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 ...

For the not doing of a thing which ought to be done by the Law, touching a thing hereditary to the damage of another.

A Copyholder by Custome that may nominate him which shall succeed him, and names one,* 1.1 and prays to be admitted, and offers reasonable fine to the Lord which resuseth; the Copyholder shall not have an Action of the Case against the Lord, because before admittance he had no right, Pasch. 13 Jac. Ban. Regis, Forde and Hoskins.

A Beadle of a Hundred brought his Action o•• the Case against many Brewers;* 1.2 and prescribes to have three gallons of the best Beer of even Brewer for 7 d, and good, for it is not unreasona∣ble; 1. He need not shew what estate he hath▪ 2. It is good against many, because all in common are accessory, 19 Rich. 2. Action upon the Case 51.

Against him which ought to enclose against me,* 1.3 and doth not, by which my grass is consumed. 11 Rich. 2. Action on the case 36. be it by his own Cattel or a Strangers.

But if it be between two houses, a Guria cl••••∣denda lies, ibidem. a Writ to enforce him to enclos•• his own Yard.

A sold Land to B,* 1.4 and he will not enseoff him, Action lies, 22 Hen. 6.44. Newton. Q. for he may make him another Conveyance.

Against an Archdeacon which refuseth to ••••∣duct,* 1.5 wh••ch is as much as to give possession of a Living,* 1.6 26 Hen. 8.3. Nat. br. 47. because here the Archdeacon is in place of the Sheriff, Mich. 12 Jae. Ban. Regis, Poole and Godfrey. But in this cast by Doderidge and Coke, it lies not against the Ordinary for not instituting a Clerk, because this is meerly Spiritual; in the case above specified; and the Clerk may be unfit, which they are to judge of.

A hath a nomination,* 1.7 and B the presentation; A names one, B will not present; yet an Acti∣on lies not by the Court, Pascb. 13 Jae. Ban. Regis, in the case of Forde and Hoskins; for B hath a greater interest than A, or equal.

Against one that ought to find a Priest,* 1.8 and will not, viz. to say Mass, sing Dirges, &c. 21 Hen. 7.5.22 Hen. 6.46. Lib. Intra. 2. D. sect. 5. this was

Law in the time of Popery, but not now.

But if he shall be found by the Lord, and his Tenants of his Mannor, no such Action lies, Coke 4. part. A. Williams; but it shall be in the Court Christian, for the incertainty where the fault is that he is not found.

1. Against a Lessor that refuses to repair his house,* 1.9 Dyer 36. pl. 37. viz. where he promised to do it. But quaere, if he do not promise.

2. Against him that ought to repair a Bridge, by which I have a way to my Mannor, 11 Hen. 4.82.45 Edw. 3.17. for I am hindred in my ease∣ment.

3. But if a Highway be not repaired, by which my Horse is mired, I shall have an Action, by Heiden, 5 Edw. 4.3. Q. viz. for my particular miring.

4. Against him which ought to repair a Mound or Bank, by which my Land is drowned, 29 Edw. 3.32. 12. Hen. 4.7. Nat. br. 93. G. 7 Hen. 4.31. pl. 13.

5. So of the Banks of a River, Nat. br. 93. G. 15 Edw. 4.18. 45 Edw. 3.17. 7 Hen. 4.8.31. 11 Hen. 4.82, 83. 33 Hen. 6.26. 29 Edw. 3.32. pl. 49. for in all these cases I am damnified, and am to be repaired by him that is the cause thereof.

But if they be broke by Tempest, no Action lies, 29 Edw. 3.32. pl. 49. for this could not be foreseen nor prevented, and so there is no fault in any body.

6. For not scouring Ditches, 11 Rich. 2. an Acti∣on upon the Case lies, 36. Nat. br. 93. G.

7. For not repairing of a Gutter, Lib. Intra. 10. D. sect. 1. whereby another is damnified.

For not repairing a house that is ready to fall upon my house, Crooke 22 Hen. 7.98. pl. 4. per Fi∣neux & Brudnel; for I am like to suffer damage, and an Action may sometimes be brought to pre∣vent a wrong.

Against him that is retained to purchase Lands and doth not,* 1.10 11 Hen. 6.18. Q. for it may be it i•• not to my prejudice, yet here is breach 〈◊〉〈◊〉 trust.

But if he doth his endeavour it sufficeth, so ultra posse non est esse.

But if he be a Counsel with the other partyr Action lies, 11 Hen. 6.18. pl. 10. Babinton, & 55 pl. 26. for then he is retained against me to my pre∣judice.

Against a Lord in Ancient demesn which 〈◊〉〈◊〉 not hold his Court,* 1.11 11 Edw. 2. Action upon the ••••j. 46. lies; for the Tenants may be prejudiced there∣by.

* 1.12 1. Against a Millar that refuseth to grind To•• free for one that is Toll-free, 43 Edw. 4.24. Cr•••••• 130. pl. 100 l. per Keble; for this is appare•• wrong to take my goods where I am exemp••e•• by the Law from being charged.

2. Against him that bought or sold in 〈◊〉〈◊〉 Market or Fair without paying Toll, 7 Hen. 4.4••. pl. 11. for this is my loss, and to the ill example•• others.

3. But if one pass over my passage or po•• where I have Toll, and doth not pay it, qu•••• what remedy, 21 Hen. 7.16. pl. 25. It seems 〈◊〉〈◊〉 Action on the Case doth lie, if it be demanded.

Notes

• * 1.1

  Admission.
• * 1.2

  Beadle of a Hundred.
• * 1.3

  Enclosure.
• * 1.4

  Feosment.
• * 1.5

  Induction.
• * 1.6

  Institution.
• * 1.7

  Presenta∣tion.
• * 1.8

  To find a Priest.
• * 1.9

  Reparati∣ons.
• * 1.10

  Retain.
• * 1.11

  To hold Court,
• * 1.12

  Toll.