Jurisdictions: or, The lawful authority of courts leet, courts baron, court of marshallseys, court of pypowder, and ancient demesne : together with the most necessary learning of tenures, and all their incidents, of essoynes, imparlance, view; of all manner of pleadings, of contracts, of the nature of all sorts of actions, of maintenance; of diverse other things, very profitable for all students of innes of court and chancery : and a most perfect directory for all stewards of any the sayd courts. / Heretofore writ in French by the methodically learned, John Kitchin of Grays-Inne, Esq; and now most exactly rendred to more ample advantage in the English tongue; with a demonstrative table, pointing out all matter of consequence, throughout the whole work. Whereunto is added the authentick formes of all manner of writs, with their severall returnes in English, very usefull for all men in this Common-wealth, as they be now used.

Action upon the Case.

Action upon the case in Court baron, and other Court, and first for slander.

IT lies for calling one traytor, felon, and robber of the Kings people, and that is to be noted in Iustice Seatons case, 30. Ass. 19.

22. Book of ass. 43. presentment, that one a is common Malefactor, or a common thief, or a common Baretor, is not certain, and is not good; and so it is thought by divers, to say that one is a common malefactor, or a common ba∣retor: this action doth not lie, for it is too general.

2 Ed. 4. fol. 5. For calling one villain, it seems that action upon the case doth not lie.

17 Ed. 4. fol. 3. Saith there, that an action upon the case doth not lie, for calling the Plaintiff villain without more.

Nat. Bre. fol. 55. There are two desamations or slan∣ders, the one spiritual, the other temporal: temporal where he cannot be punished by the spiritual Law, as to say that the Plaintiff is out-lawed of murder, conspiracy, forging of deeds, &c.

30 H. 8. tit. 104. Lyeth for calling the Plaintiff perjured man; for now perjury is punishable in our Law by the Statute of 5. Eliz. yet inquire, for that it is not in what Court or cause he was perjured.

Register fol. 54. For calling the Plaintiff Adulterer or U∣surer, Defendant shall be punished in the spiritual Court, and there doth not lie an action upon the case.

4. Ed. 6. tit. 112. Lies for calling the Plaintiff a false Justice of Peace.

27 H. 8. fol. 13. It lies for calling the Plaintiff theif, and inditing him of felony, and note the words of the writ are, that he is hurt in his goods, his name, fame, and condi∣tion.

26. H. 8. fol. 11. For calling the Plaintiff Thief, and saying that he hath stolen sheep of one I. S. It lies.

17 Ed. 4. fol. 3. Lies for writing slander in a paper, by which he durst not go about his business.

27. H. 8. fol. 17. For calling the Plaintiff Heretick, and one of a new learning, it doth not lie.

Book of entries fol. ••2. A president there, in an action of the case, for calling the Plaintiff false man; but in∣quire if it lies, for there was not there exception taken: and there is there another president for calling the Plaintiff theif, and saying he hath received 20 l. value of his goods.

In the Book of Entries, fol. 13. there is another presi∣dent of an action upon the case, that a certain Letter or Bill, with divers slandering words, and defaming, in the said Bill or Letter he caused to be writ.

It was the opinion in the Kings Bench, that for calling the Plaintiff Rogue, Cozener, or villain, action upon the case doth not he; for you shall not have action upon the case, for every word of anger reproachful; for it is said, that (Scandulum) is a Greek word, which goes to the over∣throwe of one, and for that it hath been thought, that if the words intend to the destruction of the Plaintiff, that he shall have an action upon the case, and for that where

the Defendant saith, that the Plaintiff was infected with the robbery of Jerom, H. and smels of it, the opinion was, that action upon the case for those words doth not lie.

Adjudged in London, that an action upon the case lies brought by Huson, Inholder, for that the Defendant said falsely, that he had buryed divers which died of the Plague, in his house, in his Garden, when the plague was not in his house, by which his guests refused to come to his house.

Also it was the opinion of the Kings Bench, that an action upon the case doth not lie, for calling the Plain∣tiff false knave.

