APPENDIX.

Miscellaneous Cases and Passages in the Year Books and Abridgements of Brooke and Fitzherbert, literally translated, with Notes from Glanville, Bracton, Fleta, and Lyndwood.

By advice of the refused against judges subpoena recognizee in

statute mer

In the Exchequer Chamber before all the justices of the one Bench and the other, and many serjeants and apprentices being there, the Archbishop of York [Thomas of Rotherham], then being Chancellor of England, de- chant, to whom manded advice of the judges about granting a subpoena. had paid the the recognizor And he said that a complaint was made to him, that he money. [the complainant] was bound in a statute merchant to another and the recognizor [complainant] had paid the money, and had no release, and notwithstanding this the recognizee sued execution: and [the complainant] said that the recognizee would not gainsay, if he was examined, but that he was paid-whether, said my Lord, ought I to grant a subpoena? Fairfax [Justice K. B.] It seems to me, that it were altogether contrary to reason to grant a subpoena, and by two witnesses thus to defeat a matter of record: for where [a man] is bound in such form, he is not bound to pay without acquittance, or release; as if a man is bound in a bond, he is not bound to pay that duty, unless the obligee is willing to make an acquittance; and therefore it appears to me that it is his [the recognizor, complainant's] folly. The Chancellor said, that it is the common course in the Chancery to grant [a subpoena] against a bond [paid without acquittance by deed or release]; and also upon a feoffment of trust, whether the heir of the feoffee is in by descent or otherwise for we find records in the Chancery of such

L L

Subpoena, where

bond paid without acquittance

[by deed], or

release.

Subpoena against heir of

feoffee in trust.

did not lie.

But formerly it [things]. Hussey, then Chief Justice of the King's Bench. When I came first to the Court, which is thirty years past, it was agreed in case by the whole Court, that if a man had enfeoffed another in trust-if he died seised, so that his heir was in by descent, that then no subpœna lay; and there is great reason that it should be so: for by the same reason that by a subpoena by two proofs, one descent may be disproved in Chancery,—I say that in like manner [a man] may disprove twenty descents, and one hundred descents, which is against reason and conscience. And therefore it seems to me, that it is less evil to make him-who suffers his feoffee to die seised of his land-to make him lose that land-than to make, by proofs in the Chancery, many to be disinherited. And so it is in the statute merchant, and also in the bond: it is less evil to make those [recognizor and obligor] pay again-only through their negligence-than by two proofs in the Chancery to disprove matter of record, or matter of specialty when it is their negligence: and it is not for the obligor to pay before he has the acquittance of the plaintiff [obligee], or his release: and I say that to him: and so is the law. To this the Chancellor said, then it is great folly to enfeoff others in my land. And then the Chancellor agreed as to the statute merchant, because that was matter of record: and as to the rest he wished to be advised, &c.-Year Book, 22 Ed. 4, 6.

Surety may

One Middleton bought wool of Sir H. Which, who come to Chan- took in part payment a bond of Middleton and also a longer day given bond of Wolsley (a Baron of the Exchequer), as his to principal.

cery where

surety, each conditioned to pay 300l. Which died, and Dame Which, his executrix, agreed to give Middleton a longer day for payment; and afterwards sued Wolsley on his bond: whereupon Wolsley petitioned the Chancellor for a subpoena. The Lord Chancellor [Robert Stillington, Bishop of Bath and Wells] said, at first she might have proceeded against either: but the agreement

to respite the action against Middleton was an election to be paid by him. If the agreement had been that she should have the debt paid by one J., a debtor of Middleton, Wolsley shall in like manner take advantage of that. True the plaintiff does not state what day is given to Middleton, for that lies not in the plaintiff's knowledge. Matter lying in his knowledge ought to be clearly expressed. But this will come out upon the answer (sur le examination del conscience). In this Court it is not requisite that there should in everything be a certainty according to the solemnity of the common law: for in this Court it is only a petition.-Year Book, 9 Ed. 4, 41, and Brooke's Abridgement, Conscience and Subpoena and Injunctions, 3.

See a subsequent page-Miscellaneous Notes of some Cases and Dicta in the Reports upon the Law of Principal and Surety (p. 566).

press with cer

Bill should extainty what is in plaintiff's knowledge.

If one is bound to J. S. to the use of W. N., and then Collusion between obligee to J. S. releases the debt, W. N. shall have equitable remedy use and obligor. in Chancery.-7 Hen. 7; Brooke's Abridgement, Conscience, &c., 8.

pro quo.

