 
 the burden where it thought it belonged. That community which 
 does not afford to certain members some way of making a provision for 
 its own support must, and usually does, more or less wisely and liberally, 
 provide some means for that support beyond that of public or private 
 charity. No society which has passed the community stage desires to 
 take upon itself the support of all widows who may be left without 
 means of support through the carelessness or the whim of the husband. 
 Imagine for a moment the condition in which a widow would have been 
 left in these Year Book days which we have under consideration without 
 
DOWER 553 
 
 the endowment ad ostia ecdesies. It has been stated that the reason for 
 the endowment at the church door was because of the publicity of such 
 endowment. [P. & M. Hist, of Eng. Law, 2d ed., Vol. 2: 375.] This 
 is doubtless true, but there is an underlying idea in all these endowments 
 on the morning of the marriage — morning gifts to the wife from the hus- 
 band, all settlements of this kind — that the woman is giving up her 
 life to a certain kind of employment, which is going necessarily to exclude 
 her from all other gainful labor by which she might support herself. In 
 those days, however rich she might be, she theoretically — it was not 
 wholly so in fact — enriched her husband with all her worldly goods, 
 though the words of the marriage service may have inverted the phrase. 
 This left her at the mercy of her husband, economically speaking. The 
 family of the bride and the sense of the community coincided in the view 
 that the best time to make a good bargain for the wife was on the mar- 
 riage day and at the church door, where all the friends of both parties 
 were sure to be, where both parties would be proud of a proper 
 provision, and where all the kin of both sides would be witnesses to the 
 fact. 
 
 This economic tendency to make the beneficiary of labor, be it the 
 workman's or the wife's, responsible for those who produce the capital 
 without sharing in the accumulation of it, and without having any power 
 over that accumulation, remained apparently quiescent for some cen- 
 turies. During those centuries the people have very largely ceased to 
 be tenants of lands. They are no longer set in families which secure 
 their living from the land they live on. When the lord died, in those 
 Year Book days, his widow had her residence secured to her, and her 
 dower; that is, she had supposedly support adequate to her situation. 
 When the yeoman died it was the same; the support may have been 
 less adequate, but it was in the same proportion to the previous cir- 
 cumstances of the persons concerned. Always there has been the class 
 which made its living somehow while it lived, and dying left nothing 
 but the burden of the burial to the survivors. In the earlier days the 
 lord was supposed to look after all such poor dependents. The Church 
 sometimes helped out, in some of the worst cases, when the lord was 
 blind to the need. In the other such cases parish charity, or some par- 
 ish machinery, supplied grudgingly the absolutely necessary food and 
 shelter. 
 
 To-day there is slowly growing up an economic sense that the law 
 is bound to provide for such individuals as are made helpless through the 
 economic conditions which are forced upon them by the power of the 
 majority. This is the case of the woman who, having elected the sup- 
 posedly honorable and desirable vocation of wife and mother, finds 
 herself a widow with several children, without means of support for her- 
 self or her children. According to all the law and the prophets she has 
 chosen that calling which by nature she is best fitted for; for which, by 
 all the traditions which she knows, of time past and present, she should 
 
554 STATHAM 
 
 have the greatest desire; ip which, by all the teachings of Church and 
 State, she should find happiness, protection and support. But suddenly 
 between the ages of thirty and forty, very probably, she finds she has 
 neither support nor protection. The Church says, "Marry and bring up 
 children." She has done so, but the Church has for her only a very cold 
 charity, which at best puts her children in a home, while she works else- 
 where. The State says, "Marry and bring up children for my continuance 
 and protection." She has done so, but the laws of the State allow her to 
 be evicted from her home, thrown out into the streets, and while, if she 
 continues to obstruct the street long enough, it will remove her to a poor- 
 house, it will not let her stay there with her children if she is capable of 
 any labor. It will not provide labor, however; she must go out and get it, 
 and the children can remain paupers if she does not get labor sufficiently 
 remunerative to provide for them. This would have been the posi- 
 tion of most women of all the centuries if there had not been some form 
 of dower, and it is a position which the civic sense is beginning to feel 
 quite out of harmony with the desire of the State to bring up carefully 
 and well, and in the best surroundings, those children who are to make 
 the citizenship of the State. The condition is now found to be intoler- 
 able, and the earliest development of the feeling for the need of a public 
 support — not charity — for the widow is that of the widow's pension. 
 The helpless woman who has fulfilled the demand made of her by both 
 Church and State, and thereby made herself incapable of earning a proper 
 support for herself and for the children to whose care she has devoted 
 herself, is now in many communities endowed by the State with that 
 support which the husband could not give in the shape of accumulated 
 capital when he died, and the community in its shortsighted selfishness 
 refused to supply. "It is all one," as the lawyers of the Year Books used 
 to say — the support of the widow through the law of the State, which 
 enforced the dower under one or another name, and the support of the 
 widow through the endowment by the State. Dimly through all the 
 centuries the minds of men have felt that somehow the injustice of 
 training women to one vocation, and then leaving them helpless if a 
 single misfortune befalls them, would work against the "disposition of 
 women to love matrimony," and furthermore, and still more dimly, 
 since apparently it has here first been exposed, have they felt the 
 economic necessity of providing for the person who, under the condi- 
 tions they had thus created for her, would be a burden on the community 
 unless thus provided for. 
 
 The authorities upon which this general note upon the law of Dower 
 is founded: 
 
 Bracton: Note Book, pi. 4, 7, 9, 18, 91, 96, 109, 148, 150, 191, 203, 
 204, 220, 253, 261, 265, 279, 345, 365, 377, 380, 459, 475,500,547, 571, 
 577, 591, 622, 632, 642, 695, 721, 737, 767, 794, 814, 878, 891, 941, 
 944, 953, 965, 970, 972, 977, 1007, 1008, 1017, 1026, 1083, 1098, 1102, 1193, 
 1246, 1334, 1335, 1338, 1390, 1413, 1516, 1525, 1531, 1576, 1592, 1644, 
 1668, 1683, 1824, 1843, 1873, 1902, 1919. 
 
DOWER 555 
 
 Britton. Vol. 2, Nich. ed., Book 5, ff. 246, b, 264. 
 
 Glanville. Book VI. Of Dower. 
 
 Fleta. Lib. 5, cap. 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34. 
 
 Home. Mirroir of Justices, 11, 12. 
 
 Liber de Antiquis Legibus. Camden Soc. 56, Preface, Iv, Ivii. 
 
 Natura Brevium (Old), ff. 4, 5, 6, 7, 8, 9, 10, 11. 
 
 Grand Coutumier de Normandie, cap. 101, S. 124-25. 
 
 Fitzherbert. Natura Brevium, 7-10, 147-151. 
 
 Perkins. Prof. Book, 60-88. 
 
 Coke. 1st. Inst., Liber 1, cap. v, §§ 36-55. 
 
 Laws of Canute, Wilkins ed., 144, cap. 71, p. 144. 
 
 Magna Charta, cap. 7. 
 
 Stat. 27 Hen. VIII, cap. 10. 
 
 Bacon. Abridgment, title Dower. 
 
 Leges Edm., cap. 2. ^^'ilkins ed., p. 75. 
 
 Leges Hen. I, cap. 70, pp. 266, 267. 
 
 Skene. Regiam Majestatem, Lib. 2, cap. 16. Of Dower, cap. 17. 
 
 Crabb. History of English Law, pp. 79-83, 185. 
 
 Watkins. Principles of Conveyancing, chap, on Dower, pp. 41-63- 
 
 Park. Dower. 
 
 Gilbert. Uses, 148, Bar of Dower. 
 
 Reeves. History of English Law, eg. Vol. 1, pp. 100-104, 144-147, 
 241-243, 261, 312-313, 384-386. Vol. 3, pp. 332-334. 
 
 Cameron. Dower. Canada, 1882. 
 
 Scribner. Dower. Phila., 1883. 
 
 Barrington. Obs. on the Statutes, 7-9. 
 
 Lambert. Dower. N. Y., 1834. 
 
 Kent. Commentaries (Vol. 4), pp. 35-73. 
 
 Wright. Tenures, 192, 1768. 
 
 Thomson. Charters, 68, 69, 108, 109, 121, 134, 148, 172, 173, 403. 
 
 Pollock & Maitland. History of English Law, Vol. 2, pp. 147, 374, 375, 
 394, 404, 420-427. 
 
 Holdsworth. History of English Law, Vol. 2, pp. 77, 435; Vol. 3, 
 pp. 15, 16, 157, 161-65. 
 
 DURESSE 
 
 (1) In debt, the defendant said that he was imprisoned statham 76 a. 
 at the suit of one B, by procurement of th 
 time, etc., and he then made the oblig 
 opinion was that that was a good plea, etc. 
 
 at the suit of one B, by procurement of the plaintiflF, at the !l' 'ST .. 
 time, etc., and he then made the obligation. And the 
 
556 
 
 STATHAM 
 
 Case 1. Reported in Y. B. Hilary, 43 Ed. Ill, p. 6, pi. 15. See also Brooke, 
 
 Duress et Manass, 20; and Fitzh: Duress, 10. The margin of the report 
 gives this case as "Statham 2" — palpably an error, as the next case on 
 page 10 of the report is again, and properly, "Statham 2." 
 
 Hilary 
 
 43 Ed. III. 
 
 Case 2. 
 
 (2) If the defendant be imprisoned at the suit of the 
 plaintiff legally, and there makes an obligation, that cannot 
 be declared void for duress, etc. In Debt. 
 
 Reported in Y. B. Hilary, 43 Ed. HI, p. 10, pi. 32. See also Brooke, 
 Duress et Manass 4; and Fitzh: Duress, 11. 
 
 Paschal 
 9 Hen. VI. 
 
 Case 3. 
 
 (3) In debt, if the plaintiff declares that the obligation 
 was delivered to B, the defendant can say that it was 
 made by duress in another county, and not reply to the 
 delivery alleged by the plaintiff. And the law is the same 
 if the defendant pleads a release of the plaintiff, bearing 
 date at B. The plaintiff can say that it was made by 
 duress at C, in another county; and so it seems that the 
 place in that case is not material. And this in Laborers, etc. 
 
 Reported in Y. B. Paschal, 9 Hen. VI, p. 10, pi. 28. A writ of Tres- 
 pass on the Statute of Laborers. The case is reported under other 
 heads in the early abridgments, but not under the title of Duress. 
 
 Michaelis 
 4 Hen. IV. 
 
 Case 4. 
 
 (4) In debt upon an obligation against the parson of a 
 church, who said that the plaintiff on such a day called 
 the defendant before him at B, etc., and demanded of him 
 why he sued the tenants, inasmuch as the plaintiff had a 
 Court in which they could be corrected. The defendant 
 said that he sued them in the Court Christian for tithes, 
 of which your Court cannot take jurisdiction. And the 
 plaintiff said that unless the defendant would make him 
 an obligation to stand at the command of one F, that 
 otherwise the defendant should be taken in his own house 
 and beaten, etc. And the defendant, by reason of this 
 menace and for fear of greater evil, made the said obliga- 
 tion. And it was adjudged a good plea. And so note 
 that he was in no fear of death and yet the plea was good. 
 
 Reported in Y. B. Mich. 4 Hen. IV, p. 2, pi. 6. The question as to 
 whether it was necessary to be in fear of death was "well debated" 
 
DURESSE 557 
 
 in the case, the conclusion seeming to be that such a plea had gen- 
 erally been held necessary. The threat, as reported in the case, how- 
 ever, was to "beat him so that he should never recover." See also 
 Fitzh: Duress, 19. 
 
 (5) Christopher Watres brought a writ of Debt against Michaeiis 
 J. Streilley, and counted upon an obligation made in 
 London, in such a ward and parish, etc. Pole: Action, 
 etc., for a long time [prior] to the making of this obligation, 
 to wit: such a day, etc., the said plaintiff by one J. Cliston 
 and others of his securing, at D, in the county of Notting- 
 ham, menaced the said defendant that he would beat him 
 and imprison him, and keep him in prison unless he would 
 pay to the plaintiff the said sum, or else make an obligation 
 to him as security for the said sum. And the defendant, 
 because of such threats and for fear of the imprisonment 
 aforesaid, came to London and made the obligation in the 
 ward and parish aforesaid, etc. Danby: That is no plea 
 for three reasons. First: It appears by his plea that the 
 obligation was made one half year after the said threats, 
 in which case he could have had a remedy for the said 
 threats by the law, etc. Another reason is that he said 
 that the plaintiff by one J C, and others of his securing, 
 menaced, etc., and he did not say that the said J C threat- 
 ened him by the command of the plaintiff, and that should 
 be considered of his own tort. Another reason is that he 
 said for dread of those threats he made the obligation, 
 which cannot be tried, because man cannot know his mind, 
 whether he did it for dread or not. But if a man wishes 
 to avoid a deed he must allege matter of fact, as to say 
 that he was imprisoned, and for such duress he made it, 
 etc. Pole: As for the first reason, because the obligation 
 was made a half year after the threats, that does not 
 change the case, whether the obligation be made im- 
 mediately or afterwards. And as to the second reason, 
 it is good enough, for in Account I can allege that you are 
 my receiver by other hands because he who does it by 
 others, etc. And as to this that he made it for dread, that 
 is good and can be tried as well as a continual claim, 
 etc. Portyngton: It seems to me that the plea is good. 
 
558 
 
 STATHAM 
 
 Case 5. 
 
 And to this that he says, that he threatened him by another, 
 and that he for dread of that made an obligation, the plaintiff 
 can have his choice of two answers, and say that he made 
 it of his free will, without this that the plaintiff threatened 
 him by the said J C, or else as above, without this that he 
 did it for dread of his threats. And the opinion of the 
 justices was that the plea was good, wherefore Danby, 
 seeing the opinion of the Court, waived his demurrer and 
 took issue with him. 
 
 The case has not been identified in Y. B. Mich. 27 Hen. VI, or in the 
 early abridgments. 
 
 DARREIN PRESENTMENT 
 
 Paschal 
 20 Ed. III. 
 
 statham76b. (1) If the Ordinary, through a lapse, makes a collation 
 at the next vacancy, if I be disturbed I shall have a Darrein 
 Presentment, showing a presentment in me, or in my ances- 
 tor, and the last presentation by the ordinary in my right. 
 And the law is the same where the guardian presents in 
 the right of the heir, etc. And it suffices for the defendant 
 in that case to void the first presentation, without replying 
 to the presentation of the ordinary. And in that Assize 
 of Darrein Presentment the plaintiff shall have title against 
 (etc.). And this in a Darrein Presentment. See the 
 Registrum. 
 
 There is no early printed year of 20 Ed. III. The Rolls Series, 20 Ed. 
 Ill, Easter Term, p. 210, No. 26, has a case which, while differing in 
 some points, is probably the case digested here. See also Fitzh: Dar- 
 rein Presentment, 12. 
 
 Case 1. 
 
 Michaelis 
 45 Ed. III. 
 
 (2) In an assize of Darrein Presentment, the plaintiff 
 in making his title showed how the manor to which, etc., 
 was given to his ancestor in tail, etc. And the writ was 
 brought against a prior, who said that he held the church 
 to his own use, and that it was filled by him, and was 
 so filled years and days before the writ was purchased. 
 And it was appropriated in the life of his ancestor: 
 judgment of the writ. Belknap: The plea is double. 
 
DARREIN PRESENTMENT 559 
 
 Thorpe : He relies upon the plenity. Belknap : Show what 
 you have for the appropriation. Sharshull : So I will — to 
 the Court — but not to you . Fyncheden : He cannot have 
 another action, and although he does not put his claim 
 within the [six months] still it seems that the action lies, 
 since the church is appropriated, for it is not like another 
 presentation to a separate person, and so it seems to me 
 that he can make his claim when he will, and have an 
 Assize of Darrein Presentment, or a Quare Impedil, for such 
 a plenity by way of appropriation is not a plenity, for he 
 is patron, wherefore, etc. Thorpe : But I will not grant 
 your reasoning. And they adjourned. Query, if the 
 incumbent shall be named? And if so, if he shall plead 
 any such plea as he shall in a Quare Impedit? etc. 
 
 The case has not been identified in Y. B. Mich. 45 Ed. Ill; Fitzh: Case 2. 
 Darrein Presentment, 8, has a fuller and clearer digest of the case. 
 
 (3) If a man has a Quare Impedit and an Assize of Dar- Hilary 
 rein Presentment for one and the same advowson pending 
 
 at the same time, the Darrein Presentment shall abate, 
 and the Quare Impedit shall stand, because it is of a higher 
 nature: By Hankford and Hilary, in aQuare Impedit. 
 
 The case has not been identified in Y. B. Hilary, 10 Ed. Ill, or in Case 3. 
 the early abridgments. 
 
 (4) In a darrein presentment, it is a good plea to say Michaeiis 
 that the church is filled by the presentment of the plaintiff. 
 
 The case has not been identified in Y. B. Mich. 7 Ed. III. Fitzh: Case 4. 
 Darrein Presentment, 3, has a longer digest of the case. 
 
 (5) In a darrein presentment, if the plaintiff be non- Paschai 
 suited, still the Assize shall be taken to inquire as to the 
 
 title of the defendant, and if it be found for him he shall 
 have a writ to the bishop, as well as in a Quare Impedit, 
 etc. 
 
 Reported in Y. B. Paschal, 8 Ed. Ill, p. 18, pi. 2. Case 5. 
 
560 
 
 STATHAM 
 
 ESSOIN « 
 
 Statham 77 a. 
 
 Michaelis 
 2 Hen. IV. 
 
 Case 1. 
 
 (1) In annuity, one was prayed in aid, and he was 
 essoined, and on the day, etc., the defendant was essoined, 
 and [the essoin] was awarded; for it was said that in this 
 writ a man shall be essoined after every appearance. 
 
 Reported in Y. B. Mich. 2 Hen. IV, p. 4, pi. 10. See also Brooke, 
 Essone, 31; andFitzh: Essone, 131. 
 
 Hilary 
 
 41 Ed. III. 
 
 Case 2. 
 
 (2) In a praecipe quod reddat, the Grand Cape ad 
 valenciam was served against the vouchee, on which day 
 the tenant would have been essoined and could not, but the 
 demandant had judgment to recover seisin of the land. 
 Contrary elsewhere, etc. 
 
 The case has not been identified in Y. B. Hilary, 41 Ed. HI. 
 Essone, 152, has the case. 
 
 Fitzh: 
 
 Michaelis 
 41 Ed. III. 
 
 Case 3. 
 
 (3) Where a venire facias issued against an infant under 
 age, in order that he might be viewed, he should not be 
 essoined, no more than where the guardian is told to bring 
 the infant, etc. By the opinion of Thorpe, in a Prczcipe 
 quod Reddat. 
 
 Reported in Y. B. Mich. 41 Ed. Ill, p. 29, pi. 27. 
 Essone, 20; and Fitzh: Essone, 146. 
 
 See also Brooke, 
 
 Paschal 
 42 Ed. III. 
 
 ' Case 4. 
 
 (4) In a writ of nuisance which was removed out of 
 the county by a pone, the defendant was essoined, because 
 there was a summons, etc. 
 
 The case has not been identified in Y. B. Paschal, 42 Ed. Ill, or in 
 the early abridgments. 
 
 43'Ed^iii ^^^ '** ^ praecipe quod reddat, the demandant was 
 essoined, and the tenant produced a protection. And 
 the protection was allowed, and the essoin was awarded, 
 but not adjourned. 
 
 Case 5. The case has not been identified in Y. B. Mich. 43 Ed. III. 
 
 Essone, 147, has the case. 
 
 Fitzh: 
 
ESSOIN 561 
 
 (6) In an assize, the tenant pleaded in bar, and process Hilary 
 issued against witnesses to come to the next session, on ^^ ^'^' "'' 
 which day the justices did not come, and then a reattach- 
 ment was sued, and the plaintiff was essoined ; and the 
 
 essoin was awarded and adjourned. Which note. 
 
 Reported in Y. B. Hilary, 44 (not 43) Ed. Ill, p. 5, pi. 21. See also Case 6. 
 Brooke, Essone, 24; and Fitzh: Essone, 149. 
 
 (7) In debt, the defendant came in charge of the sheriff Paschal 
 and waged his law, and on the day, etc., an essoin was 
 thrown for him, and not allowed, but the plaintiff recovered. 
 Query, if he had come in the keeping, etc. ? 
 
 Reported in Y. B. Paschal, 44 Ed. Ill, p. 12, pi. 19. See also Brooke, Case 7. 
 Essone, 25 (he gives his reason for the decision); and Fitzh: Essone, 
 150. 
 
 (8) In a praecipe quod reddat on the return of the Michaeiis 
 Grand Cape, the tenant waged his law and had a day, on 
 which day he was essoined, and on the day of the essoin 
 
 the tenant would have been essoined; and the opinion 
 was that he should not be, etc. 
 
 Reported in Y. B. Mich. 44 Ed. Ill, p. 38, pi. 33. Statham leaves Case 8. 
 out the essoin of the demandant which is necessary to the decision of 
 the case. See also Brooke, Essone, 26; and Fitzh: Essone, 151. 
 
 (9) In debt, the defendant came by the exigent and the Trinity 
 plaintiff was essoined. Fencot (for the defendant) : Sir, 
 
 we took a day until an Eyre, by the Statute. Fyncheden: 
 The Statute applies only in writs where attachment and 
 distress lie; and that is meant where the first writ is an 
 attachment, as in Trespass, wherefore, etc., the defendant 
 shall go without mainprise. Thorpe: If the defendant 
 does not come on the day of the essoin the plaintiff shall 
 not have any other process but distress infinite, etc. 
 
 Reported in Y. B. Mich, (not Trinity), 45 Ed. Ill, p. 10, pi. 3. See Case 9. 
 also Brooke, Essone, 27; and Fitzh: Essone, 155. 
 
 The Statute is the Statute of Gloucester, 6 Ed. I, cap. 8, Stats, at 
 Large, Vol. 1, p. 117 (123). 
 
562 
 
 STATHAM 
 
 Hilary 
 25 Ed. III. 
 
 Case 10. 
 
 (10) Avowry was made upon the husband and his wife, 
 as in right of the wife, and he prayed aid of his wife and had 
 it; and he was told to bring his wife on the next day, on 
 which day he appeared and his wife was essoined ; and the 
 essoin was awarded and adjourned, although no process 
 issued against her, etc. 
 
 The case has not been identified in Y. B. Hilary, 25 Ed. III. Fitzh: 
 Essone, 71, gives the case in exactly the same words. He, of course, 
 has no complete citation to the case, or it could be identified. 
 
 In Iter of 
 Northumber- 
 land, Anno 
 4 Ed. III. 
 
 Case 11. 
 
 (11) Essoin for service of the king does not lie in Dower, 
 Quare Impedit, Assize of Novel Disseisin or the like, 
 where protection does not lie. And this by Herle, in 
 Dower. 
 
 And it was said in the same plea that essoin de malo lecti 
 does not lie in a writ of right, after appearance, unless it 
 be thrown by the party himself who is ill, etc. (But after 
 the plea is joined, no essoin lies, as I believe, etc.) 
 
 The cases in these Eyres have not usually been identified. 
 
 Trinity 
 6 Ed. III. 
 
 Case 12. 
 
 (12) In debt, the defendant waged his law, and on the 
 day, etc., the plaintiff was essojfned and the defendant 
 appeared and had the same day; on which day the defend- 
 ant was essoined, and it was awarded notwithstanding 
 it was not the second day after issue, etc. Query, if the 
 plaintiff shall be essoined on another day, etc.? And so 
 on for eternity and beyond? 
 
 Reported in Y. B. Trinity, 5 Ed. HI, p. 20, pi. 3. Statham's remark 
 (if indeed it is his) seems justified by the case, where it is stated that 
 there can be an essoin after every appearance. 
 
 Michaeiis (13) An essoin for service of the king was challenged 
 because the essoinor was under age, and it was not allowed 
 etc. 
 
 Case 13. Reported in Y. B. Mich. 21 Ed. HI, p. 33, pi. 21. The case is as 
 
 brief as the digest. See also Brooke, Essone, 133. 
 
 Michaeiis 
 21 Ed. III. 
 
 (14) In a praecipe quod reddat against three by several 
 prcBcipes, the demandant was essoined against one of them. 
 
ESSOIN 563 
 
 And the opinion was that he could not be essoined against 
 one and appear against the others, no more than he could 
 be nonsuited against one of them, etc. 
 
 The case has not been identified in Y. B. Mich. 21 Ed. Ill, or in the Case 14. 
 early abridgments. 
 
 (15) Essoin for service of the king was quashed for Hilary 
 him who was prayed in aid, etc. Query as to the cause, ^^ ^"^^ ^'^• 
 etc.? 
 
 Reported in Y. B. Hilary, 18 Ed. Ill, p. 9, pi. 30. It is merely a Case 15. 
 short note. 
 
 (16) In a resummons on a writ of Wardship against Paschal 
 executors of the defendant, the plaintiff would have been 
 essoined at the Nisi Prius, and could not because the 
 original was ended, etc. 
 
 The case has not been identified in Y. B. Paschal, 18 Ed. Ill, or in Case 16. 
 the early abridgments. 
 
 (17) In a praecipe quod reddat against the husband Michaeiis 
 and his wife who made default; on the return of the petty 
 
 cape the husband was essoined for service of the king, 
 and had a day to bring his warrant, and the wife was 
 essoined for the service of the king, "for she was nurse, 
 etc." And it was awarded. Which note, for the husband 
 had lost the lands and she did not come to be received. 
 But it was said that that essoin was given to him by the 
 common law, etc. Query, shall she have her defence at 
 the day of the essoin, and shall a resummons be sued upon 
 that essoin, or shall another day be given upon that? 
 
 Reported in Y. B. Mich. 30 Ed. Ill, p. 19, pi. 30. Case 17. 
 
 (18) In a quare impedit at the Venire Facias, the defend- Paschal 
 ant was essoined by a common essoin, although the action 
 
 was brought for the king. 
 
 Reported in Y. B. Paschal, 3 Hen. IV, p. 15, pi. 6. See also Brooke, Case 18. 
 Essone, 33; and Fitzh: Essone, 133. 
 
564 
 
 STATHAM 
 
 Paschal 
 14 Hen. VI. 
 
 Case 19. 
 
 (19) Essoin for service of the king is not allowed in the 
 Exchequer: By the opinion of Paston. Query as to the 
 reason, etc.? 
 
 The case has not been identified in Y. B. Anno 14 Hen. VI, or in the 
 early abridgments. The year 14 Hen. VI is not divided into terms. 
 
 Trinity 
 14 Hen. VI 
 
 (20) The Abbot of Waltham brought a writ of Debt 
 against one J, and they were at issue, and at the Habeas 
 Corpus the abbot was essoined. Newton: The essoin 
 does not lie, because this is the second day, and the Statute 
 is general, to wit: "Postquam aliquis posuerit se," etc., which 
 is meant as much for the plaintiff as for the defendant. 
 Paston: Contra. For at the common law the plaintiff 
 shall be essoined on every writ after issue, until the process 
 has been ended. Then the Statute of Marlborough is 
 "Postquam aliquis posuerit se," etc. "After any one hath 
 put himself, etc., which must pass, etc., he shall have but 
 one essoin, or one default, so that if he come not at the day 
 given to him by the essoin, or make default the second day, 
 then the inquest shall be taken by his default," which shall 
 be understood wholly on the part of the defendant, for the 
 inquest cannot be taken by default of the plaintiff, but 
 a non-suit shall be awarded, etc. And the Statute of 
 Westminster the Second is to the same effect, which says: 
 "But all the other days following, the taking of the inquest 
 Statham77 b. shall not be delayed by the essoin," which cannot be under- 
 stood on the part of the plaintiff, because the inquest can- 
 not be taken for his default. And also the Statute is in 
 restraint of the common law; so that it must be construed 
 strictly. Newton: The Statute cannot be taken so 
 strictly, for in a real plea, on the second day after issue, 
 the inquest shall not be taken for default of the tenant, 
 but the Petty Cape shall be awarded, etc. Paston: It 
 is true, and then the land is lost if he cannot save the default 
 by saying that he could not come by reason of the rising 
 of the waters. And then by advice it was held that the 
 abbot be amerced because it counterbalanced a nonsuit. 
 And this well argued, etc. 
 
 Case 20. Reported in Y. B. 14 Hen. VI, p. 19, pi. 59. See also Brooke, Essone, 
 
 80; and Fitzh: Essone, 100. 
 
ESSOIN 565 
 
 The Statute of Marlborough, 62 Hen. Ill (1267), cap. 13, Stats, at 
 Large, Vol. 1, p. 55 (66), and Statute of Westminster the Second, 13 
 Ed. I (1285), cap. 27, Stats, at Large, Vol. 1, p. 163 (202). 
 
 The digest gives but a very inadequate idea of the case, for it was 
 "well argued." 
 
 (21) In a writ of entry in the nature of an Assize, the Trinity 
 tenant was essoined, and it was awarded, etc. 
 
 Reported in Y. B. Trinity, 14 Hen. VI, p. 22, pi. 65. See also Brooke, Case 21. 
 Essone, 81; and Fitzh: Essone, 102. 
 
 (22) In a writ of dower, the demandant was essoined, Paschal 
 and the tenant made default, wherefore the essoinor prayed 
 
 the Grand Cape. Herle : You cannot have the Grand Cape 
 before a demand be made, for it is uncertain, etc., and 
 you cannot make a demand because you have no warrant 
 to do that. And so it seems that by the essoin the process 
 is discontinued. 
 
 And it was said in the same plea, that the essoiner cannot 
 pray seisin of the land, for the above reason. 
 
 There is no early printed year of 16 Ed. III. There is a case in the Case 22. 
 Rolls Series which is interesting as being on the legal points involved 
 in the digested case, but it is not, apparently, the same case. Rolls 
 Series, 16 Ed. Ill, Pt. 1, p. 242, case 39. 
 
 (23) He who prays to be received cannot be essoined; Michaeiis 
 as appeared in a Pracipe guod Reddai, etc. 
 
 There is no early printed year of 15 Ed. III. The case has not been Case 23. 
 identified in the Rolls Series for that year, or in the early abridgments. 
 
 (24) In a quid juris clamat, the tenant was ousted Paschai 
 oftheessoin. AndthelawisthesameinaPe?'eg.gMe5emcia, 
 
 and a Quern Redditum Reddit, by the equity of the Statute, to 
 wit: "De Mis que recordata sunt," which ousts the essoin 
 in a Scire Facias, etc. 
 
 There is no early printed year of 16 Ed. III. The case has not been Case 24. 
 identified in the Rolls Series for that year and term, or in the early 
 abridgments. 
 
 The Statute is that of West. II, 13 Ed. I (1285), cap. 45, Stats, at 
 Large, Vol. 1, p. 163 (224). 
 
566 
 
 STATHAM 
 
 Hilary 
 
 33 Ed. III. 
 
 Case 25. 
 
 Paschal 
 33 Ed. III. 
 
 Case 26. 
 
 Case 27. 
 
 Hilary 
 
 1 Hen. VI. 
 
 Case 28. 
 
 (25) Essoin does not lie in an Assize of Novel Disseisin, 
 for the plaintiff, but it is otherwise in an Assize of Mort 
 d'Ancestor. 
 
 There is no printed year of 33 Ed. III. Fitzh: Essone, 72, has the 
 same short digest of the case. 
 
 (26) If the tenant wages his law of non-summons by 
 attorney, on the day, etc., he himself shall be essoined, and 
 not the attorney. And the law is the same in Debt, because 
 he shall make his law in his own person, etc. 
 
 There is no early printed year of 33 Ed. III. Fitzh: Essone, 73, 
 follows the case in Statham exactly. 
 
 (27) Essoin for service of the king does not lie in Attaint. 
 
 By WiLLOUGHBY, etc. 
 
 There is no citation for this short case. Possibly it may have been 
 meant for a note to case 26. The law seems to be correctly stated. 
 See Viner, Abr., Essoin, p. 176. 
 
 (28) In trespass, the defendant said that such a one was 
 seised, and enfeoffed him for a term of years, and he gave 
 color to the plaintiff, as was necessary, because he justified 
 in his own right. Canndish: It is the freehold of the 
 plaintiff, Ready. And the other alleged the contrary. 
 (But yet I believe that that is no plea, without showing 
 how it is his freehold, since the defendant had pleaded 
 a special matter in bar, etc.) Query, if the defendant 
 prayed in aid and it was granted, and on the return of the 
 summons the plaintiff was essoined, and on the day of the 
 essoin he came and joined himself to the defendant, where- 
 fore a Venire Facias issued, returnable now, and the party 
 was essoined another time? Canndish: The essoin does 
 not lie for him, for the Statute is, "After any has put him- 
 self, etc." And in this case the issue is not joined for 
 him, etc. Hankford : But yet he may lose his freehold 
 by this issue, wherefore we will be advised. And so note 
 that a Venire Facias will not issue until the parties have 
 joined in aid, etc. 
 
 Reported in Y. B. Mich, (this is the only term reported for this 
 year in the printed year books), 1 Hen. VI, p. 3, pi. 11. See also 
 Fitzh: Essone, 89. 
 
ESSOIN 567 
 
 The Statute is that of Marlbridge, 52 Hen. Ill (1267), cap. 13, Stats, 
 at Large, Vol. 1, p. 55 (66). 
 
 (29) In formedon they were at issue, and at the Nisi Hilary 
 Prius the tenant made default, and before the day in the ^"' 
 King's Bench the king died ; and then at the resummons 
 
 the tenant threw an essoin. And the opinion of many 
 was that it did not lie. But yet it seems that if the 
 resummons is general, that the essoin well lies, etc. 
 
 Reported in Y. B. Mich, (see case 28, supra), 1 Hen. VI, pt 6, pi. 24. Case 29. 
 The case does not very well support the digest. The "opinion of 
 many" changes into the "opinion of the Court." See also Fitzh: 
 Essone, 90. 
 
 (30) The prayer in aid, after he has joined himself to Michaeiis 
 the defendant, shall not be essoined because he is only a 
 
 party in aid, etc. But at the summons in aid he shall be 
 essoined. And this in a Pracipe quod Reddat. 
 
 The case has not been identified in Y. B. Mich. 9 Ed. Ill, or in the Case 30. 
 early abridgments. 
 
 (31) In a praecipe quod reddat against the husband Paschal 
 andhiswife, they waged their law of non-summons. And on 
 
 the day, etc., the husband was essoined, as on the service 
 of the king ; and on the day that he had to bring his warrant 
 he made default, and his wife was essoined, as on the service 
 of the king. And the demandant prayed seisin of the land, 
 because the default of the husband shall be taken to be 
 the default of the husband and his wife. Fyncheden: It 
 seems that the petty cape should issue, upon which day, 
 if he makes default, the wife can be received, etc. (Query, 
 if the petty cape shall issue for the half or the whole?) 
 Thorpe: Upon this essoin the plea shall be without day 
 against both. Fyncheden: Still, shall there be any 
 process against the husband until the wife has her warrant? 
 For otherwise the whole is discontinued. (Query, if such 
 a case could occur in an Assize of Mort d'Ancestor?) etc. 
 Study this well, etc. 
 
 Reported in Y. B. Paschal, 40 Ed. Ill, p. 21, pi. 17. Seealso Brooke, Case 31. 
 Essone, 128, for a very poor digest. It is a very slight case to "study 
 
568 
 
 STATHAM 
 
 Trinity 
 5 Hen. V. 
 
 Case 32. 
 
 Michaelis 
 45 Ed. III. 
 
 Case 33. 
 
 Paschal 
 2 Hen. V. 
 
 Case 34. 
 
 Michaelis 
 9 Hen. V. 
 
 well," as it appears in the printed books. The manuscript case might 
 be better. 
 
 (32) In a praecipe quod reddat, the husband and his 
 wife prayed to be received for default of their tenant. And 
 the demandant said that they had nothing in the reversion, 
 and upon that they were at issue. And on the day of the 
 Venire Facias the husband was essoined for service of the 
 king, and the essoin was quashed. And the wife prayed 
 to be received, and was received, etc. 
 
 Reported in Y. B. Hilary (not Trinity), 5 Hen. V, p. 11, pi. 29. 
 See also Brooke, Essone, 48; and Fitzh: Essone, 128. Statham has 
 the best digest. 
 
 (33) Two brought an assize and were essoined, and on 
 the day of the essoin one of them made default, wherefore 
 a summoneas ad sequendum simul issued against him, on 
 which day he was essoined, and the essoin was adjudged, 
 etc. And so note two essoins before appearance, etc. 
 But they were for different reasons, etc. 
 
 The case has not been identified in Y. B. Mich. 45 Ed. Ill, or in the 
 early abridgments. 
 
