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
made of two Acres the one for Life the other in Fee without determining in certain in which he shall have Fee this incertain Feoffment may be reduced to certainty as if the Feoffee loose both the Acres by default he may have a quod ei deforceat for the one and a Writ of Right for the other Acre and thereby the certainty of the gift shall be determined and known Lit. Fo. 13. a. And so if one Grant a Rent-charge to one now the Grantee may avow or have a writ of Annuity and which of them he will use shall be maintainable and yet at the Commencement it was incertain and yet notwithstanding this incertainty the Grant was good Lit. Tit. Rents Fo. 13. a. In like manner if a man Grant to one 20s or a Robe yearly the Grantee there cannot know the certainty of the Grant for peradventure he shall have alwayes the 20s or perhaps alwayes the Robe and yet the Grant there shall be held good because that it is reducible to a certainty by the Will of the Grantor 9 E. 4. 37 en Dett per Lit. Fo. 13. a. And so a Lease for so many years as I. S. shall name is good and yet it is incertain but if I. S. name a certain number then it is good ab initio Lit. ib. So If I haue two Horses in my Stable a black and a white and I give to I. S. one of these Horses now this gift is good notwithstanding the incertainty because that by the circumstances Viz. by his Election the certainty may be known Lit. ib. Also if a man Let all the Acres of Land which he hath in Dale to I. S. for years rendring for every acre 12d although that the number of the Acres were not known by the Lessor nor by the Lessee and because the Rent is at the commencement incertain yet upon mensuration or other Triall had the Rent reserv'd may be known certainly and then the Lessor may have a writ of Debt for the Rent and so by this possibility of Tryall the reservation is made good which at the commencement was void for the incertainty So if a man Lett Black-Acre and White-Acre for Life the remainder of one of the two Acres in Fee now it is incertain which of the two Acres he in the remainder shall have but if he License the Lessee to cut down Trees in White-Acre then he sâ—all be adjudged to have had the remainder of that Acre ab initio and so thereby that which at the commencement was incertain is afterwards made certain And so was Wheelers case sc one Grants his Term to another upon condition that 〈◊〉 the Grantee shall obtain the Favour of the Lessor and also pay so much as I. S. shall award this was taken for a good Grant after the condition was performed 14 H. 8. 17. 6. b. In Trespass the case was That the Defendant and the Plaintiff had bargained together that the Defendant should go to a place where certain Wheat grew and to see the Wheat and if he lik'd it upon the view that then he should take it from thence paying 40d for every Acre this there was held a good contract notwithstanding the incertainty of the quantity of the Wheat and of the gross Sum which should be paid for it because that upon the circumstance the certainty may appear for although it was a conditional agreement between the parties yet it is held a good Justification if he presently paid for it at the time of his carrying it away P. 17 E 4. Fo. 1. Fo 6 b. Able and Disable SFe the diversity 17 H. 7. where Reg. 1. one sc the Obligee was able at the time of the making of the Obligation and afterwards he is disabled by his own Act and where he was not able at the time of the making of the Obligation For in the first case the Defendant shall be discharged and if a man be bound to another by Obligation upon Condition that if he pay to the Obligee an Annuity of 10 l. at the Feast c. Til he promotes him to a convenable Benefice and afterwards the Obligee takes a Wife or enters into Religion the Obligor shall be discharged of the Annuity because he hath disabled himself from receiving a Benefice But if he be disabled at first when the Obligation is made it is otherwise Acceptance A Man is bound to make a Feoffment of a Mannor to the Value of 20 l. per annum the Obligee accepts a Mannor to the Value of 10 l. he shall have advantage notwithstanding the Acceptance 32 H. 7 Action WHere the principal thing is devested Reg. 1. yet the Plaintiff shall have an Action which is acrued to him by reason thereof If I disseise one and a stranger does Trespass to me the disseisee reenters I shall have an Action of Trespass for the Trespass before And so if a Lord does Trespass and afterwards recovers by Cessavit WHere the Husband shall have Reg. 2. an Action without naming his Wife and where not IF a man be disseised of Lands in right of his Wife he shall have an Assise in his own name Also he shall have a writ of Droit de gard in his own name without his Wife Trin. 8 E. 3. The same Law upon an Obligation to Husband and Wife the Husband shall have the Action without the Wife Trin. 12 R. 2. And in 3 H. 6. adjudged that he might name his Wife if he would The same Law if the Cattle of the woman be taken in the name of distress and I Marry her I shall have Replevin in my own name Mich. 32 E. 2. Also of the disturbance of Advowson which a man hath in the right of his Wife he shall have a Quare impedit in his own name Pasch 7 E. 4. If a man be bound to a woman and afterwards she takes Husband both shall have Action 11 H. 6. The same Law if a man be Receiver to a Feme sole and afterwards she takes Husband both shall have an Action of Account Trin. 9 R. 2. Where the Husband and Wife recover seisin of the Land and damages for the damages they shall join in the Action The same Law if a Feme sole makes a Lease reserving Rent and afterwards takes Husband they shall joyn in an Action for the recovery of the Rent 7 E. 4. A writ of Droit de gard as of the right of the Wife ought to be brought in both their names because it concerns the right and not the possession by Choke Anno predicto If the Beasts of a Feme sole be distrained and she takes Husband the Husband Sues a Replevin in his own name it seems the Action does not lye for in every case where the cause of Action is given to a Feme sole and not to the Husband the Husband ought to joyn his Wife with him as if a contract be made with a Feme sole and she takes Husband c.
or conversation are also Excommunicated Co. Lit. 134. If a Bishop be defendant an Excommunication by the same Bishop shall not disable the plaintiff and if no other matter be shewn it shall be intended for the same cause Co. Lit. ib. The Writ shall not abate for Excommunication in the Plaintiff or Demandant But the Judgment shall be that the Tenant or Defendant shall go quit without day because when the Demandant or Plaintiff hath purchased Letters of Absolution and they are shewed to the Court he may have a Resummons or Reattachment upon his Original according to the nature of his Writ Lit. lib. 2. ca. 11. Sect. 42. If an Alien brings an Action personal or mixt in his own right the Defendant may plead it in Abatement in disability of his person or in bar to the Action with this difference that in Actions personal or Trespass for breaking his house the defendant ought to aver that the plaintiff is an Alien born at such a place under the Allegiance of such a Prince who is Enemy to our Soveraign Lord the King for an Alien Friend as he may Traffick and have a House for a habitation so he may have an Action personal and Trespass for breaking his house as he may have a Writ of Error for necessity And the Opinion of the Lord Coke in his Commentary upon Littleton is That if an Alien Friend brings an Action it ought to be pleaded in disability of his person and not in barr to the Writ or Action but if he be an Alien Enemy the Defendant may conclude to the Action And therefore Mr. Theloal in his Digest of Writs well observeth That an Exception taken to a Writ propter defectum Nationis vel potius defectum subjectionis vel Ligeancie is peremptory and that the Action cannot be revived by Peace or League subsequent and that the King may grant Licence to Aliens to implead and likewise that such Aliens as come into the Realm by the Kings Licence or Safe Conduct may use personal actions by Writ though they be not made Denizens and that Denizens lawfully made by the Kings Grant and such Aliens born as are within the express words of the Statute of 25 E. 3. may use actions real by Original Writ Co. Lit. 129. a. b. 130. b. