if the Heir himself of full Age make a Lease and the Lessee suffers Usurpation that is out of the Statute For the Lease must not be made by the Heir himself but his Ancestor So if a Bishop suffer an Usurpation being in Succession his Successor shall not have a Quare Impedit but if it were in time of Vacation he shall and the King upon this Statute may present at the next Avoidance H. 239. Lord Stanhop aginst Bishop of Lincoln 2 Inst 358 360. 1 Inst 16. a F. N. B. 31 a. Collation being by right or wrong gains no Patronage doing it in the Patrons Right Hob. 154. Co 6. rep 29. Green's Case and 50 Boswell's Case 1 Leon. 226. Mo. pl. 222. Hob. 124 b. 122. A Church being void the King within a Month reciting ad nostram presentationem spectam ' jure prerogativae presents one who is admitted c. and dies the King presents again the true Patron brings a Quare Impedit Resolved the King's Presentation is void as 't is in Green's Case Co. 6 rep where the King presents as by Writ of his own Title where he had Right of Lapse and the Patron had not only Right of Quare Impedit but might have presented upon him at any time and by the Bishop's receiving his Clerk the other is ipso facto out For it was but as an undue Collation of the Bishop and no Uâ—urpation in the King Hob 301. Grandy vers ' Epm ' Cant. Dy. 327. One had a Grant of Outlaws Goods in the Rape of Bramber and that had a Grant of the next Avoidance of the Church within the Rape was Outlawed and the Church became void the Grantee shall have it For it hath such a Locallity within the Rape that the Lord of the Liberty shall have it wheresoever the Grantee of the Voidance or his Deed is which the other needs not shew coming in the Post Hob. 132 Hollam against Shelley Before the Statute 25 E. 3. The Incumbent or Ordinary could not counterplead the Plaintiffs Title yet if the Quare Impedit were brought against the Incumbent and Ordinary the Incumbent must plead in Abatement that the Patron is alive not named c. Hob. 316. Ellis against Bishop of York No Incumbent is enabled to counterplead by 25 E. 3. 27. till he be possessed that is till he be inducted and if he resign he could not counterplead for that was given to maintain his possession which by the Resignation is gone Hob. 319 193. Dyer 1. b. 293. a. H. 2 H. 7. pl. 15. If any one of the several pleas of the several Defendants in a Quare Impedit against a Patron he shall be barr'd against all therefore name no more Defendants than necessary No not the Ordinary if the Church be once filled Quare Impedit against two the Incumbent sets up one Title the Patron another Neither Estops the other and because it appears not which is true both are to be admitted Hob. 320. Co. Ent. 491 492. pl. 10. In making Title in Quare Impedit lay the presentation of the last Incumbent and name him yet 't is not material whether the Clerk were the same that is named so it be of the same Patron Hob. 321. Lord of a Mannor whereto an Advowson is Appendant grants the three next Avoidances and usurps upon the Grantee at the first this puts the Grantee out of possession of all the three Avoidances and he has the whole Advowson again Appendant to the Mannor so that being Attainted and the King grants the Mannor adeo plene as the Grantor viz. the Parson attainted habuit it passes the Mannor with the intire Advowson Appendant and not as the three Avoidances were in Gross and the rest of the Advowsons Appendant to the Mannor for then that in Gross would not pass for the King's Grant Hob. 321 202 323. Elves against Bishop of York Process at Common Law was Summons Attachment and Distress infinite but by Marlbridge cap. 12. if he came not at the Grand Distress Judgment and a Writ to the Bishop although Nichil be returned on every Process Distress against two one makes Default the Plaintiff shall have a Writ to the Bishop by the Common Law but if the Defendant appear at the Distress and make Default afterwards no Judgment but a new distress must be 2 Inst 124 125. F. N. B. 39. The common Essoyne de malo veniendi is allowed in Quare Impedit not de servitio Regis c. 2 Inst 125. None ought to present the King 's or any Judge's Clerk to a Livery in Controversie on pain that the Clerk shall lose the Church and his Service to it for a year 2 Inst 212. It was ordained at the Council of Lyons that Lapse be given against a Patron after six Months but this bound not the King nor Subject till it was here allowed and in many Cases it 's restrained by Act of Parliament as in some to give notice c. As it 's said it was by the Council of Lateran 2 Inst 273. 368. In Ass de Darrâ—in presentment or a Writ of Right of Advowson none can have Title without alledging Seisin in himself but in a Quare Impedit one may have Title of the Seisin of him by whom he claims and in a Writ of Right he may declare of his Ancestors Seisin but a Purchaser can only have it of his own and before Westm ' the second if Tenant in Tail or for Life had suffered an Usurpation they had been without Remedy 2 Inst 356. 358. If the Heir within Age be in Ward he shall not have a Quare Impedit till he come of Age but if out of Ward he shall immediately have such Quare Impedit as the Ancestors by Possession might have had though the Ancestor actually had it not 2 Inst 359. Plenarty hanging the Writ was no Plea but Plenarty before the Writ brought was a good plea in Quare Impedit at Common Law but by West 2. 5. 't is none unless it be by the space of six Months before the Writ brought 1 Inst 360. No Plenarty is barr to the King whether he presents in his own Right or in a Subjects but 't is in case of the Queen though she claims by the King's Endowment Vide 43 E. 3. 14. 47 E. 3. 4. 21. 8 E. 3. 38. b. 1 E. 3. 3. 15. Co. 1 Inst 119. b. 344. a. 'T is said no Plenarty is against the King till Induction that it seems a hindring from presenting but Induction is no barr of his Quare Impedit 2 Inst 361. When several persons claiming an undivided Interest in the Advowson agreed by fine c. to present by Turns if one usurps the other's Turn he is not put to a Quare Impedit but shall have a Scir ' Fac ' out of the fine and therein a Plenarty by six Months is no barr 2 Inst 362. F. N. B. 34. l. Dy. 259. If upon the Foundation of a Chantry the Composition be
Plea in Abatement of the Writ before the default saved 40 E. 3. 2. In a Writ of Aiel Besaiel and Cosinage one shall not plead to the points of the Writ after he hath pleaded in Barr but it is otherwise in an Assise of Mortd ' ancestor as it seems 40 E. 3. 19. Where the Writ abates in part by the Act of the Court and where it is abated by the Parties own Confession As if an Executor brings an Action de clauso fracto de bonis asportatis in this case the Writ shall abate for part and as to the rest it shall be effectual But where the Writ is abated by the Plaintiff it is reason although that it be of his own Conusans that if it abate that the whole shall abate In Assise against two the one pleads in Barr as to a moiety the other pleads jointenancy with a third person the Plaintiff may choose him who pleads in Barr for his Tenant and confess that his writ is false for the other part In Assise against two the one is Tenant the other is Disseisor which Disseisor makes default the other accepts his Companion Tenant with him and pleads in Barr the Plaintiff dissables the Tenant and doth not answer to the Barr for in this case he hath accepted a Tenant which is not Tenant As if Praecipe quòd reddat be brought by two where one is a Bastard or by two persons as Heirs where one of them in truth is not Heir in these cases the whole Writ shallabate because that that is meerly false whichis supposed to be true Two Executors bring an Action of Trespass of Goods carried away in the life-time of the Testator and also of Trees cut down here the Writ is good notwithstanding that the Executors cannot have the Writ for the Trees cut down and if they pray to have an other Writ for the Trees cut down then the whole Writ shall abate quod nota A Defendant or Tenant cannot abate a Writ by his Act but the Act of the Plaintiff or Demandant and the Act of God and also the Act of an Estranger may abate the Writ In a writ of Ravishment de gard by the death of the Infant the writ shall not abate Tenant by Statute-Merchant is disseised the disseisor lets for life the Tenant by the Statute brings an Assise the Lessee dyes the writ shall not abate because he shall recover all in damages But it is otherwise where he is to recover the Freehold because in that case he cannot have the effect of his Judgment A Writ of Admesurement of Common is brought by one against three depending the writ the Plaintiff and one of the Defendants exchange their Lands to which the common is appendant if the writ shall abate it seems not because that notwithstanding the exchange the Plaintiff may have the effect of his Suit which is that the Common may be admesured and at all times pending the writ the Plaintiff and the Defendant who made the exchange were Tenants and the Writ of Admesurement granted between them by reason of their Tenure for there was no mean-time between the parting from the Free-hold in one Acre and the taking the Free-hold in the other Acre and that very instant that the Freehold of the one Acre was parted from the other was vested so that there was cause of Admesurement between them as well after the exchange as there was before A Writ of Admesurement is brought against three one hath nothing in the Common so that the Writ ought to abate because that non-tenure is a good Plea in this Action yet if he that hath nothing before any exception be taken to the Writ purchaseth an Acre of Land by which he ought to have Common in the same Land the Writ is made good As in Praecipe quod reddat brought against him that hath nothing and pending the Writ he purchaseth the same Lands the writ is good So it seems the writ is good notwithstanding no time between the exchange ergo à forciori when there is no mean instant But by the better opinion it seems that the writ shall abate notwithstanding that the party may have the effect of his Suit for that ground is not obsolutely general as Praecipe quòd reddat is brought against me and I have nothing in the Land and pending the writ the Land descends the writ shall abate I bring an Action of wast by reason of the reversion or a Quid juris clamat depending the writ I alien the same Reversion and after purchase the Reversion again yet the writ is abated If a writ of Partition or Nuper obiit be brought and pending the writ the demandant aliens and retakes the Estate to him yet the writ shall abate And yet in all these cases the Plaintiff may have the effect of his Suit But that which causeth the writ to abate is the Act of the Plaintiff for the writ depending he hath aliened that which gives him his cause of Action and therefore the writ shall abate as in the cases aforesaid for as to the Plaintaiff's part his own Act shall abate the writ and not the Act of God nor of the Law except in some cases and as for the Defendants or the Tenants part his own Act shall not abate the writ but the Act of God or of the Law may for if the Tenant aliens depending the writ yet the writ shall not abate but the Demandant shall recover and he that comes in by the Tenant shall be bound by that Recovery And if an exchange had been made by the Plaintiff with a stranger who had nothing in the Common the writ should have been abated without question So for that Acr◠which he had when the writ was brought he cannot maintain his writ for put the case that the day the writ was purchas'd the Plaintiff had not any Land by which he ought to have common and afterwards pending the writ he purchas'd an Acre of Land to which the Common is appendant this shall not make the writ good which was nought from the beginning When the writ is made abatable by the Act of the Plaintiff or Demandant Videlicet by his aliening of that thing which gives to him the cause of Action if he pending the writ doth purchase the same again it shall not revive the writ nor make it good WHere the Grant shall be good ab initio although it was incertainat the commencement Note If a Parson will Grant to me all the Wooll which he shall have for Tithe the next year to come this Grant is good and yet the quantity of the Wool is incertain at the time of the Grant But because it may be reduced to a certainty after the Grant it was held good enough 21 H. 6. 43. And so if a man will Grant to me the Perquisits of his Court this incertain Grant is good causâ quâ suprà 21 H. 6. 43. The same Law is where a Feoffment is
after Judgment where the Plaintiff hath not over-stayed his Time viz. the Year but many have Habeas Corpus or Fieri Facias without Scire Facias If the Prisoner be taken by Capias utlegatum he shall be in Execution for the Party without the Prayer of the Party or Accord of the Court if he will but if it be after the Year not without Prayer 't is the Course upon Outlawry after Judgment if Error be brought to award a Capias utlegatum if he does not assign Error but if it be before Judgment and the Defendant brought in the Plaintiff must declare against him de Novo and if one Outlawed after Judgment bring Error and comes to assign Error he shall be committed to the Marshalsey and find Security to reverse the Outlawry and answer the party Lishton against Garpores 3 Cro. 706 707 850. Co. 5. rep 88. 89. vid. 1 Leon. 51. 263. stat 1 H. 7. pl. 6. Moâ— pl. 772. 817. One recovers in Quare impedit against the Kings Presentee and is Outlawed the King shall have a Scire Facias to have the Presentment for the Church was immediately revested in him before any Writ to the Bishop and though the King be not Party to the Judgment he shall maintain the Scire Facias being Intitled by Act in Law but the Scire Facias must mention the whole Record of the Outlawry And so in Debt on a Bond and Judgment to recover the King shall have a Scire Facias Beverley against Cornwall 1 Leo. 63 64. In Debt on a Bond the Defendant pleads that the Plaintiff was Outlawed by the name of J. S. of D. the Plaintiff replied that at that time he dwelt at S. absque hoc that he dwelt at D. he avoids the Plea of Outlawry for he shall be intended another Person 1 Leo. 87. Upon an Exigent to Lond. it was return'd that he had proclaimed the party de Com' in Com' and for that the Outlawry on Felony was reversed For it should have been de Hustingo in Hustingum Marshes Case 1 Leo. 326. Outlawry of Murder the King seizes Lands and because the Outlawry was ill for the quinto Exact ' and was ad comitat ' omitting meum Wherefore to affirm the King's Title the Attorney General prayed a Certiorari to the Coroner to certifie what County and on such a President shewed granted Fumes Case Latch 210. Where one is Outlawed before the Justices of Assize or Justices of Peace on an Indictment of Felony the same Justice may award a Capias utlegatum For they that have Process of Outlawry have power also to award a Capias utlegat ' per omnes Justic ' Co. 1â— rep 103. Appeal of the Death of her Husband and because some of the Defendants lived in another County a Capias with a Proclamation issued to that County The King dies and Reattachment sued If it be General then a new Capias and Proclamation must go into the Foreign County if Special not for the Statute has been once satisfied Vid. Co. 7. rep 30. a. b. 1 E. 5. 