 (34) In f ormedon, the tenant was essoined. Skrene : 
 There was an attorney of record who should be essoined. 
 HuLS: It may be that he was removed, wherefore put your 
 challenge upon the essoin and it shall be adjourned sub 
 calumnia, etc. (Wherefore he put the blame upon the 
 essoin.) 
 
 Reported in Y. B. Paschal, 2 Hen. V, p. 2, pi. 8. See also Brooke, 
 Essone, 118; and Fitzh: Essone, 127. 
 
 (35) In debt, the defendant waged his law, and on the 
 day, etc., the plaintiff was essoined for service of the king. 
 Martyn: The essoin does not lie, for then he could delay 
 us in infinito. HuLs: After a common essoin another 
 common essoin does not lie. Wherefore it was adjudged 
 that the defendant go free without making his law, because 
 the plea was delayed upon the essoin. Study this, because 
 error was assigned upon this in the following year. 
 
ESSOIN 569 
 
 Reported in Y. B. Paschal (not Mich.), 9 Hen. V, p. 5, pi. 16, if this Case 35. 
 is indeed the case. The digest has the plaintiff essoined for service 
 of the king, the case has a common essoin. This alters the case, for 
 though a common essoin might not lie on a common essoin, essoin for 
 the king's service was different. See also Brooke, Essone, 49; and 
 Fitzh: Essone, 129. 
 
 (36) In a writ Dum non fuit compos mentis, on the return Michaeiis 
 of the Venire Facias, because it was not returned ^ a Sicut 
 
 Alias issued, on which day the tenant was essoined, and 
 it was quashed, etc. 
 
 Reported in Y. B. Mich. 9 Hen. V, p. 12, pi. 12. See also Brooke, Case 36. 
 Essone, 51; and Fitzh: Essone, 130. Both give much fuller digests 
 than Statham. 
 
 (37) In a writ of annuity, the sheriff returned that he statham 78 a. 
 was a clerk, wherefore a Venire Facias issued to the bishop, Michaeiis 
 onwhichday the clerk was essoined. Fyncheden: Essoin 
 
 does not lie; no more than where a writ issues to the 
 guardian to cause the infant to come, the infant shall be 
 essoined; so here. And it was awarded, etc. 
 
 Reported in Y. B. Mich. 38 Ed. HI, p. 21, pi. 8. There is nothing Case 37. 
 in the case like the latter part of the case in the abridgment. See also 
 Brooke, Essone, 52; and Fitzh: Essone, 143. 
 
 (38) In a praecipe quod reddat, the tenant was essoined Fq g|l^ljj 
 and then vouched to warranty, and at the summoneas ad 
 warrantium^ he was essoined again and it was awarded, etc. 
 
 Reported in Y. B. Paschal, 39 Ed. Ill, p. 8, pi. 8. See also Brooke, Case 38. 
 Essone, 77; and Fitzh: Essone, 143. 
 
 (39) In a praecipe quod reddat at the sequatur, the sheriff ^'^f^j j, 
 returned the writ "tarde," and the vouchee was essoined. 
 Thorpe : Unless he appears the land will be lost, for this 
 
 essoin is ousted by the Statute, which says, "It lieth not 
 where the summons is not returned, or the party not 
 attached, or because the sheriff hath returned that he was 
 not found," etc. 
 
 ' Word from the case. 
 
 2"Grand Cape ad valenciam," in the report of the case, and in 
 Brooke and Fitzherbert. 
 
570 
 
 STATHAM 
 
 Case 39. 
 
 Trinity 
 24 Ed. III. 
 
 Case 40. 
 
 Paschal 
 48 Ed. III. 
 
 Case 41. 
 
 Michaelis 
 13 Ric. II. 
 
 Case 42. 
 
 Trinity 
 2 Ric. II. 
 
 Case 43. 
 
 The case has not been identified in Y. B. Mich. 39 Ed. Ill, or in the 
 early abridgments. 
 
 The Statute is that of Essoins, 12 Ed. II (1318), Stats, at Large, Vol. 
 1, p. 357. 
 
 (40) In replevin, the plaintiff prayed in aid, and the party 
 was essoined for service of the king, and on the day, etc., 
 he failed of his warrant although he did not lose twenty 
 shillings, etc., because the Statute is, "When the defendant 
 has himself essoined," etc. 
 
 The case has not been identified in Y. B. Trinity, 24 Ed. Ill, or in the 
 early abridgments. 
 
 The Statute of Gloucester, 6 Ed. I (1278), cap. 8, Stats, at Large 
 Vol. 1, p. 117 (123, 124). 
 
 (41) In London the tenant pleaded the release of the 
 ancestor demandant with [assets by] descent in a foreign 
 county, wherefore the plea was sent to the Bench and a 
 Venire Facias awarded; on which day the tenant was 
 essoined, and still it was the second day after issue joined. 
 But yet it was the first day after the Venire Facias was 
 awarded. And this in a Formedon. 
 
 Reported in Y. B. Trinity (not Paschal), 48 Ed. Ill, p. 21, pi. 9. See 
 also Brooke, Essone, 30; and Fitzh: Essone, 157. 
 
 (42) Where the defendant comes in wardship and pleads 
 to the issue, he shall not have an essoin afterward, etc. 
 
 There is no printed Year Book for 13 Ric. II. The case has not 
 been identified elsewhere. 
 
 (43) In formedon, the parties were at issue. Process 
 issued against the jurors until the distress, on which day 
 the demandant was essoined. Rikhill : That is the third 
 writ after issue, wherefore the essoin does not lie, etc. 
 Charleton: The Statute is meant for the defendant and 
 not for the plaintiff. And so it was held Anno 20 Ed. III. 
 To which the Court agreed. 
 
 There is no printed Year Book for 2 Ric. II. The case has not been 
 identified elsewhere. 
 
 The Statute is that of Marlbridge, 52 Hen. Ill (1267), cap. 13, Stats, 
 at Large, Vol. 1, p. 55 (66). 
 
ESSOIN 571 
 
 (44) When a man has found mainprise, he shall not have Hilary 
 
 a common essoin, nor an essoin for service of the king ® ^^"' ^^' 
 afterwards, and yet he can throw a protection. Query, 
 as to the reason, etc.? 
 
 Reported in Y. B. Hilary, 9 Hen. VI, p. 58, pi. 3. See also Brooke, Case 44. 
 Essone, 4; and Fitzh: Essone, 95. The reason as given in the case 
 seems sufficient to answer Statham's query. 
 
 (45) In a writ of annuity, the essoin is in a placito ""^••y 
 terrm, because he demands an inheritance, etc. 
 
 Reported in Y. B. Hilary, 11 Hen. IV. p. 43, pi. 14. See also Brooke Case 45. 
 Essone, 37. 
 
 (46) In a praecipe quod reddat, the tenant as to part Trinity 
 vouched to warranty, and as to the remainder he pleaded 
 non-tenure. And upon the non-tenure they were at issue. 
 
 And process issued against the vouchee until the Sequatur, 
 on which day the writ was not served, and as to that part 
 the tenant was essoined. Skrene: He had appeared 
 on the day, and when his appearance is of record he cannot 
 be essoined. Hankford: He was essoined for the other 
 part, wherefore, etc. And they adjourned. It seems that 
 the essoin well lies, for if the tenant had made default as 
 to that on which they were at issue, then the petty cape 
 would issue. And as to the other part he could well be 
 essoined, and still his default would be of record, etc. And 
 consequently he can be essoined when his appearance is 
 of record, when it is for another thing, notwithstanding it 
 is upon one and the same original, etc. 
 
 Reported in Y. B. 11 Hen. IV, p. 82, pi. 26. See also Brooke, Essone, Case 46. 
 40; and Fitzh: Essone, 136. 
 
 (47) Where an essoin is challenged because he was seen Trinity 
 
 in Court, it shall be tried the same day, and shall not be ^* ^^"' ^^' 
 adjourned, etc. In a writ of Entry, etc. Query, how shall 
 it be tried, etc.? 
 
 The case has not been identified in Y. B. Trinity, 18 Hen. VI, or in the Case 47. 
 early abridgments. 
 
572 
 
 STATHAM 
 
 Hilary 
 
 19 Hen. VI. 
 
 Case 48. 
 
 (48) In a formedon, the husband and his wife were 
 vouched and entered into the warranty, and then made 
 default, wherefore the petty cape issued in a terra petita, 
 on which day the husband was essoined for service of the 
 king, and the wife appeared by attorney. Portyngton : 
 It appears that the husband had an attorney in the plea 
 who was not removed, and he is not essoined, wherefore 
 we pray seisin of the land. Fortescue : Such an essoin 
 does not lie for the attorney, no more than a protection. 
 Newton: A protection does not lie for the plaintiff, and 
 yet such an essoin for the service of the king lies for him; 
 and it might be that the attorney was on the service of the 
 king. Portyngton: The essoinor has not sworn that 
 his master was on the service of the king. And they 
 demanded of the essoiner if he would swear. Who said 
 that he would swear that he was the carver of the king, 
 but he could not say more, wherefore the essoin was dis- 
 allowed, and the woman was received to defend her right, 
 etc. See the Statute of Marlbridge, cap. 25, which says 
 that neither in a hundred nor in a Court Baron, in the 
 county, or elsewhere, is it necessary for any to warrant his 
 essoin, etc. Query well how this is meant, etc. For it 
 seems that it is not meant for an essoin thrown in the 
 Bench, and if it be, still it is not meant except as to a com- 
 mon essoin, and not as to an essoin for the service of the 
 king, etc. Query? 
 
 Reported in Y. B. Hilary, 19 Hen. VI, p. 51, pi. 10. See also Brooke, 
 Essone, 64; and Fitzh: Essone, 103. 
 
 The Statute of Marlbridge, 52 Hen. HI (1267), cap. 19 (not 25), 
 Stats, at Large, Vol. 1, p. 65 (66). The words of the writ are, "Touch- 
 ing essoins, it is provided, That ih Counties, Hundreds, or in Courts 
 Barons, or in other Courts, none shall need to swear to warrant his 
 Essoin." 
 
 Hilary (49) In replevin they were at issue, and at the Habeas 
 
 ^ ^"' ' Corpora the plaintiff had thrown an essoin for service of the 
 
 king. Markham: This is not the first writ after issue, 
 
 wherefore, etc. Newton: The Statute means only a 
 
 common essoin when it says — . Which was conceded, etc. 
 
ESSOIN 573 
 
 Reported in Y. B. Hilary, 19 Hen. VI, p. 51, pi. 10. (See supra Case 49. 
 case 48.) See also Brooke, Essone, 65 ; and Fitzh: Essone, 104. 
 
 Statute of Marlbridge, 52 Hen. HI (1267), cap. 13, Stats, at Large, 
 Vol. 1, p. 55 (66). 
 
 (50) Essoin de malo lecti shall be thrown for the tenant, Hilary 
 although there was an attorney in the plea. And so it seems ^^ ^^"' ^^" 
 that it shall be for every essoin, except a common essoin, 
 
 etc. 
 
 The case has not been identified in Y. B. Hilary, 19 Hen. VI, or in the Case 50. 
 early abridgments. 
 
 (51) In a writ of entry on the return of the petty cape, Hilary 
 the plea was put without day by a protection, and then at ^^ ^^"' ^^" 
 the resummons the tenant sued to be essoined. PoR- 
 tyngton: The essoin does not lie, for at the petty cape 
 
 no essoin lies for him, and the resummons is that he shall 
 be in the degree he was when he was put without day, etc. 
 Fortescue: If the tenant now makes default, a Grand 
 Cape shall issue, so the first default is waived, where- 
 fore, etc. And the opinion was that the essoin lay, etc. 
 Query? 
 
 The case has not been identified in Y. B. Hilary, 19 Hen. VI, or in the Case 51. 
 early abridgments. 
 
 (52) In a praecipe quod reddat, at the summons the ^"ff^ 
 tenant was essoined for service of the king, and he had a 
 
 day to bring his warrant, on which day he made default, 
 wherefore the Grand Cape issued, on which day he would statham78b. 
 have waged his law of non-summons. And it was the 
 opinion of all the Court that he could not. But yet after 
 a common essoin he shall wage his law; wherefore, query 
 as to the difference? 
 
 And it was said in the same plea, that a man shall not 
 have essoin for service of the king after another essoin for 
 being on the service of the king. 
 
 And it was said in the same plea that where one who is 
 essoined for service of the king does not bring his warrant 
 on the day, etc., that a Capias shall issue against the essoinor 
 
574 
 
 STATHAM 
 
 and also against the tenant, to answer to the contempt, for 
 deceit, etc. 
 
 Case 52. It is difficult to identify this case. In some points it resembles the 
 
 case reported in Y. B. Hilary, 12 Hen. IV, p. 14, pi. 7; in others it is 
 quite unlike. The remarks regarding essoin for service of the king are 
 found there. The case is digested by Brooke, Essone 42; and Fitzh: 
 Essone 138. 
 
 Michaelis 
 12 Hen. VI. 
 
 Case S3. 
 
 (63) In a scire facias, the plaintiff was essoined, and 
 because the Statute ousts delays in a Scire Facias, although 
 in other cases the plaintiff can delay himself, it was adjudged 
 that the essoin be quashed, etc. Query as to an essoin 
 ad sectam terram for serving for so much time, etc. And 
 of essoin de malo villa, and of essoin de malo lecti, and of 
 essoin de ultra mare, and of essoin de gesyn. 
 
 The case has not been identified in Y. B. Mich. 12 Hen. VI, or in the 
 early abridgments. 
 
 The Statute is that of Westminster the Second, 13 Ed. I (1285), 
 cap. 28, Stats, at Large, Vol. 1, p. 163 (202). The various essoins here 
 mentioned are: 1. Sick in town. 2. Sick in bed. 3. Beyond the sea. 
 4. For burying. 
 
 Note. 
 
 Paschal 
 6 Ed. III. 
 
 Case 54. 
 
 See of essoin, in the title of Protection, Mich. 4 Hen. VI. 
 See Statham, title of Proteccion, infra, p. 134 b, case 15. 
 
 (54) Essoin was not allowed in a resummons at the Jure 
 d'Utrum. And this in a note. 
 
 Reported in Y. B. Paschal, 6 Ed. Ill, p. 25, pi. 55. See also Fitzh: 
 Essone, 56. 
 
 Michaelia 
 9 Ed. III. 
 
 Case 55. 
 
 (55) The prayer in aid shall not be essoined after he has 
 joined; and this by opinion, etc. In a note. 
 
 This may be the case reported in Y. B. Mich. 9 Ed. Ill, p. 26, pi. 1, 
 but it is not clear. 
 
 Trinity 
 29 Ed. II. 
 
 Case 56. 
 
 (56) Essoin does not lie for the defendant in an Oyer 
 and Terminer, etc. In Southwark. • 
 
 The date 29 Ed. II is obviously incorrect, as Edward the Second's 
 reign only covered a period of twenty years. The case has not been 
 elsewhere identified. 
 
ESSOIN 675 
 
 (57) Essoin does not lie in a Scire Facias after issue, nor Hilary 
 before. 26Ed.iii. 
 
 The case has not been identified in Y. B. Hilary, 25 Ed. Ill, or in the Case 57. 
 early abridgments. 
 
 (58) The plaintiff in replevin prayed in aid, and the Paschal 
 party was essoined at the summons, etc. ® ^^^- ^^■ 
 
 There is no printed Year Book for 6 Ric. II. The case has not been Case 58. 
 identified elsewhere. 
 
 (59) Essoin does not lie for the vouchee at the Sequatur. Michaeiis 
 
 29 Ed. III. 
 The case has not been identified in Y. B. Mich. 29 Ed. Ill, or in the Case 59. 
 early abridgments. 
 
 Query, if the essoiner of the plaintiff in an Assize can Note. 
 pray the Assize? 
 
 (60) At the distraint against the jury, the demandant Trinity 
 was essoined. And this in a Formedon, etc. 
 
 There is no printed Year Book for 2 Ric. II. The case has not been Case 60. 
 identified in the early abridgments. 
 
 (61) Upon the return of the Venire Facias the defendant Michaeiis 
 
 oo "PH TTT 
 
 shall not be essoined if it be by mainprise, etc., or if it be ' ' 
 
 by the exigent, so that he is a prisoner, etc. 
 
 There is no printed Year Book for 32 Ed. III. The case has not Case 61. 
 been identified in the early abridgments. 
 
 See as to essoin on service of the king, which was Note. 
 adjourned for a year and a day, and the defendant kept 
 that day without a resummons. As appeared in a resum- 
 mons, Michaeiis 27 Hen. VI. 
 
 See Statham, title Resummons and Reattachment, infra, p. 160 b, 
 case 18. The term there, however, is given as Paschal. 
 
 (62) If essoin for service of the king be disallowed, the ™^y „ 
 essoinor shall be imprisoned, etc. In a writ of Entry. 
 
 The case has not been identified in Y. B. Hilary, 5 Ed. Ill, or in the Case 62. 
 early abridgments. 
 
576 
 
 STATHAM 
 
 Anno 
 
 20 Ed. II. 
 
 Case 63. 
 
 Michaelis 
 7 Hen. IV. 
 
 Case 64. 
 
 Trinity 
 4 Ed. III. 
 
 Case 65. 
 
 Michaelis 
 22 Ed. III. 
 
 Case 66. 
 
 Hilary 
 
 44 Ed. III. 
 
 Case 67. 
 
 Michaelis 
 27 Ed. III. 
 
 Case 68. 
 
 Hilary 
 5 Ed. III. 
 
 Case 69. 
 
 HUary 
 9 Ed. II. 
 
 Case 70. 
 
 (63) Essoin for service of the king shall be adjourned 
 to the common day, etc. (See the last paragraph.) 
 
 The case has not been identified in Y. B. Anno 20 Ed. II, or in the 
 early abridgments. 
 
 (64) Essoin for service of the king can be warranted by 
 a protection. And this in a PrcBcipe quod Reddat. 
 
 The case has not been identified in Y. B. Mich. 7 Hen. IV, or in the 
 early abridgments. 
 
 (65) Essoin for service of the king was allowed for the 
 tenant after appearance. In an Attaint. 
 
 Reported in Y. B. Trinity, 4 Ed. Ill, p. 34, pi. 21. See also Fitzh: 
 Essone, 52. 
 
 (66) A man can be essoined for service of the king not- 
 withstanding he has surety, etc. In Account. 
 
 The case has not been identified in Y. B. Mich. 22 Ed. Ill, or in the 
 early abridgments. 
 
 (67) Essoin for service of the king does not lie in Dower. 
 And this in a writ of Dower. 
 
 Reported in Y. B. Hilary, 44 Ed. Ill, p. 5, pi. 19. See also Brooke, 
 Essone, 24; and Fitzh: Essone, 148. 
 
 (68) Essoin for service of the king because of nurture : 
 where it is not good for the woman unless she is his guardian 
 (in fact). 
 
 The case has not been identified in Y. B. Mich. 27 Ed. Ill, or in the 
 early abridgments. 
 
 (69) Essoin for service of the king was quashed by com- 
 mand of the king, etc. In a writ of Entry, etc. 
 
 The case has not been identified in Y. B. Hilary, 5 Ed. III. Fitzh: 
 Essone, 63, has the case in a slightly different form. 
 
 (70) Essoin for service of the king was allowed on the 
 return of the Grand Cape. And this in a Prcscipe quod 
 Reddat. 
 
 The case has not been identified in the very brief Paschal Term 
 9 Ed. II. There is no case of a Pracipe quod Reddat in the- report 
 of the term. 
 
ESSOIN 577 
 
 (71) On the return of the petty cape the wife was Trinity 
 essoined for service of the king, and the husband appeared, ^^ ^*^' ^^^' 
 and on the day which she had by the essoin the husband 
 was essoined for service of the king, and the woman appeared 
 and she did not show any warrant for the essoin, where- 
 fore the demandant prayed seisin of the land and could 
 not [have it], for they said that the wife shall never produce 
 a warrant in the absence of her husband, but it was in time 
 enough on the day that her husband had, etc. Wherefore 
 a day was given for the essoin, and the same day was given 
 to the woman, etc. 
 
 There is no early printed year of 12 Ed. III. The case has not been Case 71. 
 identified in the Rolls Series for that year. 
 
 *^ The law of Essoin, while it is peculiar to the older period of the lawf 
 is too well known to make it necessary here to put forth any extended 
 commentary upon this "bulkiest chapter of our old law." [P. & M. Hist, 
 of Eng. Law, 2d ed., Vol. 2: 562.] It has been called "an excuse" for 
 not coming to court when summoned. To the court it must have been 
 rather a reason than an excuse, as we use the latter term to-day, yet 
 that it was used as a mere excuse we cannot doubt. There were so 
 many reasons why a person could not go to court, and so many more 
 why it was impossible to reach the court after having really taken the 
 road for the place where the court was sitting, that it was very easy to 
 give one of these reasons without the court being able to secure evi- 
 dence that it was a mere subterfuge to save the litigant from leaving 
 his comfortable fireside to face the very real rigors which were the fate 
 of a plaintiff or defendant in many cases. 
 
 While this matter of essoins may very properly be called a bulky chap- 
 ter in our law, our abridgment gives us but seventy-one cases upon it. 
 On the whole the law, while using a different terminology, a terminology 
 which seems to set it apart as something archaic, rested upon very much 
 the same principles that it does at the present time. The convenience 
 of the litigant had to be considered, but not, if possible to prevent it, 
 to the delaying of justice. But as such principles soon crystallized into 
 rules, and the rules became too rigid, and then stood in the way of that 
 justice they were designed to protect, it became necessary, time after 
 time, to appeal to the legislature to amend these rules. Thus we begin 
 to reach statutory enactment on the subject of essoins very early in our 
 legal history. In the fifty-second year of Henry the Third, in the thir- 
 teenth chapter of the Statute of Marlbridge, it was provided that when 
 a man had put himself upon any inquest he should have but one essoin, 
 and if he came not at the day given him by the essoin, he should lose 
 
578 STATHAM 
 
 by default of such appearance. Coke [2d Inst. 126] says that "the 
 mischief before this statute was, for the great delay that might come 
 to the plaintiff in any personal action" (there being no inquest by 
 default in a real action). In chapter 19 of the same statute it was pro- 
 vided that no one was to be obliged to swear to the truth of an essoin. 
 This latter provision, however, was taken to "be understood of one of 
 the essoins and that is of the common essoin de malo veniendi, so that 
 in the other essoins the oath was required as before." As Coke puts it, 
 the reasons were that the essoin de service de Roy, the delay granted — 
 a year and a day — was so great that it needed "particular proof" 
 [Coke, 2d Inst., p. 137] and that the "other essoins were very rare." 
 It is apparent that the justices felt it best to ignore the law when it 
 occasioned an "inconvenience." Eight years later (1275), in the 
 Statute of Westminster the First, cap. 42, it was provided that "after 
 the tenant hath once appeared in the Court, he shall be no more essoined ' ' ; 
 and in the next chapter (43) it is furthermore provided : "Forasmuch as 
 the Demandants be oftentimes delayed of their Right, by reason that 
 many Parceners be Tenants, of which none may be compelled to answer 
 without the other, or there may be many jointly enfeoffed (where none 
 knoweth his several) and such Tenants oftentimes vouch [fourch] by 
 Essoin, so that every of them hath a several Essoin, . . . such 
 Tenants shall not have Essoin but at one Day, ... so they shall no 
 more vouch [fourch] but only shall have one Essoin." The ingenuity 
 of those who sought delay seemed to be inextinguishable; the fourcher 
 or dividing of the essoins is but one example, though an ingenious one. 
 The essoin de ultra mare was used by the persons who, perchan,ce, had 
 never passed beyond seas at all, but "indeed were within the realm" 
 the day of the summons. Chapter forty-four of Westminster the First 
 ordained that this essoin be not always allowed, but it might be; if the 
 tenant challenged it, the demandant might aver that he was in England 
 the day of the summons, and the case was then adjourned for the demand- 
 ant to prove his assertion; and if he did so the essoin was turned into 
 a default. The Statute of Gloucester took up the matter, and in its 
 chapter ten forbade husband and wife to "fourch" by essoin (that is, to 
 "fork" or divide the essoin into two parts). In chapter eight of the same 
 statute, if plaintiffs in trespass caused themselves to be essoined after 
 the first appearance, a day was to be given until the coming of the jus- 
 tices; meanwhile the defendant should be in peace. And furthermore, 
 in actions where there was process of attachment and distress and the 
 defendant essoined himself de servitio Regis, and did not produce his 
 warrant on the day, he must give the plaintiff twenty shillings, these 
 being in the way of damages for his long journey, and he was to be 
 amerced. In 1285 the essoin de malo lecti was attacked in Westminster 
 the Second, chapter 17. It had been the custom to ascertain the truth 
 of this excuse by the writ of faciando videre, by which the fact of the bed- 
 sickness was established by eye witnesses. Now it was allowed to the 
 
ESSOIN 579 
 
 demandant to except that the tenant was not sick and the exception 
 could be admitted, and they could try this by the inquest, and the essoin 
 was turned into a default. "And such an essoin shall not lie in a Writ of 
 Right between two claiming by one Descent." [lb., cap. 17.] Chapter 
 27 of the statute cured a defect in the Statute of Westminster the First, 
 which, as we have seen, allowed only one essoin; the time when the 
 essoin could be had was not precisely stated, so that advantage was taken 
 of this, and much inconvenience was caused, so now the essoin was allowed 
 only on the next day after the inquest. This, again, was considered to 
 relate only to personal actions. [Reeves, Vol. 2: 185.] Neither was any 
 essoin allowed after a day given in prece partium. [Cap. 27.] In Chap- 
 ter 28, the essoin denied to the tenants in Westminster the First is also 
 denied to the demandant. 
 
 In 1318 [12 Ed. II] we have the Statute of Essoins. Reeves says 
 [Reeves: Hist, of Eng. Law, Vol. 2: 303] this statute "seems to be 
 mostly a declaration of the common law," although some of its provi- 
 sions were contrary to the common law. It declared that an essoin 
 "does not lie where the land is taken into the king's hands, nor where the 
 party is distrained by his land; nor where judgment was given there- 
 upon, if the jurors came, nor where the party was seen in the court. 
 The essoin of ultra mare was declared not to lie where another time the 
 party hath been essoined de malo veniendi. It did not lie where the 
 party had essoined himself another day, nor where the sheriff was com- 
 manded to make the party appear. The essoin de servilio Regis would 
 not lie where the party was a woman unless she were a nurse, a 
 midwife, or commanded by a writ ad ventrum inspiciendum; it did not 
 lie in a writ of dower — the cases show why better than the words of 
 the act — nor because a plaintiff had not found pledges to prosecute 
 his suit. It did not lie when the attorney was essoined; nor when the 
 party had an attorney in his suit; nor where the essoignor confessed 
 that he was not in the king's service; nor where the summons was not 
 returned, or the party not attached because the sheriff had returned 
 non est inventus; nor where the party had already been essoigned de ser- 
 vitio Regis, and had not put in his warrant. It did not lie where one 
 was resummoned in an Assize of Mort d'Ancestor or Darrein Present- 
 ment, or "because such a one is not named in the writ"; or where the 
 sheriff had a precept to distrain the party to come, by his lands and his 
 goods; or where the bishop was commanded to cause the party to 
 appear; or because the term was passed. And it was to be noted that an 
 essoin de servitio domini Regis was to be allowed after the Grand Cape, 
 petty cape, and after distress taken upon the land and goods. This 
 seems to be a pretty extensive summary, and that more should not be 
 needed, yet there is still another "fragment of old law" entitled Statutum 
 de visu terra [Stats, at Large, Vol. 1, p. 399] in which it is provided 
 that "Essonium de servitio domini Regis" should not lie in a writ of 
 Novel Disseisin, a writ of Dower unde nihil habet, nor in an appeal for the 
 death of a man. 
 
580 
 
 STATHAM 
 
 In 1335 [9 Ed. Ill, St. 1, cap. 3] we have an enactment forbidding 
 executors to fourch by essoin, showing that men were still claiming 
 double rights by virtue of a combination of interests. It seems very 
 natural in these days. They were forbidden by this statute to have 
 more than one essoin before appearance, and but one after appearance; 
 that is, no more than their testator would have had. 
 
 Essoins continued to be allowed and were a part of the practice of the 
 courts for over four centuries. By the act of 2 Geo. IV & 1 Will., cap. 
 70, par. 6, the practice was greatly modified. 
 
 A modern example of an argument upon essoins after the act of 
 George IV is to be found in 1 Dowling's Practice Reports 448 (1832). 
 The courts now sit exclusively on the days of the term, or on such days 
 as are fixed for sittings in banc, and the old term "essoin" is no longer 
 heard, although as much cannot be said for the word delay, for justice 
 still moves slowly, and litigants still seek to defer a final judgment. 
 
 ESTRAY 
 
 Hilary 
 31 Ed. Ill 
 
 statham 79 a. (1) A man Cannot entitle himself to an estray until 
 the year and the day be passed without a claim upon the 
 part of anyone. For he in whom the property is can take 
 it within the year. Yet, query, if he should make satis- 
 faction for his waif first, etc.? 
 
 Fitzh : Estray et Wayff , 4, 
 
 Case 1. 
 
 There is no printed year of 31 Ed. III. 
 has the case. 
 
 ESTREPEMENT 
 
 Hilary 
 
 21 Ed. III. 
 
 Case 1. 
 
 (1) One showed how another recovered lands by a 
 verdict of the Assize. And after the verdict the tenant 
 had cut wood, and he who had recovered prayed a writ of 
 Estrepement. Sharshull : For all damage that the defend- 
 ant has done to you, since the verdict and before judgment, 
 you shall have a writ to the sheriff to inquire [as to the 
 waste], and to that the defendant shall have no answer; 
 but to a writ of Estrepement he shall have an answer, so 
 the other is the better remedy, wherefore sue such a writ, 
 etc. 
 
 Reported in Y. B. Hilary (additional), 21 Ed. Ill, p. 51, pi. 
 also Fitzh: Estrepement, 8. 
 
 4. See 
 
ESTREPEMENT 581 
 
 (2) In f ormedon, pending the issue the demandant sued Mkhaeiis 
 an estrepement, etc. And pending the issue the defendant ^^ ^^- "^• 
 committed waste, wherefore he was in contempt. Fynch- 
 
 eden: You cannot have this action until the issue is tried, 
 for it may be found against you, and the king can sue for 
 the contempt, wherefore take nothing, etc. 
 
 There is no printed year of 32 Ed. III. Fitzh: Estrepement, 7, has Case 2. 
 the case in a longer digest than that of Statham. 
 
 (3) In a writ of estrepement, the defendant told how Michaeiis 
 the land was held in socage, and that one Alice, his mother, ^ "^"' ^^' 
 seised the land as next friend, and made the waste, without 
 
 this that we have made waste or estrepement. And it 
 was the opinion of the Court that this was a good plea, 
 since there was no default in him. Query, what remedy 
 there is for the plaintiff? 
 
 Reported in Y. B. Mich. 3 Hen. VI, p. 16, pi. 22. (The point Case 3. 
 is digested on p. 17.) See also Brooke, Estrepement, 3; and Fitzh: 
 Estrepement, 4. 
 
 EXCOMMENCEMENT 
 
 (1) Where an action is brought by a commonalty statham 79 b. 
 where outlawry is alleged in one of them, the whole writ Michaeiis 
 shall abate : By the opinion of Willoughby. And this in a 
 Rescous. 
 
 Reported in Y. B. Mich. 30 Ed. Ill, p. 15, pi. 16. See also Fitzh: Case 1. 
 Excommengement, 7, who goes directly to the point, which is the 
 excommunication, which, being alleged as to one of the community, 
 was not proved as to that one or any of them. 
 
 (2) In annuity, the defendant said that the plaintiff was Michaeiis 
 excommunicated and he showed the letters of the commis- 
 sary of the Bishop of S. Fortescue: No letters are of 
 record here, except the letters of the bishop himself, for the 
 letters of the pope shall not serve you here, wherefore it 
 
 was adjudged that the letters should not be allowed. 
 
 No case of excommunication has been identified in Y. B. Mich. 19 Case 2. 
 Hen. VI, but a like case is found in Y. B. 20 Hen. VI, p. 1, pi. 1. 
 
582 
 
 STATHAM 
 
 Paschal 
 3 Hen. VI. 
 
 Case 3. 
 
 HUary 
 11 Ric. II. 
 
 Case 4. 
 
 (3) In detinue, the garnishee came and said that the 
 plaintiff was excommunicated, and he had the plea. But 
 yet, query, for it has been held that the vouchee shall 
 not say that the demandant is excommunicated, for the 
 tenant has admitted him to be able. So it seems here. 
 But the vouchee can say that the tenant was excommuni- 
 cated, etc. Query? 
 
 Reported in Y. B. Paschal, 3 Hen. VI, p. 39, pi. 6. The beginning of 
 this case is reported in Y. B. Hilary Term of the same year, p. 35, pi. 31. 
 See also Brooke, Excommengement, 1. 
 
 (4) When the defendant says that the plaintiff is ex- 
 communicated, and produces the letters of the bishop, the 
 judgment is that the defendant shall go to God, and then 
 when the plaintiff is assoiled he shall have a resummons or 
 attachment, to wit: whatever the process was at the time, 
 etc., for the writ does not abate, and so he cannot bring a 
 new writ, but process shall issue upon the same writ, etc. 
 
 There is no printed Year Book for 11 Ric. H. Fitzh: Excommenge- 
 ment, 25, has the case. 
 
 Paschal 
 20 Hen. VI. 
 
 (5) In trespass, the defendant said that after the last 
 continuance the plaintiff was excommunicated at the suit 
 of the Archbishop of C, for various contumacies which he 
 committed in his Court, upon which the said archbishop 
 had signified to the king in his Chancery, by these same 
 letters, praying power to make the excommunication. 
 And he produced these same letters that the archbishop 
 wrote to the king, witnessing the excommunication, etc. 
 Markham : These letters are good to secure a writ to the 
 Chancery to take him, but not here, unless the bishop 
 writes to you, etc. And also he does not make the date of 
 the excommunication certain, for if the excommunication 
 be before the last continuance he has passed that step. And 
 this was the opinion, etc. Wherefore, upon another day 
 the defendant brought the letters of the bishop directed 
 to the same justices, witnessing as above. And the day 
 of the excommunication was made certain. Mark- 
 ham showed how he was excommunicated for his non- 
 
EXCOMMENCEMENT 583 
 
 appearance where he, as a matter of fact, had appeared, 
 wherefore he sued an appeal within ten days, according to 
 the law, etc., to the Court of Rome, etc. And he carried 
 the appeal into the Chancery, upon which the king ceased 
 [the process to take him] make execution. And he showed 
 the same appeal to the Court, and prayed that the defend- 
 ant should answer him, etc. Newton: If a man be out- 
 lawed, and sues a writ of Error, still it need not be replied 
 to until it be reversed in fact, because it may be that the 
 judgment will be affirmed, etc. So here. PastoN: But 
 the law of holy church is not so, for when he has sued the 
 appeal he can immediately celebrate mass, and although the 
 sentence of excommunication be affirmed, still it shall only 
 relate to the time of the affirmance, etc. Newton : We will 
 confer with the doctors. And they adjourned, etc. 
 
 Reported in Y. B. Paschal, 20 Hen. VI, p. 25, pi. 12. See also Brooke, Case 5. 
 Excommengement, 3; and Fitzh: Excommengement, 12. 
 
 (6) In an assize, the tenant showed that the plaintiff Michaeiis 
 was excommunicated and he produced the letters of the ^ ^'^' ^^^' 
 Bishop of B, who was named with him in the writ, which 
 letters told how the plaintiff was excommunicated for his 
 contumacy at the instance of him who answered as tenant. 
 
 And because the action was brought against them, they 
 were obliged to answer over. And so see that if the bishop 
 be named, he can sue, notwithstanding, etc. And for that 
 reason he named the bishop in the writ, etc. 
 
 Reported in Y. B. Mich. 8 Ed. Ill, p. 69, pi. 37. See also Fitzh: Case 6. 
 Excommengement, 2. 
 
 (7) In an attachment upon a prohibition the defend- ^^®^|!^' . 
 ant showed letters of the bishop proving the excom- 
 munication of the plaintiff. The plaintiff showed that 
 
 he sued an appeal to the Court of Rome, and the whole 
 cause was reversed, etc. And he produced the letters of 
 the Pope proving this. But it was not allowed because 
 the letters of the Pope are not of record here. And they 
 said that he should have made the Pope write to the Metro- 
 
584 STATHAM 
 
 politan to assoil him, and thus be aided by the absolution 
 of the archbishop, etc. 
 
 Case 7. There is no early printed year of 12 Ed. III. The case has not been 
 
 identified in the Rolls Series for that year, or elsewhere. 
 
 ^"'Jy (8) In trespass after the Nisi Prius, on the day in the 
 
 King's Bench, the defendant alleged the excommunication 
 of the plaintiff. And this was received, notwithstanding 
 he had no day, etc. (But I believe the excommunication 
 was after the Nisi Prius.) 
 
 Case 8. There is no early printed year of 19 Ed. III. The case has not been 
 
 identified in the Rolls Series for that year, or elsewhere. 
 
 ESCHETE 
 
 statham 80 a. (1) If a man gives a rent service in tail [to one] who 
 Hilary dies without issue, and the tenant of the lands dies without 
 
 issue, or heir, the donor shall not have a Formedon in the 
 Reverter for the lands, but a writ of Escheat. But if the 
 tenant in tail had been seised as in his escheat, by way of 
 entry, then the donor could have had a Formedon. And 
 this in Whitby s case. 
 
 Case 1. Reported in Y. B. Hilary, 46 Ed. Ill, p. 4, pi. 11. See also Brooke, 
 
 Eschete, 2. Statham abridges the case in such a way as to leave out 
 some of the steps in the case, so that it is scarcely intelligible without 
 the case itself. 
 
 Trinity (2) In a Quarc impedit, it was said by Fvncheden, that 
 
 * ■ ^^^' if land which is held of an honor which is in the hand of the 
 king comes to the king by escheat, and he makes a feoff- 
 ment of it, and does not express by what services it should 
 he held, he shall hold as the tenant held, to wit: of the 
 king as of the honor, etc., and by the same services. But 
 if they come to the king by forfeiture, and the king makes a 
 feoffment, as above, he shall hold of the king as of his 
 crown. But yet, query, if he shall hold by a rent as it was 
 held before, for he held it by knight's service, as the other 
 held it, but not for the same rent, as it seems, etc. 
 
 Case 2. Reported in Y. B. Mich, (not Trinity), 47 Ed. Ill, p. 21, pi. 47. (See 
 
 the end of the case.) See also Fitzh: .Eschete, 11. 
 
ESCHETE 585 
 
 (3) If a rent service be given in the tail, and the tenant Hilary 
 
 OQ "pA TTT 
 
 attorns, and the grantee grants over the services in fee, 
 and the tenant attorns and dies without an heir, so that 
 the lands escheat to the second grantee, and the first 
 gra,ntee dies without issue, the donor shall have a writ of 
 Escheat, and not a Formedon in the Reverter. (But yet 
 it seems that he shall not have any action, because the 
 seignory, and the reversion also, were out of him at the time 
 of the death of the tenant of the land, etc.) 
 
 There is no printed year of 33 Ed. III. Fitzh: Eschete, 9, has the Case 3. 
 case, which agrees word for word with the abridgment of Statham. 
 
 (4) In a writ of escheat, it was alleged that one D held of 
 him and died without an heir. Norton: D had issue A, 
 who entered after the death of D and endowed M, his 
 mother, of the lands now in demand, in the name, etc., 
 and M leased to us her estate in the possession of the said 
 A, by this deed and this release, etc. Judgment if action. 
 Hankford: The plea is double; one, that D had issue 
 who survived him, which had been a good plea by itself in 
 abatement of the writ, for the writ shall be brought on the 
 possession of him who was last seised. Another is the 
 release, etc. Thirning: He means that by the endow- 
 ment of M the possession of A was annulled, so the writ 
 is good ; for if my tenant had issue who survived his father, 
 and died before any possession, I shall not mention him 
 in my writ of Escheat, because he had no estate; and the 
 case is the same here: then the release is his plea, and the 
 other only a convenience [to show] the estate of him who 
 made the release, etc. And the opinion was that the plea 
 was double, because he relied upon the fact that D had 
 issue A, who survived him, as above, and then that A sur- 
 vived him, judgment if action, etc. Horton: He died 
 without an heir, without this that he had any such son. 
 And so note that the "without this" came from the part of 
 the plaintiff. And yet it seems that the tenant should 
 answer to his writ, which alleged that his tenant died with- 
 out an heir, to wit: to say, as before, "without this that 
 he died without an heir." Query? etc. 
 
586 
 
 STATHAM 
 
 Case 4. 
 
 And it was said in the same plea, if the son be attainted 
 of felony in the life of his father, and then the father dies, 
 the lord shall not have a writ of Escheat, but I can enter, 
 etc. 
 
 This case, unfortunately, has no citation in Statham. It has not 
 been identified. 
 
 Hilary 
 34 Ed. III. 
 
 Case 5. 
 
 (5) If my tenant be arraigned for felony and holds him- 
 self mute so that he is dead by torture, I shall not have a 
 writ of Escheat, for no such writ is given to me ; nor in that 
 case will he forfeit the lands, etc. Query, if my tenant has 
 judgment to be hung, and then is delivered to the ordinary, 
 shall I then have a writ of Escheat, etc. ? 
 
 There is no printed year of 34 Ed. III. Fitzh: Eschete, 10, has the 
 
 Note. 
 
 Case 6. 
 
 See as to escheat, in the title of Warranty, Michaelmas, 
 30 Ed. Ill, etc. 
 
 Statham, title of Garrantie, infra, p. 104 b, case 7. 
 
 (6) A man seised of an advowson in gross dies without 
 an heir, who shall have it? etc. The same question [arose] 
 as to a villein in gross, etc. And it seems he is free. The 
 same question arose as to a common, and as to a rent 
 charge. (But in those two cases the land is discharged, 
 as it seems, etc.) 
 
 There is no citation for this case in Statham. It has not been iden- 
 tified. 
 
 fe^Ed ^^^ Escheat for rent was adjudged good, etc. (But 
 
 yet he demanded lands and rent.) 
 
 Case 7. 
 
 Michaelis 
 22 Hen. VI. 
 
 Cases. 
 
 There is no early printed year of 16 Ed. III. The case is given in 
 the Rolls Series, 16 Ed. Ill, Pt. 1, p. 62, case 13. See Fitzh: Eschete, 5. 
 
 (8) If the son is attainted for felony in the lifetime of his 
 father, and purchases a charter of pardon, the writ of 
 Escheat shall be that his father died without an heir. By 
 Newton, in the Exchequer Chamber. 
 
 Reported in Y. B. Hilary (not Mich.), 22 Hen. VI, p. 38, pi. 5. See 
 also Brooke, Eschete, 8. 
 
ESCHETE 587 
 
 (9) In escheat, it is no plea to say that the same tenant Hilary 
 whom he alleged died without an heir, enfeoffed the tenant, ^^ ^'*' ^^^• 
 unless he says "without this," etc. But yet, query? 
 
 There is no early printed year of 16 Ed. III. The point has not been Case 9. 
 identified in the case of escheat in the Rolls Series for that year. 
 
 (10) If a man dies seised of a manor which is part in Hilary 
 
 1 R TTH TTT 
 
 service, one can have a writ of Escheat to demand the land 
 and the rent which is part of the manor, etc. But a rent 
 which is for land held in villeinage he cannot demand, for 
 the freehold of the lands of which, etc., is in the lord, so 
 he is tenant of the lands, etc. (But it seems that in such 
 cases the writ is good for a manor with the appurtenances. 
 But yet it may be that it is not a manor, wherefore, query?) 
 
 There is no early printed year of 16 Ed. III. The point has not Case 10. 
 been identified in the Rolls Series for that year. 
 
 (11) In a writ of escheat it is [not] a good plea to say Michaeiis 
 that the tenant did not hold of the demandant the day the 
 felony was committed, unless he says, "nor ever afterward," 
 
 for if he comes to the tenancy after the felony it escheats, 
 etc. Query, if the lands descended to him after the felony 
 was committed? etc. 
 
 There is no early printed year of 14 Ed. III. The case is reported in Case 11. 
 the Rolls Series, 14 and 15 Ed. Ill, p. 32, case 9. 
 
 (12) The elder son is attainted for felony while his '''.5™'''.- 
 father is living; the lands escheat, and the younger son 
 
 shall have them. 
 
 The case has not been identified in Y. B. Trinity, 13 Ed. II, or in the Case 12. 
 early abridgments. 
 
 (13) If a man be attainted for heresy and burned, to 
 wit: if his lands shall escheat, and if so, if to the king or 
 to the chief lord, since it is a sort of treason? But yet, 
 judgment, for that is not in our law, etc. Query as to 
 men decapitated on the field for treason. And see the 
 Staluium Templariorum, where it was said that it was 
 clearly meant at the time that the lands of the Templers 
 
588 
 
 STATHAM 
 
 Case 13. 
 
 should escheat because of their heresy, etc. Query, if an 
 abbot be attainted for treason, he shall forfeit the lands of 
 the house, as it is said he will forfeit the goods, etc.? 
 Query, if he is deposed pending the suit or after the com- 
 mission of the treason? And if he is, how shall he be 
 attainted, and the whole escheat, as it was said of the 
 Templers? 
 
 There is no citation given for this case in Statham, and it has not been 
 identified. 
 
 The Statute is the Statutum de Terris Tetnplariorum, 17 Ed. II, 
 (1324), Stats, at Large, Vol. 1, p. 385. 
 
 Statham 80 b. 
 
 Michaelis 
 45 Ed. III. 
 
 Case 1. 
 
 Michaelis 
 45 Ed. III. 
 
 ESCHANNGE 
 
 (1) If either of the parties die before the exchange is 
 fully executed on both sides, the exchange is void. As 
 appeared in a Quare Impedit, etc. 
 
 The case has not been identified in Y. B. Mich. 45 Ed. III. It may 
 be the case digested by Fitzh: Exchange, 10. 
 
 (2) See good matter as to Exchange, Michaelis 45, in an 
 Assize, where it seems clearly that an exchange can be made 
 without a deed, for if any words be in the deed, to wit: 
 "dedi" or "concessi," that is no exchange but a feoffment. 
 For if he vouches to warranty and shows a deed of the 
 ancestor for the exchange which contains "dedi" and "con- 
 cessi" he has failed of his voucher, etc. Query, if a man 
 cannot reserve a rent upon an exchange without a deed 
 to the other parceners, etc., (in the same plea). For the law 
 will not force them to make an exchange, etc. A man 
 cannot exchange lands for rent (in the same plea) because 
 they are of diverse natures. And also he cannot have 
 that rent except by the act of another person, to wit: the 
 attornment of the tenant, etc. (In the same plea.) A 
 man cannot exchange lands for lands in another county, 
 etc. And (in the same plea) if a man exchanges lands for 
 lands, and one is not of so great a value as the other, he 
 can give rent which amounts to the value, etc., but he ought 
 
ESCHANNGE 589 
 
 to have a deed for the rent. Query, then, if it is an ex- 
 change? And query, if a man can exchange rent for rent, 
 etc.? 
 
 And it was said in the same plea, when a man makes 
 an exchange of lands in the right of his wife, that she shall 
 have a Cui in Vita, since that is a discontinuance. And 
 in the same manner the issue in the tail can have a Formedon 
 and although assets by descent be pleaded in bar, he can 
 waive the assets, and have judgment to recover the other 
 lands tailed. As appeared Hilary, 14 Hen. VI. 
 
 The case has not been identified in Y. B. Mich. 45 Ed. III. Fitzh: Case 2. 
 Exchange, 1, appears to have the case. 
 
 See as to exchange, in the title of Dower, Hilary, 10 Note. 
 Ed. HI. 
 
 The case in Hilary, 10 Ed. Ill, does not appear in that title in 
 Statham. 
 
 (3) In a cui in vita, the tenant said that the demandant Trinity 
 and her husband made an exchange of this land and other 
 lands of which the demandant was seised. And notwith- 
 standing they were equal in value, yet it was adjudged a 
 good bar. In a writ of Entry. 
 
 Reported in Y. B. Trinity, 10 Ed. II, p. 318, pi. 10. See also Fitzh: Case 3. 
 Exchange, 13. 
 
 (4) Exchange was adjudged a good plea in bar, in a writ TP^^j 
 of Right, without concluding to the right. 
 
 There is no early printed Year Book of 17 Ed. I. The case has not Case 4. 
 been identified elsewhere. 
 
 ENCUMBENT 
 
 (1) The incumbent shall be charged for damages where Michaeiis 
 he answers to the title of the plaintiff. *^ ^"^^ "^• 
 
 See, in the same plea, in what cases the incumbent shall 
 plead. 
 
 The case has not been identified in Y. B. Mich. 45 Ed. Ill, or in the Case 1. 
 early abridgments. 
 
590 
 
 STATHAM 
 
 Paschal 
 50 Ed. III. 
 
 Case 2. 
 
 Michaelis 
 1 Hen. V. 
 
 Case 3. 
 
 Note. 
 
 (2) The statute of Edward, Anno 25, cap. 7, says that 
 in every writ where the right of the queen [king] shall be tried, 
 the incumbent shall have an answer to the title of the 
 king; and this applies as well in a Scire Facias out of a judg- 
 ment given in a Quare Impedit as in a Quare Impedit, etc. 
 
 And it was said in the same plea, that the Scire Facias 
 is brought against the incumbent leaving out the patron, 
 because the issue in a Quare Impedit is between the king 
 and the incumbent, for default of a patron, etc. Which see. 
 
 The case has not been identified in Y. B. Paschal, 50 Ed. III. See 
 Fitzh: Encumbent, 10. 
 
 A Statute for the Clergy, 25 Ed. Ill (1350), cap. 7, Stats, at Large, 
 Vol. 2, p. 38 (42). 
 
 (3) In a scire facias brought by the king against one 
 H, out of a recovery in a Quare Impedit, to have execution, 
 etc. Cheyne: Judgment of the writ, for this H is the 
 incumbent, and there is no patron named, etc. Norton: 
 From the fact that the king had judgment to recover, he 
 was the patron, etc. Wherefore answer, etc. 
 
 Reported in Y. B. Trinity (not Mich.), 1 Hen. V, p. 7, pi. 2. See 
 also Fitzh : Encumbent, 9. 
 
 See as to incumbent, in the title of Quare Impedit; and 
 also in the title of Darrein Presentment. 
 
 See Statham, title of Quare Impedit, infra, pp. 146 a-148 b, and 
 Statham, title of Darrein Presentment, supra, p. 76 b. 
 
 Hilary 
 
 33 Ed. in. 
 
 ENOUESTE« 
 
 statham 81 a. (1) Where the defendant by his plea admits the action 
 and the demandant avoids it; as if he pleads the release 
 of the plaintiff, or an arbitration, or something of that sort, 
 and the defendant makes default; in all these cases the 
 plaintiff shall have judgment to recover, without takitig 
 the inquest, because the action is admitted, etc., and he 
 cannot maintain the issue. But where he traverses the 
 action upon which they are at issue, and then he makes 
 
ENQUESTE 591 
 
 default, he shall only have the inquest for his default ; as if 
 in debt upon an obligation, he says that it is not his deed, 
 etc. Simile, Hilary, 42, and Trinity, 45 Ed. III. 
 
 There is no printed year of 33 Ed. III. The case has not been iden- Case 1. 
 tiiied in the early abridgments. 
 
 (2) In dower where they were at issue [upon] "Out of his Paschai 
 fee," etc., and on the day of the Venire Facias the avowant 
 
 did not come ; the inquest was taken for his default, albeit 
 after the avowry he had become an actor, etc. 
 
 There is no early printed year of 20 Ed. III. The case has not been Case 2. 
 identified in the Rolls Series for that year. Brooke, Enquest, 71; and 
 Fitzh: Enquest, 11, have the case. 
 
 (3) If the parties were agreed, after all the jurors had Mkhaeiis 
 come, and before they were sworn, still the justices will 
 
 take the inquest for the advantage of the king. 
 
 And it was said in the same plea, that if the inquest 
 remains for default of jurors, that the whole inquest shall 
 be amerced, as well those who appear as those who make 
 default. (Which is not reasonable, etc.) 
 
 Reported in Y. B. Mich. 4 Hen. VI, p. 6, pi. 19. See also Brooke, Case 3. 
 Enquest, 58. The case is a very interesting one to the student of trial 
 by jury. One of the jurors was finally withdrawn so that they could 
 adjourn the inquest. 
 
 (4) In a writ of entry against two, who traversed the Michaeiis 
 action of the demandant, upon which they were at issue, i2Hen. vi. 
 at the Nisi Prius one of them made default. Paston: 
 
 You cannot take the inquest, for you should record the 
 default. And upon this, in the Bench there was issued a 
 petty capias against him who made default, and when he 
 came at the petty cape and saved his default the whole 
 writ abated. And if the demandant releases his default, all 
 the writ abates. And also both tenants are parties to the 
 issue, so they cannot take the inquest. In which Babyng- 
 TON concurred. 
 
 Reported in Y. B. Hilary (not Mich.), 12 Hen. VI, p. 6, pi. 5. See Case 4. 
 also Brooke, Enquest, 78; and Fitzh: Enquest, 56. 
 
 (5) When the inquest was sworn, the plaintiff commanded ^'^g^' yj 
 his servant to guard them, and the defendant commanded 
 
592 
 
 STATHAM 
 
 Case 5. 
 
 Note. 
 
 Trinity 
 16 Ed. III. 
 
 Case 6. 
 
 Michaelis 20, 
 & Hilary 15, 
 Ed. III. 
 
 Case 7. 
 
 his servants to guard them ; and they did this in an Assize 
 at Southwark, etc., where it was held that where an inquest 
 comes from two or three franchises, or hundreds, that two 
 in one franchise or hundred are sufficient, so that there 
 are four from both, etc. Query? 
 
 There is no printed year of 26 Hen. VI. The case has not been 
 identified in the early abridgments. 
 
 See as to inquest, in the title of Repeal — good matter — 
 Hilary, 14 Hen. VI, and in the title of Scire Facias, Mich. 
 12 Hen. VI. And also in the title of Challenge, etc. 
 
 See Statham, title of Repelle, infra, p. 163 a, case 1. Title of Scire 
 Facias, infra, p. 161 b, case 19. And title of Challenge, supra, pp. 40 b- 
 41b. 
 
 (6) In an appeal, the defendant pleaded not guilty, and 
 was allowed mainprise, and on the day, etc., he made 
 default. But the inquest was not taken for the default,* 
 but a capias and exigent, etc. Query, what the process 
 shall be against his mainpernors? etc. 
 
 There is no early printed year of 16 Ed. III. The case is printed 
 in the Rolls Series, 16 Ed. Ill, Pt. 2, p. 216, case 64. 
 
 (7) In account, the defendant said that he had fully 
 accounted, upon which they were at issue. And at the 
 Venire Facias the defendant made default, wherefore a 
 Capias ad Computandum was awarded, without taking 
 the inquest upon his default, etc. Query as to this? For 
 it seems by the Statute which gives him "one essoin or one 
 default" that process should have issued, and he should 
 not have been condemned for the first default, etc. And 
 it was also wrong to condemn him without taking the 
 inquest, unless the action be founded upon a specialty, etc. 
 
 There are no early printed years for either of these terms. The 
 case has not been identified in the Rolls Series, 15 Ed. Ill, but is re- 
 ported in the Rolls Series, 20 Ed. Ill, Pt. 2, p. 498. The case says, 
 "Because, on his first plea he had confessed the receipt of moneye, 
 inasmuch as he said that he had fully accounted, and he did not pursue 
 that issue, therefore a capias," etc. 
 
 ' Because the judgment affected life and limb. 
 
ENQUESTE 593 
 
 The Statute is that of Marlbridge, 52 Hen. Ill (1267), cap. 13, Stats, 
 at Large, Vol. 1, p. 55 (66). 
 
 (8) Justices of gaol delivery can take a panel of the Anno 
 sheriff without making a precept on him ; but justices of ^ ^^^' ^' 
 Oyer and Terminer cannot, etc. And the difference is 
 because the general command is made to the sheriff by the 
 justices of gaol delivery to make the jury come, against 
 
 their coming, etc. But if they have a special commission 
 it is otherwise, etc. In the Exchequer Chamber, by 
 Hankford. 
 
 There is no printed year of 4 Hen. V. Fitzh: Enquest, 55, has the Case 8. 
 case. 
 
 (9) Where process was awarded against the first jurors Anno 
 upon an issue, to wit: "Not comprised." When the first ^"' 
 jurors come they will not be part of the number of twelve, 
 
 but will be joined to the inquest, in the same manner as 
 witnesses will be. If some come and some do not, those 
 who come shall be joined to the inquest, and if the sheriff 
 returns that all are dead, the inquest shall be taken without 
 doing more. And all these cases were decided before 
 Skrene at Exeter, at the Assizes. 
 
 The case has not been identified in V. B. Anno 5 Hen. V. Fitzh: Case 9. 
 Enquest, 54, has the case. 
 
 ** In the Enquest, or Inquest, as we now usually have it, we seem to 
 find, or it is generally conceded that we find, the outgrowth of the Prank- 
 ish inguisitio. [P. & M. Hist, of Eng. Law, 2d ed., Vol. 1: 140-141.] 
 This being accepted as a fact, we have to concede, as Maitland says, 
 that this "palladium of our liberties," the jury, has grown up out of 
 French, not English, soil. It is not so difficult for Americans to accept 
 this fact; we can realize better, perhaps, than any other people how 
 much good can spring from imported seed. If there had not been much 
 that was fine in the French law and custom, much less that was destined 
 to grow and flourish would have sprung up in alien soil; it is only strong 
 and vigorous seed that can germinate in new soils, under new suns, in 
 new conditions. 
 
 When we find the title of Enquest in Statham and no title of Jury, 
 we are reminded that we have gotten pretty well back into the 
 beginnings. Yet, of course, the jury was a well established fact in our 
 earliest Year Books. It is only that when one was preparing titles in 
 
594 STATHAM 
 
 the later fourteen-hundreds one naturally included the inquest and left 
 out the jury, because the inquest was the more familiar fact. 
 
 "From the beginning of the thirteenth century the inquisition, mainly 
 dying slowly out in France, began its peculiar, astonishing development 
 in England." [Thayer: Evidence, p. 50.] Glanville and Bracton know 
 both inquest and jury. (See especially Bracton: Note Book, Inquest, 
 83, 130, 369, 414, 478, 632, 718, 1135; and Jury, eighty or more cases.) 
 "There come to be four actions in which a plaintiff may obtain a royal 
 writ which will direct that there shall be an inquest to reply to the ques- 
 tion of the writ. These are the four petty assizes: The Assize Utrum; 
 Novel Disseisin; Mort d'Ancestor; Darrein Presentment." [P. & M. 
 Hist, of Eng. Law, 2d ed.. Vol. 1: 149.] The assize frequently turns 
 into a jury. [lb.] The jury grows faster than the assize; slowly the 
 inquest yields ground, yet never wholly loses; our inquest of to-day 
 connects us lineally with the old procedure. 
 
 The cases in our abridgment are too few to give us much light on this 
 development; we might take each case as typical and as a text for the 
 development of that part of the subject. A slight text can be made to 
 support a long and heavy sermon. Further, it would seem that with 
 Thayer's great book on Evidence to enlighten us, with the Germans to 
 plod and plough for us, the matter of the inquest should all stand clearly 
 before us. Yet it is not wholly so; the history of the inquest as it devel- 
 oped into the jury may be clear; the history of the inquest as it con- 
 tinued side by side with the jury does not seem clear. That it is not so 
 small a matter as to be made clear in a note to our title is apparent. 
 We have in this abridgment the title of inquest; the inquest, although 
 the forerunner of the jury, is not the jury even though at times they 
 apparently amalgamate. Always there is the subtle difference, and 
 ultimately, differentiation. This is the reason why the title is of inter- 
 est to the student of legal history; one of the oldest and supposedly 
 most widely-known subjects has not yet had its full working out. 
 
 ESTOPPELL 
 
 statham 81 b. (1) In a sciTB facias out of a fine, it was alleged that the 
 Paschal land was given to one J, and K, his wife, in tail, the remainder 
 
 to the plaintiff, and that J and K were dead, etc. The 
 tenant said that he was their issue, etc. And the demand- 
 ant said that he was a bastard. And the opinion was 
 that he should be estopped from saying generally that he 
 was a bastard, without showing special matter, inasmuch 
 as he had admitted the marriage, etc. 
 Case 1. Reported in V. B. Paschal, 40 Ed. Ill, p. 16, pi. 6. 
 
ESTOPPELL 595 
 
 (2) In a writ of cosinage of the seisin of one U, his Michaeiis 
 grandfather, the tenant estopped him from saying that 
 
 he died seised, because the reversion was found between 
 the father of the tenant and the grandfather of the demand- 
 ant, in an Assize ; although the demandant did not claim the 
 land as of the possession of his grandfather, etc. 
 
 Reported in Y. B. Mich. 40 Ed. Ill, p. 38, pi. 14. See also Brooke, Case 2. 
 Estoppel, 27; and Fitzh: Estoppel, 1. 
 
 (3) In a scire facias, the tenant pleaded the release of Hilary 
 the demandant, etc., who said that it was made by duress 
 
 of imprisonment at D, etc., and afterwards he was non- 
 suited. And in another Scire Facias he said that it was 
 made by duress at F. And it was the opinion that he should 
 not have the plea, etc. Contrary, Hilary, 4 Hen. IV, in 
 Debt, etc. But he shall not say in the second writ, "Not 
 his deed," etc. Query as to this matter, for there seems 
 a distinction where the plea comes from the part of the 
 plaintiff and where from the part of the defendant, for the 
 nonsuit is made on the plaintiff, etc., in which case he shall 
 be estopped, etc. 
 
 Reported in Y. B. Hilary. 45 Ed. Ill, p. 2, pi. 4. See also Brooke, Case 3. 
 Estoppel, 39; and Fitzh: Estoppel, 197. 
 
 (4) In a quare impedit, the plaintiff made his title by ^^J 
 grant from the defendant of the next vacancy, etc. The 
 tenant said that at the time, etc., he was under age. Ham : 
 
 To that you shall not be received, for on such a day you 
 sued livery out of the' Chancery, as of full age. (And he 
 showed the record.) And after that time you made the 
 deed, judgment, etc. And it was the opinion that this was 
 an estoppel, etc. For various reasons. 
 
 The case has not been identified in Y. B. Hilary, 46 Ed. Ill, or in the Case 4. 
 early abridgments. 
 
 (5) A woman brought a Scire Facias to have execution g^^^g^^'jjj 
 on a recovery in a writ of Dower. Skipwith: Execution 
 
 you should not have, for this very person against whom you 
 recovered, after the recovery assigned to you the manor 
 
696 STATHAM 
 
 of H, in allowance, etc., to which you agreed, judgment, 
 etc. BiRTON: Since you do not show anything for the 
 agreement, judgment, etc., for your feoffor could not estop 
 you without a specialty, against this matter of record, 
 nor consequently, you, etc. And the opinion was so, etc. 
 
 Case 5. There is no printed year of 31 Ed. III. The case has not been iden- 
 
 tified in the early abridgments. 
 
 Trinity (6) Ih a fomiedon brought by two sisters against one H, 
 
 31 Ed. III. ^jjQ pleaded that he did not give; and at the Nisi Prius 
 he pleaded that one of the demandants had married since 
 the last continuance. Ready. And the other said the 
 contrary, to wit: that she was single. And on the return 
 of the Venire Facias he made default, wherefore the petty 
 cape issued for the entirety, on which day he cast a 
 protection. And then the demandants sued a resummons, 
 on which day he made default, wherefore the petty cape 
 issued, on which day he came. And then that demandant, 
 who the tenant alleged had married, said that she would 
 release her default, and prayed process against the jury. 
 Pershay: That you shall not have, for after the last con- 
 tinuance you brought a writ of Trespass against one F, 
 and you named the woman F, and at the Capias the sheriff 
 returned that F could not be found, and that he had taken 
 your body; on which day a protection was produced by 
 your husband, and it was allowed, and inasmuch as you 
 suffered the protection to be allowed, and the plea was put 
 without day for both, where if you had not been his wife 
 it would not have been put without day, except for himself, 
 and you could then have abated our writ; and you did not, 
 judgment, etc. And it was debated whether that estoppel 
 would estop both the plaintiffs or not. And then Thorpe 
 said that the process was badly awarded. For, first; the 
 petty cape should have been awarded only for half; and 
 then, in accordance with that, the resummons should have 
 been several, to wit: each of them resummoned for the 
 half; for if it had been found against the tenant, to wit: 
 the last issue, he would lose only the half. And then it 
 seems that the first issue would be between the other 
 
ESTOPPELL 597 
 
 demandant and the tenant, for if the last issue had been 
 found against the demandant, the writ would not abate, 
 except as to him; no more than as if she had been non- 
 suited, etc. And the opinion was that the resummons was 
 badly sued, etc., wherefore Thorpe said that it was well 
 to begin now where the mistake began ; that is, at the petty 
 cape. (But that could not be, for all that which was 
 before the resummons was discontinued, etc.) 
 
 There is no early printed year of 31 Ed. III. The case has not been Case 6. 
 identified in the early abridgments. The language of the case is very 
 condensed, but it conveys the sense, and I have not thought it best to 
 extend it in many cases. 
 
 (7) An assize was brought for tenements in Danby, and Hilary 
 the tenant said that the fine was levied between the father 
 
 of the plaintiff and one A, by which fine your father alleged 
 the same tenements to be in Dauley, judgment, etc. And 
 because it might be that it was known by both names, the 
 writ was adjudged good. (But it seems that the plea is 
 good, and that the plaintiff shall say that it is known by 
 both names, and thus the writ shall be good, etc.) 
 
 The case has not been identified in Y. B. Hilary, 6 Ed. Ill, unless it is Case 7. 
 the case reported in that year and term, p. 1, pi. 2. It is an Assize of 
 Novel Disseisin, with a misnomer of Clovebure, Clanbery, or Clambery. 
 But the point as digested is not clearly made in the reported case. 
 
 (8) In a praecipe quod reddat, the tenant alleged joint Michaeiis 
 tenure, by a deed. The demandant said that as to that 
 
 he should not be received, for formerly we brought a Prcecipe 
 guod Reddat against the same person who is now tenant, 
 and his wife. And the wife made default after default, 
 and he who is now tenant said that he was tenant of the 
 entirety, without this, etc. And we maintained our writ, 
 and pending the issue the wife died, wherefore the writ 
 abated, and we have now freshly brought this writ, judg- 
 ment, etc. And it was the opinion that it was a good plea, 
 etc. 
 
 The case has not been identified in Y. B. Mich. 8 Ed. Ill, or in the Case 8. 
 early abridgments. 
 
598 
 
 STATHAM 
 
 Michaelis 
 19 Ed. III. 
 
 Case 9. 
 
 (9) In cosinage, the tenant demanded judgment of the 
 writ, for formerly the demandant brought another such 
 writ against our father and named him J, son of H, and 
 now he names him J, son of M. And our father traversed 
 his action and died, wherefore the writ was abated, judg- 
 ment, etc. And the writ was adjudged good, etc. 
 
 There is no early printed year of 19 Ed. III. The case has not been 
 identified in the Rolls Series for that year, although there is a curious 
 case printed in that volume (p. 332), which in part resembles this case. 
 
 Michaelis 
 19 Ed. III. 
 
 Case 10. 
 
 (10) One brought formedon as son of H. Seton: 
 Your father levied a fine by the name of F, to one D, 
 whose estate, etc., judgment if against, etc. And the plain- 
 tiff averred that he was named H; and this was received 
 because he demanded only the fee-tail, in which case he 
 did not claim by him, etc. 
 
 There is no early printed year of 19 Ed. III. The case has not been 
 identified in the Rolls Series for that year, or in the early abridgments. 
 
 Hilary (n) In formcdon in the Reverter against one A for a 
 
 IS PH ITT ' 
 
 gift made by U, the grandfather of the demandant. Shar- 
 SHULL : One F was seised and enfeoffed the said U, your 
 grandfather, and K his wife, in fee, which U gave, etc., and 
 statham 82 a. after the death of U, K brought a Cui in Vita qua clamat 
 eius jus et hereditate sua against one who vouched to war- 
 ranty this same person who now demands, as heir of U, 
 under age. Wherefore by the Statute which says, "Ex- 
 pectet emptor," etc., it was adjudged that she should recover 
 immediately; wherefore she entered and enfeoffed one H, 
 whose estate we have; judgment if action, etc. Gavne: 
 This same K had only a life term, and we do not think 
 that by that recovery you shall oust us from claiming the 
 estate of our grandfather by the tail, etc. Kelshull: To 
 that you shall not be received against the recovery of your 
 ancestor whose heir you are, by which she recovered a 
 fee simple. And it was not allowed, because he could 
 not claim anything by the said K, but by another ancestor, 
 etc. 
 
ESTOPPELL 599 
 
 There is no early printed year of 18 Ed. III. The case is printed Case 11. 
 in the Rolls Series, 17 & 18 Ed. Ill, p. 574, case 31. There are minor 
 differences, but on the whole the case and the abridgment agree. 
 
 Statute of Westminster the Second 13 Ed. I (1285), cap. 40, Stats, 
 at Large, Vol. 1, p. 163 (218). 
 
 (12) One sued a scire facias upon a recognizance in the Michaeiis 
 Chancery against one who pleaded the release of the ^^ ^^- ^^^■ 
 plaintiff made after the recognizance. And the plaintiff 
 
 said, "Not his deed"; upon which they were at issue. And 
 the record was sent to the King's Bench for trial, and at 
 the Venire Facias the plaintiff was nonsuited; and then 
 be brought another Scire Facias in the King's Bench, 
 because the record was there. And then the plaintiff 
 said that the deed was not a sufficient answer to that, 
 because it was erased. Norton: To that you shall not be 
 received, for when you said, "Not your deed," you affirmed 
 the deed to be sufficient, etc. But yet he was received 
 to that. And because it appeared to the justices that the 
 deed was erased, they committed him to prison; just as 
 where a man denies his deed, etc. And see that it is 
 reasonable that there be no estoppel in that case, for the 
 matter appeared in the deed, etc. 
 
 The case has not been identified in Y. B. Mich. 24 Ed. Ill, or in the Case 12. 
 early abridgments. 
 
 (13) See by Grene, in a writ of Mesne, that if a man Michaeiis 
 pleads a plea which is traversed and found against him, 
 
 that all the circumstances of the deed, and everything 
 comprised within the same deed which is in his plea, shall 
 be held to be admitted by him, notwithstanding the issue 
 was only taken upon one point; as if I plead the feoffment 
 of your ancestor, with warranty, and assets by descent, 
 and you say, "Nothing by descent," and it is found against 
 you, all shall be held as admitted by you. And if it be 
 found for you, nothing shall be held as admitted by you. 
 All the same these matters are to be distinguished. 
 
 Reported in Y. B. Mich. 30 Ed. Ill, p. 21, pi. 38. The latter part Case 13. 
 of the digest is merely spoken in the course of the argument by 
 Grene, and makes no part of the case. 
 
600 
 
 STATHAM 
 
 Michaelis 
 30 Ed. III. 
 
 Case 14. 
 
 (14) In a praecipe quod reddat, the tenant vouched 
 one J to warranty. Seton: He whom you vouch, etc. 
 Fyncheden: To that you shall not be received, for you 
 yourself previously brought such a writ against our father 
 for the same lands, who vouched the same father, and you 
 accepted him, and then our fatTier died, judgment if, etc. 
 Thorpe: You cannot estop him from having the counter- 
 plea, wherefore say something else, etc. 
 
 Reported in Y. B. Mich. 30 Ed. Ill, p. 24, pi. 49. See also Fitzh: 
 Estoppel, 159. 
 
 Michaelis 
 3 Hen. IV. 
 
 Case 15. 
 
 (15) In a writ of dower the tenant said, "Your husband 
 was never seised so that he could endow her." Mark- 
 ham: To that you shall not be received, for our husband 
 by his deed indented, which is here, leased the same lands 
 to you for the term of your life ; judgment if against, etc. 
 HoRTON : Inasmuch as you are a stranger to the deed, judg- 
 ment, etc. And suppose that my tenant for life leases his 
 lands for the life of the lessee, although my reversion be 
 discontinued, still my tenant for life shall not have such 
 an estate as that his wife shall be endowed; and it may 
 be that your husband had merely a life term, etc. 
 
 Reported in Y. B. Mich. 3 Hen. IV, p. 6, pi. 27. The digest mixes 
 up the observations in the latter part of the case, but the result seems 
 clear enough. See also Brooke, Estoppel, 51; and Fitzh: Estoppel, 93. 
 
 Michaelis 
 14 Hen. VI. 
 
 Case 16. 
 