Choses in action not yet assign

A. B. having bought from J. R. certain debts owing to Obligor relieved him from various persons, and given his bond to J. R. for where no quid securing the price, prayed in equity to be discharged of the bond, on the ground that debts were choses in action and no property passed, and the bargain gave no action, able in equity. and the debtors still remained the debtors of J. R., and he (A. B.) had nothing for the purchase money. Thereupon A. B. obtained a subpoena; but inasmuch as the matter was doubtful to the Chancellor [Lawrence Booth, Bishop of Durham] he adjourned it into the Exchequer Chamber before himself and the judges of both Benches; and all the judges were of opinion that as the plaintiff could not have quid pro quo, the obligee ought to release the bond to the plaintiff. Upon this it was ordered in Chancery that the bond should be brought into Court, or

Defendant re. fusing to comply with order

committed to the Fleet.

Lord ousts copyholder.

Penalty of 1001.

in decree, that defendant

in terrorem.

that the obligee should make an acquittance or release to the obligor and the defendant refusing to do so was committed to the prison of the Fleet until he should choose to comply.-Brooke's Abridgement, Conscience, &c., and Year Book, 37 Hen. 6, 13.

Tenant by copy of court-roll shall have a subpœna against his lord if he ousts him.-Fitzherbert's Abridge. ment, 32 Hen. 6, Subpœna, 21.

In Chancery a man appeared upon a subpoena: and the effect of the plaintiff's bill was, that the defendant was should convey, enfeoffed to the use of the plaintiff: and judgment was given for the plaintiff that the defendant should convey to him before such a day: and he was enjoined to do this by the Court in 1007.: and the defendant did not convey. Shall scire facias issue against him, or not, for forfeiture of this? Keble. I submit the scire facias shall issue for in this case the penalty is placed in a certainty: and if the sheriff returns upon a capias, cepi corpus et quòd languidus est in prisona, a writ shall issue to him to bring the prisoner with him, which is called duces tecum : and if he does not do it upon this writ, another writ shall issue to the sheriff to bring the prisoner under a penalty: wherefore the scire facias shall issue now: and I have often seen that an action of debt was brought upon a penalty forfeited in a Leet. Therefore, &c. Hussey [C. J. K. B.] and Vavisor [J. C. P.], and many others, apprentices, held clearly, that scire facias shall not issue in this case: For there is diversity between a cognizance and a penalty; for each recognizance is a judgment in itself: but it is otherwise of a penalty. For if the defendant makes default in the subpoena, the penalty is not forfeited: for this penalty is only put in the writ in terrorem: and if the defendant makes default, then the Chancellor shall assess a fine upon him according to his discretion: and when he has assessed the fine, there is a judgment given :

and upon this a scire facias shall issue: and this [is] the diversity.-Year Book, 10 Hen. 7, 4.

estate.

If tenant in borough english enfeoff one to the use of Descent of trust himself and his heirs, the youngest son shall have the subpoena, and not the heir general. Item, if a man make a feoffment in trust of land descended to him from his mother, and dies without issue, the heir ex parte maternâ shall have the subpoena.-Year Book, 5 Ed. 4, 7.

A subpoena was sued by Yong of London upon a re- Unfairness in laying the venue covery upon a bond in one county, when the bond was helped in Chanexecuted in another county: and he made his suggestion cery. that by this foreign suit, he was ousted of divers pleas which he could have had, if it had been brought in the same county. The Chancellor [Robert Stillington, Bishop of Bath and Wells] said, that this subpoena is sufficiently maintained upon this matter: for the plaintiff did against conscience: for he willed not that the truth should be known, when he sued such foreign suit: for the truth of no thing can be known so well in any place, as in the county where the thing was done, &c.-Year Book, 9 Ed. 4, 2.

If a man buy land and the vendor conveys to the ven

word "heirs"

Omission of dee to hold to him for ever without the word heirs, where in conveyance the intent of the bargain is to pass the fee simple, and the to vendee, vendor upon request refuses to make other assurance; then the writ of subpoena lies by the book "Fundamenta Legum Angliæ:" and Audley, Chancellor tempore Hen. 8, agreed clearly, that if a man sold his land before the Statute of Uses, that should charge the use in fee simple; and eadem lex of a sale by indenture under the stat. 27 Hen. 8, without the word heirs. Quod nota bene. 32 Hen. 8, Brooke's Abridgement, Conscience, &c., 25.

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