43. a. In Appeal of Robbery the Defendant was Outlawed and Sued a Pardon and Scire Facias thereupon Dicitur he ought to shew a Release of the Appeal before the Scire Facias be granted then the Pardon to he Special not General but the Appellor not appearing at the day of the Scire Facias returned the Pardon was allowed but at another day came the Appellor and prayed Execution but his Default being Recorded could not have it Note sometimes the Pardon is General sometimes Ita quod stet rectus c. M. 2. R. 3. fol. 8. pl. 17. M. 9 H. 7. pl. 1. One Outlawed of Felony ductus ad Barram to say why Execution c. pleaded that he was in Oxford Castle all the time and because he did not say in what County Oxford is nor did not say he was in any Bodies Custody there the Plea adjudged ill H. 11. H. 7. fo 13. pl. 27. Baron and Feme Outlawed in Debt he brought Error and after a special Pardon Ita quod stet rectus a Scire Facias and prays it may be allowed but the Court would not till his Wife came in also that the Plaintiff may declare against both and then it seems he may declare against them in the Kings Bench within the Equity of the Statute of 5 Ed. 3. tho' it say rendre al Court donec le Exigent fiat sher ' it went out of the Co. B. but now 't is in the Kings Bench by Writ of Error P. 1 H. 7. pl. 7. H. 1. H. 7. pl. 19. One taken by Cap ' utleg ' an Appellee of Felony came in and pleaded that it was against J. S. Gentleman and he is but a Yeoman and the plea allowed and a Scire Facias against the Appellor who not coming in he was discharged so 21 H. 7. pl. 16. Outlawry against J. S. de D. he pleaded that he lived at S. good without Error Vide 21 H. 6. 20 and 23 H. 6. 4. a. Outlawry when reversed by plea when by Writ of Error 37 H. 6. 16. vide M. 21. E. 4. pl. 61. 21 E. 4. 37. H. 5. H. 7. pl. 7. M. 6 H. 7. pl. 2. M. 21 H. 7. pl. 27. Co. Ent. 689. 4 E. 4. pl. 15. A. takes the Goods of B. who was Outlawed if the King may seize the Goods of B. vide M 6 H. 7. pl. 4. vers finem and pl. 5. One that reversed an Outlawry had a Writ de bonis restituend ' to the Bayliff of Westminster who returned that he was not Bayliff not good he must answer to the having the Goods and must deliver them tho' gone out of his Possession or shew Cause M. 6 H. 7. pl. 5. b. H. 4. E. 4. pl. 3. An Outlawry was reversed because the Sheriff said ad Comitat ' tent ' such a day in Comitat ' Midd ' and said not Comitat ' meum seems Error of Outlawry because the Exigent was in R. 3. Time and two Proclamations then and the other three in H. 7. So the Exigent abated but being in Felony he must have Scire Facias against all the Lands tho' dicitur he had no Lands For that must appear Judicially and upon Scire Facias though the Outlawry were reversed for the Default of the Exigent he must answer for the Felony otherwise if at Suit of the party he were discharged against him H. 6. H. 7. pl. 7. M. 11. H. 7. pl. 33. M. 7. H. 7. pl. 7. Writ of Error delivered before the Exigent awarded and the Plaintiff Outlawed yet it is not void but voidable by Error and Issue shall be joyned to try Delivery before the Exigent but not by Jury P. 10. H. 7. pl. 25 31. One may avoid an Outlawry as well by saying he was beyond Sea by the King's Command as that he was a Souldier at Calais under such a Captain and shall not shew the Patent if the party appear upon
a Scire Facias to present for he cannot present but is to prosecute the Execution of the Judgment sed he is not privy to it Beverleys Case Mo. pl. 378. If one forfeit a Presentation fallen by Outlawry and the King presents and he reverses the Outlawry he shall have a Scire Facias and outs the King's Clerk For by the Reversal he is restored to all that he lost as Principal not Accessaries therefore if the Advowson were appendant and it becomes void whilst the Mannor is in the King's Hand for Outlawry and the King presents he shall not avoid it tho' he reverse by Error nor Rent-Copy-holders put in by the King and if it were an Advowson in Gross and becomes void whilst in the King's Hands and the King presents it seems he shall avoid it after Reversal because the Advowson is the Principal thing and the Presentment but the usage of it Beverly against Cornwall Mo. pl. 421. 3 Cro. 44. The Sheriff ret ' ad Com' Lanc ' tent ' ibidem c. where it should be ad Com' Lanc ' tent ' apud Lanc ' or other place cert ' and for that the Outlawry was reversed though dict' many Presidents that passed subsilenter ' Co. 4. rep 95. a. My Lord Co. says the better Opinion of Books is and so is his that Debts by simple Contract or for which one may wave Law are forfeited by Outlawry and with him his Heirs agree the Judges Pop. And. and others 1 Inst 128. b. he says Debts c. which are cetain are forfeited not Damage c. uncert ' but so 10 22. t is said in Debt on a Contract Outlawry in Plaintiff Abatement because the Defendant not forfeited but on a Bond 't is pleaded in Bar because the Defendant forfeited Co. 4. rep 93. a. 95. a. My Lord Cook says that at Common Law if the Party was Outlawed he was at an end of his Suit and put to his New Original yet he granted no Capias lay in Debt at Common Law so it seems Outlawry lay where no Cap ' lay at Common Law Garner's Case Co. 5. rep 58. a. One Outlawed in Debt after Judgment dies after the General Pardon wherein 't is provided none take Advant ' of the Party that is Outlawed after Judgment without satisfying the Plaintiff and having the Pardon allowed in Scire Facias yet resolved First here the Outlawry was pardoned quoad the King and may make Executors and take Advantage of the Pardon Secondly Here being no Capias ad satisfac ' which he against the Executors nor no Scire Facias therefore the Executors satisfying the Party may plead it without Scire facias Sir Edward Fetton's Case Co. 6. rep 79 80. Outlawry reversed because the Exigent required the Sheriff to Arrest ita quod habeat Corpus in Cro. Trin. and St. is of no signification Dr. Drurie's Case Co. 8. rep 141. a. One Arrested that had Priviledge sues a Supersedeas and after is Outlawed there is a Nullity in all Proceedings and the Outlawry declared void without suing any Writ of Error Co. 8. rep 143. b. Outlawry by Asst ' being avoided by Plea 't is held by Cro. that it s no Determination of the Original but he might have proceeded in the Original suing another but the first Original should have excused within the Statute of Limitations Sir Thomas Finch against Lamb. Citer Just sembl con 1 Cro. 214 215. Exigent against three Men and two Women ret ' non comperuer ' ideo per Judic ' Com' utlegat ' existant ill and reversed because not said nec eorum aliquis comperuit 2. The Women ought to have been waviati Middleton's Case 2 Cro. 358. It seems one cannot assign for Error that he was beyond Sea at the time of the Outlawry pronounced but time of the Exigent For if after Exigent one fly he cannot assign for Error that he was beyond Sea and if he do the Attorney General may reply that he departed after the Exigit Carter's Case 2 Cro. 464. Partition IF two have one Mannor in Common before Partition the one is said to have dimidium Manerii but after Partition he is said to have medietatem Manerii And so after Partition if one of them be ousted by Force the Indictment shall say medietatem not dimidium Manerii Priviledge ONe of the Clerks of the Chancery lost his Priviledge by suing out a Supersedeas in the Common Pleas For by that Writ he submitted to the Court there and then his Priviledge shall not be allowed there Parsâ—n IF a Parson that hath a Benefice be made Bishop of the same Diocese and he acccepts of the Bishoprick the Parsonage thereby becomes void for that he cannot Visit himself So that a Man cannot have two Benefices with Cure of Souls Simul Semel but the first is void by Acceptation of the Second Tith The Tith of those things which proceed from the Earth as Hay Corn Apples and such like ought to be severed upon the Ground or place where they grow but not so of Sheep Pigs c. because they are of another Nature And if a Man have Sheep in two Parishes the Parsons of both Parishes shall have Tith of them Willows Horn-bane and Sallows are Titheable but Timber-Trees as Oak Ash Elme c. are not nor the Loppings of them contra if they be fell'd or lopp'd before the Growth of Twenty Years per totam Curiam Hill 8. Jacobi in Communi Banco Plea If a Parson makes a Parol Agreement of his Tithes for his Life and afterwards grants the same to another who sues for the Tithes Concord is no Plea in this Case but by Warberton Justice a Parson may grant his Glebe Corn before it be Sowed and good for a Year Trin. 10. Jacobi in C. B. If a Parson gives 10 l. to the Patron to present him to the next Avoidance the Church being full it is Simony So if the other give it to such intent Mich. 14 Jacobi in Communi Banco But if the Parson who is in by Simony dies if the King shall present quaere et vide ibid ' in Quare impedit inter Winscomb et Episcopum Winton ' et alios Of Pleas and Pleading A Bond was made and delivered as the Act and Deed of A. to B. for the use of C. which Bond B. offered to C. but C. refused to accept the same from B. yet B. left the same with C. to take and the Bond being sued A. pleads the whole Matter and so not his Deed And upon a Demurrer Judgment and Quaer ' If the Condition of an Obligation be to pay 20 l. 7. Maii and the Obligor pleads solvit ad diem although he paid the said 20 l. to the Obligee the 8th of April before it 's a good Plea to say he paid it the 7th of May For if it be paid before it 's paid at the day in the Condition mentioned and the Intent and Substance of the Condition is observed
and discharged Three are bound in one Bond and every of them joyntly in the whole the Obligee afterwards gets Judgment against one of them and brings his Action against the other This Recovery is no Barr for it is no Satisfaction of the Debt but an Execution is a good plea in this Matter Obligation dated 8th of December 78. and doth not say the Year of our Lord God nor the Year of the King's Reign the Date is void and the Obligation good without Date and the Plaintiff may count how the Bond was delivered to him any day when he pleases Reg. 1. Acts and Statutes in pleading need not be recited wholly only the particular Branch that concerns the Matter in Hand because every Branch is an Act of it self Secus of a Record for that is grounded upon an Original and Judgment and ought therefore to be entirely recited when pleaded in Bar. If Tenant in Tail of a Manor whereunto a Villain is Reguardant discontinue and die and the Right of the Intail descend to the Villain himself who brings Formedon and the Discontinuee pleadeth Villanage This is no Plea because the Devesting of the Manor which is the Intention of the Suit doth include this plea because it determineth the Villanage Reg. 2. Pleadings must be certain that the Adverse Party may know whereunto to answer or else he were at a Mischief which Mischief is remedied by Demurrer If tenant in Ancient Demeasne be disseized by the Lord whereby the Seigniory is suspended and the Disseizee bringeth his Assize in the Court of the Lord. Frank Fee is no plea because the Suit is brought to undo the Disseison and so to revive the Seigniory in Ancient Demesne If a Man be Attainted and Executed and the Heir bring a Writ of Error upon the Attainder and the Corruption of Blood by the same Attainder be pleaded to interupt the conveying in of the same Writ This is nâ— plea for then he were without Remedy ever to reverse the Attainder If Tenant in Tayl discontinue for Life rendring a Rent and the Issue brings a Formedon and the Warranty of his Ancestor with Assets be pleaded against him and the Assetts is laid to be no other but his Reversion with the Rent This is no plea because the Formedon which is brought to undo the Discontinuance doth inclusively undo this new Reversion in Fee with the Rent thereunto annexed If a Man be attainted of two several Attainders and there is Error in them both there is no reason but that there should be a Remedy open for the Heir to reverse those Attainders being Erroneous as well if there were twenty as one And therefore if in a Writ of Error brought by the Heir of one of them the Attainder should be a plea peremptorily And so again if in a Writ of Error brought of the other the former should be a plea these were to exclude him utterly of his Right and therefore it should be a good Replication to say That he hath a Writ of Error depending of that also And so the Court shall proceed but no Judgment shall be given until both Pleas be dismissed and if either Plea be found without Error there shall be no Reversal either of the one or the other and if he discontinue either Writ then shall it be no longer a plea And so of several Outlawries in a Personal Action If Tenant in Tayl of two Acres make two several Discontinuances to several persons for Life rendring Rent and bringeth a Formedon of both and in the Formedon brought of W. Acre the Reversion and Rent reserved upon B. Acre and so contrary it seems to be a good Replication that he hath a Formedon also upon that depending whereunto the Tenant hath pleaded the Descent of the Reversion of W. Acre and so neither shall be a Barr And yet there is no doubt but if in a Formedon the Warranty of Tenant in Tayl with Assetts be pleaded it is no Replication for the Issue to say that a Precipe dependeth by J. S. to evict the Assetts An Attorney may plead not informed to an Action if his Client doth not give him order to plead otherwise For this will save the Attorney Damages in a Writ of Deceit if it should be brought against him In an Action of the Case if the Defendant plead to issue upon one part and Demurrer to the other part the Demurrer ought to be argued first because the Jury at the Tryal may give Intire Damages for the whole Scire Facias against Manucaptor ' they plead that after Judgment against the Principal viz. 6th die anno the Principal brought a Writ of Error whereby the Record was removed into the Exchequer and that pendente br ' de Errore the Principal rendred himself to the Marshal and there died and this he is ready to prove c. This Plea is nought because the Rendition ought to be tried by the Record Secondly The plea is double and imports two Issues the one the Rendring and the other the Death 3. The bringing the Writ of Error is a Supersedeas to the Execution and the Execution being suspended during the Error undetermined and depending the Bail was not sufficient Authority to bring them in So that his Rendition is in vain and nothing worth and the Death is only answerable which if true is a Discharge of the Bail Reg. 3. In all Imperfections of Pleading whether it be in Ambiguity of Words and double Intendments or want of Certainty and Averments the plea shall be strictly and strongly taken against him that pleads it For Ambiguity of Words If in a Writ of Entry upon Disseisin the Tenant pleads Joynt-Tenancy with J. S. of the Guift and Feoffment of J. D. Judgment del brief the Demandant says That long before J. D. any thing had the Defendant himself was seized in Fee Quousque predict ' id super possessionem ejus intravit and made a joynt Feoffment whereupon he the Demandant re-enter'd and was seized until by the Defendant alone he was disseized This is no Plea because the word intravit may be understood either of a Lawful Entry or of a tortious and the hardest against him shall be taken which is that it was a lawful Entry therefore he should have alleadged precisely that J. D. disseisivit Reg. 4. So upon Ambiguities that grow by References if an Action of Debt be brought against J. F. and J. B. Sheriffs of London upon an Escape and the Plaintiff doth declare upon an Execution by Force of a Recovery in the Prison of Ludgate sub Custodia J. S. and J. D. then Sheriffs in 1 H. 8. and that he so continued sub Custodia J. B. and J. G. in 2 H. 8. and so continued in Custodia J. F. and J. P. in 3 H. 8. and then was suffered to escape J. F. and J. P. plead that before the Escape at such a day Anno superius in narratione specificat ' the said J. S. and J. D.
Sir John Dryden c. against Yates c. 1 Cro. 423. The way to stop Strangers from Presentment Pendente brevi is to sue a Ne Admittas and then the Plaintiff may remove him by a Quare incumbravit else he is put to his Scir ' Fac ' and if the person present Pendente brevi he shall barr the Plaintiff in a Scir ' Fac ' per Popham and not denyed 2 Cro. 93. The King grants the Mannor the Church Appendant being then void the presentation passes not except by special Words Phane's Case 2 Cro. 198. One sued in the Deligates to avoid an Induction supposing the Institution void was prohibited for Induction being a temporal Act and tryable at Common Law is not avoided but by Quare Impedit but this Prohibition not to be granted having Hutton's Quare Impedit because of his own shewing it should abate it but he must make his Surmise in the Deligates without mentioning that Quare Impedit Hob. 15. Hutton's Case Prohibition to the Incumbent that pending the Quare Impedit felled Timber upon the Gleeb Hob. 36. Kent against Drury Where one brings a Quare Impedit and his Title arises merely by Usurpation he must not declare generally that he was seised in Fee for that was false and so he might be tryed by the Defendant's traverse of the Seisin but he must lay his Case as 't is that A. was seised and the Church voided and he presented and now the Church being void he presents again Hob. 103. Digby against Fitzherbert Quare Impedit against the Bishop of Exeter and A. and B. they plead that he has another Quare Impedit depending against the Bishop and A. and aver it to be the same Plaintiff the same Avoidance and Disturbance c. and demand Judgment The Plaintiff says that after the first Writ he presented C. to the Bishop and he refused which is the Disturbance whereupon he new declared the Defendant demurrs whereupon the Writ abates for he shall not have two Suits at once and here was a Disturbance laid in the first Action so the new Disturbance mends not the Plaintiff's Case so if he had new brought an Assise of Darein Presentment the Quare Impedit depending had been a Barr. St. Andrew against Epm ' Ebor. Hob. 184. Noy 18. 9 H. 6. 68. 73. 22. E. 3. 4. Hob. 137. E. Bedford against E. Exeter c. Dy. 93. a Hut 3. 4. Before the Stat. 25. E. 3. Stat. 3. Cap. 7. No Incumbent could counter-plead the Title of the Plaintiff because that was Title to the Patronage and with that he had nothing to do but to avoid the Patron 's Confession of the Action Counter-plea was given by that Stat. but as Amicus Cur ' he may shew false Latine in the Writ c. for that is no pleading and the general Issue every one might plead for thereupon the Plaintiff may pray a Writ to the Bishop p. 3. H. 7. pl. 1. ad ult ' Hob. 61. 62. Co. 7. Rep. 26. 2. If he that has one Benefice in Cure take another if it be not inducted the Patron may at his pleasure take the Church to be void or not void for 't is not within the Stat. 21. H. 8. till Induction Hob. 166. Winchcomb's Case Mo. pl. 45. In Quare Impedit where one of the Defendants pleads himself inducted at the King's presentment and after surmised that he was not Inducted and prayed a Writ from the King to the Bishop and because without Induction the Defendant could not plead and the King could not be made a Defendant therefore a Writ was made for the King with a special Entry in the Judgment that the Defendant was not inducted Hob. 193. Winchcomb against Dobson Presentment pend ' the Quare Impedit does not abate the Writ F. N. B. 35. b. but if the Church be full the day of the Writ brought it abates because 't is false which says quae vacat ' c. Hob. 194. Winchcomb against Pulliston Quare Impedit the Defendant and Ordinary agree in a plea of presentment by lapse the Plaintiff replies that he presented his Clerk and the Ordinary refused him and collated the other Defendant the Plaintiff demurrs for doubleness of the plea because he says he did not present which is an Affirmative against the Ordinary's Negative He says farther that the Ordinary refused and collated but the plea held good For he must lay a Refusal to make good the Disturbance and shewing the Collation is but Aggravation and Surplussage and the only material part of his Replication was that he had presented a Clerk Hob. 197 c. Brickhead against Archbishop of York Quare Impedit laying distress General the Ordinary and Defendant make Title by Collation for Lapse The Plaintiff replies shewing that he presented and the Ordinary refused 29 May whereas his Writ bore date the ninth of May Judgment must be against him for though the count was General yet the Replication applies it to a more particular Disturbance since his Writ brought So of his own shewing he had then no cause of Action and the Court must judge upon the whole Record Ibidem Quare Impedit the Ordinary pleads nothing but his ordinary plea as Ordinary he shall not be amercied making no Disturbance but the Plaintiff shall have Judgment against him pro falso Clamore but if the Ordinary cast an Essoin 't is a Disturbance Ibid. If the Patron bring a Quare Impedit before any Disturbance and after surcease his time per Hob. the Ordinary shall not be debarred of his Lapse Ibid. A. brought a Quare Impedit against B. pend ' the Writ a Stranger gets in C. his Clerk and then A. has a Writ and his Clerk admitted thereupon yet if C. have better Right he shall retain the Benefice Hob. 320. Dy. 364. ibid. 201. 2 Cro. 93. b. 6 rep 52. a. vide H. 21 H. 7. pl. 7. The Church is void A. and B. severally pretend Right present their Clerk the Ordinary refuses both A. brought Quare Impedit against the Ordinary and B. and his Clerk the six Months Incur The Ordinary collates by Lapse A. recovers he shall remove the Ordinary's Clerk Hob. 214. No Infants nor Woman's Release by the Statute Westm ' 2. 5. against Usurpations made against them during Infancy or Coverture but for such Advowsons as they have as Heirs and not as Purchasers or Successors of single Corporations are relievable within the Equity of this Statute an Heir out of the Ward as well as within and an Heir in Soccage upon a double Usurpation before he comes to the Age of 21 Years not if the Guardian surrender to him or Institute in ventre sa mere and the Purchaser may be within the Statute as if the King grant the Advowson and one usurps For he is in loco Haered ' and per Hob. an Heir of him in Remainder as well of him in Reversion vide 2 Inst 359. and so it is of Tenant in Tayl but
to cut Beeches is wast Lopping Oak Ash or Elme or any thing to prejudice Trees is wast Making Charcoal of wood is wast Felling Timber to repair voluntary wast is double wast To dig for Gravel Stone c. is wast unless for Reparation of the house To suffer a Sea-wall or against a River to decay is wast To take Timber c. to make new Fences is wast Tenant cuts Trees for Repair and sells them though he buyes them again and employs them 't is wast Burning a house by Negligence or Mischance is wast 1 Inst 53. 40. E. 3. 15. b. Willows cut in view of the House is wast 40 E. 3. 25. b. So to cut Hasels in a Wood where there is no other Timber If one grants in his Leafe that Wast shall be redressed by Neihgbours and not by Plea yet he may bring an Action of Wast for the place wasted is not otherwise recoverable 1 Inst 53. a. If the Tenant repair houses before any Action of Wast be brought the Action of Wast is not maintainable but he must not plead Quòd non fecit vastum but the special matter 38 Ass 1 Reparation after the Writ brought not pending the Action seems no Plea 1 Inst 55. D. None shall have wast unless he had the immediate Inheritance yet an other may joyn with him against Tenant by the Curtesie with the surviving Partner Joyntenant for life with him that hath the Fee Where the Estate is determinable the Wast is general as Tail becomes Tail after possibility c. The Heir cannot have it of Wast in his Ancestors time nor a Bishop of his Predecessor nor shall Executors be punished for Testators wast Aunt and Neece may joyn 45 E. 3. 8. b. Gift to two and the Heirs of one he that hath Fee cannot have Wast against his Joyntenant but his heir may if wast after if the other survive if the Reversion be not continued in the same it was at the time of the wast done the Action is gone though taken back again 1 Inst 53. D. Wast lyes against Tenant by the Curtesie and in Dower though they have assigned unless the Reversioner have assigned also All others shall answer for their own wast unless Guardians And if the Guardian assign it lyes against the Assignee Guardian shall not answer wast by an other because 't is poenal unless he is Joynt-Guardian If one recovers against him under Age he recovers the Land else only Damages Infants Feme coverts c. shall answer Wast c. done by Strangers and she for her Husband Co. 1. Inst 53 b. 54. a. Husband Tenant for Life in his Wives Right does wast she dyes 't is dispunishable but if tenant for years in her Right not because the marriage is a Gift of it to him Tenant for Life grants his Estate on Condition Grantee does wast Grantor entâ—rs Wast lyes against the Grantee and the place shall be recovered Lord not punishable for wast done by his Villein before Entry Occupant punishable generally or specially Tenant afsigns and takes the Profits wast lyes against the Tenant Wast done sparsim in Woods or Houses all is to be recovered No Action of wast lyes against Guardian in Socage but Trespass or Account 3 Cro. 357. If Lessee take Trees c. to repair houses 't is not wast though he was not bound to repair them as his Lessor covenanted to repair them for if it was sans Impeachment of wast for the houses as the house was ruinous at his Entry and this for that Favour the Law gives to houses of Habitation Co. 1. Inst 54. b. a. Dyer 194. 198. b. Brook 463. Tit. Wast Lease of lands he may dig in open Mines and if it were of lands and mines if any were not open he can open none new but if none were then open he may open new ones Co. 1. Inst 54. b. 5 R. 1. 2. Tenant for Life makes Feoffment wast is done 't was upon Condition Lessee enters for Condition broken Lessor shall have wast So Successor of a Bishop shall have Wast on his Predecessors Lease for wast done in time of Vacation So if Lessee for Life be disseised and wast done if he enters he shall be charge able for the rest yet in none of these cases had the Lessor any Reversion in him at the time of the wast as regularly he ought but these cases stand upon their particular Reasons 1 Inst 13. b. The Aunt and Neece joyn in Action of Wast done in the old Sisters Life the Aunt alone recovers the damages Co. 1. Inst 233. b. Tenant for Life makes a Lease for years and enters upon his Lessee and consents to a Recovery in Wast against him the Lessee for years shall be for ever excluded for of necessity the place wasted must be recovered but if he had granted a Rent charge and committed Wast and the land recovered the Rent had continued Co. 1. Inst 233. b. Perkins 844. Tenant for Life does wast and grants over his Estate Lessor releaseth all wast to the Grantee it shall discharge the Lessee Idem of Tenant in Dower or by the Curtesie for besides the Privity that endures if the Lessor should maintain his Action he should recover Locum vastatum against the Grantee contrary to his own Release Co. 1. Inst 269. b. Lessee does wast and then surrenders 't is said the Lessor shall maitain wast but the Book seems to be misprinted and that it should be shall not maintain c. for by his own Act he hath determined his Action in part Co. 1. Inst 285. 5 Rep. 12. b. Wast brought against Tenant pur auter vie in Ass he dyes pending the Writ it shall not abate but proceed for the damages because altered by Act in Law but if Baron and Feme Tenants in Tail special bring Wast and she dies without Issue pendente brevi so as the Husband becomes Tenant in Tail apres possibility d'issue extinct it shall abate because all wast must be ad exheredationem And note that Release of actions real bar wast and so doth Actions personal for he shall not apportion his own Action Co. 1. Inst 285. a. One devises Lands by the general words Bosc ' Maherem ' Miner ' Carbon ' in tam amplis modo forma as the Lessee habuit or habere potuit the Lessee opens a Mine and cuts Trees to use about it the cutting is wast for the Trees were not granted it being a Lease nor do they pass as incident to the Mine it not being open And Hobard holds that if the Mine had been open at the time of the Lease it had been wast Hobard 234. Darcy against Ashwich Hutton 190. 191. Lessee cannot change the nature of the thing devised and therefore not turn Meadow into Arrable or Wood into Pasture dry up an ancient Poole suffer a Park pale to decay destroy a stock of Deer Fish c. but may better a thing in the same kind and therefore may
dig to make a drayne in a Meadow Ibidem Owen 66. 67. Hutt 103. Dy. 37. a. Co. 1. Inst 53. 2 Leon. 174. Lessee builds a new house 't is wast to suffer it to decay not if the Lessor builds it after the Devise Ibidem Co. 1. Inst 35. s. Hutt 103. Whether Tenant by the Curtefie were punishable for wast by the Common Law Or not Vide Co. 2. Instit 299. 145. The first Statute that gave prohibition of wast and damages against Farmers was Marlbcapâ— 23. And where the Statute says vastum c. non facient 't is to be understood also non permittent vastum and so 't is in the Condition of a Lease Co. 2. Inst 145. None can claim to be dispunishable of wast in a particular Estate but by deed because 't is the Lessor's disherison Co. 2. Inst 146. Dyâ— 281. a. Lessee of a Mannor commits wast in a Tenement escheated the Lessor shall declare in wast of a Lease of the Tenement and maintain it by special Matter Co. 2. Inst 146. At the Common Law to prevent wast by Guardian Tenant in dower or by the Curtesie the Party might have a Prohibion to the Sheriff and by that he might have a posse Comitatus and so it may be done at this day And such Remedy as is against them at the Common Law is against Farmers c. by Marlb ca. 23. Co. 2. Inst 299. Vide Stat. 10 R. 2. c 14. If a Lease be made to A. for his own life Remainder to him for the life of B. or where a Remainder for years is upon an Estate for life there if A. does wast it shall be punished because himself had both Estates and in the latter case the Remainder shall not destroy the Term for years Co. 1. Instit 54. 2. Inst 301. The Husband that holds in Right of his Wife Lessee for life does wast the Wife dyes the wast is not punishable because the Husband held not but in his Wife 's Right and the Estate was her's Clifton's Case ibidem Co. 5. Rep. 75. b. Although Tenant in Tail after possibility of Issue extinct be dispun of wast yet if he grant over his Estate it is punishable in the Assignee ibidem 302. Tenant by Statute Merchant Staple or Elegit though they have but a Chattel are not within the Statute of Glocester 1. 5. Executors shall be punished for wast done in their own time not in the Testators He that holds a third or fourth part pro indiviso is within the Act. Tenant for years assigns upon Condition the Assignee does wast and he enters for that Condition the Action must be against the Assignee Ibidem Tenant for Years or Life assigns and takes the profits and does wast the Action lyes against the pernor of the profits by 11 H. 6. c. 5 Co. 5. Rep. Booth's Case 77. Tenant assigns the Term except the Trees Wast is done in the Trees the Action lyes against the Assignee Co. 5. Rep. Saunder's Case Lessee commits Wast and then assigns Wast in the Tenant shall be maintained against the Lessee and the place wasted and treble Damages shall be recovered against him Non Tenure general is no Plea in Wast but special non Tenure is Assignment and no Wast done before the Assignment or Wast done by the King's Enemies or Tempest or Lightning is not punishable Co. 2. Inst 302. 