 (16) In trespass, the defendant said that one H was 
 seised and leased to the father of the plaintiff, by his deed, 
 for a term of twenty years. And after the term was ended 
 this same H entered, and we came in aid of him and gave 
 color to the plaintiff as heir, etc. C haunt : Our father died 
 seised in fee. Ready. Newton: You are estopped from 
 claiming any other estate than by the release, for your 
 father was estopped, etc. Paston: You who came in aid 
 of the said H cannot estop him, for you are a stranger to 
 the deed. Which the Court conceded, etc. But yet, 
 query? 
 
 The case has not been identified in Y. B. Mich. 14 Hen. VI, or in the 
 early abridgments. 
 
ESTOPPELL 601 
 
 (17) In waste against one J, it was alleged that he held Michaeiis 
 for a term of life of the heritage of the plaintiff, by the *^ ^^' "'• 
 assignment of U, son and heir of H. J said that one F was 
 
 son and heir of H and not of U. Ready. Prisot: To that 
 you shall not be received, for by this deed indented, which 
 is here, you recited that whereas U, son andheir of H, granted 
 to us your reversion, and by the same deed attorned to 
 us, judgment, etc. Belknap: That recital or the attorn- 
 ment will not oust you of the averment, no more than if 
 I recite that one H was seised of lands and I released to 
 him; yet afterwards I shall say that at the time, etc., he 
 had nothing in the lands, etc. And they adjourned, etc. 
 
 Reported in Y. B. Paschal (not Mich.), 49 Ed. Ill, p. 14, pi. 8. See Case 17. 
 also Fitzh : Estoppel, 207. 
 
 (18) In some cases a man who is a stranger to a record Paschal 
 
 QQ T? A TTT 
 
 shall estop the plaintiff, as where he certifies "bastard," 
 etc., at the suit of a stranger, etc. And also when the 
 defendant pleads that the plaintiff is named H and not J, 
 and it is found against the plaintiff, every stranger can 
 estop him, wherefore, etc. But in some other cases it is 
 wrong to estop him, unless he is a party or a privy, etc. As 
 appeared in a Cassation. Well argued. 
 
 There is no early printed year of 33 Ed. III. The case has not been Case 18. 
 identified elsewhere. It may be that these are merely notes, not 
 meant to have citations attached. 
 
 (19) In a cui in vita brought, etc. "Your husband and ^fjy , , 
 
 ^ ' , , . ., , . 21 Hen. VI. 
 
 you gave these same lands to us m tail, rendering two 
 shillings per year. And after the death of your husband 
 you came to us and demanded the rent, and we paid you," 
 judgment, etc. Yelverton: For anything, etc. And so 
 to judgment. Portyngton: By her own acceptance she 
 shall be barred. As, if my tenant be disseised, and I 
 accept the rent from the disseisor, he can force me to avow 
 upon him. Paston : That is not so, for rent can be paid by 
 the hands of others, but if you accepted the fealty or the 
 homage, then he can force you, etc. But in this case, 
 although the woman was a party to the demise, still it is 
 
602 
 
 STATHAM 
 
 only the demise of her husband, in law; and that is clearly 
 proved for the writ alleges everywhere that the husband 
 made it, and not the husband and the wife, etc. And if the 
 husband alone had made the demise, the woman could not 
 have had the rent. And it seems to me that it is all one. 
 And if the issue in the tail accept the rent which was 
 reserved upon the continuance, that does not conclude him, 
 for immediately upon the death of the father, the rent was 
 statham82b. extinct; SO here. Newton: Contra. To this that is said 
 that the demise is wholly the demise of the husband, and 
 so is the writ; still if she and her husband made the demise, 
 and after the death of her husband she got the rent, the 
 tenant cannot bar her of the rent, for it is in her election to 
 have one or the other. And when she brought the Cui in 
 Vita she disagreed to the rent ; but she came too late to dis- 
 agree to the rent inasmuch as she had received it. And if 
 she had received the rent in a Court of record she would be 
 concluded. And she would as well be so when it is not 
 denied by her that she had received it, etc. And if your 
 tenant disclaims in a Court of record, and then you accept 
 the rent, you will be barred in a writ of right upon a 
 disclaimer. Which Paston denied, etc. And they 
 adjourned, etc. 
 
 Case 19. 
 
 Reported in Y. B. Hilary, 21 Hen. VI, p. 24, pi. 5. 
 
 Trinity 
 12 Ed. III. 
 
 Case 20. 
 
 (20) The husband pleaded joint tenure with his wife, 
 wherefore the writ was abated; and in the second writ 
 they pleaded a misnomer of the vill, and the plaintiff 
 would have estopped them inasmuch as the husband 
 pleaded joint tenure in the first writ; and it was not 
 allowed because the wife was not a party to the first writ, 
 etc. 
 
 There is no early printed year of 12 Ed. HI. The case has not been 
 identified in the Rolls Series for that year, or in the early abridgments. 
 
 Michaeiis (21) If 3 luan binds himself by the name of J F of Sale, 
 9 Hen. VI. j^ j^ ^^ pj^^ ^^ ^^^ ^j^^^ j^^ j^ ^j Dale, because he is bound 
 
 by the name itself. And this in Debt, etc. 
 
ESTOPPELL 603 
 
 The case has not been identified in Y. B. Mich. 9 Hen. VI. There Case 21. 
 is a case reported in Y. B. Mich. 10 Hen. VI, p. 8, pi. 26, which is much 
 like the case abridged here. See also Brooke, Estoppel, 214; and Fitzh; 
 Estoppel, 27. 
 
 (22) In formedon, the defendant counterpleaded the Trinity 
 vouchee. Rikhill : To that you shall not get, for formerly "^' ' 
 you yourself brought formedon for the same land, and the 
 
 same gift, and we vouched the same father himself and you 
 said nothing but suffered process to be sued against him 
 until all was discontinued by the death of the king; judg- 
 ment, etc. And this was held a good estoppel, etc. Con- 
 trary elsewhere, etc. 
 
 There is no printed Year Book for the reign of Ric. II. There is a Case 22. 
 longer digest of the case in Fitzh: Estoppel, 212. 
 
 (23) In formedon against two, both of them pleaded Trinity 
 a several tenancy. Wade: To that you shall not be re- 
 ceived, for you have taken a day by prece par Hum in the 
 
 last term, as tenants in common, wherefore, etc. Charle- 
 TON: They cannot now allege non-tenure, or joint tenancy, 
 or several tenancy. Markham: That is not so. And 
 they adjourned, etc. 
 
 There is no early printed Year Book for the reign of Ric. II. Fitzh: Case 23. 
 Estoppel, 213, prints the case as does Statham, but reports that the 
 case came up again after the adjournment, and that then it was adjudged 
 that this was a good estoppel. The case has not been identified in the 
 Y. B. 12 Ric. II, Ames Foundation, ed. Deiser. 
 
 (24) In debt upon an obligation, the defendant voided Hilary 
 it because he was a layman, * etc. Weston: To that you 
 shall not be received, for formerly you brought a writ of 
 Detinue for these same writings, against one B, who said 
 that it was delivered to him by me and you, on certain 
 conditions, and you came by a Scire Facias, and you and 
 
 we were at issue upon other conditions, which were found 
 against you; wherefore, judgment if you shall be received, 
 etc. Paston: That is not an estoppel, for the plea that 
 
 1 The man was not a clerk and could not read the conditions, which 
 were said to be different from those of the writ. 
 
604 STATHAM 
 
 he pleads now in avoidance of the deed can stand with 
 the plea that he pleaded in the action of Detinue, for the 
 action was taken upon the condition, and not upon the 
 deed, etc. Babyngton: He could have taken it by 
 protestation, and he cannot say, "Not his deed" generally. 
 Paston: It is true, but he can plead to the special matter, 
 as to the deed, etc. And this was the opinion, etc. 
 
 And it was said in the same plea, that if a man be in- 
 dicted for trespass, and makes a fine to the king, and then 
 the party brings a writ of Trespass against him for the same 
 trespass, he can plead "not guilty," etc. But yet Babyng- 
 ton said that if the entry be "that he admits the trespass," 
 then he shall be estopped from pleading not guilty. But 
 if the entry be "that he puts himself on the mercy of our 
 Lord the King," it shall not be so, no more than when one 
 is indicted for a felony and has a charter of pardon. Still 
 in an appeal he can plead not guilty, etc. But it seems that 
 this should be qualified when the entry is that he shall not be 
 estopped, because he that would estop him is a stranger to 
 that, etc. And see that as to that Babyngton said that he 
 could have made a protestation in the action of detinue. 
 Paston said that the protestation is not to the purpose, 
 because it is contrary to his plea. And he also said that 
 although it were not, yet when an issue was taken upon the 
 plea and found against him, he shall never have any advan- 
 tage of the protestation. As if a man says by protestation 
 that the plaintiff is his villein, and pleads over a plea which is 
 found against him, the protestation is void, etc. Query? And 
 see like matter in theLiber Assisarum, Anno 33, in an Assize. 
 
 Case 24. Reported in Y. B. Hilary, 9 Hen. VI, p. 59, pi. 8. See also Fitzh: 
 
 Estoppel, 23. There is a further report of the case in Mich. 11 Hen. VI, 
 p. 6, pi. 11, in an Assize. But the point of the estoppel is not brought 
 up. 
 
 Hilary (25) In tTCspass, the defendant said that the plaintiff 
 
 9 Hen. VI. ^^^ villein regardant to his manor of Dale. RoLFF : This 
 
 same plaintiff formerly brought a writ of Trespass against 
 
 one A, then seised of the said manor, who pleaded that we 
 
 were his villein, as above, and we said "free," etc. And 
 
ESTOPPELL 605 
 
 it was found for us ; and then the said A brought an Attaint, 
 and the first verdict was affirmed ; which estate in the said 
 manor you have, etc. Judgment, etc. Newton: He does 
 not show that we were privy in blood to the said A, where- 
 fore, etc. Paston : It is reasonable, to my mind, that every 
 one who had the manor shall be estopped, wherefore, etc. 
 And then the defendant of his free will passed over and said 
 that A had nothing at the time, etc. 
 
 Reported in Y. B. Hilary, 9 Hen. VI, p. 67, pi. 12. See also Fitzh: Case 26. 
 Estoppel, 25. 
 
 (26) In debt against administrators. Rolff: Judgment Michaeiis 
 of the writ, for the plaintiff has another writ pending against 
 
 two others as executors, which is older than this, to which 
 they have not appeared, etc. Martyn: That is a mere 
 allegation; and also you are a stranger to that, etc. And 
 also you shall not have that advantage, unless you show 
 he had recovered against them, so that it took effect; 
 wherefore answer, etc. 
 
 Reported in Y. B. Mich. 3 Hen. VI, p. 14, pi. 17. See also Fitzh: Case 26. 
 Estoppel, 15. 
 
 (27) In trespass for trees cut, the defendant said that it Michaeiis 
 
 ,.,,,,_,, ,..„.,, , -11 Hen. IV. 
 
 was his freehold. The plamtiff said that the ancestor of 
 
 the defendant leased this same land to the ancestor of the 
 
 plaintiff for life, and then released, etc. Trom: To that 
 
 you shall not be received, for formerly you brought a writ 
 
 of Trespass, to which we said that our ancestor leased to 
 
 your ancestor for life; and your ancestor died, and you, 
 
 alleging that he was seised of his estate in fee, entered, upon 
 
 which, etc. To which you said that he died seised in fee, 
 
 without this that anything passed by the deed; upon 
 
 which we were at issue; and then you were nonsuited. 
 
 And inasmuch as at that time you voided that same deed, 
 
 judgment, etc. Thirning: Although he mistook the issue 
 
 at that time, since it was not tried it will not estop him; 
 
 no more than it will estop you, for at that time you said 
 
 that it passed by the deed; still you can say the contrary statham83a. 
 
 now, for the above reason, and yet your meaning now is 
 
606 STATHAM 
 
 contrary to that which you took issue on before, etc. And 
 that was the opinion, wherefore he passed over, etc. 
 
 Case 27. Reported in Y. B. Mich. 11 Hen. IV, p. 30, pi. 56. See also Brooke, 
 
 Estoppel, 62; and Fitzh: Estoppel, 99. 
 
 Hilary (28) In a Writ of waste against the tenant in dower of 
 
 20 Hen. VI. ^^^ inheritance of the plaintiff. Markham : Your father 
 whose heir, etc., was seised of the same lands in fee, and 
 enfeoffed one B with warranty, which B leased to us for 
 the term of our life. Judgment if, against the warranty, 
 etc., you shall be received to say that we were tenant in 
 dower of your inheritance, without showing how. (But 
 see that that was no plea to any intent, unless he showed 
 the deed of the feoffment with warranty, etc.) Port- 
 yngton: That is no plea, for neither she nor he was made 
 privy to the deed, for a man shall never estop one by his 
 deed unless he be a party or a privy, to wit: heir of the 
 party; and especially when it is by way of defence. But 
 peradventure he may estop the plaintiff by a deed to which 
 the plaintiff is neither party nor privy, to wit: when the 
 plaintiff entitles himself by one who may be estopped. 
 Query as to this distinction, etc. And also, although his 
 warranty may be pleaded in this action of waste, it is 
 double to my thinking, etc. Newton: The warranty can 
 be pleaded well enough ; as in Trespass the defendant says 
 that the place where, etc., was his freehold, I can show 
 how his father enfeoffed me with warranty, judgment if 
 against, etc., he shall be received to say that it is his free- 
 hold. Yelverton : There you are a party to the deed, etc. 
 And in an Assize of Mort d'Ancestor the feoffment of the 
 said ancestor with warranty is no bar, because the title of 
 the plaintiff is after the warranty. So here, the writ is that 
 the defendant has made waste of lands which she holds in 
 dower of his inheritance, so it should be taken that his 
 father died seised and that he endowed her, for otherwise 
 he shall have no action of waste; for otherwise we think 
 that by the dying seised the heir has a new title. Newton : 
 The new title in the case of a Mort d'Ancestor is no reason 
 that he be not barred, but the contrary is the case, for it 
 
ESTOPPELL 607 
 
 is merely contrary to the writ, for the writ is to inquire if 
 he died seised and the plea is that he made a feoffment 
 with warranty, so it seems the warranty in fee, being the 
 point of the writ, shall not be questioned. Yelverton: 
 Then in the Mort d'Ancestor such a warranty is no bar, and 
 d fortiori that is no plea here, for our estoppel should be 
 good to all common intent, and it may be that the father 
 made such a feoffment, and retook an estate and died 
 seised. Markham dared not demur, but pleaded as 
 before, without this that she was endowed by the plaintiff or 
 any of his ancestors. Newton: That is but an argument, 
 by which he says, "without this that she held in dower of his 
 inheritance." Ready. And the others alleged the contrary. 
 
 Reported in Y. B. Hilary, 20 Hen. VI, p. 19, pi. 14. See also Brooke, Case 28. 
 Estoppel, 9; and Fitzh: Estoppel, 36. Statham gives a fuller digest 
 than the other abridgments. 
 
 (29) A scire facias was sued by the Abbot of Battle Michaeiis 
 against one W, parson of a church without a chapel at ^^ ^^"' ^^' 
 Maxey, out of a judgment tailed against the predecessor 
 of the said parson, in a writ of Annuity. Prisot: Judg- 
 ment of the writ, for the said W is parson of the church of 
 N, and Maxey is a chapel within the said parish; without 
 this that he is parson of M in another manner. Moile: 
 That is no plea, for it is doubtful how these words ' 'in another 
 manner" should be taken, and an issue should be certain. 
 Portyngton: He can say — as above — without this that 
 he is parson of M. Assheton: That cannot be, for he has 
 said that M is within the parish of N, and he is parson of 
 everything within his parish, wherefore, etc. Prisot : If we 
 cannot have the plea we are injured, for it may be that 
 we were presented by such a name as we have pleaded ; then, 
 if we have not the plea, we cannot have aid from the patron, 
 etc. And it may be that a consolidation was made of the 
 two churches, and sometimes the name of the two churches 
 was used, and sometimes the name of one of them, where- 
 fore, etc. Portyngton : If the case be so, you can show it. 
 Moile: Sir, we have matter to estop him, and we say that 
 formerly the predecessor of the abbot sued a writ of Annuity 
 
608 STATHAM 
 
 against the predecessor of the said parson by the same name 
 which is contained in the Scire Facias, and he appeared by 
 that same name, and prayed aid of the patron and of the 
 ordinary, who were summoned and made default, wherefore 
 the abbot had judgment to recover the annuity. Judgment, 
 etc. Prisot: That cannot bind us, since the patron and 
 the ordinary made default. Newton : It is not so. Prisot: 
 We say — as above — within which parish the said chapel 
 was founded by the devotion of the common people, after 
 time of memory; without this that the said chapel is, or 
 was at the time the writ of Annuity was brought, a parochial 
 church ; and without this that the said predecessor of the 
 defendant was parson of the church of Maxey at the time 
 of the suing of the said writ of Annuity, except as parson 
 of the parochial church of N, within which parish the said 
 chapel is, and we demand judgment if, upon such a record, 
 etc. Moile: For anything that he has said, etc. And 
 so to judgment. And then it was adjudged that the plain- 
 tiff should recover the annuity because the defendant was 
 estopped from saying that his predecessor was parson, 
 without this that he was in by succession; and he cannot 
 say the contrary of that which he has admitted, no more 
 than where my ancestor levies a fine, I cannot void the 
 fine, unless I claim by another man — no more here, for 
 although he is in by presentation, still he is privy to him. 
 And this is clearly proved, for he shall have a writ of Error 
 or Attaint, etc. And also he has admitted that the said 
 chapel is within the parish of N, wherefore, etc. But note, 
 that that case was more clear than it is here, for the defend- 
 ant was named in the Scire Facias: "W of F, Chancellor 
 of the Cathedral Church of Chichester, parson of the church 
 without a chapel of Maxey," and the recovery in the 
 Annuity was by the same name, and he pleaded by the same 
 name, to wit: that he was chancellor — as above — and 
 parson of the church of N, which is annexed to his Chan- 
 cellery; without this — as above — which is a true succes- 
 sion. But if he put it only "parson of N," the case had 
 been good, etc. 
 
 Case 29. The case has not been identified in Y. B. Mich. 27 Hen. VI, or in the 
 
 early abridgments. 
 
ESTOPPELL 609 
 
 (30) In a quare itnpedit, where the incumbent pleaded Michaeiu 
 a plea,, the plaintiff estopped him by a matter which was ^® ^^- "^• 
 between the plaintiff and the patron, as to the same incum- 
 bent, because the incumbent claimed by the patron, etc. 
 
 And it was said in the same plea by Thorpe, that where 
 one is named son and heir to one, whereas he has no need 
 to be named heir, that will not estop him afterwards from 
 saying that he is not heir, etc. Query? 
 
 Reported in Y. B. Mich. 39 Ed. Ill, p. 24, pi. 17. See also Brooke, Case 30. 
 Estoppel, 103; and Fitzh: Estoppel, 115. 
 
 (31) In replevin, the defendant said that the plaintiff Michaeiis 
 was his villein. To which the defendant said : to that you ^ ^ ^ ^"^^ ^^^■ 
 shall not be received, because you have suffered us to Statham 83 b. 
 have a replevin, and also you have made an attorney 
 
 against us, so you have affirmed us to be answerable, etc. 
 And notwithstanding that, the plaintiff was made to answer 
 to the villeinage, etc. 
 
 Reported in Y. B. Mich. 3 Ed. Ill, p. 38, pi. 14. Case 31. 
 
 (32) An assize was brought against one P, who said that HUary 
 an Assize there should not be, for he said that one J was ^ ^^"- ^^• 
 seised, etc., and died seised, and the lands descended to 
 
 him as son arid heir. And the plaintiff, claiming, etc., 
 said that this J had nothing except by a disseisin made 
 on him, upon which he made a continual claim all his life ; 
 and after the death of the said J we entered and were seised, 
 until, etc. The tenant said that, to that you shall not be 
 received, for formerly we brought a writ of Trespass against 
 you for the entry on these same lands, and you said that you 
 leased these same lands for the term of your life, by force of 
 which, etc. To which we said that this same J died seised, 
 and you abated and made the trespass. And you said that 
 he leased — as above — without this that he died seised. 
 Upon which we were at issue. And it was found for us 
 that he died seised, wherefore we recovered our damages; 
 judgment if you shall be received to say the contrary, etc. 
 And because the plea which is pleaded now is not contrary 
 to the first plea, but they can stand together — for the 
 
610 
 
 STATHAM 
 
 Case 32. 
 
 Paschal 
 9 Ed. III. 
 
 Case 33. 
 
 Michaelis 
 31 Hen. VI. 
 
 Case 34. 
 
 first issue was upon dying seised in fact, and the matter 
 which he alleges now is that he died seised in law, the 
 opinion of many was that it was not an estoppel, etc. Well 
 debated, etc. 
 
 Reported in Y. B. Mich; (not Hilary), 7 Hen. VI, p. 8, pi. 14. See 
 also Brooke, Estoppel, 77; and Fitzh: Estoppel, 20. The case is con- 
 tinued in the same year, in Hilary Term, p. 20, pi. 3, but it is merely an 
 extension of the argument. 
 
 (33) He who has the estate of another cannot estop the 
 plaintiff, for he should be a party or privy in blood. As 
 appeared in an Assize, etc. 
 
 The case has not been identified in Y. B. Paschal, 9 Ed. HI, or in the 
 early abridgments. 
 
 (34) If the demandant shows matter to estop the tenant, 
 and he cannot deny it, can he plead another matter in bar? 
 etc. It seems not, rigore juris. 
 
 The case has not been identified in Y. B. Mich. 31 Hen. VI, or in the 
 early abridgments. 
 
 (35) If a man be bound to keep the peace, and then a 
 Scire Facias issues against him, because he beat one; who 
 comes and is found guilty; and then he brings a writ of 
 Trespass against him for this same battery, and he pleads 
 not guilty, he shall estop him by the matter found at the 
 suit of the king, notwithstanding he is a stranger to that. 
 By the opinion of Fortescue and Yelverton, in Trespass 
 Coram Rege, etc. And I believe that the reason was that 
 the action was brought for the same thing for which he was 
 attainted . As if my servant be beaten and I bring an action 
 and recover, and then my servant brings an action for 
 the same battery, and he pleads not guilty, he shall estop 
 him for the above reason, etc. But yet he can say that 
 it was with his own consent, etc., for that can stand with 
 the first trial, as appeared in the case of Sir Robert Wing- 
 field, Trinity, 26 Hen. VI, by the opinion of Newton and 
 PoRTYNGTON, etc. Simile, Michaelis 20 Ric. II, where 
 one was indicted for Trespass and made a fine and then 
 the party brought a writ of Trespass — as above. And 
 
ESTOPPELL 611 
 
 the opinion clearly was that he should be estopped from 
 pleading not guilty, etc. 
 
 There appears to be no citation for this case; the citation given to the Case 35. 
 case above (34) may be meant for this case, but as it has not been 
 identified in the Year Boole or in the early abridgments, it is impossible 
 to say with certainty that it is meant for one or the other. 
 
 (36) False imprisonment against two; one said the Michaeiis 
 plaintiff was his villein, and they were at issue; and the 
 other justified as servant to his master, and they were at 
 issue. And separate Venire Facias' were awarded, etc. 
 Markham said that if the issue were found against the 
 master, that would not conclude the servant, for he could 
 not have an Attaint, etc. Then if it be found for the serv- 
 ant by the other inquest, to wit : that the plaintiff was the 
 villein of his master, then afterwards the servant can take the 
 villein, and justify it as being the command of his master; 
 and still the master cannot take the villein, for he is estopped 
 against the servant from saying the contrary, although 
 he is a villein, and still his master cannot take him nor 
 command another person to take him, except the said 
 servant who was a party to the trial, etc. And so note 
 that a man can command a thing which he cannot do him- 
 self, etc. But yet it seems that he can have an action for 
 false imprisonment against the master, because of his 
 command, for he is the principal actor in it ; but against the 
 servant the action does not lie, for the above reason. 
 
 The case has not been identified in Y. B. Mich. 37 Hen. VI, or in the Case 36. 
 early abridgments. 
 
 ENTRE CONGEABLE 
 
 (1) If a vicar alienates or exchemges land in the right of statham 84 a. 
 his vicary and dies, his successor can enter. It is otherwise Michaeiis 
 
 , ,, , , ,2 Hen. IV. 
 
 as to a dean or master of a college, who have a convent 
 and a common seal, etc. Query, as to a parson of a church? 
 
 Reported in Y. B. 2 Hen. IV, p. 5, pi. 18. See also Fitzh: Entre Case 1. 
 Congeable, 23, "Dictum fuit pro lege." The case is merely a note. 
 
612 
 
 STATHAM 
 
 Michaelis 
 2 Hen. IV. 
 
 Case 2. 
 
 Paschal 
 40 Ed. III. 
 
 Case 3. 
 
 Paschal 
 42 Ed. III. 
 
 Case 4. 
 
 (2) It was found by the verdict of the Assize that one 
 J, who was the husband of the present woman tenant, 
 enfeoffed one H upon certain conditions, to wit: to enfeoff 
 the said J and his wife in tail, and for default of issue, the 
 remainder to the right heirs of J. J died without heirs of 
 his body, and the woman took another husband, and the 
 said H enfeoffed the second husband and the woman for the 
 term of the life of the woman, the remainder to the right 
 heirs of the first husband ; and the heir of the first husband 
 entered because of the broken conditions. And it was 
 adjudged that his entry was not legal, for although the 
 feoffment was not wholly accordant to the conditions, still 
 there was no disadvantage to him, wherefore, etc. Query? 
 
 Reported in Y. B. Mich. 2 Hen. IV, p. 5, pi. 20. 
 
 (3) After the death of the father, because the elder 
 son [had passed beyond the sea, he] ^ was ousted, the mother 
 of the younger son entered and continued possession until 
 the fourth in descent; and the issue of the elder brother 
 who was the fifth in degree, etc., entered upon the tenant 
 who was in by descent. And because it had always been 
 continued in the blood the opinion of Fyncheden was 
 that his entry was legal on account of the privity, etc. 
 
 Reported in Y. B. Paschal, 40 Ed. Ill, p. 24, pi. 26. See also Brooke, 
 Entre Congeable, 6; and Fitzh: Entre Congeable, 24. 
 
 (4) If a woman makes a feoffment while under age, 
 and is married while under age, and upon coming of age 
 she suffers her feoffee to continue "years and days," her 
 entry is not lawful ; by the opinion of Thirning, although 
 she is able by her husband, etc. 
 
 And it was said in the same plea that the entry of the heir 
 of the disseisee is legal, upon the disseisor and his alienee, 
 etc. 
 
 And it was said in the same plea, that if the husband 
 leases lands in the right of his wife for a term of years and 
 dies, she can enter, for that is not a discontinuance. 
 
 Reported in Y. B. Paschal, 42 Ed. Ill, p. 12, pi. 18. 
 
 ' Words from the case. The reported case refers to Littleton, cap. 
 Discentes, fol. 83, b., which is probably an error for 93. 
 
ENTRE CONGEABLE 613 
 
 (5) If I lease lands for a term of years, or in fee, rendering Trinity 
 
 a certain rent, and for default in payment one re-enters, ^^ ^'^' ^^^' 
 and the rent is in arrear, it is necessary for me to demand 
 the rent before I enter. And this in Covenant. 
 
 Reported in Y. B. Mich, (not Trinity), 47 Ed. Ill, p. 12, pi. 11- Case 5. 
 See also Brooke, Entre Congeable, 14. 
 
 (6) Where one enters claiming for himself and another. Paschal 
 
 ^ ^1- t ^1 1 1 • • , r , , 34 Ed. III. 
 
 or to the use ot another, where his entry is not lawful, that 
 does not give possession to the others without an agree- 
 ment, etc. It is otherwise where it is lawful. (But yet 
 it can be distinguished.) 
 
 There is no printed year of 34 Ed. III. Fitzh: Entre Congeable, 50, Case 6. 
 has the case. 
 
 (7) The tenant in tail died seised, after whose death Hilary 
 his son entered and endowed his mother, who leased the 
 same lands for the term of the life of the lessee, and the 
 
 son confirmed the estate of the lessee in fee, with warranty. 
 The lessee died and his heir entered, upon whom one H, 
 who was issue of the son who made the confirmation, 
 entered. And the opinion was that his entry was not 
 legal, for, although his father, who made the confirmation, 
 had nothing except in tail, still he could enter because 
 that alienation by his tenant in dower was to his dis- 
 inheritance; then his confirmation was of as much avail 
 as if he had entered and made a feoffment; and so a dis- 
 continuance. But yet, query? For if my father who 
 is tenant in tail leases for the term of another's life and 
 dies, and I release or confirm in fee, and I die, still after 
 the death of him in whose life my heir could enter, and if 
 I die without issue, the donor can enter, for by the confirma- 
 tion the estate of the lessee was not aided. But Hank- 
 ford made a distinction [as to the case] where his entry was 
 lawful at the time of the confirmation, and where not, etc. 
 Well argued. 
 
 Reported in Y. B. Hilary, 3 Hen. IV, p. 9, pi. 5. See also Brooke, Case 7. 
 Entre Congeable, 19. He refers to the title of Warranty in Littleton. 
 
614 
 
 STATHAM 
 
 Hilary 
 
 16 Ed. III. 
 
 Case 8. 
 
 Trinity 
 49 Ed. III. 
 
 Case 9. 
 
 Hilary 
 
 33 Ed. III. 
 
 Case 10. 
 
 HUary 
 
 33 Ed. III. 
 
 Case 11. 
 
 (8) If my tenant who is under age alienates in fee, and 
 dies without an heir, I can enter. And if my tenant be 
 disseised and dies without an heir I can enter, for I cannot 
 have a writ of escheat. And if the tenant in tail alienates 
 and dies without issue, the donor cannot enter, because 
 his reversion is discontinued. In the same plea, etc. 
 
 There is no early printed year of 16 Ed. III. The case has not been 
 identified in the Rolls Series for that year, or in the early abridgments. 
 Being a series of small points these may very naturally have been taken 
 out of the body of a case decided upon very different matters. 
 
 (9) If I recover lands against a man, I can enter upon 
 him after the year. But if he makes a feoffment I cannot 
 enter upon the feoffee after the year: By Thorpe, etc. 
 And the law is the same if the man against whom I recover 
 dies and his heir is in by descent; I can enter upon the 
 issue, but not upon the issue of a stranger, within the year, 
 nor after the year. 
 
 Reported in Y. B. Trinity, 49 Ed. Ill, p. 23, pi. 10. See also Fitzh: 
 Entre Congeable, 35. 
 
 (10) If one marries a woman and enters into religion, 
 and his wife alienates land which is in her own right, and 
 then she deraigns ^ her husband, the entry of the husband 
 is lawful: By Thorpe, in an Assize, etc. (It seems that 
 she could take [hold] her husband by the [deed] poll in that 
 case, without any other deraignment.) 
 
 There is no printed year of 33 Ed. III. The case is given by Fitzh: 
 Entre Congeable, 52. 
 
 (11) If I recover against the tenant in tail, and he dies 
 before execution is sued, still I can enter upon his issue 
 who is in by descent. But it is otherwise where one grants 
 and renders land to me by a fine, and dies before I enter, etc. 
 
 There is no printed year of 33 Ed. III. Fitzh: Entre Congeable, 51, 
 has the case in the exact words of Statham. 
 
 ' The word is used in various senses. In this case it is apparently 
 as Coke uses it. (Coke, 1st Inst. § 292, p. 136 b.) "When a monk 
 is deraigned he is degraded and turned out of his order of religion, 
 and become a lay- man." 
 
ENTRE CONGEABLE 615 
 
 (12) A man was seised of lands in the right of his wife, Michaeiis 
 and enfeoffed one H, upon condition that he should enfeoff * '^^"^ ^'" 
 him and his wife and the heirs of the husband. The hus- 
 band died ; H enfeoffed the woman to her and to her heirs.* 
 
 And because of conditions broken the heir of the husband 
 entered, and the woman ousted him. And the opinion of 
 the Court was that the entry of the woman was lawful, for 
 by the entry of the heir the discontinuance was annulled ; for 
 if his father had entered because of conditions broken, and 
 had died, the entry of the woman upon the heir had been 
 lawful, and no other right could descend except such as his 
 father could have had by reason of the conditions broken. 
 Consequence, etc. (But it seems that she could not enter 
 upon him, since he was in by descent, etc. But yet no 
 possession descended to him, etc.) Well argued, in [a writ 
 of] Error. 
 
 Reported in Y. B. Mich. 3 Hen. VI, p. 2, pi. 5. See also Brooke, Case 12. 
 Entre Congeable, 38; and Fitzh: Entre Congeable, 1. 
 
 (13) The tenant in tail gave lands to a man for life, Michaeiis 
 and then granted the reversion to another in fee; and the 
 tenant attorned and then surrendered his estate to the 
 grantee; then the tenant in tail died; the tenant for life 
 
 died ; the issue in tail entered ; the other brought an Assize 
 
 and this matter was found. Newton: It seems to me 
 
 that he shall be barred; that the entry of the issue in tail 
 
 is lawful, and the surrender does not change the case, for 
 
 he holds charged for the whole life of the tenant for life, 
 
 if the tenant for life was charged. Fortescue: Contra. 
 
 If a man had issue by two wives and leased lands for life, 
 
 and died; the issue of the first wife died without issue; 
 
 now the issue of the second wife shall not have the lands. 
 
 Yet if the tenant for life had surrendered his estate to the 
 
 issue of the first wife, the issue of the second wife shall 
 
 never have the lands, but rather shall they escheat. statham84b. 
 
 And thus the surrender made to him in the reversion or 
 
 1 The case says that this was done by mistake; the tail should have 
 been to the heirs of the husband. 
 
616 STATHAM 
 
 remainder changes the case. And then the plaintiff had 
 judgment to recover. Which note well, etc. 
 
 Case 13. Reported in Y. B. Trinity (not Mich.), 21 Hen. VI, p. 52, pi. 8. See 
 
 also Fitzh : Entre Congeable, 7. 
 
 Paschal (14) The abbot of York brought an Assize against a 
 
 man who said that he had nothing except in right of his 
 wife, and if it be found, etc. The Assize was taken, which 
 said that the defendant alienated the lands which were 
 in the right of his wife to one J, in fee, upon condition to 
 enfeoff one A, son of the defendant, and one E, his wife 
 in tail, and for failure of issue the remainder to the right 
 heirs of the defendant. And they said that E, the wife of 
 A, who should have been enfeoffed, died, and the abbot 
 brought an "ad terminum qui prateriit" against J, on a 
 lease made to one A, by his predecessor, and he recovered 
 by default; and the right of the abbot was found by a 
 Quale Jus; and they said further that the land was the 
 right of the abbot, but they said that the lease was made 
 to one G, and not to A, as was found by the Quale Jus. 
 And they said that after the recovery the defendant ousted 
 the said J, claiming his first estate, and then the abbot 
 entered by force of the recovery arid the defendant re- 
 ousted him, and he prayed the discretion of the judges. 
 Fyncheden: If the entry of the defendant was lawful, then 
 he is in his first estate, as in right of his wife; and so it 
 seems, for no day as to the conditions was definitely limited 
 in certain, in which case he was bound to make the feoffment 
 immediately. And since the remainder should be to his 
 right heirs it is [clear] that it should have been made to him, 
 so he could enter without a demand; which Thorpe denied. 
 And it is also proved by his recovery against the said J 
 that he could have traversed the action of the abbot, which 
 was false, and he did not, in which case he had disabled 
 himself from making the feoffment. And although the 
 abbot entered upon the tenant, that does not change the 
 case, for that was by the default of the said J, for if I en- 
 feoff one to enfeoff me again, and one feigns a false action 
 against him and has judgment to recover, and then he 
 
ENTRE CONGEABLE 617 
 
 enfeoffs me, the other who recovered enters upon my re- 
 entry; so here. And to that which they have found, that 
 this is the right of the abbot, that does not lie in their 
 jurisdiction, nor in their voucher at present, etc. And 
 they adjourned. See this plea because it was well argued, 
 etc. 
 
 Reported in Y. B. Paschal, 44 Ed. Ill, p. 8, pi. 10. See also Fitzh: Case 14. 
 Entre Congeable, 33. It is necessary to go to the case for a full under- 
 standing of the facts, or the reasoning in such long cases as this. A 
 link in the chain of facts not absolutely necessary to the legal reasoning 
 and therefore left out in the digest frequently clears up the case, which 
 seems obscure in the digest. It is impossible to note all these omissions 
 as space would fail us before we had reached a quarter of the abridg- 
 ment. The digest given by Fitzherbert is very long. 
 
