[204 a] and that both the defendants did agree, and claim by the latter demise ; et si, &c. Whereupon, after some argument, judgment was given for the plaintiff, whereof the serjeants principally made this reason, that the husband could not be said to surrender to the queen, but by record; whereas his assent was not of record, but was a thing dehors, as it was found by the jury. Justice Hutton held, that as it was put in issue, it must be understood of an actual surrender, whereas; this was but a surrender in law, at the most. Mo. 415. 1 Co. 83. Post. 223. Mo. 637. Co. L. 44. b. Hutt. 8. 5 Co. 93. b. 5 Co. 94. a. 10 Co. 67. a. 3 Cr. 32. 1 Inst. 3. a. But that that moved me principally was this, that the issue did import, and so the queen, in her recital and consideration, doth express and conceive, that the whole estate of Elizabeth was surrendered, that is, totally surrendered, and extinct, so that it should be in her absolute power to make anew demise perfect and permanent; whereas here, if the second lease had been made to the husband and wife both, as it was but to her alone, yet upon his death she might have claimed again by her old term. And therefore, if the king would make the like recital and consideration of a surrender of totum statum, and the surrender indeed was upon condition revocable, the new estate would be void, as in deceit of the king; like the case upon the statute of 32 H. 8. of leases, a surrender conditional will not be within the law to make good a new lease. And see Barwick's case, where a pretended void lease was surrendered to the queen, and she, in consideration of the surrender of the letters patents, and of the state that he held by them, made a new lease, and it was adjudged void, not because it was untrue in word, but because it was untrue in effect, the queen meaning to take in such an estate as was in show. But I am of opinion, that if the king make a new lease to his present lessee, in consideration of the same surrender of the former, that this will be clearly good, by the surrender in law. And if a man will deny the surrender, he may demur in law upon it, because it appears to the court, that the acceptance of a new lease is a surrender of the old. And if an estate be made to a man's wife, de novo, it is not necessary to aver his assent; for it vests till he dissent. But in this case an assent is necessary, because the wife had an estate before, which cannot be divested, but by his assent to the latter estate. [204 b] PIE VS. LOVell. Of popish recusants by stat. 28. Eliz. WATERER US. FREEMAN. [205] An action on the case may be maintained for a malicious prosecution of a civil action. (1) Action upon double execu tion sued. Brownl. 1 R. 12. Noy. 23. WATERER brought an action of the case against Free- Midd. man, and declared that the defendant had sued out, at the case for Westm., a fieri fac. upon a judgment given against him for the defendant, for a trespass in Oxfordshire, in the king's bench, to the sheriffs of Oxfordshire, who, by virtue thereof, took goods of the plaintiff to the value of the damage, and so made his return, and that the goods remained in his hands pro defectu emptoris, and that the defendant, well knowing this, (to the intent to vex and Two fieri fac. executed upon double charge him,) afterwards did sue out another fieri one judgment. fac. to the same sheriff, and delivered it to him to be executed, who did thereupon levy the money of other goods of the plaintiff, and paid it over to the defendant, whereby the now plaintiff was double charged; whereupon the defendant pleaded not guilty, and it was found against him. Now Harris moved in arrest of judgment, that the 3 Cro. 836. action would not lie, being for a legal suit, by the party interested himself, though the cause of action were false, and so known to the party himself; and cited to his purpose 2 R. 3. 5. 9. 5 E. 4. 126. & 21 E. 4. 22. Chibborn argued to the contrary, and cited Gerard and Dickenson, Col. 4. that it is actionable if I pretend a title to another (1) Vide post 266. S. C. [206] 2 Cro. 133, 134. * But quære; for Moodie himself tells me, that he suing for tythes * man's land, though it be for myself, if I know it certainly to be false also he cited M. 43 & 44 Eliz. Bray versus Patridge, in B. le Roy, action upon the case for suing in the spiritual court for tythes, against a composition made by himself. And a like, M. 4. Jac., by the lady Waterhouse against Moodie, for a suit in the spiritual court, for tythes of trees not tythable. But note, that Gerard's case is not of a suit in court, but of idle speech; and the other two cases are of suits coram non judice, and so no as a farmer of legal nor just suits in effect. See 8 E. 4. the like in form as Buckley and Wood's case; if one by bill in the star Kent, such an chamber, will charge another with piracy or felony, and action upon the both plaintiff and defendant are punished by ordinance whereupon he of law, by amerciament, as well for false defence as demurred, and false complaint. And by like reason, he that should defend a suit unjustly against his knowledge, should be subject to an action of the case. Vide residuum, infra. 266. the parsonage of Wood church in case was brought, the court mis liked the ac tion, and so it 2 Cr. 671. Midd. 1 Brownl. 51. S. C. Debt against a sheriff for execution, and 2 Cro. 540. Hutt. 11. Noy. SPEAKE US. RICHARDS. After the debt levied, the sheriff is debtor to the plaintiff, and capable of being released by him. Matter of estoppel must be relied upon in pleading, or the party may lose the advantage of it. If a sheriff, having an execution, pay the plaintiff the debt, of his own money; whether he may afterwards levy the money of the defendant, quære? HUGH SPEAKE brought an action of debt, of five hundred and twentythree pounds and seventeen shillings, against Edward Richards, late highsheriff of the county money taken in of Southampton, and declared that one Paramour and not answered. others were bound by recognizance in chancery in two thousand pounds to the plaintiff, and that after other process and judgment, 10 Julii 14 Jac., the plaintiff sued a levari fac. to the defendant, returnable 15 Mich. which was delivered 1 Aug. whereupon the defendant levied the sum, and at the day returned that he had levied the same sum, quos paratos habeo, and yet did not deliver it in court; per quod, &c. The defendant, quoad 308, pleaded 22. 