303. The Tenant shall answer for permissive Wast unless in such case where he could not prevent the Wast as where he is ousted by Cotssee of a Statute entred into before his Lease and that Cotssee does wast or by any precedent Title ibid. 303. Feme Tenant in Dower of a Mannor and Copy hold commits Wast the Action lies against the Tenant in Dower Ibid. 303. Femes Coverts and Infants shall answer for Wast done by Strangers though some have held the contrary and so shall the Wife for wast done by the Husband for Lease made to them for Life if she agree to the Estate Ibid. 303. Where the Wast is done Sparsim in houses Woods or Meadow there the whole shall be recovered ibid. 304. One may have an Action of Wast in the Tenct after the Term is determined by Expiration Death or the Act or Wrong of the Tenant and theresore if the Term end hanging the Writ it shall not abate because maintainable for the damages but if the Tenant surrender after the Wast done no Writ is maintainable for the Lessor cannot by his own Act alter the form of the Action Ibid. 304. The Heir cannot maintain an Action for Wast done to the Ancestor because the damage belongs not to him yet if two parceners be and wast is done and one of them dyes and wast is done again one Action shall be maintained for both and the Writ shall say both Wastes were to both their Disherison but the Judgment shall be for the place wasted to them both and for the damages severally in their several Tenures Ibid. 305. Guardian shall not be punished for Wast done by Strangers unless it be such as he might have prevented and would not for then qui non prohibet jubet ibidem 305. If the Gnardian commit Wast he shall by Gloue ' Ca. 5. lose the Wardship and single Damage and if it be done so near his Age as he could not bring his Action of Wast or had not notice of it then he shall recover treble damages upon the said Statute as a common person shall Ibidem 306. Wast upon the Stat. of Glouc ' Ca. 5. lyeth not in Ancient Demesne because they cannot award a Writ to the Sheriff to inquire Ibid. 306. Owen 24. contra In an Action of Wast by two in the Tenuit if one relinguisheth it barrs both not so of an Action in the Tenet Ibid. 307. A. has B. and C. in his Wardship Ratione Custodiae and commits Wast in the Lands of B. yet he shall not lose the Wardship of C. because the Wast was not to his Disherison Ibid. 306. At the Common Law there lay an Estrepement after Judgment Glouc. c. 13. gives it Pendente placito and may be sued out with the Original If the Tenant alien pendent the Plea the Estrepement may be against him and his Alienee and the Defendant shall not have his Age in it And tho the Statute says Du Tenement in demand yet in the Scire Facias to execute a Fine in a Quid juris clamat or in Wast an Estrepement may be had yet no Land is demanded in the Writ Upon the Statute the party shall recover damages after delivery of the Lands Co. 5. Rep. 114. b. It lyes before or after Judgment in Wast and the Sheriff may take the Posse Comitatus to prevent the Wast Co. 2. Inst 328. 329. In Wast the Process is Summons Attachment Distress and then upon default a Writ ad Inquirend ' and the Sheriff by the Statute is to go in Person and with the Jury view every place in every
423. per Curiam It being moved in Arrest of Judgment and the plaintiff never had Judgment in it Mich. 1650 inter Winter and Barnard â—djudged In Action upon the Case for words the plaintiff Thomas Bâ—owne declares that one A. G. had a Bastard Son begotten of her Body then living the Defendant knowing it of his Malice to defame him and to bring him in danger of the Statute of 18 Eliz. having Speech of the said Bastard and of the plaintiff said of the Plaintiff that Brown is the reputed Father of that Child whereby he was greatly prejudicâ—d in bargaining and selling and put to great Expences for the clearing of himself in hac parte the Action lyes not for these words upon this Declaration because it is not said by the plaintiff that he was to be punished by the said Statute for he was not to have corporal punishment or to be imprisoned unless the Bastard be some charge to the Parish Hill 11. Car. B. R. inter Salter and Brown Adjudged in Writ of Error In an Action upon the Case for scandalous words if the plaintiff declare that the Defendant said these words of the plaintiff being a Feme sole viz. This is that Whore that my man A. got a Bastard by and withal spent all my money And being asked by an other person standing by whether he were not mistaken for the Maid hath been but little above a year in Town the defendant replyed The Quean hath been too long to my Cost No Action lyes for these words for to say that a Woman had a Bastard is no cause of Action Trin. 1651. Inter Owen and Jevan Adjudged in Arrest of Judgment If a man saith of another He was the true Patron of the Advowsâ—n of S. but he hath lost that Patronage and Presentation by being a Symonist and a Recusant both which I will prove him to be yet no Action lyes for by the Symony only comes the loss of the Presentation pro hac vice by the Temporal Law and the Recusancy only toucheth him in Religion sor it doth not appear that he intends him to be a Recusant according to the Statute Trin. 16. Jac. B. R. Sir John Tasborough's Case adjudged in Arrest of Judgment Iâ— a man saith of an other He hath forsworn himself no Action lyes for these words Pasch 40. Eliz. B. R. To say to a man Thou hast forsworn thy self Leak Court no Action lyes without shewing what manner of Court it is because that it cannot be intended nor known whether it be such a Court as may compel one to swear or not Mich 8. Jac. B. R. Inter Law and Bennet per Curiam If a man saith of an other He did forswear me ineuendo the plaintiff 46 s. worth of Tithes in Canterbury Court no Action lyes for these words for there are divers Courts in Canterbury and it is not shewn in what Court nor before what Judge nor that the Judge had Authority to hold Plea of Tithes Pasch 43. Eliz. B. R. Inter Bray and Partridge adjudged If a man say of J. S. I had not been cast in that Action if it had not been for the Oath of J. S. and he was forsworn and I marvel that B. would marry his Daughter to such a forsworn man In an Action upon the case for these words if the Plaintiff aver that there was an Issue between him and A. and that Ad Curiam Baronis de Geton Soca Domini Regis tenta apud S. in Comitatu praedicto He himself was produced as a Witness and sworn about the matter of the Issue and afterwards the defendant having Communication of this Issue spoke the words aforesaid No Action lyes upon this Declaration because that it is not alledged that S. is within the Soke of Geton and so peradventure the Court was held out of their Jurisdiction and also because that it is not alledged that he was sworn about a matter pertinent to the Issue Miâ—h 11. Jac. B. R. Inter Crawford and Brice adjudged If a man saith of an other he is a forsworn Knave for he swore that the wood was worth 40 s. where it was dear of 13 s. 4 d. No Action lyes for those words though he aver that there was Communication between them of the matter at the Assises where the Plaintiff was sworn as a Witness because that he did not say directly that the Wood was not worth 40 s. but that it was dear of 13 s. 4 d. Also it doth not appear that the Defendant intended it sworn at the Assises Hill 13. Jac. B. R. Inter Stephen Apthorpe and Cockerel adjudged If a man saith to an other Thou wert forsworn in B Court which is but a Court-Baron no Action lyes because it is no Court of Record Pasch 8. Jac. in Scaccario Inter Perie and Rock agreed per Curiam If a man saith to another Thou art forsworn and didst take a false Oath at the Assises at Hereford against J. S. No Action lyes for these words without an Averment that it was at a Tryal or before the Court or Jury for it might be at the Assises in a private house or other place Pasch 15. Car. B. R. Inter Prichard and Smith Adjudged per Curiam If a man saith to an other Thou deservest to be hanged no Action lyes for these Words because it only expresseth his Opinion and Judgment of him Trin. 4. Jac. Inter Hake and Molton adjudged If a man saith to J. S. Thou art a scurvey bad Fellow and hast done that thou deservest to be hanged No Action lyes Mich. 11. Car. B. R. inter Fisher and Atkinson adjudged per Cur. in arrest of Judgment after Verdict for the plaintiff If a man saith to another You are no true Subject to the King no Action lyes for these words because they are too general for it might be he had not paid his Taxes Mich. 5. Jac. B. R. inter Smith and Turner adjudged If a man saith to another Thou art a Rogue and an arrant Rogue and I will prove thee to be a Rogue no Action lyes Mich. 41. 42. Eliz. B. R. adjudged FINIS THE TABLE Abatement WHERE the Death of one of the Parties after Summons and Severans shall abate the Writ and where not page 1 2. What shall be a good Plea to a Writ what not p. 2 3. In what Cases the Writ shall abate de facto p. 4. What Pleas shall abate the Writ in the whole and what in part p. 5 6 7 8 9 What Pleas in Abatement go only to the person and what to the Writ or Aâ—tion p. 9 10. How matters of Record shall be pleaded in Abatement p. 12. 13. Who shall be admitted to plead in Abatement who not p. 14. Where the Writ abates in part by the Act of the Court and where by the Parties Confession p. 15 16. That a Defendant or Tenant cannot abate a Writ by his own Act but the Act of the Plaintiff or Demandant Act
of God or of an Estranger may abate the Writ p. 17 18 19 20. Ab Initio Where the Grant shall be good Ab Initio although it was incertain at the Commencement p. 20 21 22 23. Able and Disable Where an Obligee was able at the time of the making the Obligation and afterwards disabled by his own Act è contra p. 23 24. Acceptance Where it shall be no Prejudice to the Acceptor p. 24. Action Where the principal thing is devested yet the Plaintiff shall have an Action which is accrued to him by reason thereof ibid. Where the Husband shall have an Action without naming his Wife and where not p. 25 26 27 29 33 34. Where the Plaintiff hath Election to bring his Action against the Heir or Executor p. 27. Bill teneri c. in 20. l. solvend in Watches Action shall be brought for the Money not the Watches but if the number had been express'd contra p. 28. Assault and Battery and Ejectment will both lye in one Declaration ib. Of bringing Actions of Trespass and what words are most proper to be used therein upon several occasions p. 28 29. How Executors and Executors of Executors shall sue and be sued p. 29. Of bringing Actions of Covenant p. 30 31 32. Of Infants bringing their Actions p. 32 33. Where several things may be put into one Declaration p. 35. Of bringing Actions upon the Statute ib. Where a man shall have an Action against his own Deed. p. 36 37 38. Where a man hath good cause of Action sometimes and yet by matter ex post facto and by the Action of a Stranger his Action is destroyed p. 38 39. Of bringing Actions upon the Case Sur assumpsit p. 40 41. Amendment In what Cases the Court will suffer an Original Writ Venire Facias Quare Impedit Habeas Corpora or Writ of Nisi prius c. to be amended p. 43. to 51. Misprisions of the Clerk no Errors shall be amended p. 45 46. Appearance The Defendant having given Bond to the Sheriff to appear if supersedeas comes to the Sheriff before day of Appearance yet he must appear to save his Bond. p. 51. By W. 2. a man of 70 not bound to appear upon Juries ibid. Annuity Grantee in Annuity pro Consilio c. not bound to give Counsel to the Grantor unless required p. 51. How to declare in Annuity p. 52. Arbitrement Where good where not p. 52 53. Audita Querela Brought by an Infant who was non-pros'd and why p. 53 54. It lies upon Nihil Facias not Scire Facias ibid. Brought by Conusor in Stat. Merch. against Administrator of Executor of the Conusee after Release p. 54. Avowry Avowry for Amercement in Court Baron ill and why ibid. Set forth in Avowry that Dean and Chapter were seised in Jure Ecclesiae not saying in Fee ill and why ibid. Pleading in Avowry Damage fesant and on a new grant p. 55. Exceptions to an Avowry by an Executor ibid. Costs to Avowant ibid. Judgment for Avowant revers'd and why p. 56. The Lord hath Election to avow at Common Law or upon the Statute and which most beneficial ibid. Avowry for two Sums nomine penae without alledging Demand of Rent insufficient c. ibid. Donee aliens Donor cannot avow upon Alienee ibid. Avowry adjudged ill upon Demurrer and why ibid. Stranger to Avowry shall plead nothing but hors de son fee or matter tantamount p. 57. Stranger to Avowry cannot disclaim nor any person in auter droit ibid. Five things to be known in Avowries p. 58 59. Where in Avowries the Defendant shall answer to the Seisin and where he shall traverse p. 61. Where the Effect of the Fee shall be traversed p. 62. Bail UPON Latitat 64. Vpon Capias ib. for Husband and Wife ib. Vpon Writ of Error p. 65. Difference of being Bail in King's Bench and Common Pleas. ibid. Bail sells his Lands if chargeable p. 66. If one puts in Bail to a Debt in C. B. and be afterwards arrested in London for the same Debt he shall have an Attachment ib. Bankrupt Creditors after refusal may upon Tener of their Proportions towards the Charge of the Commission be received to have their parts as other Creditors if no Distribution hath been made of the Bankrupt's Estate before ibid. Commissioners may sell Bankrupt's Goods if by him before disposed to his Creditors after he became Bankrupt ibid. They may sell his Copy-hold Lands p. 67. Two brought Debt joyntly as assigned to them by Commissioners per Cur. they ought to have assigned pro rata to every Creditor ibid. A Bankrupt cannot sell his own Goods after he becomes Bankrupt but Goods which he hath as Executor or a Legacy before it be invested in him or a Grant of a Reversion before Entry he may ibid. Barr. A man may be barred pro tempore and yet afterwards he shall have his Action p. 68. To plead a thing by way of Barr or Estoppel which the Demandant or Plaintiff is to defeat or destroy by the Vsage of his Action is no good Plea ibid. Of pleading Recoveries in Barr. p. 69. Where a man demands a Debt or any thing by Deed he shall not be barred but by Deed or something of as high Nature p. 70. Where a man shall plead a Barr which shall comprehend one matter in Fact and where it shall comprehend more p. 71. Of Barrs perpetual ibid. Cinque-Ports HOW Lands shall be extended in the Cinque-Ports p. 72. Customs and Prescriptions Customs against Canon Law how to be tryed p. 72. Customs payable to the King by the Common Law and why ibid. Difference between malum in se and malum prohibitum ibid. Bailiff ought not to sell Goods taken in Execution for Debt or Damages in a Court Baron but impound and keep them as Pledges till the Defendant makes his Agreement but where the Court hath used to award a Levari Facias 't is good by Custom p. 73. Custom of Burrough English ibid. Custom for the Court of King's Bench every Term to send the Coroner to the Marshal to view the Prisoners that the Coroner might mark the Names of those were wanting in his Book and inform the Court thereof who would record their Escape against the Marshal as an Abuse of his Office and cause of Forfeiture ibid. The Law and Vsage of the Realm concerning Aliens and their Issue p. 74. Custom of London concerning Feme sole Merchant ibid. Custom and Vsage binding to particular places ibid. In what Cases the Custom of the Realm is the Common Law ibid. Prescription what and how to be alledged p. 75 76 77. Profit Apprendre cannot be claimed by Custom in the Lands of another except in Cases of Necessity p. 77. Where a man may have an Action upon the Case for a Tort and where he must prescribe and shew his Title p. 78. How and where Customs pro bono privato and pro bono publico are to be alledged ibid How