 (15) It was found by verdict of the Assize that one N Michaeiis 
 was seised, etc., and had issue two daughters, to wit: K ^^ ^'^' ^'^" 
 and A; to wit: K before marriage and A afterwards. And 
 
 after his death they entered and made partition between 
 them. And K married one H, and had issue, and K died, 
 and he remained in by the curtesy, and was seised until 
 disseised by A. And it was adjudged that he should re- 
 cover, although K was a bastard, still, inasmuch as she con- 
 tinued in possession all her life without any reclaim (in 
 which case the entry of A had been lawful) upon the issue 
 [of] K, nor consequently upon the tenant by the curtesy. 
 And the issue also could have estopped him from bastar- 
 dizing her, inasmuch as they made the partition, etc. (But 
 yet that was the better judgment, etc.) 
 
 Reported in Y. B. Mich. 21 Ed. Ill, p. 34, pi. 25. See also Brooke, Case 15. 
 Entre Congeable, 31. 
 
 (16) The lord and the tenant were disseised. The dis- Hilary 
 seisor enfeoffed another in fee. The tenant died without ^ ^'^' ' 
 heir. The lord entered upon the feoffee of his tenant. And 
 
 It was the opinion of all the Court that his entry was not 
 lawful because he had a tenant who was in by title, in the 
 life of his tenant, upon whom he could make an avowry. 
 And so it was adjudged, etc. But yet it is wrong unless 
 
618 
 
 STATHAM 
 
 Case 16. 
 
 the feoffee had given him notice, etc. And still he could 
 choose to avow upon him, notwithstanding he gave him 
 notice, as it seems, etc. 
 
 There is no printed Year Book for the reign of Ric. II. The case 
 has not been identified elsewhere. 
 
 Paschal 
 20 Hen. VI. 
 
 Case 17. 
 
 (17) If a woman be disseised, and then she takes husband, 
 and the disseisor dies, and his heir is in by descent during 
 the coverture, that descent shall toll the entry of the woman 
 notwithstanding the coverture, because it was her own act 
 to take an husband. And this by the opinion of Newton, 
 etc. 
 
 Reported in Y. B. Paschal, 20 Hen. VI, p. 28, pi. 22. See also 
 Fitzh: Entre Congeable, 5. According to this case a woman who mar- 
 ries an unwise husband should lose her land for making so foolish a 
 choice. 
 
 Paschal 
 21 Hen. VI. 
 
 Case 18. 
 
 (18) If I lease lands at will and die, and then my lessee 
 sows the land, and [my heir] ousts him, he shall have the 
 emblements, for by my death his estate is ended. But it 
 is otherwise if he had shown the land in my lifetime, etc. 
 By Newton, in Trespass. 
 
 The case has not been identified in Y. B. Paschal, 21 Hen. VI, or in 
 the early abridgments. 
 
 Anno 
 4 Ed. III. 
 
 Iter de Not. 
 
 Case 19. 
 
 (19) If an infant under age alienates and dies under 
 age, his heir can enter because his father could have entered 
 at all times. But it is otherwise where a man who is not 
 of sane memory alienates, for he himself could [not] enter, 
 nor, consequently, his heir. And this in a Formedon, etc. 
 
 There are no printed years in which we can trace the cases thus 
 given. 
 
 Trinity 
 7 Hen. IV. 
 
 (20) If a man recovers land by default or surrender, 
 against my father who is in tail, and my father dies before 
 execution is sued, and then I enter, and he who recovered 
 ousts me by force of the recovery, my entry upon him is 
 legal, and if he ousts me I shall have the Assize to falsify 
 the recovery. But when he sues execution while my 
 
12 Hen. IV. 
 
 ENTRE CONGEABLE 619 
 
 father is living, I cannot enter, but I am forced to bring 
 a Formedon, etc. In a note, etc. 
 
 The case has not been identified in Y. B. Trinity, 7 Hen. IV, or in the Case 20. 
 early abridgments. 
 
 (21) In the Assize of Wenlock the tenant showed a Michaeiis 
 remainder tailed to the ancestor of the plaintiff, by one who ^° ^^'^' ^^' 
 disseised the tenant, and that the plaintiff, as heir to the 
 ancestor, entered, etc. From this it follows that although 
 
 the plaintiff be in by descent, if he be the first in whom the 
 remainder was executed, so that no possession descended 
 to him, that the tenant could enter upon him, etc. Query? 
 
 The case has not been identified in the very short printed term of Case 21. 
 Mich. 30 Hen. VI, or in the early abridgments. 
 
 (22) If a man enfeoffs another, rendering a certain rent. Trinity 
 and for default of payment one re-enters, and the rent is 
 in arrear, and then the feoffor dies, his heir cannot enter: 
 
 By the opinion of the Court in an Ejectment from a Ward- 
 ship. Query, if the father, in that case, could have entered 
 upon the heir of the tenant who was in by descent, after 
 the rent was in arrear? etc. 
 
 The case has not been identified in Y. B. Trinity, 12 Hen. IV, or in the Case 22. 
 early abridgments. 
 
 (23) Where the king had cause to seise by the forfeiture Michaeiis 
 of a tenant for life, and did not seise, but the tenant died, 
 
 the entry of the reversioner was lawful. And this by the 
 opinion of Newton, in an Assize, etc. 
 
 There is no printed year of 23 Hen. VI. Fitzh: Entre Congeable, Case 23. 
 53, has the case much as it stands here. 
 
 (24) If the husband and his wife and a third purchase Michaeiis 
 jointly — the husband alienates the whole and dies and the 
 
 third enters; the entry of the woman upon him is lawful; 
 by the opinion, etc., in a Precipe quod Reddat, for his 
 entry gives possession to the woman jointly with him, 
 according to his title. (But yet it seems that it is severed 
 
620 
 
 STATHAM 
 
 Case 24. 
 
 by the entry of the third. But yet he did not acknowledge 
 his part and their title in law is joint, wherefore query?) 
 
 The case has not been identified in Y. B. Mich. 31 Hen. VI. Fitzh: 
 Entre Congeable, 54, has the case. 
 
 Hilary 
 
 14 Hen. VI. 
 
 ENTRE « 
 
 stathamssa. (1) In a Writ upoti the Statute of Forcible Entries, it 
 was alleged that the defendant disseised him by the strong 
 hand. And the tenant said that his father died seised, 
 after whose death the plaintiff abated, and he entered upon 
 him peaceably, without this that he entered by the strong 
 hand, or detained by the strong hand. Newton: That 
 is no plea for two reasons: one, he does not reply to 
 the point of our writ, to wit: the disseisin, for he shall 
 say, "without this that he disseised us by force," and not 
 that he entered with force, for that is only an argument. 
 And he also says, "without this that he detained by 
 force." And although the Statute says that "if a man enter 
 by force and detains by force," that is a disjunctive; and 
 our action is conceived upon the disseisin, and not upon 
 the detainer, so he answers to a thing that is not alleged 
 by our action. And the opinion agreed with this. And see 
 also that this is a strange color, to wit: for abatement. 
 All the same if the action be merely in the nature of a 
 Trespass it is good enough. Query, etc. ? And if he shall 
 recover the land in that case? etc. 
 
 Case 1. Reported in Y. B. Anno 14 Hen. VI, p. 21, pi. 3. See also Fitzh: 
 
 Entre, 16. Statute of Forcible Entries, 15 Ric. II (1391), cap. 2, Stats, 
 at Large, Vol. 2, p. 338 (339). 
 
 Paschal 
 
 14 Hen. VI. 
 
 (2) In trespass upon the same Statute, the writ was 
 "de terris pradictis et tenementis manu forti expulserunt, et 
 disseisiverunt et sic seisiti de prcedictis terris extra tenent." 
 Paston: I understand that the Statute is in the disjunc- 
 tive, wherefore the writ is not good. (But yet the writ was 
 adjudged good; therefore see the Statute, etc.) Newton: 
 Action, etc., for at the time of the alleged trespass the 
 
ENTRE 621 
 
 freehold was in one J, and we, by his command entered 
 peaceably, without this, etc. Paston: You cannot plead 
 in this writ, which is a writ upon the case, as you can in 
 a general writ of Trespass, for it is to recover the freehold, 
 and in an Assize such a plea is of no value. Wherefore the 
 defendant said that the said J was seised and enfeoffed him, 
 etc. 
 
 Reported in Y. B. Anno 14 Hen. VI, p. 16, pi. 53. It is a further Case 2. 
 report of the case above (case 1, supra). The Statute is the Statute of 
 Forcible Entries, see supra, case 1. The words of the writ are as given 
 in the printed case. 
 
 (3) In a writ of entry upon a disseisin for rent, the tenant Hilary 
 
 of the lands pleaded "out of his fee" and he could not have ^^ ^'^' ^^^' 
 the plea. (But the law is the other way, etc.) 
 
 Reported in Y. B. Hilary, 40 Ed. Ill, p. 13, pi. 28. The case does Case 3. 
 not seem clear enough upon the law to warrant Statham's comment. 
 
 (4) In a writ of entry upon a disseisin, for rent, it was Hilary 
 alleged that the tenant had no entry except by one S, '*^ ^'*- ^^^• 
 who disseised the ancestor of the demandant. Belknap: 
 
 S never had anything in the lands of which, etc., except as 
 husband to one A, which A is dead, and we are in as heir of 
 A, and not as heir of S. Judgment of the writ. Chelery : 
 It may agree with my writ that he is in the lands as heir 
 of A, and in the rent as heir of S, for it may be that S was 
 his father, and purchased the rent, and then took to 
 wife A, a tenant of the land. FynchedeN: If your matter 
 be such, show it, for then he has said enough prima facie, 
 etc. (Study this well, etc.) 
 
 Reported in Y. B. Hilary, 43 Ed. Ill, p. 9, pi. 28. See also Brooke, Case 4. 
 Entre in le Per, Cui et Post, 2. 
 
 (5) He who was in the remainder brought a writ of Paschal 
 
 7 "RH TTT 
 
 Entry in consimili casu, and the writ was abated, because 
 it was not in a like case, etc. (I believe that that is not 
 the law.) 
 
 Reported in Y. B. Paschal, 7 Ed. Ill, p. 17, pi. 19. The reasoning Case 5. 
 in the reported case seems sufficient to sustain the verdict in spite of 
 Statham's remark. 
 
622 
 
 STATHAM 
 
 Hilary 
 
 21 Ed. III. 
 
 Case 6. 
 
 (6) Entry in consimili casu was maintained because 
 he, who, etc., had only an estate tail in the reversion, etc. 
 (I believe that he himself was the lessor, and not the heir to 
 the lessor, for tenant in tail can have a writ de quibus of a 
 disseisin made on himself, but not on the disseisin made on 
 his ancestor, etc. So it seems that a tenant for life shall 
 have a writ de quibus. 
 
 Reported in a short note in Y. B. Hilary, 21 Ed. Ill, p. 11, pi. 36. 
 See also Fitzh: Entre, 10, where Statham's statement is repeated 
 verbatim. 
 
 Hilary 
 
 30 Ed. III. 
 
 Case 7. 
 
 (7) If lands be leased to a man for life, the remainder 
 to the husband and to his wife in tail, and for failure of 
 issue the remainder to the right heirs of the husband; 
 after the death of the tenant for life, and after the death 
 of the husband and his wife and their issue, the entry of 
 the collateral heir to the husband shall be adjudged to be 
 for the donor and not the husband, etc. In a Scire Facias. 
 
 And it was said in the same plea, that the release of the 
 husband in that case without a warranty made to the 
 tenant for life shall be a bar against the collateral heir of 
 the husband. 
 
 Reported in Y. B. Hilary, 30 Ed. HI, p. 4, pi. 17. See also Fitzh: 
 Entre, 58, where he differs from the law in the case. 
 
 Michaelis 
 7 Ed. III. 
 
 Case 8. 
 
 (8) In a writ of entry for rent, it was alleged that he had 
 no entry except by one H who disseised his father. Darel: 
 Our father died seised of the lands of which, etc., without 
 this that H had anything in the rent, etc. And it was not 
 allowed, unless he said that he did not enter into the rent, 
 etc., or showed who was taker of the rent, etc. 
 
 The case has not been identified in Y. B. Mich. 7 Ed. HI, or in the 
 early abridgments. 
 
 Michaelis 
 9 Ed. III. 
 
 (9) In a writ of entry, it was alleged that the tenant had 
 no entry except by one R, to whom T demised it, who 
 disseised the ancestor of the demandant, etc. The tenant 
 said that R did not enter by T. Ready. The demandant 
 
ENTRE 623 
 
 said that he should not be received to falsify any entry 
 except his own entry. And it was not allowed, because he 
 could vouch as assignee to him; wherefore the demandant 
 said that that was no plea, unless he said that he entered, 
 etc. But yet the plea was adjudged good, because by that 
 exception he gave him a writ of Error in the post, etc. 
 
 The case has not been identified in Y. B. Mich. 9 Ed. Ill, or in the Case 9. 
 early abridgments. 
 
 (10) 111 a writ of entry in the post, to wit: "Except Paschal 
 after the disseisin made on his brother," the tenant said that ™' ' 
 the same brother enfeoffed one J, whose estate he had. 
 
 And it was adjudged a good plea, etc. 
 
 The same plea is good in every writ of Entry, if he says 
 that he enfeoffed one by whom his entry is not alleged; 
 as well as in an Assize he shall say that the plaintiff enfeoffed 
 such a one whose estate he has, etc., for it is not contrary 
 to the writ. 
 
 And in a writ of Entry in the per, cui, or post, it is a good 
 plea to say that the plaintiff, or the ancestor of the plaintiff, 
 if the disseisin was made on him, enfeoffed the tenant, 
 judgment if action, etc. 
 
 Reported in Y. B. Paschal, 2 Hen. IV, p. 19, pi. 10. See also Fitzh: Case 10. 
 Entre, 47. The latter part of the statement is Statham's. It is 
 not in the case. 
 
 (11) In a writ of entry against an abbot, it was alleged Trinity 
 that he had no entry except by the disseisin that one J, ^° ^'^' ^ ^' 
 formerly abbot of that same place, etc. The tenant 
 demanded judgment because he did not name him his pre- 
 decessor. And it was not allowed, for Herle said that in 
 
 this writ he shall not [name him] heir or successor, etc. 
 
 Reported in Y. B. Trinity, 10 Ed. Ill, p. 34, pi. 20. The language in Case 11. 
 both the reported case and in the digest is obscure and apparently 
 corrupt. 
 
 (12) In a writ of entry in the post, if the tenant can Michaeiis 
 show that the demandant can have a writ within the ^* ^^- "^• 
 degrees, the writ shall abate, for at the common law there 
 
624 
 
 STATHAM 
 
 Michaelis 
 39 Ed. III. 
 
 Statham85b. ^as no writ in the post. And the Statute is "quod si 
 alienationes ille, de quibus breve de ingressu dari consuevit per tot 
 gradus fiant, etc., tunc habeat conquer ens breve, .... sine 
 mencione gradum," to wit, to him who is opposed, and other- 
 wise not. And so it is outside of the Statute, etc. 
 
 Case 12 There is no printed year of 34 Ed. III. The Statute is that of Marl- 
 
 bridge, 52 Hen. Ill (1267), cap. 29, Stats, at Large, Vol. 1, p. 55 (73). 
 "That if those alienations (whereupon a writ of entry was wont to be 
 granted) , hap to be made in so many degrees, that by reason thereof the 
 same writ cannot be made in the form beforetime used, the plaintiffs 
 shall have a writ to recover their seisin without making mention of 
 the degrees." 
 
 (13) Entry against a man and his wife, in which the 
 woman had no entry except by one R, who, etc. Canndish : 
 This writ is within the degrees, and he has not alleged the 
 entry of the husband, and the freehold is in him, etc., in 
 which case the writ should be in the post, judgment, etc. 
 Thorpe : The writ is good, wherefore answer, etc. (Study 
 this well, etc.) 
 
 Reported in Y. B. Mich. 39 Ed. Ill, p. 25, pi. 20. See also Brooke, 
 Entre in the Per, Cui et Post, 25. 
 
 (14) In a writ of forcible entry, the writ recited the 
 statute, and said that the defendant entered into certain lands 
 and tenements by the strong hand, and with a multitude of 
 people had entered "illicite." And because he did not say, 
 "Where this entry not given by law," the writ was abated, 
 for although the writ be illegal, that shall relate to the 
 strong hand, which cannot be lawful ; but albeit he entered 
 by the strong hand, and his entry were lawful, the plaintiff 
 cannot recover anything upon that Statute, etc. But 
 there is another Statute Anno 5 Ric, which says that a man 
 shall not enter by force, but his entry shall be lawful; 
 and if he brings his action upon that Statute, then he shall 
 recover. (But the best Statute on such entries is Anno 8 
 King Hen. VI.) 
 
 Reported in Y. B. Trinity, 9 Hen. VI, p. 19, pi. 12. See also Fitzh: 
 Entre, 15, Statute of 8 Hen. VI (1429), cap. 9, Stats, at Large, Vol. 3, 
 p. Ill (121). And 5 Ric. II (1381), cap. 7, Stats, at Large, Vol. 2, 
 p. 232 (240). Also 15 Ric. II (1391), cap. 2, Stats, at Large, Vol. 2, 
 p. 388 (339). The case is continued in 14 Hen. VI, p. 16, pi. 53. 
 
 Case 13. 
 
 Trinity 
 9 Hen. VI. 
 
 Case 14. 
 
ENTRE 625 
 
 (15) If one disseises me, who is disseised, and the first Michaeiis 
 disseisor dies, and his issue is enfeoflfed, I shall not have ^"- ^ • 
 a writ of Entry against him in the per, for no one will be 
 adjudged as continuing the first disseisin against me except 
 
 the disseisor himself. Which all the Court conceded. 
 And this in a writ of Entry in the post, etc. 
 
 Reported in Y. B. Paschal (not Mich.) 3 Hen. VI, p. 38, pi. 2. See Case 15. 
 also Brooke, Entre in le Per, Cui et Post, 1. The statement of facts 
 differs, but the law is in agreement with Statham's case. 
 
 (16) In a writ of forcible entry because the defendant HUary 
 should have entry into a house and ten shillings rent. FoR- 
 tescue: How can a man enter into a rent? PastoN: A 
 man can distrain with force for rent, and a man shall have 
 
 a writ of Entry for rent, alleging that you have no entry 
 in the rent except by, etc., and consequently this writ. 
 And they adjourned, etc. 
 
 The case has not been identified in Y. B. Hilary, 19 Hen. VI, or the Case 16. 
 early abridgments. 
 
 (17) If a woman seignoress of a rent takes a husband Trinity 
 who disseises the tenant of the land, and alienates the land 
 
 and dies, the woman shall have a writ of Entry, to wit: 
 a Cui in Vita for the rent in the per,^ and yet the writ is 
 false. And if my tenant makes a rescous of my rent and 
 alienates the land, I shall have a writ of Entry for the rent 
 against the alienee, and still it is not an entry in the rent 
 by him, but into the lands, etc. 
 
 And it was said by Thirning, in the same plea, that if a 
 woman be enfeoffed and then takes a husband, and a writ 
 of Entry is brought against them, the entry of the husband 
 shall not be alleged to be by anyone. But it is otherwise 
 when a woman is enfeoffed when she is covert, for there 
 
 1 The case says, "in the per or in the post" and gives interesting rea- 
 sons for the writ being "faux." "If it be in the post it is necessary to 
 suppose that the tenant had not entered until after the demise that the 
 tenant of the land made to a stranger, which is false, because it was 
 made by her husband; and to suppose the entry of the rent by the 
 husband is false also, because the husband made a demise of the land." 
 
626 
 
 STATHAM 
 
 Case 17. 
 
 she cannot enter unless the husband enters, for by the 
 entry of the woman the freehold vests in the husband, 
 "simul et semel," etc. And also in a writ of Entry in the 
 post the entry of the husband shall be alleged, etc. 
 
 Reported in Y. B. Trinity, 7 Hen. IV, p. 17, pi. 11. See also Brooke, 
 Entre in le Per, Cui et Post, 11. 
 
 Paschal 
 27 Hen. VI. 
 
 Case 18. 
 
 Note. 
 
 (18) In a writ of entry in the per and cui for rent, 
 the tenant vouched to warranty him by whom his entry 
 was alleged generally, who entered into the warranty and 
 said that he entered on the lands from which the rent is 
 issuing by one H, and by him whom the writ alleges. 
 Danby: That is no plea, for you alleged that you entered 
 into the rent and not into the lands: and if in a Prmcipe 
 quod Reddat for rent the tenant vouches for the lands, he 
 should show cause, for otherwise it is contrary to the writ. 
 And also he has entered generally into the warranty, where- 
 fore he cannot allege the contrary to that which the tenant 
 has admitted, etc. And they adjourned, etc. 
 
 The case has not been identified in Y. B. Paschal, 27 Hen. VI. There 
 is no Paschal Term for that year in the printed Year Books. Fitzh: 
 Entre in le Per, Cui et Post, 23, has the case. 
 
 See as to entry in the post, in the title of Receipt, 
 Trinity, 31 Ed. Ill, and also in the title of Bar, various 
 matters, etc. 
 
 Statham, title of Resceipte, infra, p. 154 a; and Statham, title Barre, 
 supra, pp. 32 b to 37 b. 
 
 Michaelis 
 20 Ed. II. 
 
 Case 19. 
 
 (19) In a writ Dum Fuit infra Mtatem on the lease of the 
 demandant, the tenant pleaded the release of the demandant. 
 And because he did not say that the demandant was of full 
 age at the time of the making of the release, it was the 
 opinion that it was not a bar. (But yet it seems good, 
 etc.) 
 
 There is no printed year of 20 Ed. II, and there is no early printed 
 year of 20 Ed. Ill, for which the citation might have been intended. 
 The case has not been identified in the Rolls Series for that year and 
 term. 
 
ENTRE 627 
 
 (20) If a man enfeoffs the king, who enfeoffs another, Hilary 
 etc., a writ of Entry in the per does not lie, because his ^^ ^^' "^■ 
 entry shall not be alleged by the king, but he can have a 
 writ of Entry in the post, etc. By Sharshull in an Assize, 
 etc. But if the king disseises me and enfeoffs another, I 
 cannot have any writ, because I cannot allege that the king 
 is a disseisor, etc. 
 
 The very short printed year of 23 Ed. Ill does not give the case. Case 20. 
 Fitzh: Entre, 11, gives the case much as Statham does, and refers 
 to 23 Ed. Ill, without page or placitum, and also gives Paschal, 23 
 Ed. Ill, p. 7, pi. 27. This is only a very short note, not giving any sup- 
 port to the first part of the case; the second part, however, appears. 
 
 See that a man cannot enter with force into a rent ; in Note. 
 Damages, Mich. 33, Hen. VI. 
 
 Statham, title of Damages, supra, p. 60 a, case 43. An assize for 
 rent. 
 
 " The writ of Entry is one of the most common of all the writs in the 
 Year Books. Maitland takes issue with Blackstone as to the age of 
 these writs. Blackstone had said [Comm. 3: 184] that the writ of Entry 
 was older than the Assizes. Maitland [Forms of Action, pp. 339-40] 
 claims that "it is nonsense to suppose that our Saxon ancestors knew 
 anything about writs of Entry . . . Glanville gives no writ of 
 Entry. . . . The Registers of the early years of Henry III give two 
 such writs, the writ of entry ad terminum qui prcEteriit and the writ cui 
 in vita, and on a Patent Roll of 1205 there is a writ of entry sur dis- 
 seisin, a writ for the disseisee against the heir of the disseisor, followed by 
 a writ which directs that this henceforward shall be a writ of course. 
 [Rot. Pat. 1 : 32.] Before the middle of the century we find almost all 
 the writs of entry in use, except those which were afterwards given by 
 Statute. The truth is that the writs of entry presuppose the Assizes. 
 . . . I have been compelled to insist on this point because Black- 
 stone's theory turns the whole history of seisin upside down." [p. 340.] 
 It is as a guide-post to the student, who even yet is not too freely told 
 that he is not to follow his Blackstone, that this quotation is made. 
 Maitland had spoken of writs of entry in the History of English Law 
 [Vol. 2: 62-75] and in a note to that History [p. 80] he had very largely 
 incorporated this remark as to Blackstone. Still it is but a note, and 
 might well be overlooked. Maitland of course bases his arguments 
 upon well-founded proof. We have that of Bracton. [Treatise, pp. 219, 
 219, b., 220. Note Book, pi. 713.] Reeves had noticed these cases in 
 Bracton, and says it is probable that they — writs of entry — were 
 introduced not long after Glanville's time. [Reeves, Hist, of Eng. Law, 
 
628 
 
 STATHAM 
 
 Vol. 1: 341.] He also notices the matter of the conversion of a writ of 
 entry into a writ of right. [lb., pp. 386-390.] And further, as to the 
 different species of the writs of entry and the procedure thereupon, 
 Reeves [Vol. 1: 388-397] and P. & M. Hist, of Eng. Law [2d ed., Vol. 
 2, 62-75, and note to p. 65]. The influence of these writs upon the 
 development of our law is sufficient to make a clear understanding of 
 such development of much moment. 
 
 EXAMINACIONE 
 
 Statham86a. (1) ijj debt Upon the arrears of an account brought 
 by executors, they shall not be examined, because their 
 account was before their testator, etc.. Query, if the 
 account had been had before themselves for a receipt had 
 by their testator? etc. 
 
 Reported in Y. B. Paschal (not Hilary), 9 Hen. VI, p. 8, pi. 19. See 
 also Brooke, Examination, 6; and Fithz: Examinacion, 8. 
 
 Hilary 
 9 Hen. VI 
 
 Case 1. 
 
 Michaelis 
 3 Hen. VI. 
 
 Case 2. 
 
 Trinity 
 3 Hen. VI. 
 
 Cases. 
 
 (2) In detinue against executors for a bailment made to 
 their testator, they prayed that the plaintiff be examined, 
 and so he was, etc. Query, if rigore juris, etc.? And 
 they admitted that the bailment was made where they 
 declared, etc., and that their testator died in another county. 
 Paston: Judgment of the writ, then, for the action should 
 have been brought where he died, for their charge begins 
 there, etc. And the opinion of the Court was against him. 
 
 Reported in Y. B. Paschal (not Mich.), 3 Hen. VI, p. 38, pi. 1. See 
 also Brooke, Examination, 3; and Fitzh: Examinacion, 5. The case 
 gives no decision for or against him. 
 
 (3) In debt upon the arrears of an account, if the attorney 
 of the plaintiff be examined, and then the plaintiff appears, 
 they will examine him, for he had better notice, etc. 
 And so see that an attorney shall be examined, and yet an 
 executor, who is in a manner like an attorney to his testator, 
 shall not be examined, etc. 
 
 So far as it has been identified, the case appears in Y. B. Trinity, 
 3 Hen. VI, p. 46, pi. 2, where the point is made in the course of an argu- 
 ment on a writ of debt upon an account. See also Brooke, Examination, 5. 
 
EXAMINACIONE 629 
 
 See as to examination, in the title of Executors; in Note. 
 the title of Fines ; and in the title of Deceit. 
 
 Statham, title of Executours, infra, pp. 87 a to 88 b; Statham, title 
 of Fynez, infra, pp. 96 a and 96 b.; Statham, title Disceipte, supra, 
 pp. 68 a to 68 b. 
 
 (4) In debt upon the arrears of an account, when the Trinity 
 defendant prayed that the plaintiff should be examined, he 
 proffered his law immediately, to wit: "Nothing owing him; 
 Ready to wage his law," and prayed that he be examined, 
 etc. 
 
 The case has not been identified in Y. B. Trinity, 28 Hen. VI, or in Case 4. 
 the early abridgments. 
 
 ENTRE PLEDER 
 
 (1) In detinue by two against one H, who said that the Hilary 
 writings were delivered to him by the plaintiff and three ^ ^™' 
 others ; and he prayed a ScireFacias, and had it ; on which day 
 
 the sheriff returned that the writ was served. And one of the 
 garnishees did not come, but yet the two who came pleaded 
 with the plaintiff. And yet if one of the plaintiffs was non- 
 suited, that would be a nonsuit for both of them, etc. 
 
 Reported in Y. B. Hilary, 2 Hen. IV, p. 16, pi. 22. See also 3 Hen. IV, Case 1. 
 p. 7, pi. 31; and Fitzh: Entrepleader, 12. 
 
 (2) In a writ of wardship, the defendant said that she 3,^^^^' j 
 did not claim anything in the said body, except by reason 
 
 of sustenance; and she said that one H had another writ 
 pending against him for the same wardship, and she prayed 
 that they might interplead. Skipwith: This H was 
 essoined, so it appears that he has made his own delay, 
 wherefore it is not reasonable that we shall be delayed by 
 that, etc. And it was not allowed, wherefore it was said 
 to their attorneys that they should sue separate ScireFacias' 
 against their masters to interplead, etc. And so it was 
 done, wherefore they came by the Scire Facias ; and then 
 the defendant said that while these writs were pending 
 
630 
 
 STATHAM 
 
 Case 2. 
 
 Hilary 
 
 14 Hen. VI. 
 
 Case 3. 
 
 one F had brought a writ against him for the same wardship, 
 and prayed that he be notified to interplead; and it was 
 granted. Which note, etc. Thorpe gave as his reason 
 that the demandant would recover his damages against 
 each one in accordance with the delay they had caused 
 him, etc. Query as to this matter? For it is wrong for 
 them to interplead unless all the writs are returnable on 
 the same day, etc. 
 
 There is no printed year of 31 Ed. III. Fitzh: Entrepleader, 15, 
 has the case, of which he gives a long digest. 
 
 (3) Two brought separate writs of Detinue on the same 
 obligation, and each of them counted upon a bailment made 
 to the defendant. And the writs were returned on the same 
 day; and the defendant prayed that they might interplead, 
 and they could not, because he had charged himself against 
 both by his own act.^ The law is the same where one 
 declares upon a bailment, and the other upon another 
 cause, as it seems, etc. But where they both declare upon 
 any other cause than upon a bailment, then they shall 
 interplead, etc.; for then the defendant is not obliged to 
 deliver the deed, except to him who had the right, etc. 
 Query, if he delivers the deed to him who had no title, etc., 
 shall he who had title have his action against him, or against 
 him who had the possession, etc. ? 
 
 Reported in Y. B. Anno 14 Hen. VI, p. 2, pi. 6. See also Brooke, 
 Entrepleader 14; and Fitzh: Entrepleader, 6. 
 
 Trinity 
 15 Hen. VI 
 
 statham86b. (4) Where an action is brought against one, and he 
 said that the plaintiff and another delivered it to him upon 
 conditions, and prayed a Scire Facias against the other, who 
 came and showed other conditions, the plaintiff shall have 
 judgment to recover the writings immediately, for in no 
 case where the garnishee varies from the conditions that 
 the defendant has shown can they interplead: By the 
 opinion of the CouRT, etc. For in that case the gamisher 
 will not be injured, for if what he has said is true, the defend- 
 
 * "Because they had declared on several bailments," is the reason 
 given in the report of the case. 
 
ENTRE PLEDER 631 
 
 ant is charged against him in Detinue, and they cannot 
 interplead, for the defendant is out of Court, etc. 
 
 There is no printed year of 15 Hen. VI. The case has not been Case 4. 
 identified in the early abridgments. 
 
 (5) In detinue against one J, the plaintiff counted on a Trinity 
 bailment, and another brought a writ for the same writing, ^ '"™' ^^' 
 returnable on the same day, and counted that they were 
 concerning lands, etc. The defendant said that he was 
 ready, etc., and prayed that they might interplead; and 
 
 the opinion was that they should not be forced to do this, 
 because the defendant, by his own deed, had charged him- 
 self against them both. But yet Strange said that if 
 one of them who had a right to the deed recovered against 
 him, that he could plead this recovery in bar against the 
 other, who bailed to him; as well as in debt upon a lease 
 for a term of years I shall show how one who had a right 
 to the lands entered upon me, etc. Study well. 
 
 Reported in Y. B. Trinity, 9 Hen. VI, p. 17, pi. 9. See also Brooke, Case 5. 
 Entrepleader, 5; and Fitzh: Entrepleader, 5. Statham may well 
 say, "Study well," for the question is argued at length and skillfully. 
 
 (6) The Lord of Cromwell brought a writ of Detinue g^^^^j 
 against J, and, demanded delivery of an obligation for a 
 thousand pounds, which one G delivered to the defendant 
 
 to deliver to the plaintiff. And this same G brought a 
 writ of Detinue for the same obligation, against the same 
 person, who counted that he bailed it to him for him to 
 rebail. And the writs were returnable upon the same day. 
 And it was debated if they should interplead, inasmuch as 
 the defendant had admitted no privity nor any conditions 
 between the plaintiffs in regard to the bailment, so it is 
 chargeable against both, for he did not say anything [as 
 to being] he was ready to deliver them, to whom, etc. And 
 then it was adjudged that they should interplead. 
 
 And it was said in the same plea, that if I declare upon a 
 bailment where in truth the defendant found the deed, 
 [I shall say] without this that I bailed, etc., for otherwise 
 he is chargeable against him who had the right, etc. 
 
632 
 
 STATHAM 
 
 Case 6. 
 
 Michaelis 
 18 Hen. VI. 
 
 Case 7. 
 
 Michaelis 
 7 Hen. IV. 
 
 Case 8. 
 
 And it was said in the same plea that in replevin against 
 two for an ox, and each of them makes a separate avowry 
 in his own right, they shall not interplead, but the whole 
 shall abate, for both cannot have a return of one and the 
 same ox, etc. 
 
 Reported in Y. B. Mich, (not Paschal), 3 Hen. VI, p. 20, pi. 32. See 
 also Brooke, Entrepleader, 2; and Fitzh: Entrepleader, 1. The remarks 
 quoted by Statham are not in the printed report of the case. 
 
 (7) Two brought separate writs of Detinue returnable 
 on the same day, and each of them declared upon a bail- 
 ment. Markham : The deed was delivered to us by both 
 the plaintiffs, upon certain conditions, and we do not know, 
 etc.; and we pray that you interplead. Portyngton: 
 Imparle. Query, if this be a plea, for it goes to the abate- 
 ment of both their writs. 
 
 Reported in Y. B. Mich. 19 (not 18), Hen. VI, p. 3, pi. 6. This is 
 assumed to be the case, as it corresponds in matter of fact and law to the 
 digest. Brooke, Entrepleader, 11, raises the question, brought up in 
 several cases of interpleader, as to which of the parties to the inter- 
 pleader shall be plaintiff. 
 
 (8) If three or four were to have a livery out of the 
 Chancery, where each of them is found heir to the same 
 ancestor by different offices, the opinion of Thirning was 
 that they should interplead, etc. 
 
 ^.Reported in Y. B. Mich. 7 Hen. IV, p. 4, pi. 25. 
 
 Note See as to interpleader, in the title of Detinue, Hilary, 
 
 36 Hen. VI. 
 
 Statham gives no such citation in his title of Detenu, supra, pp. 67 a 
 and 67 b. 
 
 (9) Query, if two Pracipe's quod Reddat axe brought 
 against a man for the same lands on the same day, and the 
 tenant says that his father died seised ; and because it was 
 understood that his father had no title to the land, they 
 would not waive the possession between them; and as they 
 did not understand to which of the demandants the land 
 belonged, they prayed that they might interplead, etc. 
 
ENTRE PLEDER 633 
 
 And in that case they should interplead, because the defend- 
 ant did not claim anything in the lands, no more than in 
 the cases above; for that is the cause for the interpleader, 
 when the defendant has a legal occupation in the thing 
 demanded, and does not claim anything, etc. 
 
 There is no citation given in Statham for this case, and it may well Case 9. 
 be a number of notes jotted down for private use and not intended 
 for publication. The wording is awkward, and evidently needed 
 revision. 
 
 EXECUTOURS« 
 
 (1) In debt against two executors, one came at the statham 87 a. 
 Pluries Capias, and a distringas issued against the others. Hilary 
 And the opinion was that he should be required to answer, 
 
 albeit the distringas was never awarded against him, etc. 
 
 Reported in Y. B. Hilary, 40 Ed. Ill, p. 1, pi. 2. See also Brooke, Case 1. 
 Executors, 25. 
 
 (2) In debt against executors who pleaded fully admin- Paschai 
 istered; and it was found that they had, etc. And the ■* 
 opinion was that the inquest should make the sum certain, 
 
 for they will not be charged except according to the finding 
 of the inquest, etc. 
 
 Reported in Y. B. Paschal, 40 Ed. Ill, p. 15, pi. 1. See also Brooke, Case 2. 
 Executors, 141, who seems to have seen a different report of the case. 
 
 (3) See a writ of debt brought by [against] executors of J"Ed''ni. 
 executors. 
 
