The common law epitomiz'd with directions how to prosecute and defend personal actions, very useful for all lawyers, justices of peace, and gentlemen : to which is annexed the nature of a writ of error, and the general proceedings there upon : with a plain table for the easie finding out of every particular / by William Glisson and Anthony Gulston ...

Account against a Baily, 1. of a Court or Hundred. 2. of a Mannor-house, &c.

In what Court it lies against a Baily.

IN the County Court: Regist. origin. 135. A. Nat. br. 117. b.

In London before the Sheriffs, Regist. orig. 135. A & B.

In the five Ports, Rigist. origin. 135. A.

In Communi Banco, Nat. br. 117. b. Regist. orig. 135. B.

But Ancient demesn is a good plea to the ju∣risdiction, Coke 5. part 105. A. Aldens Case; be∣cause the Account is of the issues and profits of the Mannor, 8 H. 6.34. pl 36. 2 Ed. 4.3. pl. 3.

And the reality by presumption may come in debate, Hobart Chief Justice, Hill. 11 Jac. Com. Ban. Rot. 254. Cox & Barnesley.

Who shall have an Account against a Baily, 1. of a Court, 2. of a Mannor.

[unspec 1] If A. make B. his Baily of his Court or of a

Hundred, he shall have an Account against him. Nat. br. 118. E.

A. having a Bailywick makes B. his Under-Baily, he shall have Account against B. 3 Edw. 3.54. pl. 24.

A. makes B. his Baily, which makes G. his Deputy, A. shall have Account against B. but not against C. because C. receives this to the use of B. Nat. br. 119. B. 14 Edw. 3. 100. pl. 8.

[unspec 2] An Infant purchases Lands, he shall have an Account, if any take the profits. Nat. br. 117. B.

For the profits that the Guardian in Soccage takes after the Heirs age of 14 years, the Heir shall have an Account during his nonage against him as his Baily: but for the profits taken before such age, he shall have Account as Guardian in Soccage; but not before his full age. Nat. br. 118. B. because he cannot be Guardian after the age of 14 years.

Major and Aldermen of London grant the Wardship of an Orphan to A. they shall have an Account against A. at the full age of the Orphan. 8 Rich. 2. guard. 166.

A. devises to his Executors that they shall sell his Land, and that his daughter shall have part of the money, she shall have an Account at the Com∣mon Law. 4 & 5 Mariae Dyer 151. pl. 5.

A Lunatick shall have an Account against the Committee, when he comes to his sound memo∣ry; for the Committee is but in the nature of a a Baily. 28 Hen. 8. Dyer 26. pl. 164. Coke 4. part 127. b. Beverley's Case.

An Executor shall have an Account. Nat. br.

117. C. 3 Edw. 3.66. 7 Edw. 3.269. 5 Edw. 3.141. pl. 7.

But this was by Westm. 2. cap. 23.

And if one hath Judgment against a Baily upon an Account, and dieth, his Executors shall have a Scire facias, 14 Hen. 4.1. upon the Judg∣ment.

Executor of an Executor shall not have an Account, per Westm. 2. cap. 23. 7 Edw. 3.270. pl. 54.

But this was given per 25 Edw. 3. cap. 5. pl. Com. 290.

Filius & haeres domini dofuncti non habebit Bre∣ve de Computo super Ballivum, quia pertinet ad ex∣ecutionem administrationis bonorum defuncti. Re∣gist. Orig. 135. b▪

Husband receives the profits of the Lands of his wife and dies, the wife shall not have an Ac∣count for the profits during the Coverture a∣gainst the Executors of the husband. Nat. br. 119. A.

Joynt-tenant makes his Companion his Baily, he shall have Account against him, 21 E. 3.60. pl. 5. Q.

Two Joynt-tenants of a ward; one takes all the profits, the other shall have an Account. Nat. br. 118. J. 39 Edw. 3.28. pl. 25. 45 Edw. 3.1. Q.

Two Joynt-occupiers of a house and Mer∣chandise, one shall have Account against the o∣ther as Baily of the house and Merchandise. Lib. Intra. 18. Sect. 6.

Terre-tenant shall have an account against Te∣nant by Elegit, but this is only by Scire facias,

Old Nat. br. 24. 21 Edw. 3.26. pl. 21. & fol. 10. pl. 13. 21 Edw. 3.2. pl. 60. 5 Edw. 3.159. pl. 20. Conusor shall have it in the same manner against the Conusee, Coke 4. part 67. b. 47 Edw. 3.11. pl 9. & 25. pl. 63.

