An. 38. Cr. Jac. Jac. 545. Ant. 272, 281, 265. Pop. 145. debt against Sir George Reinolds, the marshall, in the debet [264 b] et detinet, and had judgment: whereupon a writ of error brought; and George Crook insisted upon Hiscock's case, 225, 568. Cr. cited in Hargrave's case, Co. lib. 5. 31. Judgment was given 210. 5 Co. 3. b. in the king's bench, and errors were assigned, that there Hutt. 78. Post were neither bail nor bill filed there. We agreed that the error must be assigned, that there was neither bail, nor the party in custody of the marshall; for if he be, I may declare against him, for that is natural, all declarations being custodiâ, &c., and the bail is but a fiction of the marshall's custody, and so known to the courts; for otherwise it was against the record to aver that he were not in custody, being so laid and answered to. WILLIS vs. WOODHOUSE. That there is neither bill nor bail filed in the king's bench, is not error. Case. 37. Want bill. bail. of 2 Cr. 223. WILLIAM WILLIS brought an action upon the case upon Jenk. Cent. a trover and conversion of goods, against William Wood- 299. Error Br. house, in the king's bench. The defendant pleaded not guilty, and the plaintiff had a verdict and judgment. The defendant brought a writ of error, and assigned two errors: the one, that there was no bill filed: the other, that there was no bail. And upon a certiorari in that case awarded and returned, it was certified that there was neither bill nor bail filed, and the judgment, notwithstanding the said errors, was affirmed in camera scacc. Tr. anno 17. dom. regis, viz. 5. die Julii in eodem term., and the record and the proceeding on the same writ of error were remanded eod. ter. in banco reg. qu. vide Tr. 16. Rs. rot. 945. in banco regis, ubi tam prim. judicium quam secundum intratur. 91 1. The want of a bill being the original, was taken to be within the meaning and intent of the statute of 18 Eliz. cap 14., and remedied by the equity of that statute. 2. The want of the bail was not material, because it might be that the defendant was in custodia mar. at the time of the plaintiff's bill exhibited, according as the said bill supposeth. Yel. 165. Po. 265. Ant. 130. 109. Cro. 282. accord. 2 Cro. 2 Cro. 186. Post 281. accord. Jones [265] 304. Pl. 38. a. Ant. 134. 281. 2 Cro. 108, 109, 186, 580. 2 Cr. 223. Mo. 694. Ant. 264. [265 a] Prohibition. Tr. 7 Jac. It is no legacy where land is appointed to be sold by executors, and the money to be disposed to certain uses. astical cannot hold plea in equity, but merely of causes according to law. Brnl. 32, 39. Roll. 2d Abr. f. 284, EDWARDS VS. GRAVES. Where land is appointed by will to be sold by executors, and the proceeds disposed of to certain persons, this is not a legacy at law. Ecclesiastical courts cannot hold plea of a legacy in equity. PHILIP EDWARDS, executor of Philip Edwards, had a prohibition against John Graves; and the case was, that one Agnes Salter devised that the executor and three Court ecclesi- others should sell certain lands, and should dispose the money to the defendant and three others, equally; the land was sold accordingly, and the now defendant sued this executor in court christian, for the fourth part of the money. The court held that neither the land nor money was testamentary, as this case is; for it was not assets to debts, but a sum arising of land, and appointed to special uses in way of equity, and not as a legacy, and therefore is not to be sued for here, but in court of equity; neither can that court hold plea of a legacy in equity; but where it is a legacy in law indeed, for they must hold plea by their law, as our courts of law do. Yel. 39, 93. Co. L. Yel. 115, 160, 173. 285. 1 Cr. 396. 7 Ben. 21. As sets, enter Br. 10. Dyer, 151, Pop. 59. 1 Le. 111. a. 8 Co. 95. 1 Le. 225. a. 10 Co. 47. a. Replevin. Dower against a tenant for life, a fine of the reversion upon it. TWISSE US. COTTON. Case stated, but no judgment reported. THE case was, tenant for life, the reversion in fee, of land whereof the demandant had title of dower, and brought a writ of dower against the tenant for life; hanging the writ in the reversion, levied a fine with proclamation of the reversion; the tenant for life died, the five years expired, and now the demandant brings a new writ of dower against the tenant in possession. REYNOLDS VS. OKELEY. HEYDON VS. GOODHALL. REYNOLDS vs. OKELEY. Whether beasts, escaped from an adjoining close, on the locus in quo, though freshly pursued, may be distrained, quære? his he 431 [265 b] Replevin. beasts escaped, for rent. 1 Brul. 318. a. 1 Ro. 170. Dyer 317, 668, 672. Co. 7.2.2 Leo. 7. L. 47. b. 7 H. THE defendant avowed for rent reserved upon a lease Distress of for life; the plaintiff pleaded in bar, and conveyed himself title to ten acres adjoining, and that he put in beasts, and they escaped into the place, &c. and freshly followed to drive them out, but before he could recover them, the defendant distrained them. The case had been somewhat better, if the tenant ought to maintain the fence. (1) (1) In 1 Brownl. 