 Reported in Y. B. Trinity, 41 Ed. Ill, p. 13, pi. 3. See also Brooke, ^ase 3. 
 Executors, 26; andFitzh: Executours, 64. Debt on a contract. They 
 showed no obligation and took nothing by their writ. 
 
 (4) An executor brought a writ of Debt, and he pro- Michaeiis 
 duced a will which proved that [there was another executor] ^ *! '^^^ "i- 
 etc. The defendant said that he was alive. The plaintiff 
 
 said that he was discharged from the administration before 
 
 » Words from the report of the case. The remarks in the digest are 
 not in the case. 
 
634 
 
 STATHAM 
 
 Case 4. 
 
 Michaelis 
 10 Ed. III. 
 
 Case 5. 
 
 the ordinary, and that he never administered, etc. And 
 because he could administer when he would, it was adjudged 
 that he take nothing, etc. But it is otherwise on the part 
 of the defendant, for the plaintiff shall not be forced to bring 
 his action, except against those who administer, because 
 he is a stranger to the will, etc. See here that the plaintiff 
 did not count that his companion was dead. It seems that 
 he should, because he was named in the will, etc. Query? 
 
 Reported in Y. B. Mich. 41 Ed. Ill, p. 22, pi. 10. See also Brooke, 
 Executors 27; and Fitzh: Executours, 63. 
 
 (5) Where [an action is brought against] ^ executors by 
 way of demand and one of them who has administered is 
 dead, his executor shall not be joined in an action with the 
 others, because they are strangers to the first will; but 
 vice versa the law is otherwise, as appeared in Mich. 41, 
 in a note, etc. 
 
 The case has not been identified in Y. B. Mich. 10 Ed. Ill, or in 
 Mich. 41 Ed. III. 
 
 Paschal (6) 
 
 42 Ed. Ill, 
 
 Case 6. 
 
 Two executors brought an action. The defendant 
 showed that one of them was outlawed. And the Court 
 held that the other could continue the process as well as if 
 one was nonsuited. And this in Debt, etc. 
 
 Reported in Y. B. Paschal, 42 Ed. Ill, p. 13, pi. 21. See also Brooke, 
 Executors, 30. 
 
 Paschal 
 46 Ed. III. 
 
 (7) In debt against three executors, etc. Two said, 
 "never executor" ; the third said that he had fully admin- 
 istered; and upon that they were at issue. And it was 
 found that one of those who pleaded, "never," etc., was 
 never, etc., and that the other was; and that the third 
 had four pounds in his hands. And it was adjudged that 
 the plaintiff should recover the amount which was in 
 the hands, etc., of the goods of the deceased, etc., and 
 the remainder of the goods from him who was found to be 
 
 ' The case seems unintelligible without these additional words, or 
 some emendation of the text. These words, however, do not appear in 
 the text of Statham. 
 
EXECUTOURS 635 
 
 an executor ^ and that he be amerced against the third, etc. 
 And the same judgment was given on that same day, 
 where an action was brought against an executor, who said, 
 etc. And it was found that he was, etc., and that he had 
 ten pounds in his hands. And the plaintiff recovered the 
 ten pounds of the goods [of the deceased], and the remainder 
 of the goods against this same, etc. Query, where such a 
 judgment is given wholly against himself, etc., for his false 
 pleas, and then he pays it to him who recovered the goods of 
 the decccised, shall that be called an administration against 
 another man, against whom he is charged as executor? etc. 
 
 Reported in Y. B. Paschal, 46 Ed. Ill, p. 9, pi. 6. See also Brooke, Case 7. 
 Executors, 34; and Fitzh: Executours, 72. 
 
 (8) In covenant against executors, one cannot answer Michaeiis 
 without the other, because they are out of the purview 
 
 of the Statute, etc. But in detinue it is different, etc. 
 (But yet, query?) 
 
 Reported in Y. B. Mich. 47 Ed. Ill, p. 22, pi. 50. See also Brooke, Case 8. 
 Executors, 36. 
 
 The Statute is that of 25 Ed. Ill (1350), cap. 17, Stats, at Large, 
 Vol. 2, p. 49 (59). 
 
 (9) In account by two executors, one was severed, and Paschai 
 the defendant was adjudged to account. And a Capias ^^ '^'^- "^• 
 ad Computandum issued against him, and upon that the 
 exigent, until he was outlawed. And then he sued a charter 
 
 of pardon, and came and showed an acquittance to the 
 Court from him who was severed; and he prayed a Scire 
 Facias against him. And then came the other executor, 
 who was the wife of the testator, and told how their testator 
 had devised all his goods to her, and the debts which were 
 due to him; in which case it is not reasonable that the 
 acquittance of our companion should injure us, and 
 especially after he was severed, etc. And she prayed that 
 no Scire Facias should issue against her. Fyncheden: If 
 it be his deed you are without a remedy, unless it be before 
 the ordinary for an account against your companion. 
 
 1 Because of his false plea. 
 
636 
 
 STATHAM 
 
 Case 9. 
 
 Thorpe: It seems that a Scire Facias should not issue 
 against him who was severed, for the other was adjudged 
 to sue alone. Fyncheden: If an executor wishes to refuse 
 to administer in a Court of record, or before the ordinary, 
 then it is not reasonable that his acquittance shall be a bar, 
 or that a Scire Facias shall issue against him ; but it is differ- 
 ent here, etc. And then Thorpe awarded a Scire Facias 
 against the woman, leaving out the other. Which note, 
 because the contrary [has often been adjudged] elsewhere, 
 etc. But yet the acquittance of the other shall be a good 
 bar against the woman, whether he be garnished or not, 
 wherefore the award of the Scire Facias does not change the 
 case as it seems, etc. 
 
 Reported in Y. B. Paschal, 48 Ed. Ill, p. 14, pi. 8. See also Brooke, 
 Executors, 37. 
 
 Case 10. 
 
 (10) Executors paid twenty pounds for restitution of a 
 wrong done by their testator, to wit: a trespass. Query, 
 if that shall be called an administration against one to 
 whom their testator was indebted upon an obligation, 
 since they were not chargeable by the law to pay it, but 
 in conscience they were, etc. 
 
 The case has no citation in Statham, and has not been identified. 
 The point taken is interesting. 
 
 Paschal 
 21 Ed. III. 
 
 Case 11. 
 
 (11) In debt against executors, who pleaded "fully 
 administered," the plaintiff said that he brought another 
 such a writ against them, which was abated for a variance 
 in the names, and that he had purchased this writ of 
 "Journees accompies," without this that he would aver that 
 he had assets the day the first writ was purchased. Thorpe : 
 Although there is a writ pending against them, they shall 
 not omit to make an administration, etc. And that was 
 also the opinion of the Court, etc. 
 
 The case has not been identified in Y. B. Paschal, 21 Ed. Ill, or in 
 the early abridgments. 
 
 Paschal (12) Two executors brought a writ of Debt against one 
 
 3 Hen. IV. jj^ until he was outlawed, and then he had a charter of 
 
 pardon, and a Scire Facias. And the sheriff returned that 
 
EXECUTOURS 637 
 
 they had notice ^ and one came and the other did not, 
 and he who came counted against the defendant, and was 
 received to do so. But yet it is different as to other persons, 
 where the nonsuit of one is the nonsuit of both ; and this 
 was also a severance in fact, etc. 
 
 Reported in Y. B. Hilary (not Paschal), 3 Hen. IV, p. 10, pi. 9. See Case 12. 
 also Brooke, Executors, 44. 
 
 (13) In debt against two executors, the defendant showed Paschal 
 that they were outlawed. But yet it was adjudged that 
 
 they should answer, since it was only to another's use; 
 as an Attorney, etc. 
 
 Reported in Y. B. Anno 14 Hen. VI, p. 14, pi. 50. See also Fitzh: Case 13. 
 Executours, 11. 
 
 (14) Although the ordinary discharges one from the Paschal 
 executorship, still the other cannot have an action without 
 
 naming him, for he can administer when he wishes. And Stathamsrb. 
 this by Thorpe, in a Scire Facias, 
 
 (15) Debt was brought against executors, and [by] Trinity 
 executors against executors, and the writ was adjudged good, 
 
 etc. And if one administers of his own tort with executors, 
 I shall have an action against them as executors, but vice 
 versa the action does not lie, etc., for the second executors 
 are strangers to the first will, etc. 
 
 And it was said in the same plea, if the first executors 
 take the goods out of the possession of the second executors, 
 they shall not have an action against them, for their 
 testator could not have had an action if they had taken 
 them out of his possession, etc. But if the second executors 
 take the goods out of the possession of the first executors, 
 they shall have a good action, etc. And it seems that if 
 one of the first executors makes his executors and dies, 
 and his executors take such goods as were in the possession 
 of their testator, that the first executor shall have an action 
 of trespass against them, for the property remains in him 
 
 1 The case has it that one had notice, and the other had not. Brooke 
 states the case correctly. 
 
638 
 
 STATHAM 
 
 Case 15. 
 
 by the survivorship, and consequently the action, since 
 they were taken (as above), for the possession was in 
 him as well as in the other. And also the executor who 
 survives shall have an action for the debts of the first testator 
 by the survivorship, consequently; etc. Query? 
 
 There is no printed year of 15 Hen. VI. Fitzh: Executours, 12, has 
 the case. 
 
 Michaelis 
 4 Hen. VI. 
 
 Case 16. 
 
 (16) In debt against executors, who pleaded "fully ad- 
 ministered," and it was found for them, wherefore it was 
 adjudged that the plaintiff take nothing. And then the 
 plaintiff came and showed how, after that time, they had 
 goods, and he prayed a Scire Facias against them. Mar- 
 TYN: Their original suit is ended, wherefore, etc.; and you 
 can have a writ of Debt as a new original, etc. Which was 
 conceded, etc. 
 
 Reported in Y. B. Mich. 4 Hen. VI, p. 4, pi. 8. See also Brooke, 
 Executors, 85. 
 
 Michaelis (17) Executors shall have a writ of Ravishment of Ward- 
 ship, where the ward was taken out of the possession of 
 their testator, etc. 
 
 Case 17. Reported in Y. B. Hilary (not Mich.), 11 Hen. IV, p. 54, pi. 36. See 
 
 also Brooke, Executors, 53 ; and Fitzh : Executours, 52. 
 
 Paschal 
 9 Hen. VI. 
 
 Case 18. 
 
 (18) Executors can enter into the lands which their 
 testator had in fee, or for life, after his death, and take his 
 goods; and so can a stranger by their command. By the 
 opinion of the Court, in Trespass, etc. 
 
 The case has not been identified in Y. B. Paschal, 9 Hen. VI, or in the 
 early abridgments. 
 
 Hilary 
 
 4 Hen. VI. 
 
 (19) In debt against executors, the sheriff returned 
 "nihil habet" at the summons, upon which a Capias issued, 
 returnable now; and one of them came and was made to 
 answer without the other, for Babyngton said that the 
 Statute was made in favor of the plaintiff, and a distringas 
 cannot be awarded after one "nihil" returned, etc. But 
 at the Pluries Capias it has in fact often been adjudged 
 
EXECUTOURS 639 
 
 that one shall answer without the other, because it is the 
 third writ, and in a manner in the place of a distringas, etc. 
 
 Reported in Y. B. Hilary, 4 Hen. VI, p. 14, pi. 11 [12]. See also Case 19. 
 Brooke, Executors, 86. 
 
 The Statute is that of 4 Ed. HI (1330), cap. 7, Stats, at Large, 
 Vol. 1, p. 430 (434). 
 
 (20) If a man dies intestate, and one takes his goods Michaeiis 
 wrongfully, and keeps them by him, a man shall [not] ^^ ^^"- ^^■ 
 have an action against him as executor, but if he sells them 
 
 and pays any debt of the deceased, then an action lies 
 against him, for then he administers as executor, etc. By 
 Prisot. Query well, etc. 
 
 The case has not been identified in Y. B. Mich. 30 Hen. VI, or in the Case 20. 
 early abridgments. 
 
 (21) Executors shall have a writ of ejectione firmae Hilary 
 where their testator was ejected. By the opinion of the ^ ^^"' ^^' 
 Court, etc. 
 
 Reported in Y. B. Hilary, 7 Hen. IV, p. 6, pi. 1. See also Brooke, Case 21. 
 Executors, 45; and Fitzh: Executours, 53. 
 
 (22) In detinue against executors, he who first came by Michaeiis 
 distress was made to answer without his companion; but ^°' 
 yet the Statute says that the debt, etc. 
 
 And it was said in the same plea, if executors bring a writ 
 of Trespass for the goods of their testator which have been 
 carried away, they shall be severed. And if one will not sue, 
 yet if the writ be general, it is otherwise, etc., for there is 
 no need to name them executors, etc. 
 
 Reported in Y. B. Hilary (not Mich.), 14 Hen. IV, p. 23, pi. 30, where Case 22. 
 it would appear that the conclusion was contrary to that reported by 
 Statham. But the case appears again on p. 97 of the same year and 
 term, pi. 37, where it is argued at very great length, and the three 
 executors are made to answer for the detinue, without the fourth. 
 The case, as it appears on p. 37, is an excellent example of the method 
 and skill in pleading of the time. See also Brooke, Executors, 64. 
 
 The Statute is that of 4 Ed. Ill (1330), cap. 7, Stats, at Large, 
 Vol. 1, p. 430 (434). 
 
640 
 
 STATHAM 
 
 Michaelis 
 39 Ed. III. 
 
 Case 23. 
 
 Michaelis 
 2 Hen. VI. 
 
 Case 24. 
 
 (23) One brought a writ of debt against one K on a 
 contract between them, and she pleaded a release from the 
 plaintiff of all actions, and in the deed the plaintiff was 
 named executrix, etc. Canndish: This deed in the name 
 of an executor will not bar us, except where we bring an 
 action as executor and we are named as executor, etc., and 
 here we are not named executor, judgment, etc. And it 
 was the opinion that she should be barred, etc. 
 
 Reported in Y. B. Mich. 39 Ed. Ill, p. 26, pi. 21. 
 
 (24) If a man has judgment to recover the goods of the 
 deceased against executors, and he sues execution accord- 
 ingly, and the sheriff returns that they have wasted the 
 goods, the plaintiff shall have a Capias to take their body 
 and have execution of their own goods, etc. 
 
 Reported in Y. B. Trinity (not Mich.) 2 Hen. VI, p. 12, pi. 4. See 
 also Brooke, Executors, 8. 
 
 Michaelis 
 9 Hen. VI. 
 
 Case 25. 
 
 (25) In debt, the defendant said that there was a co-ex- 
 ecutor, not named, etc., and it was found against him. And 
 the plaintiff prayed a general judgment, and could have it 
 only for the goods of the deceased, etc. 
 
 Reported in Y. B. Mich. 9 Hen. VI, p. 44, pi. 26. See also Brooke, 
 Executors, 13, who has either mistaken the point or has another 
 report of the case. 
 
 Paschal 
 9 Hen. VI. 
 
 Case 26. 
 
 (26) In debt against administrators, it was counted that 
 one H died intestate at B, and that the ordinary committed 
 the administration to them. Chaunt: He made his will 
 at F, etc., and by the same will he made us his executors, 
 by force of which we administered, in which case we shall 
 be named executors and not, etc.; judgment of the writ. 
 Paston : That is no plea, for you should say that the will 
 was approved before the ordinary, and also "without this 
 that he died intestate," and also "without this that the 
 ordinary committed the administration to you, etc." And 
 they adjourned, etc. 
 
 Reported in Y. B. Paschal, 9 Hen. VI, p. 7, pi. 17. See also Fitzh: 
 Executours, 8. Statham has put several remarks into his digest which 
 
EXECUTOUBS 641 
 
 are not found in the printed case. He also makes the Court adjourn, 
 where the case makes the parties imparl. Fitzherbert follows the 
 printed report of the case. 
 
 (27) Where a woman is made executrix and marries, Hilary 
 the release or acquittance of the woman during the cover- ^* "™- ^^• 
 ture cannot be good, but the release or acquittance of her 
 husband is good in his own name, etc. Paston: in Debt, 
 
 etc. But that acquittance should especially set forth the 
 matter, as I believe, etc. 
 
 The case has not been identified in Y. B. Anno 14 Hen. VI, or in the Case 27. 
 early abridgments. 
 
 (28) In debt, the defendant can give his goods where it Paschal 
 pleases him, pending the writ, and they shall not be put ® "'^"' ^^' 
 in execution unless the plaintiff recovers, because his person 
 
 is charged. But it is otherwise against executors, for the 
 charge runs upon the goods of the deceased, if it be not 
 for their mispleading, etc. But yet if, pending a writ 
 against them, another recovers and sues execution, they 
 shall be discharged. And if the execution be sued against 
 them after judgment, so that they cannot plead it, they 
 shall have an Audita Querela, etc. But it is otherwise where 
 they have administered by their own authority, etc. 
 
 Reported in Y. B. Paschal, 9 Hen. VI, p. 9, pi. 25. See also Brooke, Case 28, 
 Executors, 11; and Fitzh: Executours, 9. If this is indeed the case, 
 for there is ground for doubt, Statham again has matter outside the 
 case in his first statement. 
 
 (29) In debt against executors, who pleaded "fully statham 88 a. 
 administered," and it was found against them. Hankford Michaeiis 
 (to Wakefield, the prothonotary) : Enter the judgment of ^^ "^"- ^^' 
 the debt for the goods of the deceased, and for the damages 
 
 on a general judgment. And the plaintiff prayed a Capias 
 ad Satisfaciendum, and had it for the damages ; which note. 
 And see that in every other case when executors plead 
 any plea in bar, except the aforesaid, to wit: "fully admin- 
 istered," and the plea is found against them, the plaintiff 
 shall have a general judgment against them for the debt 
 because of their false plea; and their own goods shall be 
 
642 
 
 STATHAM 
 
 charged. But in the case of "fully administered," the 
 judgment shall not be general, for if it be found against 
 the plaintiff, still he is not barred, except as to that time, 
 for if goods came to their hands afterwards, he shall have 
 a new action; so he is not barred forever as in other cases, 
 etc. (But yet some say that he shall never have such 
 a general judgment of debt, except for the damages, etc.) 
 Query? 
 
 Case 29. Reported in Y. B. Mich. 11 Hen. IV, p. 
 
 of the digest is in Statham's own words. 
 51. 
 
 5, pi. 11. All the latter part 
 See also Brooke, Executors, 
 
 Michaelis 
 18 Hen. VI. 
 
 Case 30. 
 
 (30) In debt against executors, who said that their 
 testator made another his executor, to administer with 
 them, etc. Fortescue: He did not administer before the 
 purchase of the writ. Ready. And it was adjudged a 
 good plea. 
 
 Reported in Y. B. Hilary (not Mich.), 18 Hen. VI, p. 29, pi. 1. 
 
 Hilary 
 
 19 Hen. VI. 
 
 X^ase 3l. 
 
 (31) One had a fieri facias against executors for the 
 goods of the deceased. And the sheriff returned that they 
 had wasted the goods; upon which the plaintiff had a Scire 
 Facias against them to say why he should not have execution 
 against them on their own goods. And the writ was 
 challenged because it ran: "Cum [un tiel\ recuperassef," etc., 
 and did not show by what writ. And the writ was adjudged 
 good, etc. And so it seems that upon such a return (as 
 above) they shall not have a Capias against them without 
 suing a Scire Facias, etc. 
 
 Reported in Y. B. Hilary, 19 Hen. VI, p. 49, pi. 6. See also Brooke, 
 Executors, 71. 
 
 Paschal 
 
 19 Hen. VI. 
 
 Case 32. 
 
 (32) If a man take goods out of the possession of executors 
 which are the goods of their testator, one of them cannot 
 have an action without his companions. By the opinion 
 of the Court, in Trespass, etc. 
 
 Reported in Y. B. Paschal, 19 Hen. VI, p. 65, pi. 3. 
 Executours, 14. 
 
 See also Fitzh : 
 
EXECUTOURS 643 
 
 (33) Executors shall have a writ of Ravishment of Ward- Michaeiis 
 ship [for the ward] who was taken out of the possession of ^^ "^"' '^• 
 their testator. And this by the equity of the Statute 
 
 of Edward III, "De Bonis Asportatis," etc. 
 
 Reported in Y. B. Hilary (not Mich.), 11 Hen. IV, p. 54, pi. 36. See Case 33. 
 also Brooke, Executors, 53; and Fitzh: Executours, 52. 
 
 The Statute is that of 4 Ed. HI (1330), cap. 7, Stats, at Large, Vol. 1, 
 p. 430 (434). 
 
 (34) In detinue against executors, he who first came by Hilary 
 the distress was forced [to answer, etc.]. ^^ ^'^' '^^' 
 
 Reported in Y. B. Hilary, 17 Ed. HI, p. 9, pi. 29. Case 34. 
 
 (35) In detinue for charters against executors, one came Michaeiis 
 at the distress, and the other did not. Now, the question ^^ "^"' ^^' 
 is, should he answer or not? Portyngton: Although the 
 
 action be brought against them as executors, still it lies 
 against them without naming them executors, for their 
 possession is the cause of the action. And this is clearly 
 proved, for "never executor" is no plea. Markham: 
 Although "never executor" is no plea, still they shall have 
 no pleas as executors, for they say that their testator bailed 
 the charters to the plaintiff in another county, and they also 
 pleaded a release of all actions which the plaintiff made to 
 their testator. Newton: I deny both your reasons, for 
 the executors had nothing to do with the charters, albeit 
 the possession came to them. And although the plaintiff 
 released all actions to the testator, still he could take the 
 writings, and consequently have an action against another 
 who came to the possession as executor. But, perad- 
 venture, a release of all the right that he had in the charters 
 might be a bar, and no judgment shall be given against them 
 in that case, of the goods of the deceased, nor damages 
 for the detinue by their testator. Markham: Executors 
 will be charged for the damage that their testator did 
 when their testator detained my debt. Newton: Not 
 the same. Markham: I shall have replevin against 
 executors for a taking made by their testator and recover 
 damages against them for the taking. Newton: That 
 
644 STATHAM 
 
 cannot be, for your writ is false. Markham: I shall 
 have a special writ against them, as well as executors 
 shall have replevin for the cattle taken from their testator. 
 Newton: That is another matter, but I think that the 
 Statute does not extend to any cases except where damages 
 are recoverable against them for the goods of the deceased. 
 And they adjourned, etc. 
 
 And to that which was said, that the essoin in that writ 
 was [as] in a plea of Debt, still it is another sort of action, 
 etc. And they adjourned. Similar matter, 11 Hen. IV. 
 Well argued. 
 
 And it was said in the same plea, if I find charters, and 
 one who has no right to them recovers against me, I am 
 discharged as to him who had a right [to them], for I was 
 not obliged to know who had a right in that case, but he 
 shall be driven to take his action against him who had 
 possession, and particularly when my possession is defeated 
 by course of law. But where a bailment is made to me the 
 law is otherwise, unless I am able to show that he who 
 recovered had the right, and not the plaintiff. 
 
 Case 35. Reported in Y. B. Mich. 21 Hen. VI, p. 1, pi. 1. In the latter part 
 
 of the printed case we are told of a like case decided afterward, in which 
 the executor was obliged to answer. 
 
 The Statute is that of 9 Ed. Ill (1335), cap. 3, Stats, at Large, Vol. 1, 
 p. 449 (454). 
 
 Paschal (36) In debt against two executors, one came at the 
 
 Hen. I . distress and pleaded a plea in bar, to which the plaintiff 
 replied ; and they were at issue. And process issued against 
 the other executor, who came on another day and pleaded 
 in abatement of the writ, upon which they were at issue. 
 And it was the opinion of the Court that the plaintiff had 
 discharged himself of the first issue, inasmuch as he had 
 replied to the second plea ; for they said that the plaintiff 
 shall answer to only one plea against executors. For in 
 debt against several executors, where one pleads one plea 
 and another another plea, and so on severally, the plaintiff 
 shall answer to only one of those pleas; and they shall 
 be forced to keep to only one plea — that which is more 
 
EXECUTOURS 645 
 
 favorable to their testator, at the discretion of the judges, 
 etc. And this is understood to apply when every plea 
 goes in bar of the whole action, etc. Query? 
 
 The case has not been identified in Y. B. Paschal, 7 Hen. IV, or in the Case 36. 
 early abridgments. 
 
 (37) In an audita querela against two executors, at Trinity 
 the distress, one came and was made to answer without his ^"' ^^' 
 companion, etc. 
 
 Reported in Y. B. Trinity, 7 Hen. IV, p. 16, pi. 6. See also Brooke, Case 37. 
 Executors, 48. Contra, infra, case 39. 
 
 (38) If I make a man who is my debtor my executor B'h'^ vi 
 with others, and die, the other executors shall have an 
 
 action of debt against him in all their names, and they 
 shall be summoned and severed; for it is not reasonable, 
 when one is indebted to me, that that debt shall be 
 extinguished. But it is otherwise when their testator is 
 indebted to me, and he makes me and others his executors, Statham 88 b. 
 and dies; for then he can retain as much as the debt 
 amounted to, etc. And this was held by all the Court in 
 a Scire Facias, etc. 
 
 The case has not been identified in Y. B. Trinity, 27 Hen. VI, or in Case 38. 
 the early abridgments. 
 
 See as to executors, in the title of Issue, etc. Note. 
 
 Statham, title of Issue, infra, pp. 115 b to 117 b. 
 
 (39) In a writ of covenant against executors one could ^^ g^^\jj 
 not answer without the other, etc. 
 
 Reported in Y. B. Mich, (not Paschal), 47 Ed. Ill, p. 22, pi. 50. Case 39. 
 See also supra, case 8, and Brooke, Executors, 36, on another point. 
 
 (40) In debt against executors, upon an obligation Michaeiis 
 made by their testator, they said, "Not the deed of their 34!Hen. vi. 
 testator," and it was found against them, wherefore the 
 plaintiff prayed a general judgment, but could not have 
 
 it, but he had judgment for the goods of the deceased; and 
 as to the damages, a general judgment for so much as he 
 
646 STATHAM 
 
 was damaged, after the death of the testator; and of the 
 remainder of the goods of the deceased, etc. And so see 
 that there is a difference where they plead a plea which 
 comes from their testator (as above) and where they plead 
 a plea which comes from themselves, and of which they 
 themselves had full notice, as "never executor," etc. 
 
 And it was said in the same plea, that if in debt against 
 executors they plead, "Fully administered except so much," 
 and it is found to be so, the plaintiff shall have judgment 
 to recover all his debt, but he shall not have execution for 
 more than is found in their hands. And afterwards when 
 other goods of the deceased come to their hands, he shall 
 have a Scire Facias against them, to have execution of the 
 remainder. But if they plead, "Fully administered" 
 generally, and it is found for them, there the plaintiff shall 
 not have any judgment, but afterwards, when goods come 
 to their hands, he shall have an action against them, as it 
 seems. 
 
 Case 40. Reported at very great length in Y. B. Mich. 34 Hen. VI, pp. 22-24, 
 
 pi. 42. See also Brooke, Executors, 22, where he notes an error in the case 
 which was noticed by Fitzherbert and others "in the Year 23 Hen. VIII, " 
 as the record was different. Brooke says, "Judgment was given that 
 the plaintiff should recover the goods of the deceased, but the books 
 at large report further in these words, 'and if there were none, of their 
 own goods, but these words were not in the record.' And they were 
 commanded to correct the books." This apparently was not done, as 
 the words remain in the printed Year Books. 
 
 *' It has been said that "in the Saxon period there is no law of exec- 
 utors." [Holdsworth, Hist, of Eng. Law, Vol. 2: 84.] On the other 
 hand we are told after an examination of wills and deathbed gifts of the 
 Anglo-Saxon period, "The germ of executorship seems to be here." 
 [P. & M. Hist, of Eng. Law, 2d ed., Vol. 2: 319.] Both authorities 
 agree that the curthe or cuithe was also a forerunner of the executor. 
 Always and everywhere, under some name or form, it has been necessary 
 for the dying person to give into the hands of some living person the 
 goods which, however reluctantly, he is leaving behind, and to direct 
 that person to a certain carrying out of wishes no longer to be controlled 
 by the dying person, who is passing away from all worldly things. 
 
 The executor, however, had become a very important person by the 
 time of the third Edward. We have, in the abridgment, some forty 
 cases in which he is considered from the viewpoint of a court of law. 
 
EXECUTOURS 647 
 
 We have had something to say about debt against executors under the 
 title of Dette [supra, pp. 492, 493] and debt forms the subject of our 
 first few cases. Our third case shows the further extension of an action 
 of debt to an executor of executors. "In Bracton's day it is the heir, not 
 the executor, who sues for the debts that were due to the dead man." 
 [P. & M. Hist, of Eng. Law, 2d ed.. Vol. 2: 346.] In the time of Ed- 
 ward I, the action was being upheld in cases of debt by executors. [Y. B. 
 (R. S.) 20 Ed. I, 375; 21-22 Ed. 1, 258, 598; 33-35 Ed. 1, 62, 294. Debt 
 against Executors, 30 and 31 Ed. I, p. 238.] This third case of ours was 
 covered by the Act of 25 Ed. Ill, St. 5, cap. 5 (1350), which ordained 
 that executors of executors should have an action of debt accompt and 
 goods carried away of the first testator. [Stats, at Large, Vol. 2, p. 54.] 
 The case is of a date only sixteen years after the passage of the act, and 
 the law had not been very long settled. 
 
 The story of the disability of the executor to bring an account, 
 and the right given to him to bring the writ by the Statute of Westmin- 
 ster II, has been partially told in the note to the title of Accompte. 
 [Supra, p. 20.] In our case 9 the executors bring an action of Account. 
 
 The administrator was for many years constantly being confused 
 with the executor, in fact the terms were interchangeable, as we have 
 seen in the note to the title of Administratours. [Supra, p. 39.] 
 
 ERROUR 
 
 (1) In a writ of error on a judgment rendered in Oxford, Hilary 
 where the protestation was in the nature of an Assize, ^^ ^'^' "^■ 
 and it was assigned for error that whereas the habeas 
 corpus should have been awarded against the jurors after 
 the return of the summons, they awarded a distringas, etc. 
 And another was because the Assize was for rent, and 
 albeit the writ was "quod vendant tenementum illud," 
 still the entry shall be ["ten' unde reddit provenit," etc.] 
 because by the complaint they have certified, etc. And 
 another, that whereas the Assize was brought against the 
 mesne and the tenant, because the tenant made the rescous, 
 the tenant pleaded in bar, and for this reason the plaintiff 
 prayed the Assize, upon which the Assize was taken, and 
 they did not inquire as to the bar, in that there was error. 
 Willoughby: As to the first pointy, although the Assize 
 had been taken without any process, that had been good 
 
648 STATHAM 
 
 enough. And as to the second point, it shall be understood 
 that the land was put in view, for a rent cannot be viewed ; 
 at the same time it had been better form, as you say. But 
 as to the third point, it seems to us that they should have 
 inquired as to the bar, wherefore we reverse the judgment, 
 and the defendant shall be restored, etc. And he said to 
 the plaintiff that he could elect to bring a new Assize or to 
 plead anew upon this judgment, and when they were at 
 the Assize that it could be tried at the Nisi Prius. Query 
 as to the reason they did not hold that the plaintiff should 
 be barred? 
 
 Case 1. Reported in Y. B. Hilary, 60 Ed. Ill, p. 18, pi. 12. It is given in the 
 
 margin as "Statham, Error, 3, " which is incorrect, as the short case which 
 Statham has under this title {infra, case 3) is one of Account. The 
 first part of the case as here given, however, is not found in the report 
 of the case. See also Brooke, Error, 30. 
 
 Michaeiis (2) EtTor was sucd on a j udgment rendered in a Formedon 
 31 Ed. III. where the tenant appeared by attorney, and the bailiff 
 of the Abbot of F asked jurisdiction and had it, etc. And 
 then in the Franchise the tenant threw an essoin, and the 
 demandant challenged it, because he appeared by attorney 
 in the Common Bench, in which case the attorney should 
 be essoined. And his challenge was entered; and the 
 demandant also, in the meantime, had sent for the record 
 out of the Common Bench, to the Chancery, and from 
 Statham 89 a. there to the Franchise. And notwithstanding this, because 
 he had not an attorney before them in the Franchise, they 
 adjudged, on the day given by the essoin, that the demand- 
 ant should not take anything, whereas they should have 
 awarded seisin of the land to him, because the tenant did 
 not save his default, etc. And in that there was error. 
 Fyncheden : It seems that they did well, for if the parole 
 had been resummoned, the same warrant of attorney would 
 have served; so it remains at all times here; then he shall 
 have no attorney in the Franchise, for that which goes 
 into the Franchise is but a transcript of the original. 
 Thorpe : But when the demandant brought the record in, 
 there it was affirmed clearly enough. Wherefore they erred. 
 
ERROUR 649 
 
 for this same warrant which was in the Common Bench 
 shall serve in the Franchise well enough; in which case 
 the essoin shall be cast by the attorney, wherefore, etc. 
 Pulton: You have here E of F, who tells you that the 
 tenant who was essoined in the Franchise (which essoin 
 you liken to a default) — he says that the same tenant had 
 nothing but a term for life by his lease, and he prays to 
 be received to defend his right. Fyncheden: We have 
 nothing to do with this matter here, except to redress that 
 which was badly done before, wherefore, etc. And also, if 
 you would be received you should have a process to be 
 received in the Chancery. Thorpe: We are now to give 
 seisin of the land to the demandant, and in the Franchise he 
 cannot be received, for no default was enrolled, and although 
 the day in the Franchise and this day are all one and 
 the same day, still he came before judgment was rendered, 
 wherefore the Court awards that the judgment be wholly 
 annulled, and he be put in the same condition that he was 
 in before, etc. And that you, E, be received, etc. And 
 it was adjudged that the demandant count against him 
 immediately, etc. And so note this plea well, etc. 
 
 There is no printed year of 31 Ed. III. The case has not been iden- Case 2. 
 tified in the early abridgments. There is a very modern atmosphere 
 about the pleading in the allegation of error. 
 
 (3) A man shall not have a writ of Error where he is Hilary 
 adjudged to account, before he has accounted. As ^^ •^'^- "^■ 
 appeared in the title of Account, etc. 
 
 Reported in Y. B. Paschal, 21 Ed. Ill, p. 9, pi. 25. See also Brooke, Case 3. 
 Error, 58. 
 
 (4) The master of the scholars of Merton sued a bill ^'^|^jjj 
 of fresh force against the Prior of E and certain of his 
 confreres, where the prior answered as tenant, and said 
 
 that the king was seised, etc., and gave to him and to his 
 successors, etc. And the plaintiff alleged the same land to 
 be held of him and alienated in mortmain; and then he 
 entered upon us, and we ousted him, judgment if an Assize? 
 (Query if that be a plea? For by the seisin of the king the 
 
650 STATHAM 
 
 seignory of the plaintiff was gone, and so the color not 
 sufficient.) And the plaintiff said that he sued a writ out of 
 the Chancery to inquire of whom the tenements were held, 
 directed to the Mayor and Bailiffs of Oxford; and it was 
 found that they were held of us, wherefore we sued in the 
 Parliament alleging that this purchase of the king was to 
 defraud us of our seignory. And it was adjudged in the 
 Parliament that we should be received to sue at the common 
 law, against the same prior, to recover the lands. And we 
 entered upon him because no other recovery is given to us. 
 And we said, when the Assize was held, that the usage of 
 the vill was such, etc., that if a man be seised of the land 
 for forty weeks, be it wrongfully or rightfully, it is not 
 allowed to anyone to oust him without a judgment; and 
 we were seised for forty weeks after, etc., judgment, etc. 
 The prior said that the usage was not such; Ready, and 
 alleged the contrary, upon which the action was taken, 
 and such a usage was found, wherefore the plaintiff 
 recovered. And then the prior sued a writ of Error, and 
 assigned for error that inasmuch as by the charter of the 
 king these lands were pleadable at the common law, and 
 not by bill, in this there was error. Another [was] that 
 the master pleaded in destruction of the bar; and he also 
 had made his title by the Assize, which was contradictory, 
 and was error. And the third [was that] an issue was 
 taken upon the usage, which should have been tried by 
 their customary [law] which is their record, and not by the 
 Assize, like the customs in ancient demesne, etc., and in 
 this there was error. Willoughby: As to the first point, 
 although the tenements were pleadable at the common 
 law by the charter, etc., still, when the charter was annulled 
 by Parliament, they were of the same nature as before, etc. 
 And as to the second point, to wit: that he pleaded in 
 destruction of the bar; that was only a protestation. 
 And as to the third point, inasmuch as the prior, by his own 
 motion, himself put in issue that which was to his own 
 advantage (for he could have had another issue), that was 
 his own act; as if in an Assize a man pleaded a foreign 
 matter, and relied [upon it] . " Ready by the Assize. ' ' And 
 
ERROUR 651 
 
 the plaintiflf did likewise; that was well tried by the Assize. 
 And then the judgment was affirmed, etc. 
 