Prior, Abbot, or Master of an Hospital shall have an Account for the time of their Predeces∣sor, Nat. br. 117. F. Regist. orig. 135. b. 4 Edw. 3.100. pl. 8. 25 Edw. 3.545. pl. 19. 28 Edw. 3.90. 30 Edw. 3.1.

If one make another Baily of his Mannor, &c. he shall have an Account against him as Baily, Nat. br. 116. D.

Breve fuit quod reddat, &c. M. & sociis suis mercatoribus de societate de D. in Flandria ratio∣nabilem computum; this is naught, 5 Edw. 3.138. pl. 39. for the generality of it.

The King may make a Bayliff of a Mannor, and shall have an Account against him, 33 Hen. 6.2. pl. 10. and fol. 29. b. pl. 2.

Against whom an Account lieth as Baily, 1. of a Court or Hundred. 2. of a Mannor &c.

[unspec 1] A.having a Bailywick makes B. his Under-Baily to gather the Amercements, he shall have an Account against him, 3 Edw. 3.54. pl. 24.

If one enter into my land to my use, and take the profits, I shall have an Account against him as Baily in Law, Nat. br. 117. A.

An Infant purchases Lands, his parents occupy this, he shall have Account against them as Bai∣lies in Law, Nat. br. 117. b.

Non jacet versus Executores, quia mere pertinet ad curam Christianam cognoscere de Computo red∣dendo, versus Executores, Regist. origin. 135. b. Nat. br. ••••7. C. Littleton, 48 Edw. 3.2. 4 Edw. 4.25.

But if an Executor will account, though not compellable, debt lieth for the Arrearages due upon the Account, 2 Hen. 4.13. P. 2.

And if a Baily be found in Arrearages be∣fore Auditors, his Executors shall be charged, if they have Assets, 11 Hen. 4.84. & fol. 19. pl. 48.

It lieth not against a Deputy-Baily, Nat. br. 119. B. 4 Edw. 3.100. pl. 8. because the Head-Baily is chargeable.

It lieth not against an Infant, 118. D. Nat. br. be∣cause he hath not discretion to Account, 21 Edw. 3.8. pl. 21. Regist. origin. 135. A. Also he cannot wage his Law, 26 Edw. 3.63. b. for he cannot take an Oath.

It lies against a Woman, Nat. br. 118. D. 19 Hen. 6 4 pl. 10.

Two Joynt-tenants of wood, one sells all and takes the money, the other shall not have an Account against him, Doct. & Stud. 32. b.

It lies not against a Surveyor or Controller, Nat. br. 119. C.

The King shall have an Account against any person that takes the profits, though he claim them to his own use per Prerogativam, Coke part 11.90. Devoushers Case. 35 Hen. 6.27. b. Nottingh. 8 Eliz Dyer 249. pl. 83.

The King shall have an Account against an Executor, Littleton, Coke 11. part 89. B. Devoushers Case, per Prerogativum.

For what things Account lieth against a Baily, 1. of a Court, &c. 2. of a Mannor, &c.

Crook 21 Hen. 7.75. pl. 23. Account against one as Baily Burgi sui de B: and good.

Account against one as Baily of a Mannor, Nat. br. 116. P.

Account against a Steward of an House, and of Goods in it, 14 Hen. 4.20. 9 Edw. 3.356. pl. 40.

Account for the delivery of three Tuns of Wine sold, 43 Edw. 3.2. pl. 11. 46 Edw. 3.3.3. pl. 6.13 Rich. 2. Account 50.

For Herrings delivered and sold, 46 Edw. 3.9. pl. 4.

For four sacks of Wool delivered and sold, 9 Edw. 3.359. pl. 38.

Tenant per Elegit accounts for the overplus, Old Nat. br. 34. 21 Edw. 3.26. pl. 21.

A man accounts for the profits de, &c. Nat. br. 118. B.

A Baily of Woods accounts for Herons and Hawks, 14 Edw. 3. Account 131. Moubrey.

Arrearages of Rent upon a Lease for years or at will lies not in Account, for nothing certain lies in an Account, 19 H. 6.20. pl. 67. 20 H. 6.16. pl. 2. as the Rent is; but an Action of Debt.

So of Goods leased with a House, although they are wasted, 20 H. 6.16. pl. 2.

So for a Custome, that one shall gather Rents, and take the toll and pety Customes payable to the Lord 22 l. annuatim, because he pays a certain sum, 11 Hen. 6.14. pl. 4.

