ABATEMENT OF WRITS:
(Account.) If a
brought up by the Sheriff in conse- quence of process, and the plaintiff refuse to count, denying the iden- tity of the defendant but not alleging any difference of name, the writ abates, 2. (Cessavit.) If a pond, the former
site of a mill be described as a toft the writ is good, and the tenant, who has, as sole tenant, taken exception to the description, cannot afterwards plead joint tenancy in abatement of the writ, 234-238.
(Dower.) When a writ is brought
against two or more persons as joint tenants or tenants in common, and it is found that one of them holds parcel in severalty, the writ abates, 196-204.
(Entry sur disseisin.) When the parol demurs for non-age of the tenant, and the demandant after- wards sues out a new original writ, instead of a resummons, the new original does not abate because there is a plea pending, 38, 42. The writ being for the third part of one knight's fee, the demandant counted that his ancestor seised as of fee and of right, with- out saying "in his demesne." The U 50018.
ABATEMENT OF WRITS-cont.
count was allowed, but exception was taken to the writ on the ground that as, according to the count, the ancestor was not alleged to have been seised" in his demesne," he could not have had an assise in respect of the disseisin alleged in the writ. Case adjourned, 120-
(Formedon.) If a demandant admit that, as to a part of his demand, there was no gift, the whole writ abates; but if the tenant first admit the gift as to part, the de- mandant may have judgment of seisin as to that part; and upon the subsequent admission of the de- mandant that there was no gift of the residue, there may be judg- ment for the tenant as to the resi- due alone, 4-6.
If A. bring a writ against B. who wages his law as to non-summons, and so abates the writ, and A. pur- chase another writ against B. in respect of the same tenements, B. cannot then plead non-tenure in abatement of the second writ, 222- 224.
If A. bring a writ against B. while he has another pending against C. in respect of the same tene- ments, in which C. is supposed to be tenant, the writ against B. does not abate, 224.
If the words of the writ be that the gift was to B. "et Anastasia uxori Z
ejus, et quæ post mortem B. et "Anstancia," &c., the writ abates because Anstancia is not any name, as appears by the record, 234. If the writ be with two Præcipes, and A. be commanded to render two parts of a manor, except 60 acres, and B. be commanded to render one part of the same manor, except 40 acres, semble that the writ is good, and it is certainly made good if view has been demanded, 318- 322.
(Novel Disseisin.) A writ purchased
pending a previous writ does not abate, unless plaint was made in the previous action so that the Court could know that the tene- ments were the same, 2. The tenant alleged joint tenancy as to parcel, and the demandant acknow- ledged it in order to have his assise of the residue. The writ was held good as to the residue, 6, 150. (Præcipe quod reddat.)
A writ brought against John de Clif, when there are in fact a John de Clif the elder and a John de Clif the younger, does not abate for want of identity, 160.
(Replevin.) A writ brought against
principal and bailiff abated as to the principal for omission of his addition of degree, 272, 274. (Scire facias in the King's Bench.)
If the writ be for execution of judgment against the persons named in a writ of assise of Novel Disseisin, and one of them die, the writ of Scire facias abates, 152. (Scire facias on bond.) A writ on a recognisance in which a testator was obligor is good if brought by a Prior, one of his co-canons, and another, as executors, though the co-canon owes obedience to the Head of his House, 318-320.
ABATEMENT OF WRITS-cont.
(Scire facias upon a Fine.) In a Fine sur done, grant, et render the cognisee granted to A. for life, the reversion being to the cognisee in tail male, and a remainder to the cognisee's brother in tail male. The writ was brought by the son and heir of the cognisee's brother, and the recital therein was in the form that the cognisor and the cognisee's brother were dead, and that the cognisee had died without heir male of his body. Exception was taken that the names were not in the same order in the writ as in the fine, and that the estate of the cognisee's brother was made to precede that of the cognisee. It was held that the writ was good, as there was sufficient in it, and the form was not subject to exception in the case of a writ to have execu- tion of a judgment, 262-264, 268- 270.
(Scire facias in the Exchequer.) A writ to show cause in respect of a farm of a fair to be recovered as in right of the King is good, 126– 128, 130. (Trespass.) If a writ be brought
against A. and his wife Margery, and Margery de B. as feme sole, and the Margery named as wife allege that she is Margery de B., the writ does not, on that account, abate, but if she plead that she is feme sole, and allege a divorce, and the divorce be denied, a writ will be sent to the Bishop to certify as to the fact, 322-330. (Wardship, Right of.) If the writ be brought for the wardship of the person of the heir and the wardship of the land against A., and it be alleged and not denied that a lease of the wardship of the person was made to A.'s wife while sole, and
The quantity received is matter for the Auditors and not for the In- quest, 4.
The action of Account is transitory, and the plaintiff may count of a receipt in a county different from that in which he sued out his writ, 10.
Action of Account where the defen-
dant had accounted before Auditors assigned by the plaintiff, who him- self had the tallies and rolls, 38. Defendant admitted receipt of part, and was ready to account in respect thereof, but in respect of the resi- due produced an obligation con- ditioned to be void if the plaintiff should not be distrained, for services in arrear, &c., in certain tenements which he had of the defendant's feoffment, and alleged that he had not been distrained. The plaintiff said that he had been distrained for
services in arrear. According to the reports the issue could not be taken as to the fact of the distress, but only as to whether any thing was in arrear at the time of the feoffment. But according to the record, in the same or a similar case, the issue joined was as to whether any distress had been taken, after the feoffment, for arrears owing before the feoffment, 64-66. Account may not be by parcels, but,
where receipt of parcel is ad- mitted and receipt of the residue denied, the defendant shall not account for the one part until the issue has been tried as to the residue, 66.
Defendant may wage his law as to
receipt of one parcel, and join issue to the country as to the receipt of another, 172.
Mainprise in action of Account, 262, 286, 287, note 1.
A. counted that B. had received money from him to trade, and pro- duced a deed purporting that B. and C. received the money and were jointly and severally bound as to the whole sum. It was objected that the count should have been to the effect that the receipt was common. The objection was, ac- cording to one report waived, ac- cording to another disallowed, 282- 284, 288.
B. receives money from A. to trade for a certain time limited by deed. B. retains the money beyond the time limited and does not account. Is he bound to render an account extending beyond the time limited? The Judges differ. The point is waived, 284-288.
Essoin and mainprise in action of Account, 332. Writ of, 52.
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