Essex in the Kings Bench Roll. 149. Hill. Terme, 26. Eliz. Rich. Kerby Gentlemen, brought his action upon the case against John Waller, for saying these words, that is, thou Kirby art a false cozening knave, and hath falsely cozened my two Kinsmen, William Walker, and Thomas Walker, Brothers of the said William, of Lands worth 6000 l. the manner of Py••on in Rameshold, and I will bring thee to stand upon the Pillory for that. And adjudgad that the action doth not lie, and the Jury taxed damages to a 100 l. and upon that adjudged that the action did not lie.

London, Thomas Gittens Carpenter, Anno 26. brought his action upon the case against James Redforne in the Ex∣chequer, for saying these words, Thomas Gittens is a co∣zening knave, and I have proved him a cozening knave before my Lord Maior of London, for selling a Saphir for a Diamond, and adjudged that it doth not lie.

Action upon the case upon a warrant ••f a thing sold, and upon knowledge without wairant.

ACtion upon the case lies for selling corrupt wine, and the writ is, knowing it to be corrupt, and warrant is not to purpose, for it is ordained that none shall sell corrupt victual, if he know it, and so the Issue was, whether it were good and not corrupt. An action upon the case lies for selling corrupt victual, if he know it, and so the is∣sue was, whether it were good and not corrupt, an action upon the case lies for selling so much Cloth and not well fulled, where he warrants it, 11. H. 6. fol. 22.

Note the use, where Measel Porks are fold at Rumford, to have restitution of his money if they prove Measel, 9 H. 6. fol. 53.

7 H. 4. fol. 16. Action upon the case lies for selling corrupt wine, knowing, &c. the Defendant saith, that he tasted it, and accepted it for good: the Plaintiff saith, he accepted it for good upon condition, if he liked it, after it came to his house, &c.

19 H. 6. fol. 49. If one sell wine without warranty, if that be corrupt, action upon the case lies, for it is prohibi∣ted by law, 7. H. 4. fol. 76.

13 H. 4. fol. 2. If one sell to me a Horse apparent blind, and warrant him sound of all his Members, and I see him, I shall have no deceit, for that I might see it, otherwise it is of a disease within his body, there upon the warrant I shall have deceit. But if one sell a blind horse, and war∣rant him to one that doth not see him, deceit lies: If one sells to me wine, and I bid my Servant to taste it, deceit doth not lie if it be corrupt, for that he hath tasted it.

Fitzh. 94. C. If a man sell a horse to another, and war∣rant him to be sound and good, &c. If the horse be lame or diseased, that he cannot work, action upon the case lies, And so if one bargain and sel to one certain Pipes of wine, and warrant them to be good, and they are corrupt, action upon the case lies against him, and by Fitzh. it behoveth that he warrant the horse, and also the wine, otherwise action upon the case doth not lie, inquire of the wine.

Fitzh. 98. K. If a man sell Clothes and warrant them to be of a certaine length, if they be not of such a length, he he which buyes them shall have a Writ of Deceit against him, but if the warranty be made after the bargain, is o∣therwise.

11 Ed. 4. fol. 7. Where one sells Clothes and warrants them to be of such a length, and they are not, deceit lies, for he could not know but by measure, and he beleeved him, but it is said, if he warrant Seeds to grow that is in Cod, or that a Horse shall carry one ten miles in two houres which is to come, or warrant Cloth to be murrey where it is blue and see it, deceit doth not lye, but if he warrant Cloth to be of such a Country when it is not, de∣ceit lies.

11 R. 2. Statham, If one sell a Horse, knowing him to be lame, and warrant him to be sound, the Defendant saith that he sold him sound, without that, that he warranted him.

31 H. 6. fol. 11. Statham, If one sell a Horse, knowing him to be lame and do not warrant him, action upon the case doth not lye.

20 H. 6. fol. 37. By Paston, and not denied, if a man sell a horse which hath a disease, the Buyer may have action upon the case, that the Defendant knowing his Horse to be diseased; sold him, though he do not warrant him to be sound; notwithstanding it seems otherwise, where the Buy∣er may see the disease, by looking upon him as a splint, a spavin, or an eye.

9 H. 7. f. 22. If one sell a thing, and warrant that at the same time, he may have deceit, notwithstanding that he hath not paid the Money, for that, that he might have debt at his pleasure for the Money.