2 Cro. 566. 2 Ro. 410, 427. Mesme case. nihil debet, whereupon the plaintiff took issue; and as to [206 a] the rest he pleads, that after the issuing of the writ, and before the return, scil. 31 Aug., he did pay unto the plaintiff the same sum, whereupon the plaintiff, by his acquittance, the same day, reciting that he had received it, did acquit him of it; whereupon the plaintiff demurred in law. Hutt. 32. Ac cord. 539. Jon. 4302. Cro. 637. 1 Brnl. 51. Det. Br. 178. The first question in this case was, whether the action Cr. Car. 297. of debt would lie, because there was no contract between the plaintiff and the sheriff. But that was resolved by the court that it would lie; for though there were no actual contract, yet there was a kind of contract in law, so it is ex quasi contractu. And therefore upon damages recovered in an action of trespass, the plaintiff shall have an action of debt; and by the same reason when the money is levied by the sheriff, so as the action ceased against the defendant, the same action is, ipso facto, by law transferred to the sheriff, having both the judgment to make it a debt, as before, and the levy to make him 1 Cr. 540. answerable; like unto the case of 1 H. 7. of a tally delivered to the customer, as soon as money comes into his hands, he is made a debtor. Quære, if an action of debt may not be had against the executor as the principal debtor, declaring of a devastavit by him. Debt lies & Co. 41. b. by corporations for the penalties forfeited upon their Palm. 280. laws; so for amerciaments in the court barons; so 11 H. Syd. 397. 7. 14. for three pounds forfeiture, upon a custom for pound breach; and 34 H. 6. 36. & 9 E. 4. 50. It is 2 Cro. 515. holden that upon such levies by the sheriff, appearing upon record, the court may award a distringas, or the party may have a fieri fac. or elegit against the sheriff, to levy as much of his own: see Mich, S H. 8. Reports, Crooke 187. O. N. in the exchequer, makes the sheriff debtor to the king, and the debtor himself debtor to the sheriff; and though an action of account will lie properly in this case, yet the same case will many times bear both actions, though the money be received per auter mains, or the like. But then the action of account is necessary, when the first receipt ab initio was directed to 11 Co. 45. a. [206 b] [207] a merchandizing, which makes uncertainty of the neat remain till account finished; or where a man is charged as bailiff of a manor, or the like, whereupon the certainty of his receipt appears not till account. Yet even in the case of merchandizing, an action of debt will lie for the sum received before the merchandize, yea and after the merchandize, for so much as he hath not so employed; Dy. 22. a. 2 Cr. and therefore if I deliver an hundred pounds to one, to buy cattle, and he bestow fifty pounds of it in cattle, and I bring an action of debt for all, I shall be barred in that action for the money bestowed, and charges, &c.; but for the rest I shall recover. 687. Yel. 24. Estoppel requires a relier. Pal. 182. Release to the sheriff, by the Another point was urged for the plaintiff; that the defendant's plea to the three hundred and eight lib., nihil debet, was naught, because it was directly contrary to his return of record; but that was answered, that since they have not relied upon the estoppel, but taken issue, that could give him no advantage. (1) A third point was urged for the plaintiff, that since the defendant, by his return made 15 Mich., had charged himself with the whole money parat. then to be delivered to the plaintiff, he cannot now say, that it was paid and acquitted before. Also, before the return of the writ, he was not debtor to plaintiff, after the plaintiff, and therefore a release to him was void; so the debt is lev ied, is good. Post. 267. Jones 430. (1) If in the course of pleading, the party who relies on matter of estoppel, has no opportunity to plead it, he may show it in evidence, and it will have the same effect as if pleaded. Šalk. 276, Trevivan v. Lawrence. 14 Mass. 241, Howard v. Mitchell. But when the matter to which the estoppel applies is distinctly averred or denied by one party; and the other, instead of pleading the estoppel, takes issue on the fact, he waives the estoppel, and the jury may find the truth of the fact. Trevivan v. Lawrence, ub. sup. 17 Mass. 369, Adams v. Barnes. 2 Johns. 382, Lansing v. Montgomery. Thus, in debt for rent on an indenture of lease, if the defendant plead nil debet, this plea does not necessarily deny the plaintiff's title, and if the defendant undertakes to impeach it by evidence, the plaintiff may have the benefit of the matter of estoppel in the indenture, by offering it in evidence, because he had no opportunity to plead it. But if the defendant plead nil habuit, &c. the plaintiff must, in his replication, aver that the lease was by indenture, and conclude by relying on the estoppel. And if he replies that he had sufficient estate to make the demise, he loses the benefit of the estoppel. But where the lease is, in the declaration, averred to be by indenture, so that the matter of estoppel is apparent on the record, the plaintiff may have the benefit of it on general demurrer, and need not reply the estoppel. 1 Saund. 325. n. (4.) and case there cited. 2 Str. 814, Moore v. Jones. |