The Count against a Baily, 1. of a Court or Hundred. 2. of a Mannor, &c.

Counts that from such a day to such a day he had the administration de bladis, foenis, equis, bo∣bus, vaccis, porcis, bidentibus, carucis, ac de omni∣bus aliis rebus, &c. & de, &c. ad merchandizan∣dum & proficuum faciendum, &c. & ad rationa∣bilem Computum, &c. Lib. Intra. 17. A. Sect. 1. vide more Lib. Intra. 17. a, & b. sect. 1, 2, 3, 4, 5. fol. 17. b, &c. sect. 1, 2, 3, 4, 5, 6.

The Plaintiff ought to Count that the Defen∣dant was Baily of the Mannor-house and Lands, &c. and yet it is not material whether he had the Mannor-house, &c. for the Receipt charges him, 9 Edw. 3.356. pl. 38. Stoner. 27 Edw. 3.29. pl. 25.

He need not count the things particularly, be∣cause it may be shewed before the Auditors, Crook 1 Hen. 8.153. pl. 2. where he is to charge him particularly.

But the Book of 49 Edw. 3.13. 14 Hen. 4.14. says, that it is material. Q. inde.

If Account be brought against one that by Custome ought to gather the Rents, the Count must be special, 21 Hen. 7.76. pl. 23. because the Custome makes the case to be special.

The Count was against one as Baily of a house and merchandise occupied by Joynt-tenants, ex quacunque causa seu contractu. Lib. Intra. 18. A. sect. 6.

The Count was, that he was Baily at the Feast of St. Michael, and good, because it shall be

intended th'Archangel, Coke 11. part 39. A. Metcalfes Case, 20 Hen. 6.23.

The Count was against a Tenant per Elegit, that he had made waste to the value, &c. Old. Nat. br. 34.

Conusor counts that the Conusee had levied the sum, or that he had levied part, and ten∣dred the remnant, 47 Edw. 3.11. pl. 9. and fol. 25. pl. 63.

And so of the Assignee of a Conusor, 25. Ed. 3.53. pl. 17.

The King is not held to Count against one as Baily, but may alledge generally in his informa∣tion, quod ille ad computand. Domino Regi tenetur; and if it be against Executors, quod is tempore mortis suae tenebatur. Coke 11. part 90. Devou∣shers Case.

The Writs against a Baily, 1. of a Court or Hundred, 2. of a Mannor, &c.

Rex, &c. Praecipimus tibi quod Justicies I. B. quod justè, & sine dilatione reddat B. rationabilem computum suum de tempore quo fuit Ballivus suus in M. sicut rationabiliter monstrare poterit, quod sibi reddere debeat, ne amplius inde clamorem audiamus pro defectu justitiae, Teste, &c. Regist. o∣rig. 135 A.

In London, Regist. orig. 135. A.

For Executors, Regist. orig. 135. A.

For Merchants, Regist. orig. ibid.

Rex, &c. Praecipe A. quod justè, &c. reddat B. rationabilem Computum suum de tempore quo fuit Ballivus suus in N. & nisi fecerit, & praedictus B.

fecerit te securum de clamore suo prosequendo; tune summ. per bonos summonitores praedictum A. quod sit coram Justie. nostris apud Westm. à die Paschae in quindecim dies ostensur. quare non fecerit: & ha∣beas ibi summ. & hoc breve Teste, &c. Regist. orig. 135. b. Nat. br. 117. E.

It lies for a man and his Wise. Regist. orig. 135. b.

For a Master of a house. Regist. orig. 135. b.

For a Prior in the time of his Predecessor. Re∣gist. orig. 135. b.

For an Executor and an Abbot Co-executor. Regist. orig. 135. b.

But there is another form of a Writ founded upon the Statute of Marlebridge, cap. 23. Nat. 117. H. orig. Regist. 135. b.

Account against B. as Baily and Receiver in K. a good bar to the Writ, that he was not Baily nor Receiver in K. 21 Hen. 6.21. pl. 42. Vide 44 Edw. 3.1. pl. 2.

The Writ ought to comprehend the County. 10 Edw. 3.365. pl. 19. Shard.

If it be brought against one as Receiver, where he was Baily, it shall abate. 3 Edw. 3.70. pl. 28. 18 Edw. 4. pl. 17. For the Law takes notice of them as distinct and different employments.