Action upon the case for cosenage and deceiving of one.

ACtion upon the case was brought against W. C. for that the Defendant took eight Oxen of J.S. and offered to sell them to the Plaintiff as his proper Goods, and by this salsity the Plaintiff trusting to the honesty of the Defendant bought them, and paid seven pound, and after the owner tooke the Oxen, by which the Plain∣tiffe lost the Oxen by this falsity to his wrong and dama∣ges, &c. Book of Ass. 8.

20 H. 6 fol. 25. Deceit was brought, for that the De∣fendant was his Attorney, and ought to have taken an Obligation of J.S. for a hundred pound to the Plaintiff, and he took it to himselfe; and it is sayd, he ought to de∣clare that he took a Fee of him: And so lyeth an Action upon the Case for such Cosenage and Deceits: VVhich note.

9 E. 4. fol. 12. By Littleton, Debt against two, as Exe∣cutors, and one is no Executor, nor never administred, &c. Yet he acknowledged the Action, and the other made default, the Plaintiffe recovers, the other hath no remedy but an Action of Deceit; that is, Upon the Case, for he is party to the Judgement.

42 Ed. 3. f. 14. Conspiracy in the nature of an Action up∣on the case was brought against three, which conspired to make one of them Attorney for the Plaintiff, and to plead as they pleased, and so to cause the Plaintiff to be found a Villain to one of the Defendants, and it lies, 26. Book of Assises 62.

47 Ed. 3. f. 15. Action upon the case lies in nature of a Conspiracy, for that the Defendant procured and caused a false Office to be found, by which the Mannour of the Plaintiff was seised into the Kings hands, Tit. Conspiracy, 8. B. See 27. Book of Assises 73. Fitzh. 114. D.

43 Ed. 3. f. 20. Deceit, for that the Defendant procure J. S. to bring a Formedon against the Plaintiff by Collusi∣on, by which he was travell by the Suit, and brought a Writ of Warrantia Chartae in defence of that, and it lies.

Where an Action upon the Case lies for a thing pawned, and for a thing borrowed, and where not.

ACtion upon the Case doth not lie, for riding his Horse which he had hired of the Plaintiff, which was weary, so that he had no service of him by six Dayes, for wearinesse is natural after labor, and for that he ought to shew some Fault in the Defendant, if he will have that Action.

Fitzh. 86. C. If one borrow certain Money, and deliver certain of his Goods in pawn for it, and he offers the Mo∣ney to the party again, and prayes Delivery of his Pawn, and the other refuse it, he shall have an Action upon the Case for the Pawn.

40 Ed. 3. f. 6. If I borrow a Horse, and he dies suddenly, and not by my default, I shall not be charged to restore a dead Horse.

Doct. & Student. f. 29. If one use the thing borrowed, in other manner then to what it was borrowed, he shall be charged, if they perish in any manner: but if he use them as they were lent, if they perish not through his default which borrowed them, the Owner shall bear the losse.

Doct. & Student. fol. 128. If a man borrow a Horse, and puts him in a house which fals upon him, if it were strong and not feeble to fall, he shall be discharged, otherwise it is, if it were weak.

21 Ed. 4. Tit. 42. Detinue of Goods, Br. Detinue of a Horse, it is a good Plea, that at the time of the Delivery, the Horse was sick of divers Diseases, as Botts, Glanders, and such like, by which he died at D. such a day and year, before request made by the Plaintiff to re-deliver him, and it is a good Plea, contrary if he do not say, it was before request, for if it were after request, that had been the folly of the Defendant.

Where Action upon the Case lies, or Detinue, and where Trespass, and where not.

IF the Lessor will not discharge his Farmer of a Tenth, or of a Fifteenth, or of Quit-rent, which are due by the Lessor, and the Farmer pay it, yet he cannot keep that back in the payment of his Rent, but shall have an Acti∣on upon the Case, 21 H. 7. f. 12.

7 H. 4. fol. 3. If the Testator hath my Goods amongst his Goods, and dies, Trespasse by force and Arms doth not lie against his Executors for these Goods, but Detinue in an Action upon the Case: and if one finde my Goods, Tres∣passe doth not lie against him, but Detinue, or an Action upon the Case.