 Reported in Y. B. Hilary (not Mich.), 21 Ed. Ill, p. 46, pi. 65. Case 4. 
 
 (5) If a man sues a writ of Error on a judgment rendered Hilary 
 in London, the Mayor shall have forty days to be advised, 
 
 to have the record come. And then he shall send the record 
 as vouched for by the Recorder then holding, etc. And if 
 afterwards the party desires to [allege] diminution of the 
 record he shall not be received, as in case where the record 
 comes in by a writ, etc. 
 
 The case has not been identified in Y. B. Hilary, 18 Ed. Ill, or in the Case 5. 
 early abridgments. The language of the text has had to be slightly 
 extended, but it is thought not sufficiently to change the meaning of 
 the original. 
 
 (6) He who was in the reversion brought a writ of Error ^iS**^^ "y 
 on a judgment tailed against his tenant for life, and assigned 
 
 for error that, whereas in the Assize the sheriff sent to the 
 Bailiff of the Franchise to secure the whole panel, where one 
 vill was within the Franchise, and the other gildable, the 
 sheriff should have secured the panel from that which was 
 gildable, so error. Hankford : Your tenant for life shall 
 never have error in that case, because he could have had 
 an exception before the Assize was taken, ^ and as to that 
 nothing appears, wherefore, etc., and no more shall you 
 be received, etc. Wherefore the judgment was affirmed, 
 etc. 
 
 Reported in Y. B. Mich. 3 Hen. IV, p. 6, pi. 30. See also Brooke, Case 6. 
 Error, 34; and Fitzh: Error, 58. 
 
 (7) One brought a writ of Error as heir to his grand- J'^'^j^^yj^ 
 fatfier, to wit: son of E, daughter, etc. The tenant said 
 
 that "your grandfather had issue one J, who is living," etc. 
 The plaintiff showed that the land was given to the grand- 
 father and to his wife in tail, who had issue the said E, 
 mother of the plaintiff, and that J was issue by another wife. 
 Hankford: Now, judgment of the writ, for he should have 
 
 1 He could have challenged the array. 
 
652 STATHAM 
 
 had a special writ. Thirning: He cannot have another 
 writ, wherefore answer, etc. 
 
 Case 7. Reported in Y. B. Trinity, 3 Hen. IV, p. 19, pi. 4. See also Brooke, 
 
 Error, 35; and Fitzh: Error, 59. Brooke cites 9 Hen. VII, folio 24, 
 contra. Statham, of course, had not this later case. 
 
 Michaeiis (8) If one who is outlawed be taken by a Ca^aj Utlagium, 
 ^"" ■ he can say that at the time, etc., he was living in another 
 vill, and so reverse the outlawry by way of answer, without 
 suing a writ of Error, etc. But it is otherwise where he 
 is not taken (as above) but comes in freely on the day of 
 the return of the exigent, etc. But yet he cannot have 
 another plea which goes in reversal of the judgment; as 
 to say that at the time, etc., he was imprisoned in such a 
 place, for that goes to the reversal of the judgment; but 
 the other plea is nothing but a misnomer, to wit: that he 
 
 Statham 89 b. ^^^ dwelling in another vill at the time, etc., for if he be 
 called J of B at Dale, and he says that he was living at Sale; 
 in that case J of B at Dale is outlawed, so that plea does 
 not go to the reversal of the judgment, but he shall be under- 
 stood to be another person, wherefore, etc. But on an 
 error in fact or in the process, he is put to his writ of Error, 
 etc. Simile 18 Hen. VI, in Debt. 
 
 Case 8. There is no printed year of 15 Hen. VI. Fitzh: Error, 23, has the 
 
 case with citation to later cases. 
 
 Michaeiis (9) In debt, where an exigent is awarded where no Pluries 
 
 Ort -p J TTT 
 
 Capias issued, and the defendant comes at the exigent and 
 pleads and is condemned, he shall not proceed by way of 
 error, because he has admitted the process to be good by 
 his pleading. But it is otherwise if the original is bad, 
 because that cannot be amended. And although he has 
 pleaded with the plaintiff, still afterward he shall have 
 the advantage of that by way of error, or by allegations 
 before judgment. And a man shall not have any advantage 
 of an error in fact if he could have had it before by way of 
 answer, etc. 
 
 Case 9. There is no printed year of 36 Ed. III. Fitzh: Error, 82, has the 
 
 case. He replaces the negative left out by Statham. He also cites 
 19 Ed. Ill as being contra. 
 
ERROUR 653 
 
 (10) One T brought a writ of error against one W, Trinity 
 who assigned for error that whereas the said W brought a ^^ ^^"' ^^' 
 PrcBcipe quod Reddat against him, and on the return of the 
 
 Grand Cape waged his law by attorney, when he had 
 not any warrant of attorney; and then on the day that 
 he had to make his law he made default, wherefore seisin 
 of the land was awarded. Skrene: When a day was 
 given over, where he had no warrant, the plea was dis- 
 continued. Norton: He had made default after default, 
 and the judgment was given on the default. HuLS: When 
 he gave a day over, the default was not of record, wherefore 
 it was an error, etc. 
 
 Reported in Y. B. Trinity, 11 Hen. IV, p. 88, pi. 42. The case was Case 10. 
 adjourned without any decision having been given. 
 
 (11) See in a writ of error in the King's Bench, on a paschai 
 judgment given in Ireland in a writ of Error, which was sued ^^ ^^- ^^^■ 
 out of the Common Bench in Ireland. And there it was 
 
 said that there is a difference between a writ of Error sued 
 out of the Common Bench, and a writ of Error sued out 
 of Ireland, or ancient demesne; for out of the Common 
 Bench all the record will be sent, but out of Ireland or 
 ancient demesne no more shall be certified than the trans- 
 cript, etc. Query as to other Courts which have juris- 
 diction of pleas, etc.? 
 
 There is no printed year of 33 Ed. III. Fitzh: Error, 83, has the Case 11. 
 case. 
 
 (12) One sued a writ of error to reverse an outlawry Michaeiis 
 because he was in the service of the king at the time, etc. ^^ ^^^' ^^' 
 And he had a Scire Facias against the plaintiff, and after 
 
 the reversal of the outlawry he counted against him on the 
 original, etc. Which note. But it is otherwise where 
 it is reversed for matter apparent, etc.^ Query well, etc. 
 
 Reported in Y. B. Hilary (not Mich.), 10 Hen. IV, p. 7, pi. 4. See Case 12. 
 also Fitzh: Error, 84. 
 
 1 For an error apparent in the record. 
 
654 
 
 STATHAM 
 
 Michaelis 
 10 Hen. IV. 
 
 Case 13. 
 
 (13) One who was attainted of the disseisin in an Assize ' 
 assigned error by an attorney. But it is otherwise if he 
 should be attainted of a disseisin by force. By the opinion 
 of Hankford, etc. 
 
 Reported in Y. B. Hilary (not Mich.), 10 Hen. IV, p. 9, pi. 8. See also 
 Fitzh: Error, 85. 
 
 Michaelis 
 9 Hen. V. 
 
 Case 14. 
 
 (14) If a man be indicted and there is an error in the 
 process, still if the defendant shall be arraigned it is no 
 error, because he is arraigned upon the indictment and not 
 upon the process. The law is the same in an Appeal, as 
 was adjudged here; and on the same appeal the defendant 
 came at the exigent and pleaded "not guilty" and was 
 acquitted, but he did not recover damages, because there 
 was error in the exigent. But yet they said that he shall 
 not [?] be arraigned at the suit of the king, because the 
 original was good. (But I think that it is not so, for if 
 so he puts his life in jeopardy upon the arraignment, and 
 consequently he should recover damages, etc.) Query? 
 
 The case has not been identified in Y. B. Mich. 9 Hen. V, or in the 
 early abridgments. 
 
 Michaelis 
 9 Hen. V. 
 
 Case 15. 
 
 (15) Error was assigned because a writ of Trespass was 
 brought against two; and one came and pleaded and was 
 found guilty, to the damage, etc. And a Capias was issued 
 against the other, and an exigent also, where no Pluries 
 Capias was awarded. And upon that he was outlawed, and 
 he who was thus outlawed assigned error, and prayed 
 that the entire judgment be reversed. HuLS: It shall not 
 be reversed except against him, for when the other and 
 he were severed in pleading, it is as if separate writs had 
 been brought. Still the judgment is entire since it can- 
 not be severed into parts, etc. And they adjourned, etc. 
 
 Reported in Y. B. Mich. 9 Hen. V, p. 9, pi. 5. See also Brooke, 
 Error, 64. Hankford afterwards sent for the record, and found that a 
 Capias Pluries was returned, so the allegation of error in the process 
 would fail. 
 
 ' Without force and arms. 
 
ERROUR 655 
 
 (16) The Baron of Dudley brought a writ of Error against Michaeiis 
 one J, son and heir of H, and he had a Scire Facias against ^ ^^"' ^^' 
 one F as tenant of the half. And upon that the said J 
 showed how his ancestor held certain lands of the king, and 
 died, and the king seised him as his ward, and he prayed 
 aid of him; and because he was under age he prayed that 
 the plea be delayed. And all the justices were agreed that 
 he should have his age, etc. (Query? For it seems that 
 that plea is double, etc.) Newton : It appeared by the Scire 
 Facias sued against the stranger that he is tenant of half 
 of the lands, and this J tenant of the other half, as has been 
 alleged, so the writ of Error is brought against J, because 
 he is privy, in which case it is not reasonable that he have 
 his age, for if he has nothing in the lands he shall not have 
 his age, etc. Rolff : Although he be not tenant of the lands, 
 still he shall have his age, but in this case there is nothing 
 else to be done, but to proceed to the examination of the 
 errors against the terre-tenant. Cheyne : It may be that 
 at his majority he can bar the demandant as to the whole; 
 as by a release, or bastardy, or such like. And also if 
 the judgment be reversed against the terre-tenant, the heir, 
 on his majority, cannot say anything, because the error is 
 assigned in the original, which is entire and cannot be 
 severed into parts. Juyn: The terre-tenant can plead 
 any plea now that the heir can plead at his majority; and 
 yet the heir at his majority can plead also. Fortescue : 
 A judgment can be reversed in part. As if lands be given 
 to a man and to his second wife in tail, and he had issue 
 before by the first wife, and the lands of both are recovered 
 against him by an erroneous judgment, and he dies: the 
 eldest son shall have a writ of Error for that, because it 
 belongeth to him in fee simple, and he shall reverse the judg- 
 ment. And peradventure the second son shall be barred 
 in that writ of Error. And the law is the same as to the 
 heirs in gavelkind. And also a patent can be reversed 
 in part, etc. The law is the same where two parceners 
 are in by descent, and then make partition, and separate 
 writs are brought against them, etc. 
 And it was said in the same plea, that if the demandant 
 
656 STATHAM 
 
 in a writ of Error is barred by a release, the judgment shall 
 statham90a. not be affirmed, but disaffirmed. And see that the Scire 
 Facias which issued against the terre-tenant is upon two 
 points : one, because the judgment shall not be reversed ; the 
 other, because he shall not be restored . Radford : How can 
 they proceed to the errors when he who is a party is out of 
 Court? For by his nonage he is out of Court. And if he 
 were dead you could not proceed. And also the land is 
 prejudiced, for if the heir had a release of all actions of error 
 the tenant could not plead that. And if the release of all 
 actions of error be made to himself, he cannot plead it, 
 because he is a stranger to the record. But yet he can 
 plead a release of all his right, because he is a tenant to the 
 land. Paston: The disseisor in an Assize can plead a 
 release of all actions. So here. Radford: He cannot 
 plead a release of all actions made to the heir, whose estate 
 he has, for it does not extend to any lands; and such a 
 release made to the heir, although he has lands, is good, 
 wherefore, etc. Cheyne: He can plead as Paston said, 
 because it goes to the action, etc. Query? 
 
 And it was said in the same plea, that a protection cast 
 by one of them shall not put the plea without day, except 
 for himself, no more than in a Pracipe quod Reddat. 
 
 And it was said in the same plea, that when a man reverses 
 a judgment he can enter upon the heir, although he be in 
 by descent. Well argued, etc. 
 
 Case 16. Reported in Y. B. Mich. 9 Hen. VI, p. 46, pi. 30. See also Fitzh: 
 
 Error, 20. It might be well to repeat here Statham's frequent admonition, 
 "Study well," as this case was very well argued and at great length. 
 
 Michaeiis (17) A man can have a writ of Error in the King's Bench 
 7 Hen. VI. £qj. ^ judgment given in the same place, and assign error 
 in the process, or in the return of the sheriff, or like things 
 which are not the act of the judges: and this by the opinion 
 of many in the case of Gillibrond Halywell; well argued, etc. 
 And the writ ran "7m redditione judicii," ^ etc., for there is 
 no other writ. Which see, for it was well argued, etc. 
 
 '■ "Quia error in recordo, processu, aut redditione judicii," as it stands 
 in the report of the case. 
 
ERROUR 657 
 
 And see in the same plea, that after judgment they can 
 amend the process, if it be in the same term, albeit it is 
 entered on the roll, because through the term the record 
 is in them and not in the roll. And although a writ of Error 
 comes to them in such a case they will not put it upon 
 the record, but will amend it, etc.^ 
 
 Reported in Y. B. Paschal (not Mich.), 7 Hen. VI, p. 28, pi. 22. See Case 17. 
 also Brooke, Error, 68; and Fitzh: Error, 16. 
 
 (18) If a record comes into the King's Bench by a writ Paschal 
 of Error, and the record is not good, they will hold that the ^ ^^"' ^'" 
 record shall remain in the Common Bench, as appeared 
 
 in the case of Fancone,^ where he had recovered a debt 
 against a woman executrix, one D, and the writ ran in 
 the record that it was between the woman and her testator, 
 whereas it was between the woman and the said Fancone, 
 wherefore they would do nothing. Wherefore the defend- 
 ant came into the Common Bench and prayed his judg- 
 ment. Paston: The roll here mentions that the record 
 has been sent to the King's Bench, wherefore, etc. Query 
 well. 
 
 Reported in Y. B. Paschal, 9 Hen. VI, p. 4, pi. 8. See also Brooke, Case 18. 
 Error, 5; and Fitzh: Error, 21. 
 
 (19) One had recovered a debt against one A, which A Trinity 
 
 , • r T- .1 J • ^ ^1. T^- . 9 Hen. VI. 
 
 sued a writ of Error, and the record was sent into the King s 
 Bench. And the said A suffered the record to lie in the 
 King's Bench without suing a Scire Facias against the plain- 
 tiff, or without doing anything, wherefore the plaintiff 
 came into the King's Bench and showed all this matter, 
 and prayed execution. Cheyne : You ought to sue a Scire 
 Facias against him before you have execution, albeit it is 
 within the year. And he did so; to which the sheriff 
 returned "nihil habet," wherefore he had a sicut alias and 
 
 'Will amend the roll but not the record, according to the printed 
 case. This case of Gillibrand Holywell, or Hillabrand Hallywell, 
 according to the different spellings in the reported cases, is most inter- 
 esting, and well merits the commendation of Statham, and the earnest 
 attention of the student of the procedure of the period. 
 
 ' John Franken, citizen of London, the case calls him. 
 
658 STATHAM 
 
 the sheriff returned as before. And because he was 
 exacted and did not come, the Court awarded execution 
 for the plaintiff, upon which he had a Capias ad Satis- 
 faciendum against him, and on that the exigent. And 
 then the defendant came and showed all the matter to the 
 Court, and how he was on the point of being outlawed; 
 and he offered the money to the Court, and prayed a 
 Supersedeas to the sheriff: and further he prayed a Scire 
 Facias to the plaintiff to hear the errors, etc. Newton : 
 You cannot have a Scire Facias for you are nonsuited; 
 wherefore you ought to satisfy the party and then sue a 
 new original, etc. Wampage: He can pay the money 
 to the Court, and if he will not sue to an end the party 
 shall have the money; and if he sues and recovers the 
 judgment, then he shall receive it back, etc. And to that 
 which you say as to his being nonsuited, it is not so, for 
 he was exacted upon the Scire Facias to have execu- 
 tion, and not upon the writ of Error; for no Scire Facias 
 was sued upon the writ of Error. Newton: If a man be 
 outlawed, and sues a charter of pardon and a Scire Facias 
 against the plaintiff, who does not come, he shall be non- 
 suited. Cheyne: Not the same, for in your case the 
 Scire Facias has the effect of an interpleader upon the first 
 original; but this Scire Facias is only to have execution, 
 etc., wherefore, inasmuch as he had not sued this writ of 
 Error to the end, we will hear the assignment of errors before 
 he has a Supersedeas, and if we see that they are clearly 
 errors we will grant him a Supersedeas, and otherwise not. 
 Wherefore he assigned the errors, and then he had a Super- 
 sedeas and a Scire Facias to the plaintiff to hear the errors. 
 And this in a writ of Annuity; well argued, etc. 
 
 Case 19. Reported in Y. B. Trinity, 9 Hen. VI, p. 13, pi. 2. See also Brooke, 
 
 Error, 6; and Fitzh: Error, 22. Fitzherbert says, "And so, it appears 
 a nonsuit was not adjudged here, but if the plaintiff had assigned those 
 errors, and then had a Scire Facias and then would not sue, would it 
 have been a nonsuit? Query, what would be done?" 
 
 Michaelis (20) J de P brought a writ of Error against one R, upon 
 11 Hen. IV. ^ judgment given against him for the said R, in a writ of 
 
ERROUR 659 
 
 Redisseisin, and on an outlawry pronounced on him in a 
 writ of Debt, for the damages in the same redisseisin. And 
 he assigned for error that the sheriff took the inquest in the 
 vill, and not upon the land, etc. And for another error 
 because the sheriff took a precept to the bailiff of the 
 franchise, which he returned, and the sheriff took the 
 inquest by others who were not returned by the bailiff. 
 Hankford : As to the first error, if the justices had a view of 
 the land they could go to the vill and take the inquest 
 well enough. And as to the other point, the sheriff could 
 vary from the return of the bailiff, insismuch as he was a 
 mediate official.^ Skrene: If he had not made the 
 precept and the return of the bailiff a part of the record, 
 it would be as you say. Rolff: You will not be received 
 to assign errors, for now, etc., by this deed you have re- 
 leased to us all the right, etc., and all actions. Gascoigne: 
 Notwithstanding that he can assign errors in the outlawry, 
 for no one is a party except the king. Rolff: He has not 
 assigned any errors in the original of the outlawry, to wit: 
 in the writ of Debt. Hankford : If there be error in the 
 redisseisin, the outlawry will be reversed, because he has 
 assigned enough. (Which note, since there were two 
 originals, etc.) Skrene: He did not release. Hankford: 
 You cannot give an answer to the release before the out- 
 lawry is reversed; which was conceded. And then the 
 outlawry was reversed. But yet he will not be restored 
 to the lands, because of the release. And the law is the 
 same where an error appears in the record; although the 
 defendant has a release from the plaintiff, the Court 
 will reverse the judgment, and yet the party will not be 
 restored. 
 
 And it was said in the same plea, that where one is out- Statham 90 b. 
 lawed and sues a writ of Error, he shall not have a Scire 
 Facias against the party. (But I believe that that is 
 where he assigns error in the process, and not error in 
 fact, to which the party shall have an answer for the king, 
 etc. All the same the party is not a party to the outlawry, 
 but the king himself, etc.) 
 
 1 Inasmuch as he is the same person who made the array. 
 
660 STATHAM 
 
 And see in this plea, that they would not grant a Scire 
 Facias before he assigned an error; and if he assigned 
 an error in fact, never afterwards. He cannot assign 
 many in fact, but he can errors which are apparent, 
 M[ich.], etc. 
 
 Case 20. Reported in Y. B. Mich. 11 Hen. IV, p. 6, pi. 14. See also Brooke, 
 
 Error, 47; and Fitzh: Error, 64. And see the "residuum"' on page 94 
 of the same year and term, pi. 57. 
 
 Hilary (21) An assize was arrayed, etc., and the tenant said 
 
 en. V. ^j^g^^ ^Yie sheriff was out of the kingdom the day the writ 
 was purchased and ever since, and that there was no under- 
 sheriff nor other officer to serve the writ, and he prayed 
 that they would not proceed; and notwithstanding that 
 they took the Assize. And the tenant took a bill of excep- 
 tions to that, and the justices sealed it, and then he sued a 
 writ of Error and had the above record, and a Scire Facias 
 against the party, upon certain assigned errors. And then, 
 after that, one of the justices before whom the Assize was 
 arrayed came, bringing with him the bill of exceptions, 
 sealed, and delivered it here as part of the record. Norton : 
 That bill came here without any warrant, for the bill 
 should be brought here by the party when the record comes 
 here; and upon that we should have awarded a Scire 
 Facias against the justices to admit or deny their seals 
 according to the Statute; or else, if the bill remained with 
 the justices of Assize, they should have sent it here as part 
 of the record, and if they did not send it, then the tenant 
 could allege a diminution, etc. HoRTON: Justices of 
 Assize do not place it here with the record, as part of the 
 record, for this bill was never part of the record, nor ever 
 will be until it is brought here. When they have put the 
 record here, the power of the justices is ended as to bringing 
 in this bill as part of the record. And also no diminution 
 can be alleged from this bill, for one never alleges diminution 
 except of a thing which is part of the record ; this bill was 
 never part of the record until it came here, wherefore, etc., 
 for it is not like a warrant of attorney, or things of that sort, 
 which remain with the justices as part of the record, 
 
ERROUR 661 
 
 wherefore it cannot come here unless by the party him- 
 self according to the Statute. And then as to that the 
 justices were agreed that it had come in well enough by the 
 hands of the justices. Norton then assigned for error 
 that they would not allow the exceptions, etc. Horton: 
 Then it is necessary that a new Scire Facias issue against the 
 tenant, for he was never notified to hear this error, for at 
 the time the Scire Facias was awarded it was not part of 
 the record. Gascoigne: Now [we] adjudge that it is 
 a part and has always been a part [of the record] and so 
 it relates, etc., wherefore it is not necessary to award a 
 new Scire Facias, for it is but one record, etc. Which the 
 Court conceded. Horton (for the plaintiff) : Then we tell 
 you that such a one who made the return in the Assize, 
 as under-sheriff, was examined, and it was found by the 
 examination that he was under-sheriff, so the bill of excep- 
 tions was diminished, and we pray a writ to the justices 
 of Assize to certify it. Gascoigne: Diminution is never 
 alleged in a bill. Hankford: Then he is injured, for the 
 under-sheriff was examined, and that is left out in the bill 
 and changes the case. And although the defendant him- 
 self, who made the bill, cannot allege diminution, still the 
 plaintiff who was a party to the making of it can perfectly 
 well allege the diminution. Gascoigne : That is the fault of 
 the justices who sealed it, for they [should] not seal the bill 
 unless the exception was heard. And also if a man alleges 
 a diminution, which is certified, then he shall not allege 
 diminution in that which is certified, in which the diminu- 
 tion was alleged before. Tyrwhit: Sir, he said he had 
 never had a time before. Norton: You are estopped to 
 allege diminution, inasmuch as you demurred in law before, 
 to wit: that that could not be part of the record. Gas- 
 coigne: That will not estop him. And then they agreed 
 that he should not allege diminution; wherefore they went 
 on to the examination of the errors. Tyrwhit: It seems 
 that this is not error, for when the writ was found and the 
 Assize arrayed, if it was not by the sheriff, the party can 
 have an action of deceit against him who sued the writ. 
 Gascoigne: It was not error; wherefore we reverse the 
 
662 STATHAM 
 
 judgment, and let the party be restored to the lands, and 
 to the issues in the meantime. Query, if the tenant had 
 paid the damages, if he would get them back, etc.? (It 
 seems not, for it was his own folly to pay them before he 
 sued the writ of Error, etc.) 
 
 Case 21 Reported in Y. B. Hilary, 11 Hen. IV, p. 52, pi. 31, and the residuum 
 
 on p. 65, Paschal Term of the same year. See also Brooke, Error, 50; 
 and Fitzh: Error, 66. Fitzherbert takes the case through 11 Hen. IV, 
 51, 11 Hen. IV, 65 and 11 Hen. IV, 29, with a very long digest. The 
 case went through several terms before coming up on the points of error. 
 The Statute is that of Westminster the Second, 13 Ed. I (1285), cap. 
 31, Stats, at Large, Vol. 1, p. 163 (206): "An exception to a plea shall 
 be sealed by the justices." 
 
 29 Hen. VI. (22) See such matter Anno 29 Hen. VI, in the Assize 
 of Clyderhowe, where he sued a writ of error against the 
 Lord of Clynton, who came at the Scire Facias when the 
 plaintiff had assigned his errors, and said that in the record 
 and process aforesaid there was no error. And the plaintiff 
 said the contrary. And at the next term afterward the plain- 
 tiff assigned as error that omission was made of a replication 
 to one of the titles in the Assize. And the defendant 
 said that the record was diminished because of that and 
 prayed a writ to certify it; to which the plaintiff said, "to 
 that you shall not be received, inasmuch as he has admitted 
 his record, which is here, to be a full record" when he said, 
 "in the aforesaid record and process," etc. And this was 
 argued a long time. And the opinion of Fortescue was 
 that he should get to allege the diminution well enough, 
 inasmuch as the record which is here, and the record which 
 remained with the justices of Assize, in which diminution 
 is alleged, are all one record, so that his demurrer, when he 
 said "in the aforesaid record and process," shall relate as 
 well to that which is before the justices of Assize as to that 
 which is here, inasmuch as it is all one record. And this 
 can be clearly proved, for after the certification of such 
 diminution the plaintiff shall not have a new Scire Facias 
 as has been heretofore adjudged; and this clearly proves 
 that it is all one record. And also, when the party comes 
 by the Scire Facias, he shall not have hearing of the record, 
 
ERROUR 663 
 
 inasmuch as he is a party, and yet the writ of Scire Facias 
 
 is to have hearing of the record and process, etc. But 
 
 those are only formal words, as in the writ of warranty of 
 
 charter, to wit: "unde chartam habet," etc. Then he shall 
 
 not have oyer of the record at the beginning. And such 
 
 error is assigned after he alleges diminution, because he 
 
 has never admitted that before. At the same time it was 
 
 adjudged that he should not allege diminution, because he statham 91 a. 
 
 was estopped, for the above reason, etc. Well argued. 
 
 There is no printed year of 29 Hen. VI. The case has not been Case 22. 
 identified in the early abridgments. 
 
 (23) One G sued a writ of error, and reversed an outlawry Hilary 
 
 of felony pronounced upon him, because he was in prison ^^ ^^"- ^^■ 
 at the time, etc. And he had a Scire Facias against the 
 terre-tenants and against the lords, mediate and imme- 
 diate, who came; and one, who was a terre-tenant, said 
 that the king by his letters patent (which he produced) 
 leased him these same lands for the term of his life, and he 
 prayed aid of him and had it. And then at the procedendo 
 he came and said that G was at large, etc. And it was 
 found that he was in prison, wherefore he prayed that the 
 outlawry be reversed, and that he be restored to the land. 
 Hankford : You shall not be restored to the land without 
 a new Scire Facias, for that Scire Facias was but to in- 
 quire if he knew anything to say wherefore the outlawry 
 should be reversed, and not repeal the letters patent. 
 Thirning: Wherefore, then, had he the aid? Hankford: 
 Truly the aid was wrongly granted. And then the out- 
 lawry was reversed, but whether he should be restored to 
 the lands without a new Scire Facias to repeal the letters 
 patent or not, they took under consideration, etc. 
 
 The case has not been identified in Y. B. Hilary, 11 Hen. IV, or in the Case 23. 
 early abridgments. 
 
 (24) Executors brought a writ of Error upon an out- Paschal 
 lawry pronounced on their testator, and the action was 
 maintained, etc. Query, if the outlawry be for a felony? etc. 
 
 Reported in Y. B. Paschal, 11 Hen. IV, p. 65, pi. 22. See also Case 24. 
 Brooke, Error, 51; and Fitzh: Error, 65. 
 
664 STATHAM 
 
 Trinity (25) In the exchequer chamber, Hody related how 
 
 Richard Wingfield was found a disseisor with force, in a 
 special Assize in the County of Norfolk, to the damage of 
 six hundred marks. And the justices of Assize sent the 
 record into the Common Bench, and from there a Capias 
 pro Rege pro fine was awarded,* upon which he was taken 
 and his body [imprisoned] in the Fleet; upon which one 
 of his friends came into the Chancery, relating all the 
 matter, and that there were errors in the record, and prayed 
 for a writ of Error and had it. And then in the Chancery 
 sureties were found that they would sue cum effectu, and 
 also that he would satisfy the king as to his fine, and the 
 party for his damages, if the judgment should be affirmed. 
 Upon which they had a special writ reciting all the case, 
 commanding the justices of the Common Bench that if they 
 for this reason and no other detained him in prison, they 
 should free him without delay and also that they should 
 certify the writ of Error in the King's Bench. And so it was 
 done: upon which he appeared in the King's Bench, by 
 attorney, and assigned certain errors, and prayed a Scire 
 Facias against the plaintiff in the Assize. And because 
 the errors which he assigned were not clearly errors, they 
 would not grant him a Scire Facias. And then the plaintiff 
 in the Assize prayed a Capias ad Satisfaciendum pro Rege. 
 Haydon : It seems to me that the Capias should issue, for 
 in a writ of Error the plaintiff in the first [writ] came by a 
 Scire Facias and pleaded a release of all actions for error, 
 and the other could not deny it. Notwithstanding such a 
 surety, the plaintiff, if he be present in Court, can pray an 
 execution of his body, and consequently he shall have a 
 Capias ad Satisfaciendum when he is there by attorney. 
 Fortescue: The party in that case could not have a Capias 
 ad Satisfaciendum, because no Capias lies on the first original; 
 but he can have a Capias pro Rege and then it does not issue 
 until the party is satisfied. At the same time it seems 
 to me that he shall not have a Capias pro Rege here, for 
 the king has sufficient security, and could have a Scire 
 Facias or a Fieri Facias out of that, for security was found 
 1 "Ad satisfaciendum Dominis Regi define." See also Fitzh: Error, 24. 
 
ERROUR 665 
 
 for the king in the Chancery, and also to the party, which 
 is a recognizance. And if he had put a caution in Court 
 to the value of the damages, the party would have execu- 
 tion of the caution and not of his body. And this security 
 countervails a caution, etc. And by such security all 
 other execution is waived. Hody: It has always been 
 the habit of the King's Bench that such security shall be 
 found in the King's Bench, and that those of the Chancery 
 will take no security, except to sue cum effectu, which 
 security is only for the nonsuit, etc. And then in the 
 King's Bench he found security by a recognizance to 
 satisfy the party or to deliver his body to prison, if the 
 judgment was affirmed, or else to put the money into 
 Court, etc. And upon that they awarded a writ to the 
 wardens of the Fleet for the body of the condemned, and 
 that he should assign errors in his own person, and not by 
 attorney, because it seems that the justices of the Common 
 Bench erred when they took his body by such a writ out 
 of the Chancery, which cannot be redressed now except by 
 a Capias. Portyngton: If the security had been found 
 in the King's Bench, I should be willing that he should 
 assign errors in his own person, but that is a collateral 
 security, which is clearly sufficient. And they have power 
 in the Chancery as well to take such security as they can 
 in time of vacation upon an exigent or a Capias awarded 
 in the Common Bench. They can take security and award 
 a Supersedeas to the sheriff; and if they can do that in term 
 time it is well done, and it is a sufficient security there, 
 and it is of record; and if they will they can send it to the 
 Bench by a mittimus, etc. Geney: A Capias ad Satis- 
 faciendum issues out of the Common Pleas for one who 
 has been condemned, and then the condemned buys a 
 Supersedeas out of the Chancery [and] the sheriff shall not 
 avow because such a condemned person is not bailable. 
 So here the justices of the Common Bench should not obey 
 the writ, for they have no power to take the security, for no 
 security shall be found until the condemned party comes 
 into the King's Bench, wherefore to adjudge it now is only 
 an escape, in which case a Capias will issue for the king. 
 
666 STATHAM 
 
 And also the security is void for it is "if the judgment be 
 afifirmed," and those of the King's Bench cannot affirm 
 the judgment where no Scire Facias is awarded, for one 
 party is not in Court, etc. Goderede: Inasmuch as they 
 cannot grant a Scire Facias because no error is assigned, 
 to my thinking they should affirm the judgment, etc. And 
 if the judgment is affirmed, he shall not have a Capias but 
 execution of the security which was found. And they 
 adjourned, etc. Usque in profundum maris. 
 Case 25. Reported in Y. B. Mich, (not Trinity) 18 Hen. VI, p. 17, pi. 2. 
 
 Michaeiis (26) ElTor WES sucd by the Baron of Dudley against one 
 
 ^"' ■ J, and a Scire Facias against one F, who was tenant of part. 
 
 J said that he was under age and heir to him who recovered ; 
 
 and he prayed his age and had it. And whether the other 
 
 statham9ib. should answer to the error or not was well argued. And 
 it was adjudged that he should answer, wherefore he said 
 that he who recovered recovered the half of the third 
 part of a manor, as appeared by the record. And he 
 showed how one A, who was the ancestor of the plaintiff, 
 against whom this recovery was made, was seised at the 
 time of the recovery of the other half, so that the ancestor 
 of the plaintiff and this J, who recovered, were tenants 
 pro indiviso. And then they made a partition between 
 them and others who were tenants pro indiviso of the same 
 manor. And he showed that holdings from these acres 
 were allotted to the plaintiff, and holdings to J, whose estate 
 he who is now tenant has ; and holdings to the others ; and 
 he demanded judgment if against this division the action, 
 etc. Fortescue: He means that by that partition our 
 action is gone, inasmuch as we have agreed to the record, 
 and also that we were not tenant of the half as our ancestor 
 was at the time, etc., but had one part in certain; but that 
 plea is not sufficient, for he has pleaded a partition without 
 a deed, so that the partition is void; for joint tenants or 
 tenants in common cannot make a partition without a 
 deed. And if one coparcener recovers against another 
 by a nuper obiit, if there be error the other shall have a writ 
 of Error, notwithstanding they have made the partition. 
 Newton : It may well be there, because in that case the law 
 
ERROUR 667 
 
 forces them to make partition, but in the other case not so. 
 But when a partition is made between tenants pro indiviso, 
 it is good, to my mind, without a deed, wherefore, etc. 
 And they adjourned, etc. Query? 
 
 The case does not appear in Y. B. Mich. 18 Hen. VI, or, indeed, in Case 26. 
 that year, but it does appear in Y. B. Mich. 20 Hen. VI, p. 4, pi. 13. 
 See also Brooke, Error, 10, who says that the writ was allowed, but it 
 would not appear so from the printed case. 
 
 (27) One sued a scire facias to have execution out of ''^'S?^^''?,, 
 a fine which was served, and the demandant prayed 
 execution. Portyngton (for the tenant) : Secure a writ 
 
 of Error to remove the record into the King's Bench. 
 FoRTESCUE: That writ comes too late, for execution was 
 awarded immediately after the Scire Facias was awarded, 
 albeit the tenant had answered; as if you awarded a Capias 
 ad Satisfaciendum and the sheriff took the body, a writ 
 of Error would come too late. Newton: We will take 
 counsel. (But yet it seems that the cases are not alike, for 
 in the case of the Capias it is executed in fact, etc.) 
 
 The case has not been identified in Y. B. Mich. 19 Hen. VI, or in the Case 27. 
 early abridgments. 
 
 (27 a) See by Newton: If one be outlawed, and the Paschal 
 exigent is returned, then he who was outlawed can come on 
 the day of the exigent and say that he was living in another 
 vill, etc. And upon that he shall have a Scire Facias 
 against the plaintiff, for the plaintiff is not demandable 
 after the outlawry. (Query, if he could come on another 
 day? etc.) But it is hard for him to have any other plea 
 except the plea aforesaid, etc., for that plea does not reverse 
 any judgment, for the judgment is a good enough one, for 
 he who comes now will be understood to be another person. 
 
 The case has not been identified in Y. B. Paschal, 21 Hen. VI, or in Case 27 a. 
 the early abridgments. 
 
 (28) One was outlawed who sued a writ of Error and 
 had a Scire Facias against him on whose suit, etc. And 
 the sheriff returned that he was dead, wherefore the defend- 
 ant prayed a 5c4Ve Facias against his executors, and because 
 
668 STATHAM 
 
 his executors could not take advantage of that outlawry, 
 it was reversed without awarding a Scire Facias. Which 
 note, etc. 
 
