Lavv, or, a discourse thereof in foure bookes. Written in French by Sir Henrie Finch Knight, his Maiesties Serieant at Law. And done into English by the same author.

CHAP. 12.

Of Debt and detinue, whereof a Writ of Annuitie.

THus farre of reall actions. A per∣sonall action is that where dama∣ges are to bee recouered, for at the Common Law neither shal (a) any but the Plaintife recouer damages, (b) nor damages lye but in personall and mixt actions, not in reall, as Dower writs of Entrie, sur disseisin, Ayell, Cosinage, &c. for in them damages are giuen by speciall Statutes. Which being but once suspended, or but against one, is gone for euer, and a∣gainst all. As if the Creditor bee made an Executor to his debtor and once administer, or take to wife one of the Executors of his debtor, she hauing administred before, the action of debt is gone for euer. So if two bee bound in an obligation to a fem sole, and after she taketh one of the obligors to husband, the whole dutie is extinct.

Erecutors bringing an action, must do

it in all their names, as well of those that refuse administration, as of the rest. But an action may bee brought onely against those that do administer.

Statutes.

9. E. 3. cap. 3. Stat. 1. In a writ of debt brought against diuers executors, they shal haue but one essoine before apparance, and one after apparance. He ot they that do first appeare in the Court at the grand distresse, shall answer to the Plaintife, and the Plain∣tife (if it passe for) shall haue iudgement and execution of the goods of the Testator against all named in the writ, as well as if they had all pleaded. In personell actions growing in respect of a possession in Com∣mon, Tenants in Common are in all re∣spects as Iointenants, for they must ioyne in an action of Trespasse, for a trespasse done vpon their ground: in an action of ac∣count, against their Bailife of a wood, and if one of them dye, the suruiuor shall haue an action of the whole. So if Tenant for life the reuertion to two sisters commit waste, one sister dyeth hauing issue, and the Te∣nant commit wast againe, the issue and her Aunt shall ioyne in an action of wast, and the Aunt sole recouer treble damages for the wast done in her sisters time.

In personell praecipes, damages onely shall be recouered where the thing▪ cannot be had: for (a) damages shall not bee reco∣uered

in a Writ of Detinue, if the thing it selfe may be deliuered, damages (b) I say to the value of the thing demanded: but da∣mages for the detaining shall.

Personell praecipe quod reddats are debt and detinue.

Debt, when any thing is due vpon a contract.

Which if it be (a) money due from one to another in their owne right, is in the Debet and Detinet, otherwise in the detinet onely. As in debt, for the rent (b) of Wheate, and Hens reserued vpon a lease for yeares, or of any Chattell, quicke or dead, in debt, (c) by or (d) against an executour for rent, vpon a lease of land, though it be behind af∣ter the Testators death: or (e) vpon a for∣mer recouerie of debt or damages against executors, or for arrerages found in an acti∣on of account brought by them, for all is in the right of their Testator. But against an heire vpon an obligation, &c. of his ance∣stor, it lyeth in the debet and detinet, for the assets which he hath in his owne right, ma∣keth it his proper debt. So for an (g) Ab∣bot or Prior vpon an obligation of the pre∣decessor, and though he be behind himselfe onely, and against husband (h) and wife vp∣on a recouerie of debt and damages against the wife whilest she was sole.

Statutes.

Magn. Chart. cap. 8. The pledges shall

bee free so long as the principall debtor is sufficient. And answering the debt, shall haue the lands and rents of the principall till they be satisfied.

2. Ric. 2. cap. 12. No Wardein of the Fleet shall suffer any prisoner in execution to go out of prison by mainprise, baile, ba∣ston, without making gree to the partie, vnlesse by Writ, or other commandement of the King, vpon paine to lose his office, and the party to haue a writ of debt against him.

33 H. 6. cap. 10. Euery obligation taken by a Sherife or his ministers by colour of their office, of any person in their Ward by course of Law, shall bee by the name of their office, and vpon condition that the prisoners appeare at the day and place men∣tioned in the Writs, Bills and Warrants, taken in any other forme, it shall bee void.

32. H. 8. cap. 37. The Executors or Admi∣nistrators of him that hath any rent or fee farme in fee in taile, or for life, shall haue an action of debt for the arrerages, in the Testators life time against the tenants that should then haue paied it. Or may distreine (and make auowrie vpon his matter) in the lands so long as they remaine in the posses∣sion of the said Tenant, or of any claiming onely from him.

A husband seised of any such estate •• any rent or fee farme in his wiues right, shall (after her death) himselfe, his Execu∣tors, or administrators, haue the same reme∣die for arrerages due in her life.

So of him his Executors and administra∣tors, that hath a rent or fee farme during a∣nothers life, & cesti qui vi, die, the same be∣ing vnpayed.

Prerogatiue.

When any of the Kings goods come into a subiects hands, whether by matter of re∣cord or enfait, so as hee is accomptant for them, his land all times after is chargea∣ble for the same, and subiect to the Kings seisure, into whose hands soeuer it come, whether by descent, purchase, or otherwise.

Statutes.