12 Ed. 4. f. 10. If one take my Beasts, and another take them from him, I shall not have Trespasse against the se∣cond, but Action upon the Case, 21 Ed. 4. fol. 89. the same.

13 Ed. 4. fol. 9. If Goods be delivered to one, he cannot be a Trespassor of them, but a Detinue lies of them.

18 Ed. 4. f. 28. VVhere one hath Goods by my Delive∣ry, I shall not have Trespasse, but Action upon the Case, and Count of mis-using of them.

46 Ed. 3. fol. 15 Trespasse, if the Defendant saith, that the Goods were thrown into the Sea by a Tempest, for safeguard of the Ship, and he took them, and Trespasse doth not lie against him, for that they were not taken out of the possession of the Plaintiff.

21 H. 7. f. 39. By Fineux and Tremail, if I deliver Goods to a man, and he gives them, or sels them to a stranger, if the stranger takes them without Delivery, I shall have a VVrit of Trespasse; but if he makes Delivery to the stran∣ger of them, I shall have no Trespasse.

Littleton, fol. 14. If I deliver to one my Sheep to dung his Land, or my Oxen to plow his Land, and he kils my Beasts, I shall have Trespasse, that is to be intended Tres∣passe upon the Case, and not Trespasse by force of Armes. See 2 Ed. 4. f. 5. in Parco fracto.

18 Ed. 4. fol. 23. In Action upon the Case, where he counts of mis-using of a thing delivered to the Defen∣dant, or converting it to his own use, is to recover Dama∣ges for the thing, and where one will recover the thing it self, he shall have Detinue.

7 Ed. 4. f. 4. Where one comes to Goods lawfully, as by Delivery, Trespasse doth not lie against him, but De∣tinue.

12 E. 4. f. 8. A man shall not have trespasse general, that is, by force of Armes, against him that mis-uses a License in Deed, as to ride a Horse twenty Miles, where he borrow∣ed the Horse but for ten Mile; but he shall have an Action upon the case; contrary, if one mis-use a License in Law, as to enter into a Tavern, there he shall have Trespasse, by force of Armes, 21 Ed. 4. f. 76. the same.

18 Ed. 4. f. 2. If my Bailiff kill my Kine, Trespasse by force of Armes doth not lie, but an Action upon the Case.

21 Ed. 4. fol. 22. Action upon the Case lies against J. S. Officer of the Kings Bench, for that that the Plaintiff af∣firmed a Plaint of Debt against J. D. in London, the said J. S. purchased a Supersedeas of Priviledge for J. D. sup∣posing that he was his Servant.

2 H. 4. f. 19. Action upon the Case by the Neighbour of a fire, lies, that according to the Law and custome of the Realm of England, &c. that every one shall keep his fire, least by his fire any losse should come to his Neighbours.

42 Ed. 3. fol. 11. Action upon the case lies, where throughout the whole Realm of England it was a custome, that the Host should keep the Goods that their Guests brought into their House, if it be a common Inn, and should be charged, though they were not delivered, and though that the key of his Chamber were delivered to the Guest, 22 H. 6. f. 24. 2 H. 4. f. 8. 14 H. 4. f. 43. Fitzh. f. 94. B. 11 H. 4. f. 43.

28 H. 6. f. 7. Action upon the case lies, for that, that the Dog of the Defendant worried the Sheep of the Plaintiff,

he knowing his Dog to be accustomed to worry Sheep, and it is no Plea for the Defendant that he did not know, By Moyl, but he ought to answer, that he did not worry the Sheep.

41 Ed. 3. fol. 24. If a man ought to grinde his Corne at the Mill of the Defendant without paying Tole, and the Miller take Tole, trespasse by force of Armes lyes, and so it is said where he takes more Tole then he ought, but if one hinder people to come to my Market, Action upon the case lies.

13 H. 4. f. 12. Action upon the case lies, for that, that he hath a Leet in the Mannor, Eyer and Court, from three weeks, &c. There hath the Defendant held Court within the same Mannor, and hath distrained his Tenants by great and often distresse, and hath impoverisht them, that they cannot pay their Rent, Fitzh. 94. E. the same.

33 H. 6. f. 16. Action upon the case lies, where his Ste∣ward comes to hold a Leet, and the Defendant disturbs him.

11 H. 4. fol. 45. Schoole-Master shall not have an action of the case against another, for setting up another School, that he cannot have so many Schollars as he had before, for the profession is free, and is for the Common-wealth: the same law of erecting a Mill upon his own land, though the Plaintiffs Tole be diminished, he shall not have an a∣ction upon the case, 22 H. 6. f. 14. Mill levied.

48 Ed 3. f. 25. Action upon the case lies against Tenant at will which makes wast, or burning a House willingly, and not an action of waste, Lit. 14. 21 H. 6. fol. 43.

7 H. 4. f. 8. Action upon the case lies, for that, that the Defendant ought to repaire a certaine wall upon the Thames, and doth it not, by which the land of the Plaintiff is drowned, Fitzh. 93. E. the same.

7. H. 4. fol. 16. Account doth not lye against a Bailiff, or Servant for driving his Plow, in which default the Beasts perished, but an action upon the case lyes for his negligence, for default of good keeping.

2 H. 7. f. 11. Action upon the case lies for negligent keeping my Sheep, and the same Law for negligent carrying my Pots, or glasse; and where one keeps my Horse, and starves him for Meat.

7 H. 4. f. 45. Action upon the case lies by the Lord of B.

against him which bought and sold in the Market of B. without paying Tole, and though the VVrit was (Tollenam asportavit) yet it was also, and he denied to pay it, and for that it was awarded good, for the first words are void and the last sufficient.

11 H. 4. f. 25. If a way belonging, &c. be stopped, Assise of Nusance lies, but for stopping of a way ingrosse he shall not have an Assise of Nusance, but action upon the case.

14 H. 8. f. the last, VVhere part of a River, or way is stopt which is narrow, action upon the case lies, and where the whole, an Assise of Nusance, an action upon the case lies where he hath no other remedy.

11. Ed. 4. f. 23. It seems there that a good Pleader, may frame actions upon the case for many matters which are in the Chancery.

26 Book of Ass. 79. Action of the case lies against the She∣riff which quashed an Essoyne erroniously, for false Judg∣ment doth not lye unlesse it were Judgement of the Sui∣tors.

Fitzh. 114. D. If one Person of his malice, and by his false imagination, labour and cause another to be iudicted falsly, the party which is so indicted shall not have a Writ of conspiracy, but an action upon the case against him which caused him to be so indicted.

Fitzh. 95. D. If one play with others at Dice, and hee hath false Dice, and wins Money of others with false Dice, Action upon the Case lyes for this deceit.

13 H. 7. fol. 26. Action upon the Case lyes, where one hath a Water-course by Prescription, to Brew, and water Beasts, there hath the Defendant made Lime-pits, &c. 4 Book of Ass. 3. See Nusance for Lever Tozaile to the an∣noyance of the Free-hold.

Action upon the Case for mis-using an Officer in his Office.

ACtion upon the Case lyes against a Sheriffe, where the Plaintiffe hath Charter of exception, that he shall be impannelled upon no Jury, and shews that to the She∣riff, and yet he impannels him, 18 H. 8. fol. 5.

21 H. 7. fol. 22. by King, Where the Sheriffe serves a (Fieri facias) and levies the sum, and doth not returne

the Writ, the party may have trespasse against him for le∣vying that; the same Law, if by a (Capias) the Sheriffe arrest one, and doth not returne the Writ, false Impri∣sonment lyes, 20 H. 7. fol. 13. 21 H. 6. tit. 6. B.

6 H. 6. Tit. 9. Trespasse upon the Case was brought against an Escheator, because he found an Office, that the party held of J. S. and he returned an Office, That the party held the moity of the King in Cheife, and by the Court it lyes, for he and the Sheriff are Officers of Record, but not Justices of Record; for there it was a∣greed that an Action doth not lye against a Justice of Re∣cord, 9 H. 6. fol. 60. the same, 12 H. 6. fol. 3.

47 Ed. 3. fol. 15. Conspiracy, in the nature of an Acti∣on upon the Case, was brought for that, that the Defen∣dant procured, and caused a false Office to be found, by which the Mannor was seised into the Kings hands, and he sued that out to the Losse.

21 Ed. 4. fol. 43. If the Sheriffe upon a Writ of second deliverance, makes deliverance to the Plaintif of the di∣stresse, and will not returne the Writ, so that the Defen∣dant may constraine the Plaintif to come and count, so that he may avow; the Defendant shall have remedy a∣gainst the Sherif, and this seems, by an Action upon the Case.

8 H. 6. fol. 1. Where in Precipe, the Sherif returnes a Summons, where he was not summoned, by which hee looses his Land, Action upon the Case lyes against the Sherif: See that deceit lyes.

19 H. 6. fol. 29. Action upon the Case lyes against the Sherifs Deputy, for imbezzeling a Writ of (Habeas corpora) and it lyes as well against him that stirrs up ano∣ther to doe it, as against a doer.

16 H. 6. tit. 38. by Paston, If the Sherif returne a man sufficient, upon a Venire facias, by which the next Sherif i•• charged of the Issues, he shall have an Action upon the Case against the Predecessor, for he cannot returne nihil against the returne of his Predecessor.

1 H. 6. fol. 1. Precipe, Where the Tenant looseth his Land, by default upon a false returne of the Sherif, as he returnes the Tenant summoned, where he was not, de∣ceit lyes, but if the Summoners were dead, Action upon the Case lyes.

38 Book of Ass. 13. Action upon the Case lyes against the Sherif, where he made a Precept to one, which was no Bailif of the Franchise, which returnes a Jury, by which this was quasht to the damages, &c.

41 Book of Ass. 12. Deceit in the nature of an Action upon the Case, lyes against the Sherif, for that, that one was outlawed at his Suit, and that the Defendant then Sheriff, would not return the VVrit to the losse, &c.

30 Book of Ass. 5. VVhere the Bailiff of a Franchise re∣turnes a Pannell to the Sheriff, and returnes another Pan∣nell of himself, this shall not be outed at the request of the Bailif, but they shall have their action of the case against the Sherif.

11 H. 6. f. 18. If a Lawyer be retained to looke over evi∣dence, and after he discovers that to another person, by which, &c. Action upon the case lies against him; con∣trary if he shew him his evidence, and do not retaine him.

15 H. 7. f. 14. By Fro: VVhere an Attorney appeares for a man without authority, and Imparles, where he might have pleaded misnaming, and by this hath lost the advan∣tage of this Plea; Action upon the Case lyes against him, for that, that he appears without authority.

9 Ed. 4. tit. 118. B. Where a Guardian pleads falsly for an Infant, or vouches one which is not sufficient to render in value to the Infant, the Infant shall have a•• Action of Deceit.

Action upon the Case against Executors.

ACtion upon the Case was brought against the Execu∣tors of J. D. and Count that J. S. bought things of the Plaintif, and J. D. undertook, if he payd not at the day, he would, and counts that he had Assets sufficient to pay all his Debts and Legacies, and sufficient to con∣tent him, and it lyes: Note, J. D. did not make the bar∣gaine and contract, but undertook for J. S. and upon As∣sumpsit he could not wage his Law, 12 H. 8. fol. 12.

27 H. 8. f. 29. Where Tatam was in execution, the De∣fendant saith, if he would discharge him out of execution, that such a Day he would pay him, if Tatam could not: the same Law, if he saith to a Baker, Deliver Tatam so

much Bread, and if he do not pay you such a Day, I will pay you; Debt doth not lie against me upon this Promise, but an Action upon the Case.

27 H. 8. f. 27. It seems if a man be indebted upon a sim∣ple Contract, leaves Assets, and dies, the Action upon the Case doth not lie against the Executors, for the Testator might have waged his Law, but he shall have a Quo minus in the Exchequer.

15 Ed. 4. f. 15. Where the Testator may wage his Law, as in Debt of Contract made by him, and borrowed, Debt doth not lie against his Executor.