But one Writ may comprehend Baily and Re∣ceiver. 9 Edw. 3.356. pl. 38. Nat. br. 116. P. 21 Hen. 6.21. pl. 42. Regist. orig. 135 b. For a man may be charged in a double capacity, and if he rightly charged either way it is gone.

The process against a Baily, 1. before appearance; 2. after appearance.

At the Common Law the Process was but a di∣stress infinite, Coke 3. part. 12. A. Harberts case.

But by Marlebridge, cap. 23. a Capias was given, Coke 3. part. 12. A.

And per Westm. 2. cap. 11. process of Outlawry is given, Coke 3. part. 12. A. 17 Ed. 2 process 203. 17 Edw. 3.59. pl. 55. Shard. 29 Ed. 3.5. pl. 13.

But against Tenant by Elegit, is but a Scire facias, 21 Edw. 3.2. pl. 6. 5 Edw. 3.159. pl. 20. Regist. judicial. 73. b. Old Nat. br. 34.

And if they appear not being summoned, judg∣ment shall be given against them, 5 Edw. 3.159. 21 Edw. 3.1.

Conusor shall have a Scire facias against the Conusee, Coke 4. part. 67. b. 47 Edw. 3.11. pl. 9. & fol. 25. pl. 63.

So the Assignee of a Conusor, 25 Edw. 3.53. pl. 17.

If a Baily come in by Capias or Exigend. he shall be forthwith committed to the Fleet, 29 Edw. 3.35. pl. 63. for his contempt in not appearing be∣fore.

So if he come in by Distress, and the Account be adjudged, 29 Edw. 3.35. pl. 63.

But if the Account be adjudged, and he be not present in Court, a Capias ad Computandum shall issue out against him, 1 Edw. 3.2. pl. 10. 1 Hen. 7.1. pl. 1. Townsend, Lib. Intra 18. c. Sect. 1, 2, 3.

The Bar for a Baily, 1. to an action of Account; 2. before Auditors.

A good Bar, that he did account before Audi∣tors, 25 Edw. 3.39. pl. 1. 2 Edw. 3.45. pl. 13. Lib. Intra. 17. A. Sect. 1. he shall shew the time and the Auditors.

But in pleading he ought to say, that the Au∣ditors were assigned by the Plaintiff only, and not by his assent, 29 Edw. 3.40. pl. 21.

A good Bar, that he did account with the Plain∣tiff himself. Lib. Intr. 18. A, & B. Sect. 6.11 Rich. 2. Stath. Account 46. 45 Edw. 3.14. pl. 13.

But it is no Bar to say, he did account with the Plaintiff after that he had imprisoned him, 22 Edw. 3.13. pl. 32.

Account per Executors a good Plea, that he did account to the Testator, and shews an Acquit∣tance of the Testator. 1 Edw. 3.2. pl. 10.

Heir Frank-tenant a good bar, 28 Edw. 3.90.

An Abbot brought an account against B. as Bai∣ly of his Predecessor, and the Defendant pleads, that he had a Lease of his Predecessor for 3 years, and entered after the end, and found certain things there; this is a good Bar, 16 Edw. 3.368. pl. 30.

The Defendant said, that it was debated be∣tween the Plaintiff and his Wife, and it was a∣greed, that the Wife should have the Land for her maintenance, and she leased to the Defendant rendring Rent; this is a good bar, 47 Edw. 3.18. pl. 34.

An account for the delivery of three Tuns of Wine; a good bar for the Defendants to say▪

that the Wife was a common Taverner, and that they were Bailies for the sale thereof, without the assent of him, and that she fold and paid the Plaintiff, without that, that they were his Bailies in any other manner, 13 Rich. 2. Account 50.

Defendant pleads a Lease to him of the Mannor, a good bar, 49 Edw. 3.7. pl. 11.

Account of a House and Goods: it is no Plea to say, he bought the goods of the Plaintiff; but must say without that, that he was his Baily for Account-render, 49 Edw. 3.7. pl. 11.

Payment by command of the Plaintiff, a good bar in discharge, Coke 11. part. 38. B. Metcalfs case. 1 Edw. 5. 42 Edw. 3.6. pl. 21. But this is before Auditors, and not in bar of the Action.

The Defendant said, that he was Servant to the Plaintiff, and he did chase the Cattel out of the field, without that, that he was Baily in any other manner; for if the Cattel are hurt he shall have an action of the Case, 7 Hen. 4.14. pl. 18.

He was his Surveyor, without that, that he was his Baily, 4 Edw. 3. Account 34.

The Defendant said, that the Plaintiff granted by Deed, and shews, that when he came to C. he was to acknowledge a Statute Merchant, that the Account should not be, and shews likewise, that he did it; this is nothing without saying, he de∣livered it to the Plaintiff, 20 Edw. 3. Account 79. Q.

Account for the delivering of Tyn, &c. the Defendant said, that he delivered this, and took an obligation in the name of the Plaintiff; this is no bar, 28 Hen. 8. Dyer 29. pl. 193. for he had no authority to take the Bond.

Baily of Woods to sell; it is no Plea to say, he had not sold them, because this comes in debate before Auditors, 14 Edw. 3. Account 131.

The plt. after judgment for him quod Comput. dies, his Executors shall have a Scire facias; the which being served, if he appear not, an Exigend. shall issue out against him, 14 Hen. 4.1.

The Judgment against a Baily, 1. of Account; 2. to Recover the things.

[unspec 1] The Judgment is, Quod Computet & ideo in mi∣scricordia, quia prius inde non Computavit. Coke 11. part. 38. A. Metcalfs case. Lib. Intra. 19. b. sect. 1. & 20. D. sect. 1.

Quod computet for parcel, and Bar for the remnant. Lib. Intra. 22. A. sect. 12.

[unspec 2] The Judgment is, Ideo consideratum est quod praedictus W. recuperet versus praefat. M. as much as he shall be found in Arrearages, & dampna oc∣casione implacitationis, &c. Coke 11. part. 40. A. Metcalfs case.

Scire facias against Tenant per Elegit to Account, and not appearing upon garnishment; the Judg∣ment was, that the Plaintiff shall recover his Lands without any more process upon the cause of the Account, &c. 5 Edw. 3.159. pl. 20.

Execution against a Baily, 1. per Common Law; 2. per Statute Law.

[unspec 1] By the Common Law he shall have but a Le∣vari facias, or Fieri facias. Coke 3. part. 12. A. Harberts case. And this within the year only, for

if the year pass, he was put to his Action of debt, if the process were not continued, 33 Hen. 6.49. pl. 33.

[unspec 2] Per Westm. 2. cap. 45. a Scire facias is given after the year.

And per Westm. 2. cap. 18. Elegit is given. Coke 3. part. 12. A.

And per Marlebridge, cap. 23. and Westm. 2. cap. 11. Capias is given in process.

And per consequence a Capias ad satisfaciendum after Judgment, Coke 3. part. A. 12.

And by the Statute of Westm. 2. cap. 11. if an Accountant be found in arrearages before Audi∣tors, he shall be Committed by the Auditors to the next Goal in execution.

But then the Auditors ought to Commit him to prison forthwith. Coke 8. part. 119. b. Bonhams case, 27 Hen. 6.8. Com. 1.7.

But if he Account before the plt. he cannot Commit him to prison, 45 Edw. 3.14. because he shall not be Judge in his own cause.

Ex parte Talis by a Baily.

Per Westm. 2. cap. 11. if Auditors be assigned by the party which will not allow to the Accountant reasonable allowances, or charge him with a thing he never received, and Commit him to prison, he shall have a Writ ex parte talis. Nat. br. 129. F. 4. Hen. 6.18. A. pl. 3. Regist. orig. 137. b.

But if Auditors be assigned by the Court, and they do not allow reasonable allowances, he shall not have this Writ, but shall shew it to the Court, and they shall make allowances, Nat. br. 129. F. 3 Edw. 3.56. pl. 30.

If it be sued in London, and Auditors be assign∣ed by the Court which will not allow, &c. there this Writ lieth, Nat. br. 129. F.

But note in Regist. orig. 137. b. is against it. go: Q.

But if the Plaintiff assign Auditors there, then such Writ lieth, Nat. br. 129. I. Regist. orig. 137. b.

The Writ shall be returnable before the Trea∣surer and Barons of the Chequer at a day certain, and a Scire facias in the Writ to warn the Plain∣tiff and Defendant to be there, Nat. br. 129. Regist. orig. 137.

Notes

• Ʋnder-Baily.
• Dep••ty.
• Account for the Major and Aldermen of Lon∣don.
• Lunatick.
• Executor.
• 2. Baily in Law.
• In Comi∣tasu.
• In Banco.
• Account before Auditors.
• No bar.
• Property.
• Payment.
• Servant.
• Statute-Merchant.
• Vendee.