34. H. 8. cap 2. The land of the heires of high Collectors of any Taske, Subsedie, or lone, and of the receiuors of Courts, shal be chargeable therewith, as well that the heire hath by descent in fee taile, as in fee simple. And also that that is giuen him by the col∣lector or receiuor couenously, and thereup∣on the heire may haue an action of debt a∣gainst the Executors and administrators of his auncestor, wherein no essoine, protecti∣on, or wager of law is allowable. And haue execution of the goods of the auncestor,

••eing in their hands at the time of the acti∣••n brought.

13. Eliz. cap 4. The lands, profits, and ••ereditaments of euery accomptant, or of ••im that receiueth money for the Queene, ••r her Successors, to be imployed to the vse ••f the Queene, shall bee extended (in the ••ature of a Statute Staple) for the payment of the arrerages. Or the Queen if he do not satisfie within sixe moneths after the arre∣rage found, may sell his land, and the party may haue the surplusage to bee deliuered vnto him, by him that receiued the money vpon the sale, without further warrant: this sale to be of any land, whereof it is found by inquisition, that the accomptant taketh the profits: which inquisition, if it bee not true, the partie grieued after trauerse of the office, and that found for himselfe, shall haue his land againe without any petition, liuerie, or ouster lemaine. If any such buy land with the Queenes Treasure, since the beginning of her raigne, and pay not the arrerages as before, the Queene shal seise & retaine the land according to the rate that the partie had it. This sale extendeth not to to those officers that haue vsed to disburse the arrerages about their charge, or offices which continue, except the Queene com∣mand present payment to bee made, and then they shall haue sixe moneths as be∣fore.

This Statute extendeth not to the accom∣tants,

whose yearely rent, or whole receip•• from the beginning exceedeth not C C C •• nor to Sherifes, Eschetors, Baylifes of liber∣ties. Also the surerties shall bee ratable ac∣cording to their habilities charged for the surplusage onely which remaines not satis∣fied by such sale of the lands of such offi∣cers.

39 Eliz. cap. 7. The former Statute of 13. of Eliz. shall extend to sales to be made after the death of the Accomptant or deb∣tor, and to an accompt made, or debt knowne within eight yeares after his death.

And none shall bee taken a debtor but such officers and accomptants (in this act mentioned) as vpon their accompts fini∣shed (all reasonable petitions being allow∣ed) shall remaine debtor vpon the foot of the accompt.

After one yeare after the accompt made or knowne (all reasonable petitions allow∣ed) the Queene may by her Letters Pat∣tents sell so much as shall suffise to satisfie it, if any land which he had at any time since 2. April. 13 Eliz. or which otherwise are to be sold by the entent of 13. Eliz. The ouerplus, if any bee, shall bee redeliuered without petition or fee. Euery such sale shall bee as good as if the partie himselfe had made it for money, or other valuable consideration by bargaine, and sale, deed enrolled, feoffement, or recouerie with vou∣cher. And shall barre the partie and his heires, and all claiming vnder him, after he

••hall be debtor or person accomptable, and ••ll whom he might haue barred by any re∣••ouerie, and all whose lands are to be sold ••y the entent of 13. Eliz. And shall be good ••gainst the Queene and her Successors, and ••ll claiming vnder them for any charge or ••combrance to the Queene or her Succes∣••ors by the partie.

Prouided, it shall not auoid any lease by ••he Queene in other sort then it should at ••he Common Law, if the Queene were sa∣••isfied.

This act and 13. Eliz. shall extend to vn∣••er collectors of Tenthes and Subsedies of ••he Clergie, shall not impeach any assu∣••ance made before this Parliament, bona fi∣de nor any lease of xxj. yeares, or three liues whereupon so much yearely rent shall bee reserued yearly payable, as hath been with∣in xxj. yeares before, nor customarie estates made according to the custome.

And of this nature is a writ of annuity, which lyeth for him that hath an annuitie (a) in fee for life, or though it bee but for yeares be (b) it money or other things, as clothes, bread, &c. And is in the debet for them (c) all: that is to say, for any other thing as well as for money, not in the deti∣net contrary to an action of debt Detinue when any thing is withholden, which is called De catalis reddendis: if it be for wri∣tings, it is called De chartis reddendis.

Notes

• (a)

  22. H. 6. 27.
• (b)

  Br. Costs 29.
• (c) 21. E. 4. 3.
• (d) 11. H 4. 83.
• (e) 8. E. 4. 3.
• 21 E. 4. 23. 16. H. 7. 4.
• 32 H. 6. 25.
• 22. H. 6. 12. 38 E. 3. 7.
• 45. E. 3. 3.
• (a)

  1. E. 5. 6.
• (b)

  Br. Detin. 48.
• (a)

  50 E. 3. 16. ••1 H. 7. 5.
• (b)

  50 E. 3. ibid.
• (c)

  19 H. 8 8.
• (d)

  10 H. 7. 5.
• (e)

  ibid.
• 15 El. Pl. 441.
• (g)

  47 E. 3. 33.
• (h)

  ibid.
• 10. El. Pl 321.
• (a)

  F. N. B. 152. a
• (b)

  F. N. B. 152. b.
• (c)

  F. N. B. 152 c.
• Old N. B. 62.
• Old N. B. 65.