170, this case is said to be reported, and judgment for the plaintiff. Where a stranger's cattle escape into another's land by breaking the fences, there being no defect in them; or where the tenant of the land on which the distress is taken is not bound to repair the fences, though there is a defect in them, the cattle may be distrained for rent immediately before they are levant et couchant; but if the cattle escape through the defect of fences which the tenant of the land is bound to repair, they cannot be distrained by the landlord for rent, though they have been levant et couchant, unless the owner of the cattle, after notice that they are in the land, neglects or refuses to drive them away. 2 Saund. 289. a. n. (7.) 1 Inst. 47. 2 Saund. 290. HEYDON VS. GOODHALL. St. 3 Jac. c. 8. does not require sureties in a writ of error in replevin. CHANDLER vs. THOMPSON. If an executor durante minoritate waste the testator's goods, quære, what remedy a creditor shall have after the infant executor comes of age? (1) The infant executor may, after he comes of age, have an action against the former executor, but not against his vendee. Obligation. time, how he CHANDLER against Thompson, executor of Marlet; debt Execut. for upon an obligation of the testator. The defendant pleads shall plead (1) In Brooking v. Jennings, 1 Mod. 174, it is said by Vaughan J., Atkyns J. acc. that when an infant executor comes of age, the power of an executor durante minoritate ceases; and the new executor is then liable to all actions. If the former executor wasted, the new one has when his time [266] Executor for a time wasteth the creditor [265 c] that the testator made him executor till one John Marlet should come to twentyone years of age; and in the mean time to keep all his goods for him, and then to deliver them unto him, and the said John Marlet then to be executor; and shows, that before the writ, John Marlet was twentyone years of age, and that he delivered him the goods, which he accepted, absque hoc, qd. ipse est, vel. die impetrationis, &c. fuit executor, &c. It was dehis goods, how bated by the court, if the first executor sold or wasted the shall be reliev- goods, how the creditor should relieve himself for those goods, the new executor taking upon him the executorship; for the goods never came to the hands of the new executor, though perhaps he may have an action against the former executor, for so much as he did not lawfully administer; for against the vendees he can have no remedy; (2) or else the old executor may remain an executor still for that purpose, the other being none in effect. for those goods; like the case of a sheriff that doth not deliver his prisoner, that he hath in execution, to the next sheriff. 4 East. 606. ed after his time expired. Cr. Car. 89. his remedy against him, but he is not liable to other men's suits.' In Oxford v. Rivett, Cro. Car. 79, 93, the action was brought by a creditor against an administrator dur. min. after the executor had come of age, and attempted to be supported on the ground that the defendant had wasted the testator's goods. Judgment was given for the defendant on another point, and the question whether such action could, in any case, be maintained, was not presented. In Bac. Abr. tit. Executors and Administrators, B. 2. it is said that an executor or administrator dur. min. is not chargeable in any action at the suit of a creditor, after the infant comes of age. By statutes 30 Car. 2. c. 7. and 4 & 5. W. & M. c. 24, it is enacted that the executors and administrators of executors de son tort, or of executors or administrators of right, who had committed waste, shall be liable and chargeable in the same manner as their testators or intestates would have been. (2) See 6 Co. 19, Packman's case, acc. Prohibition. Dismes charg ed of the tythe FAWKNER vs. ANDREWS. Assent should be entered of record. IN prohibition the parties be at issue upon a custom de of wood in the non decimando of wood, infra Wildam Sussex. It was Wilde of Sus вех. moved by Finch, whence the ven. fac. should be; and the court directed that the best was de corpore com.; for Wilde is no visne, whereof the court can take knowledge. Unto this Towse for the defendant assented. These kind of assents would be entered upon record. [266 a] PLAT vs. HOLFORD. In a writ of right against an infant, day was given to the tenant to advise what he would do. In a writ of right between Plat, demandant, and Holford, tenant, the tenant pleaded, that he was within age, and in by descent; and prayed that the parol might demur till his full age. Whereunto the demandant replied that he was seised till the tenant disseised him, and traversed the descent; and day was given to the tenant to advise what he would do. WATERER vs. FREEMAN. Case will lie for a malicious prosecution in a civil action. 23. Ro. 34. THE case of Waterer and Freeman, sup. was this term Ant. 205. Noy. judged for the plaintiff, and the rest of the judges desired me to deliver the judgment and reason; wherein I first observed, that the money was not twice levied, nor the plaintiff twice charged with the damages, as the declara- Two Fieri fac. upon judgtion ran for the first was, pro defectu emptorum damna ment. parata habere non possum, but yet it appears by the declaration that he was twice vexed and grieved, and that wilfully by the defendant, who had first one execution. inchoate, which he ought to have followed, knowing it, and not to have taken another; for else he might take twenty executions, and take away his milch cattle, or his plough beasts. But now the jury must give damages according to the loss. But if the defendant in this case had not known of the cattle first taken, he had not been liable, nor subject to this action. |