Plowd. Com. f. 181. Action upon the Case was brought by Richard Norwood, against the Executor of Tho: Gray, and counts that the Testator in consideration of forty shil∣lings to him paid, undertook to deliver to the Plaintiff cer∣tain Corn at a Certain Day, and did not; and counts that the Goods and Chattels of the said Tho: Gray the Testa∣tor, at the time of his Death were sufficient to satisfie, as well all the Debts which the said Tho: Gray did owe to any person, or to any persons, at the time of his Death, as to satisfie the Plaintiff for the said forty shillings; and ad∣judge that this Action lies against the Executors. And if an Action upon the Case be brought against Executors up∣on a simple Contract, if the have no Assets but to pay Spe∣cialties, they may plead that, and shall not be charged.

4 Ed. 3. chap. 7. is, That an Executor shall have Tres∣passe of Goods carryed away in the life of the Testator, or before: an Action personal dies with the person.

7 H. 4. fol. 8. Executors shall have Eiectione firme by the equity of the Statute.

23 H. 8. Tit. 138. Waste, if a Termor make waste, and makes Executors, and dies, the Action of waste is gone, for it doth not lie against Executors, but for waste made by them.

Action upon the Case, for not performing his Promise, and Assumpsit, and the place, and how, where it shall be traversed.

WHere a man makes a promise, or an Assumption to doe a thing, and doth it not, and there is no specialty of that promise, he shall have an Action upon

the Case, and not a Covenant, for that it was not by spe∣cialty; as for a hundred pound paid, the Defendant bar∣gained, and sold his Land to the Plaintiff, and promised to infeoff him, and infeoffs another person, he shall have Deceit, or Action upon the Case, 20 H. 6. f. 36.

3 H. 7. f. 14. Action upon the Case, and counts that the Defendant for 10. l. took upon him to labor for the Plain∣tiff to J.S. that J. S. should let the Mannor of D. to him, and counts that the Defendant hath taken that to him∣self, the Action lies: so if he undertake for 10. l. paid, to infeoff him, and infeoffs another, for this mis-doing, an Action of the case lieth, 2 H. 7. f. 12. the same.

48 Ed. 3. f. 6. Action of the Case lies against him which took upon him to cure the Plaintiff of a Wound, and did not, and by his negligence the Plaintiff was worse.

3 H. 6. f. 37. Action upon the Case, and counts that the Defendant took upon him to make a Mill before such a Day, and did not, but held that he ought to have counted what he should have, for it shall be Quid pro quo, and o∣therwise the Action doth not lie.

2 H. 4. f. 4. Action upon the Case, and counts that the Defendant took upon him to make him a House, and it seems it doth not lie, I conceive that was, for that he doth not count what he should have for doing it, 11 H. 4. fol. 31.

14 H. 6. fol. 19. Action upon the Case, where one had bargained to him certain Land for a certain summ, and undertook that a stranger released unto him. Where a Carpenter covenants to make to me a House, or a Chyrur∣geon takes upon him to cure me of my Hurts, and they do not, for this not doing, it seems, an Action upon the Case lies.

21 H. 6. f. 63. If one for ten Markes bargaine with the Plaintif for two Pipes of Wine, and undertake to deliver them at D. and did not, an Action upon the case lies, though that sounds in Covenant, for that there is no spe∣cialty, and the same Law is of all other bargaines; and by Paston, bargained, sold, or bought: It is no diversity to one or the other.

19 H. 6. f. 49. Action upon the case that the Defendant assumed upon him to cure his Horse of a certain Disease, and that be negligently, and carelesly applied Medicines, that the Horse dyed, and it lies.

26 H. 8. Tit. 133. Action upon the Case, that the Plaintiff delivered Goods to the Defendant, and the Defendant for ten shillings undertook to keep them safe, and did not, to the losse, &c. The Defendant saith, that he had them not by the Delivery of the Plaintiff, good by Fitzh. and Shelley.

34 H. 8. Tit. 107. Action upon the Case in London, and counts that he was Possessor of Wine and Stuff, and showed that certain in such a Ship. The Defendant at London assumed for ten pounds, that if the Ship and Goods did not come safe to London, and are there landed, that then he would satisfie a hundred pounds to the Plaintiff; and that afterwards the Ship was robbed upon Trade, on the Sea; and for not satisfaction, he brought his Action; the Plaintiff doth not shew where he was possessed, and yet good, and the truth was, that the Bargain was beyond Sea, and not in London. But where the place is not local, it is not material, and though he were robbed upon the main Sea, the Action lies in London upon the Assumpsit. See after fol. 1.

19 H. 6. f. 49. Action upon the Case, that the Defendant at London took upon him to cure his Horse, and that care∣lesly he gave him a Medicine that the Horse died: the Defendant saith, that at Oxford in the County of Oxford, he took to cure his Horse, which saith, without that, that he undertook at London, and held a good Plea.

3 H. 4. f. 4. Deceit in Land of that, that the Defendant there did undertake, that the Lord should cause him, to have certain Copy-hold of the Mannour of D. in the County of Middlesex, and he assured that to others, and saith, that he might be sued where the Assumpsit was, or where the Land is. Inquire.

11 H. 4. fol. 4. Trespasse by Executors in Middlesex, of Money taken in the life of the Testator: the Defendant saith, that the Testator was indebted unto him, and de∣livered that to him in London, in the name of Pay∣ment, &c. and it is no Answer to the Trespasse in Middle∣sex, but he should say, without that, that you took it in Middlesex, as the Plaintiff suppose, and is good, 7 H. 6. f. 37. & 22 Ed. 4. f. 38. the same.

4 H. 6. fol. 12. Trespasse of a Close broken in D. Defen∣dant justifies in S. for Common appendant, and ought to

traverse, without that, that he is culpable in D. 22 H. 6. fol. 40.

9 H. 6. f. 62. Trespasse of digging a Turbary in D. in the County of Middlesex, he cannot justifie in the County of Essex, without that; that he is guilty in the County of Middlesex, for he may plead not guilty, if it be in another County, but in Trespasse local in D. the Defendant may justifie in S. in the same County, without that, that he is guilty in D. but in Trespasse transitory in D. Defendant cannot justifie in S. in the same County, without that, that he is culpable in D. yet in Trespasse of Battery, or Trespasse of Goods taken in D. in the County of Middle∣sex, and Defendant justifies in S. in the County of Essex, without that, that he is culpable in D. in the County of Middlesex, 5 H. 4. f. 2. 10 H. 7. f. 27. 11 H. 6. f. 20.

5 H. 4. f. 3. Trespasse of Sheep taken at D. in the Coun∣ty of Hartford: the Defendant justifies the taking in Smithfield in London, doing Damage, he ought to say, without that, that he took them at D. in the County of Hartford.

6 R. 2. chap. 2. That Writs of Debt and Account, and all such whatsoever hereafter shall be taken in their Coun∣ties: and it is ordained, that if hereafter it be declared, the Contract thereof to be made in another County, that then incontinently that Writ shall be quasht.

9 Ed. 4. fol. 48. By Needham, a man cannot plead in A∣batement of a Writ, and say, the Contract was made in another County, for the Statute is not intended, but where it appears by the Writ, that the Contract was made in another County; but before this time they have used to make Examination where the Contract was made, and upon that abate the Writ, if it were in another County, but this not used now. See 3 H. 6. Tit. 30. Examination, & fol. 36.

18 Ed. 4. fol. 1. Nusance, that a Mill was erected in D. in the County of Kent: the Defendant saith, that he and all his Ancestors have been seised of a Mill in the County of Essex, and the Mill fell by? Tempest, and he built it, with∣out that, that he is guilty of any Annoyance in D. in the County of Kent, and doth not traverse all the County, and yet good by the whole Court, for that, that the thing is local, and annexed to Free-hold; and contrary of beat∣ing,

or Goods carried away, which may be continued, and is transitory, 21 H. 6. f. 11.

2 M. Tit. 283. Traverse by, without that, of Trespasse of Battery, or Goods carried out, it is transitory, and is not local, as of Trees cut, and Grasse mowed; and therefore in Trespasse transitory, the place shall not make Issue, and is not traversable, no more then in Trespasse upon the Case upon an Assumption, and these may be continued; contrary of Trespasse local. See after Title Vill.

34 M. Tit. 268. Traverse by, (without that) Action for making false Cloth in Bartholomew Fair, London, against the Statute: Defendant saith, that he made them well and truly in D. in the County of E. without that, that he made them in Bartholomew Fair, London, as, &c. and it is good, 22 Ed. 4. f. 38. the same verbatim.