 Case 28. There is no citation for this case in Statham and it has not been 
 
 identified. 
 
 (29) Four men sued a writ of Error against a woman 
 for an outlawry pronounced on them in an appeal by the 
 said woman in Ireland, for the death of her husband. And 
 they had the record here, and the woman was garnished and 
 came; and two appeared and the other two made default. 
 Norton: Two have defaulted, wherefore we pray that the 
 judgment be afifirmed, for the nonsuit of one of them is 
 the nonsuit of all. Skrene : They can be severed. Hank- 
 FORD: Certainly not. It is your own folly, for you could 
 have brought a writ in your own names, leaving out the 
 others, but yet, query as to that, etc. And the law is the 
 same in a writ of Deceit, etc. But where error is brought 
 on a judgment given in a real plea, the law is the other 
 way, for there it should be brought accordingly, for other- 
 wise they could not be restored to the lands according 
 to the pleadings, etc. And if one makes default, they shall 
 be severed as they are in the first original, etc. And the 
 law is the same in Deceit, because a man shall be restored to 
 the lands, etc. 
 
 Query, if two or three be condemned in a personal plea, 
 shall one have a writ of Error without the other, since they 
 cannot be severed, etc? And if it be brought in all their 
 names, shall the nonsuit be the nonsuit of all? Which 
 would be injurious, for perchance he lies in prison or is 
 outlawed, etc. 
 Case 29. This case has no citation in Statham, and has not been identified. 
 
 Paschal (30) There is a difference between a writ of Error and 
 
 Attaint. An Attaint lies against the tenant of the lands 
 if the party be dead; but during all the life of him who 
 recovered, the Attaint lies against him, although he be not 
 tenant; but after his death it lies against the terre-tenant, 
 and not against the heir, unless he is tenant in fact; but 
 a writ of Error does not lie except against the party or his 
 
ERROUR 669 
 
 heir, and a Scire Facias against the terre-tenant. And see, in 
 a resummons, the difference, put by FoRTESCUE, for they said 
 that in an Attaint, to wit : the false oath cannot be assigned 
 except for something which is of record, to wit: for a false 
 oath which appesirs on the record, of which everyone who 
 is tenant of the lands can have notice well enough. But 
 errors can be assigned upon matters of fact, of which by force 
 of law no one could have knowledge except one who is party 
 or privy, and because of this a Scire Facias shall issue first 
 against him who is a party or privy, and then a Scire Facias 
 against the terre-tenant. And note this, etc. 
 
 The case has not been identified in Y. B. Paschal, 30 Hen. VI, or in Case 30. 
 the early abridgments. 
 
 (31) A vouchee brought a writ of Error against the 
 demandant, and had a Scire Facias against him. And the 
 tenant brought another writ of Error against the same 
 demandant and had a Scire Facias also. And both are 
 maintainable, for it may be that one of them had released 
 to the demandant, which would not injure the other. 
 Query, if there be error between the tenant and the vouchee 
 upon the place, shall the vouchee have a writ of Error 
 against the tenant or the demandant? And if by that 
 error between the tenant and the vouchee shall the whole 
 be reversed? Or else no more than that which was between 
 the tenant and himself? etc. Query well. And error 
 was assigned because the attorney for the tenant had no 
 warrant of attorney at the time the inquest was taken, 
 but he came to the justice before the inquest was taken 
 and asked him to receive him as attorney, and delivered 
 a bill to him. And the justice said that he would speak 
 with his master, "and if it be his will to have you for his 
 attorney I will admit you." And then he took the inquest, 
 at which time no warrant was of record. And then after- 
 wards the king died, and in the time of the king who now statham 92 a. 
 is the justices recorded the warrant and not before, which 
 cannot be sufficient, because by the death of the king their 
 power was ended. Then, although they had a new com- 
 mission from the king who now is, still he cannot bring 
 
670 STATHAM 
 
 in the warrant without a writ; no more than when the 
 power of a judge is ended by the death of that same judge, 
 his executors can bring in the record without a writ. 
 Gascoigne: The record of that warrant shall relate to 
 the day which was [given] him, for when the parole was 
 resummoned that would be called all one and the same 
 record. To what end shall he write to himself to bring in 
 the record ? For he could quite well bring it in without a writ. 
 
 And it was said in the same plea, that if the tenant in 
 that case died without an heir, and the lord entered as in 
 his escheat, and then the vouchee reversed the judgment 
 and was restored to the land which the lord had, in that 
 case the lord could enter on the lands which the [tenant] 
 lost,' still no judgment could be given for him, etc. But 
 Hankford held in that case that the vouchee could not 
 assign error between the demandant and the tenant, 
 because the tenant could not be restored. But yet, query as 
 to that, for it seems that the demandant should retain, etc. 
 
 And it was said in the same plea, that in a writ of Dower, 
 where the heir of the tenant vouched the heir of the hus- 
 band, in the same county, and the demandant had judg- 
 ment against the vouchee, and that the tenant should 
 hold in peace, in that case the tenant can have a writ of 
 Error, and still nothing was recovered against him, etc. 
 
 And it was said in the same plea, when the vouchee has 
 entered into the warranty he can allege that there was error 
 in the same process, between the demandant and the 
 tenant, and if it be found, they will not proceed further 
 unless it can be amended. 
 
 Case 31. There is no citation to this case in Statham, but it appears to be the 
 
 case reported in Y. B. Mich. 8 Hen. IV, p. 3, pi. 6. See also Brooke, 
 Error, 39; and Fitzh: Error, 61. See further, Y. B. Hilary, 8 Hen. IV, 
 p. 21, pi. 9. 
 
 Michaeiis (32) EiTor was assigned because at the time of the taking 
 8 Hen. IV. (jf ^jjg Assize the sheriff nor the under-sheriff were present, 
 
 'The case says, "because the lord shall not be restored to the land 
 against the tenant." There is an evident confusion in the text in 
 Statham. 
 
ERROUR 671 
 
 etc. Query? And see the writ of Assize, which says that 
 the sheriff shall attend, etc. 
 
 The point is found in the case printed in Y. B. Mich. 8 Hen. IV, p. 14, Case 32. 
 pi. 14, in a long case which is further digested in the next case, infra, 
 case 33. 
 
 (33) In an assize, the tenant said that the king enfeoffed Michaeiis 
 [him] in fee, judgment if without the counsel of the king, 
 
 etc. And he was ousted of the aid; and upon that error 
 was assigned. Item: etc. Wherefore the tenant said for the 
 other part, that the tenements were seised into the hand 
 of the king; and he did not show for what reason he was 
 ousted of the aid and on that he assigned error. Item: 
 Because another said that the tenements were seised, as 
 above. And because another who was named had pleaded 
 in bar for the same tenements, they would not grant the 
 aid. And error was assigned for that; and they were 
 adjourned. Query, etc? 
 
 Reported in Y. B. Mich. 8 Hen. VI, p. 14, pi. 14. See also Brooke' Case 33. 
 Error, 41. However, the case as digested by Statham has some unlike- 
 nesses to the printed case, and the identification may be questioned. 
 
 (34) A writ of error was brought against the heir, and a Michaeiis 
 Scire Facias against the terre-tenants. The heir died ; ^ ^^°' '^' 
 whereupon a writ issued to garnish the heir of the heir. 
 
 And the sheriff returned that he had nothing of which 
 to be garnished, nor was he found, etc. Skrene: He 
 should have attached him on those same lands. Hankford : 
 That is not so, but he could have an attachment for his 
 person if he had been found ; but now, inasmuch as he was 
 not found, he should go to the examination of the errors. 
 Norton: He lives in London, and we pray a Scire Facias 
 there. And he had it, etc. 
 
 And it was said in the same plea, that if the heir pleads 
 a plea, and the terre-tenant another plea, the plea of the 
 terre-tenant shall be taken, because he is in danger of losing, 
 etc. 
 
 The case has not been identified in Y. B. Mich. 8 Hen. IV, or in the case 34. 
 early abridgments. 
 
672 
 
 STATHAM 
 
 Note. See as to error, in the title of Replevin, Mich. 3 Hen. 
 
 VI ; in the title of Nonsuit, Hilary, 20 Hen. VI, and in the 
 title of Corone, Mich. 30 Hen. VI, and good matter in the 
 case of Pownying, etc. 
 
 Statham, title of Replegiare, infra, p. 161a, case 1. Statham, title 
 of Noimsute, infra, p. 129 a, case 9; and Statham, title of Corone, supra, 
 p. 57 a, case 37. 
 
 Paschal 
 50 Ed. III. 
 
 Case 35. 
 
 (35) It is a good plea in a writ of Error on a real action to 
 say that the plaintiff himself is seised of the land. And this 
 by the opinion of Thorpe, in Error, etc. (But it is not so.) 
 
 There is no printed Paschal Term for the year 50 Ed. III. The case 
 has not been elsewhere identified. 
 
 Note. 
 
 Note. 
 
 See as to error, in the title of False Judgment, and also 
 in the title of Outlawry. 
 
 Statham, title of Faux Jugement, infra, p. 98 b, and Statham, 
 title of Utlary, infra, pp. 188 b and 189 a. 
 
 Query, if the king recovers by an erroneous judgment 
 against one, how shall that be reversed? And how shall 
 error in the Chancery be reversed? 
 
 Michaelis 
 23 Ed. III. 
 
 Case 36. 
 
 (36) Error, where the king recovers, cannot be reversed 
 without special leave ; as appeared in a writ of Error. And 
 simile Paschal, 22 Ed. III. 
 
 Probably the case reported in Y. B. Mich. 23 Ed. Ill, p. 21, pi. 3, 
 although the point made by Statham is not clearly shown in the printed 
 report. The reference to Paschal, 22 Ed. Ill, has not been traced 
 successfully. 
 
 Anno 
 
 7 Hen. IV. 
 
 Case 37. 
 
 (37) Error was assigned because the judge delivered the 
 obligation to the plaintiff, and gave judgment upon the same 
 obligation, etc. Query, if the judge delivered the obligation 
 to the plaintiff after judgment, is that Error, etc.? 
 
 The case has not been identified in Y. B. Anno 7 Hen. IV, or in the 
 early abridgments. 
 
 Hilary 
 
 36 Ed. III. 
 
 (38) One came in by a Cepi Corpus and made an attorney. 
 The opinion of Fyncheden was that error should not be 
 
ERROUR 673 
 
 assigned for that, etc. Fortescue held the same opinion 
 Anno 20 Hen. VI. 
 
 There is no printed year of 36 Ed. III. Fitzh: Error, 86, has the Case 38. 
 case. 
 
 (39) Error can be assigned although all the plaintiffs Michaeiis 
 do not come; and this Coram i?ege, etc. 9 Hen. v. 
 
 Reported in Y. B. Mich. 9 Hen. V, p. 9, pi. 5. Case 39. 
 
 (40) Error assigned in law discharges an error in fact : Anno 
 By the opinion of Willoughby, etc. ^* ^'^" "'^" 
 
 The case has not been identified in Y. B. Anno 24 Ed. III. Fitzh: Case 40. 
 Error, 87, has the case. 
 
 (41) If a man sues error in the Parliament, and he has Michaeiis 
 a Scire Facias out of the Parliament to the party, it shall ^ ^^^' ^' 
 return to the next Parliament ; for the common day in a 
 
 Scire Facias is forty days, and it is not certain when the 
 Parliament will be dissolved. And that by the opinion 
 of Hankford, in Error, etc. 
 
 The case has not been identified in Y. B. Mich. 8 Hen. V. Fitzh: Case 41. 
 Error, 88, has the case, and adds a comment to it. See supra, case 42. 
 
 (42) As to error sued in Parliament out of the King's 
 Bench, it was said that the record should remain with the 
 justices and that they shall show the record to the Parlia- 
 ment, or send a transcript there, etc. Query? 
 
 This case appears as a separate case here. Fitzh: Error, 88, append* Case 42. 
 it to the case above, supra, case 41. 
 
 EXECUCION 
 
 (1) If a man has his warrant pro loco et tempore by a writ statham 92 b. 
 of Warranty of Charters, he shall have execution of the lands Hilary 
 that the defendant had the day the judgment was given, 2 Hen. iv. 
 in whosesoever hands it comes: by Thirning, etc. A man 
 shall have execution in a writ of Debt in the same manner, 
 etc. A man shall have execution of chattels that the 
 
674 
 
 STATHAM 
 
 Case 1. 
 
 Paschal 
 42 Ed. III. 
 
 Case 2. 
 
 defendant had the day the execution was sued, and of no 
 others: by Thirning and Hankford, in the same plea, etc. 
 
 Reported in Y. B. Hilary, 2 Hen. IV, p. 14, pi. 5. See also Brooke, 
 Execution, 23; and Fitzh: Execucion, 122. 
 
 (2) A man shall have execution of the lands which the 
 defendant had the day the judgment was given, and not 
 of the lands that he had on the day of the purchase of the 
 writ. And that in Trespass against a common innkeeper. 
 
 Reported in Y. B. Paschal, 42 Ed. HI, p. 11, pi. 13. See also Brooke, 
 Execution, 16; and Fitzh: Execucion, 34. 
 
 Michaelis 
 44 Ed. III. 
 
 Case 3. 
 
 (3) The Prior of B's alienee was seised by reason of war, 
 and leased it back rendering a certain rent. And then, in 
 the Exchequer, upon the account, the prior showed how an 
 abbot ought to pay him a pension which was in arrears 
 for twenty years, and he prayed a writ against him for the 
 king to bring him in to answer, so that the king could have 
 execution of the arrears; and it was granted, etc. And 
 this was called a "quo minus." But it seems that the 
 king shall not have execution until the party has judg- 
 ment to recover. Query, if it be so when this Court has 
 no jurisdiction of the pension, but it belongs to the Court 
 Christian: shall the king then have execution? 
 
 The case has not been identified in Y. B. Mich. 44 Ed. HI, or in the 
 early abridgments. 
 
 Trinity 
 47 Ed. III. 
 
 Case 4. 
 
 (4) In a fieri facias, the sheriff returned that he had 
 nothing but twenty shillings. And by the award the 
 plaintiff had an elegit in different counties. And the elegit 
 issued after the year, without suing a Scire Facias, since 
 the Fieri Facias was issued within the year. Which note, etc. 
 
 The case has not been identified in Y. B. Trinity, 47 Ed. III. Fitzh: 
 Execucion, 123, has the case. 
 
 Hilary 
 
 60 Ed. III. 
 
 Case 5. 
 
 (5) A man shall have an habere facias seisinam out of 
 a fine, upon a grant and render, be it of lands or rent ; and 
 that within the year ; as well as upon a recovery. 
 
 The case has not been identified in Y. B. Hilary, 60 Ed. III. Fitzh: 
 Execucion, 124, has the case. 
 
EXECUCION 675 
 
 (6) In debt against one as heir to his father, who said Hilary 
 that he had nothing by descent. And it was found that ^^ ^'^^ "^' 
 he had an acre by descent. And the plaintiff prayed 
 execution of his lands and chattels, by an elegit, and had 
 
 it: and Thorpe, gave as a reason that he had pleaded 
 a false plea, which was found against him; as in the case 
 where executors plead "never executors" etc. And he said 
 the law is the same in Formedon. (But yet I believe 
 it is not, etc.) 
 
 Reported in Y. B. Hilary, 21 Ed. Ill, p. 9, pi. 28. Case 6. 
 
 (7) A man shall not have execution by elegit against Hilary 
 the abbot nor the prior for damages recovered, etc. As 
 appeared in an Attachment upon a Prohibition, where he 
 recovered damages against a prior, etc. Query as to 
 
 the reason, and distinguish [the cases] for they are dis- 
 tinguishable, etc. 
 
 Reported in Y. B. Hilary, 21 Ed. HI, p. 11, pi. 35. See also Fitzh: Case 7. 
 Execucion, 125. 
 
 (8) If a man makes a recognizance to me I shall have a J5™^y 
 Fieri Facias within a year after the recognizance is made, 
 and not within the year after the day of the payment. 
 Query, then, if the day of payment be after the year, 
 
 I shall not have execution by Fieri Facias nor elegit before 
 I have sued a Scire Facias etc. Query? 
 
 And see in the same plea, that if one makes a recog- 
 nizance with a statute merchant with a condition, that 
 I cannot have execution within the year, until I have sued 
 a Scire Facias; that is because of the conditions, etc. 
 
 Reported in Y. B. Trinity, 21 Ed. IH, p. 22, pi. 14. The latter por- Case 8. 
 tions of the digest are remarks by the digester; they are not a part of the 
 case. 
 
 (9) When a man has execution by an elegit, and he in Trinity 
 whom the freehold is comes into Court and tenders the 
 money, he shall have a Scire Facias, and not a Venire Facias 
 
 ad Computandum. But when he has cut trees, or has raised 
 the money in some such manner, the tenant of the freehold 
 
 21 Ed. III. 
 
676 
 
 STATHAM 
 
 Case 9. 
 
 Trinity 
 21 Ed. III. 
 
 Case 10. 
 
 shall have a Venir Facias ad Computandum. And in that 
 writ the cutting and such things comes into question, and 
 not in a Scire Facias, etc. 
 
 The case has not been identified in Y. B. Trinity, 21 Ed. Ill, or in the 
 early abridgments. 
 
 (10) One sued a certification upon a statute merchant, 
 and had a Capias, and the sheriff returned "non est in- 
 ventus," wherefore execution was awarded, and before 
 he sued execution he died, whereupon his executors came 
 into Court and showed the will, and prayed a Scire Facias, 
 etc. Thorpe: You shall have a new Capias. Kelsay: 
 That cannot be, for they will not grant execution out of 
 the certification more than once, etc. WiLLOUGHBY: Sue 
 then a writ upon the case to us, for we cannot know if 
 the execution was sued or not, inasmuch as execution was 
 awarded and no writ returned here which witnesses the 
 death, etc. Query? 
 
 The case has not been identified in Y. B. Trinity, 21 Ed. Ill, or in 
 the early abridgments. 
 
 Paschal 
 18 Ed. III. 
 
 Case 11. 
 
 Case 12. 
 
 (11) If a man be vouched and enters into the warranty 
 and dies, and his heir renounces, the tenant shall have 
 execution of the land that his father had at the time he 
 entered into the warranty, into whatever hands it may 
 come. By Thorpe, in a note. 
 
 The case has not been identified in Y. B. 18 Ed. Ill, or in the early 
 abridgments. 
 
 (12) The tenant sued to have execution in value, and 
 the sheriff returned that he was dead, wherefore he had 
 a Scire Facias against the heir, and the sheriff returned 
 that he had nothing, etc., whereupon a Sicut Alias and 
 Pluries issued, and the sheriff returned as before, wherefore 
 Thorpe prayed execution at his peril. Willoughby: 
 That cannot be before the garnishment be witnessed. But 
 yet execution was awarded. In a note, etc. 
 
 There is no citation for this case in Statham, and it has not been 
 identified elsewhere. 
 
EXECUCION 677 
 
 (13) The king brought a Scire Facias against an abbot, Hilary 
 
 to have execution out of a judgment tailed for him in a ^* ^^' ""' 
 Quare Impedit, etc. The abbot said that after the judg- 
 ment the king had seised the said advowson, together 
 with other lands of the same abbot, because of war, etc., 
 and had leased them back to him for a term of years, and 
 he did not think that during the term, etc. Thorpe: 
 He shall not have execution. Norton: We pray that 
 our term be saved. Thorpe: We will enter it^ and you 
 should sue the king, etc. 
 
 Reported in Y. B. Hilary, 24 Ed. Ill, p. 39, pi. 17. Case 13. 
 
 (14) One prayed execution by elegit, and had it, to Hilary 
 which the sheriff returned that he had nothing, etc., where- 
 fore he prayed a Capias, and could not have it ; but it was 
 said to him that he could have a Sicut Alias if the tenant 
 came to the lands or goods afterwards, etc. But he should 
 never have a Capias or a Fieri Facias. And Thorpe took 
 
 for a reason that the entry is that "such a one came and 
 elegit executionem suam de medietate, etc.," which is a 
 higher sort of execution, etc. 
 
 Reported in Y. B. Mich. 30 Ed. Ill, p. 24, pi. 48. See also Fitzh: Case 14. 
 Execucion, 126. 
 
 (15) If a villein makes a statute merchant to me, and Hilary 
 before the days are past his lord enters, I shall not have ^ 
 execution against him : By the opinion of Willoughby, 
 
 in a statute merchant, etc. 
 
 The case has not been identified in Y. B. Hilary, 18 Ed. Ill, or in Case 15. 
 the early abridgments. 
 
 (16) In the exchequer chamber, Hody asked a ques- statham 93 a. 
 tion, to wit: One had recovered ten pounds against two. Trinity 
 
 in Trespass, and after the year he sued a Scire Facias to is Hen. vt 
 which the sheriff returned "nihil habet." And upon a 
 testatum est he had a Scire Facias in another county, upon 
 which the sheriff returned that one was garnished, who then 
 appeared, and that the other had nothing; and the plaintiff 
 1 So that all be entered. 
 
678 
 
 STATHAM 
 
 Case 16. 
 
 prayed execution against him who had nothing. And our 
 doubt is if the Scire Facias which issued in another county 
 upon the testatum is offset by a Sicut Alias, for it is clear 
 if the sheriff returns "nihil" to the Sicut AUas that he shall 
 have execution. To which the Court agreed. AscouGH: 
 In a Scire Facias in a writ of Detinue against the garnishee 
 it is otherwise. Hody: It is true, for in your case the 
 plaintiff never has any livery until he is garnished, for if 
 the plaintiff had livery the garnishee would be without a 
 remedy ; but in that case the defendant would not be hurt, 
 for if he had a release from the plaintiff he could have an 
 Audita Querela. And the law is the same in a Scire Facias 
 upon a charter of pardon; if the sheriff returns "nihil habet" 
 twice the charter will be allowed, for the plaintiff is not 
 hurt, because he can commence his first action, etc. Query 
 as to this matter, for although the Scire Facias offsets a 
 Sicut Alias, still it seems that he who appeared could bar 
 the plaintiff of all by a release, in which case it is not 
 reasonable that he have execution before the other has 
 pleaded with him, etc. 
 
 Reported in Y. B. Mich, (not Trinity), 18 Hen. VI, p. 17, pi. 2. See 
 also Fitzh: Execucion, 3. 
 
 Hilary 
 
 12 Hen. IV. 
 
 Case 17. 
 
 (17) In debt against two upon a prmcipe, the process 
 was ended against one by an outlawry; the other came 
 and was condemned, and his body put in execution for the 
 said debt ; then the other had a charter of pardon and a 
 Scire Facias against the plaintiff, and the plaintiff had 
 judgment against him, and had him in execution for the 
 same debt until it was satisfied by one of them. And if 
 one of them paid him, then the other could have a Scire 
 Facias against him to be dismissed. But in Debt by 
 several prcecipe's the law is otherwise, for it cannot be 
 warranted by the original, etc. By Hankford. 
 
 The case has not been identified in Y. B. Hilary, 12 Hen. IV, or in the 
 early abridgments. 
 
 Paschal (18) Where a writ issues to the sheriff to inquire as to 
 
 ^^' ■ waste, the plaintiff shall have execution for the damage 
 
EXECUCION 679 
 
 to the lands that the defendant had on the day the inquest 
 was taken, notwithstanding they were alienated before 
 the judgment was rendered in the Bench, etc. And the 
 same thing was done where the defendant alienated in mesne 
 between the Nisi Prius and the day in the Bench, etc. 
 Simile Mich. 17, and Paschal, 18 Ed. III. 
 
 The case has not been identified in Y. B. Paschal, 7 Ed. Ill, or in Case 18. 
 the early abridgments. 
 
 (19) If one has my land in execution, if I will tender him Trinity 
 the monies, it should be tendered in the Court where he had ^'^ ^'^- "^• 
 execution by statute merchant or elegit, and upon that he 
 
 shall not have a Scire Facias, etc. And if the sheriff returns 
 that he was garnished and he does not come, the party 
 shall be restored without more, etc. 
 
 The case has not been identified in Y. B. Trinity, 47 Ed. Ill, or in Case 19. 
 the early abridgments. 
 
 (20) If a man be bound to me in a statute merchant and Paschal 
 alienates a part of his lands, I can sue execution against "^ ^'^' ^^^' 
 him for that which remains, and he cannot force me to 
 
 sue against the other. But if I sue against the other, he 
 shall have an Audita Querela against me, and force me to 
 sue against all in common. And in that case the judg- 
 ment shall be that he be restored to the issues in the mean- 
 time, and that the plaintiff shall have a new execution 
 against all in common. And that in an Audita Querela, 
 etc. 
 
 There is no Paschal Term in the printed year of 23 Ed. III. There Case 20. 
 is no case of Audita Querela in the two short printed terms for that year. 
 
 (21) A man shall have execution upon a statute mer- Hilary 
 chant to the constables and wardens of the Cinque Ports, ^* ^'^' ^^^' 
 because the sheriff cannot make an execution there, etc. 
 
 The case has not been identified in Y. B. Hilary, 18 Ed. Ill, or in the Case 21. 
 early abridgments. 
 
 (22) In a statute merchant, the recognizee prayed that Hilary 
 the land might be delivered to the extenders, because they ^ "^"' ^^- 
 
680 
 
 STATHAM 
 
 Case 22. 
 
 extended too much, and that they should answer im- 
 mediately as to the debt. Hankford: The Statute of 
 Acton Bumel is that they shall answer immediately, but 
 that does not mean they shall pay immediately, but that 
 they shall hold the lands and pay on the rent-days. And 
 it was so decided. Which note, for in Paschal, 40 Ed. Ill, 
 in a Statute Merchant, the recognizee, in such a case, 
 had a Fieri Facias against the extenders immediately, "quod 
 vide," etc. (But I believe that that cannot be, for the 
 land could be discharged by the entry of the issue in tail, etc.) 
 
 The case has not been identified in Y. B. Hilary, 2 Hen. IV, or in the 
 early abridgments. 
 
 Statute of Acton Burnel, or Statute De Mercatoribus, 11 or 13 Ed. I 
 (1283 or 1285), Stats, at Large, Vol. 1, p. 141. 
 
 Hilary 
 
 44 Ed. III. 
 
 Case 23. 
 
 (23) If a man wishes to pray that lands be delivered to 
 the extenders he should come on the day of the return of 
 the extent, or immediately thereafter, for if he delays until 
 another term they will not do it, and the law is the same 
 if the lands be once delivered to him, etc. 
 Reported in Y. B. Hilary, 44 Ed. HI, p. 2, pi. 5. 
 
 Michaelis 
 7 Hen. VI. 
 
 Case 24. 
 
 (24) Two have goods in common, and one recovers a 
 debt or damages against one of them, who dies before 
 execution; the plaintiff shall not have execution of those 
 goods out of the possession of the other who had the goods 
 by the survivorship: By Chaunt. Query, if he shall have 
 execution in his lifetime, etc.? And it seems he may, for 
 the other cannot have the action in his own name against 
 him, etc. But yet he can take them and put the plaintiff 
 to his action. In an Avowry etc. Query? 
 
 The point is found on p. 2, of the Y. B. of Mich. 7 Hen. VI. The case 
 begins on p. 1, pi. 6, but the point comes in merely as a part of the argu- 
 ment. 
 
 Michaelis 
 26 Hen. VI. 
 
 (25) If a man recovers a debt or damages against a 
 community, he shall not have execution of other goods than 
 of those which they hold in common. And this by Newton 
 andAscouGH, Mich. 26 Hen. VI, in Debt, etc. 
 
EXECUCION 681 
 
 There is no printed year of 26 Hen. VI. The case has not been Case 25. 
 identified in the early abridgments. 
 
 (26) If a man brings a writ of Warranty of Charters, f™^ljj 
 and counts that he was impleaded and the defendant admits 
 
 the warranty, he shall not have execution except of the 
 lands that he had on the day of the recognizance, to wit: 
 the day of the judgment, and not the day on which the 
 writ was purchased, etc. But it is otherwise where he is 
 vouched to warranty, for there he shall have execution of 
 the lands that he had the day of the voucher, etc. 
 
 There is no early printed year of 16 Ed. III. The case is to be found Case 26. 
 in the Rolls Series, 16 Ed. Ill, p. 206. 
 
 (27) If three are bound to me in a statute merchant, Hilary 
 and each of them is equally bound, I can sue execution 
 against one of them alone, and against all at my will. 
 
 But if I sue execution against two of them, they shall have 
 
 an Audita Querela, for I should sue all jointly, or else one for 
 
 all. And the law is the same upon an obligation made by 
 
 three who are equally, etc. I can have an entire precipe 
 
 against all, or else separate prcBcipe's, for the words are 
 
 "Obligamus nos et qualibet nostrum," etc. And if I bring 
 
 but one praecipe I shall have execution against all, and if statham93b. 
 
 several prcBcipe's then only against one of them, but it is 
 
 not customary to have a joint prcecipe in that case, because 
 
 they can fourch [and so delay], etc. But I cannot have 
 
 one prcBcipe against two, leaving out the third; no more 
 
 than in the case above, etc. 
 
 There is no printed year of 34 Ed. III. Fitzh: Execucion, 129, has Case 27. 
 the case. 
 
 (28) A Statute merchant should be sealed by the parties. Trinity 
 or else it is of no value. And this in a Replevin. 
 
 There is no printed year for 6 Ric. II. Fitzh: Execucion, 131, has Case 28. 
 the case. 
 
 (29) Execution was awarded against all the executors Michaeiis 
 
 . , . , , . » 1 . 1 • • . 14 Hen. IV. 
 
 where one admitted the action. And this m a note. 
 
 Reported in Y. B. Mich. 14 Hen. IV, p. 12, pi. 13. Case 29. 
 
682 
 
 STATHAM 
 
 Trinity 
 
 14 Hen. IV. 
 
 Case 30. 
 
 (30) In a false judgment out of ancient demesne, the 
 justices of the Common Bench affinned the judgment, and 
 awarded execution. 
 
 Reported in Y. B. Trinity, 12 Hen. IV, p. 23, pi. 5. See also Brooke, 
 Execution, 112. 
 
 Paschal 
 20 Ed. II. 
 
 Case 31. 
 
 (31) If a capias ad satisfaciendum be awarded, although 
 it be not found, the plaintiff cannot have another execution. 
 Simile Anno 22 Ed. Ill, Liber Assisarum. 
 
 There is no printed year for the short period of 20 Ed. II. Fitzh: 
 Execucion, 132, has the case. 
 
 Hilary 
 
 27 Ed. III. 
 
 Case 32. 
 
 (32) Execution shall be awarded upon the Statute of 
 the Staple, notwithstanding the recognizee had released 
 all the right that he had, etc. In a Scire Facias: By the 
 opinion of the Court, etc. 
 
 There is no printed Hilary Term of 27 Ed. III. Fitzh: Execucioiv, 
 130, has the case. 
 
 The Statute is that of 27 Ed. Ill (1353), Stat. 2, Statute of the Staple, 
 Stats, at Large, Vol. 2, p. 78. 
 
 Michaelis 
 22 Ed. III. 
 
 Case 33. 
 
 (33) If a man sues a statute merchant for part of the 
 lands in the name of all, he shall not have another execu- 
 tion. And this in a statute merchant. 
 
 Reported in Y. B. Mich. 22 Ed. Ill, p. 14, pi. 42. 
 Execucion, 86 and 134. 
 
 See also Fitzh: 
 
 Hilary 
 17 Ed. II. 
 
 Case 34. 
 
 (34) Execution ceases, in debt upon an obligation made 
 by many, where one has admitted the deed, if the plaintiff 
 will not suffer the obligation to be canceled, etc. (But 
 yet this may be distinguished.) 
 
 The case has not been identified in Y. B. Hilary, 17 Ed. II, or in 
 the early abridgments. 
 
 Trinity 
 19 Ed. II. 
 
 Case 35. 
 
 (35) Execution [was] awarded for executors of the 
 executors on a judgment given by the first testator. And 
 yet they cannot have an action in that case, etc. In a 
 Scire Facias, etc. 
 
 There is no case of a Scire Facias printed in Trinity, 19 Ed. II. The 
 case has not been identified elsewhere. 
 
EXECUCION 683 
 
 (36) A man shall not have execution upon a judgment Paschal 
 affirmed in a writ of Error, without suing a Scire Facias, 
 although it be within the year, etc. In an Assize, etc. 
 
 (But yet, query?) 
 
 There is no printed Y. B. for 20 Ed. II. The case has not been Case 36. 
 identified. 
 
 (37) It is not allowable for a bailiff in a Court Baron Michaeiis 
 
 ^ 11 J • , • , J. 11 Ed. II. 
 
 to sell goods upon an execution, but to retain them as dis- 
 tress until, etc. Simile An. 22 Lib. Assisarum, in Trespass. 
 
 The case has not been identified in Y. B. Mich. 11 Ed. II, or in the Case 37. 
 early abridgments. The Book of Assizes has no cases for year 22. 
 
 (38) In an assize against two, where a judgment is Trinity 
 given against them generally, if one is not sufficient the 
 other shall answer for all the damages, etc. In a note, etc. 
 
 The case has not been identified in Y. B. Trinity, 1 Ed. Ill, or in the Case 38. 
 early abridgments. 
 
 (39) If I recover against a clerk, and at the Fieri Facias Hilary 
 the sheriff returns that he has no chattels, I shall have a 
 writ to the bishop to sequester his goods spiritual; and if 
 
 the bishop will not serve it, I shall have a writ against him 
 to answer for the contempt, directed to the sheriff, to attach 
 him ; as appeared in a Scire Facias, etc. 
 
 There is no early printed year of 16 Ed. III. The case has not been Case 39. 
 identified in the Rolls Series for that year and term. 
 
 (40) If a man has lands in execution by force of a statute Michaeiis 
 merchant, made at a later time, he can have an Assize of ^* ^'*- "^• 
 Novel Disseisin or a Scire Facias at his election, etc. Query? 
 
 The case has not been identified in Y. B. Mich. 18 Ed. Ill, or in the Case 40. 
 early abridgments. 
 
 EXEMPCION 
 
 (1) The Archbishop of Canterbury, in his provincial statham94a. 
 
 Michaeiis 
 19 Hen. VI. 
 
 convocation, granted a tenth to the king in the Chancery, Michaeiis 
 
 of which grant he notified the king, upon which the king wrote 
 to the said archbishop to deliver the said tithes, on which the 
 archbishop wrote his letters-patent to the Prior of Ledes to 
 
684 STATHAM 
 
 have this same grant collected, and to pay it to the king in 
 the Exchequer, on the octaves of St. Michael, etc. On 
 which day the prior came into the Exchequer, and showed 
 the letters-patent of the king, by which he was exempt from 
 such a collection during his life. And the letters-patent bore 
 a date before the grant of the tithes. Portyngton: It 
 seems that they shall not be allowed, for the prior is one of 
 the clergy who granted the tithes, and the grant is as fol- 
 lows: "Provided that no privileged person be discharged 
 from the collection of these same tithes," in which case he 
 has renounced the benefit of the letters-patent. AscouGH 
 (to the same effect) : For he should have shown his letters 
 to the clerks, and prayed to be discharged. Newton: 
 That cannot be, for they cannot allow it; no more than 
 if I have a charter of exemption that I shall not be put 
 on the jury, and I show it to the sheriff, he will not allow 
 me [not] to be impaneled, for he has no power to allow it. 
 But when I come before the justices who have power to 
 allow it, then I shall have the benefit from them, etc. So 
 here. Fortescue: It seems that the king cannot grant 
 such an exemption as in the case here, for the archbishop 
 had power over his subjects to compel them to collect such 
 tithes. And for any such exemption the archbishop 
 himself will be forced to collect them, etc., which is not 
 reasonable. As if a man hold of me to collect my rent, the 
 king cannot exempt him from that, because that would be 
 prejudicial to me; so here, etc. And they adjourned, etc. 
 
 Case 1. Reported in Y. B. Paschal (not Mich.), 19 Hen. VI, p. 62, pi. 1. An 
 
 enormously long case, adjourned without a decision upon the lengthily 
 argued points. 
 
 Michaeiis (2) A man shall not be exempt where the king is a 
 ^ ^"' party to the inquest, unless his charter says, "Zicei o«/ wo&w 
 
 pertinet," etc. And it was the opinion of many that the 
 charter [should be] "licet nous parties sumus," etc. And 
 this was the opinion of Fortescue at St. Martyns, in the 
 year 26 of Henry the Sixth, in a Nisi Prius, etc. 
 
 Case 2. There is no printed year of 25 or 26 Hen. VI. Fitzh: Exemption, 
 
 5, has the case. 
 
M\:'i 
 
 
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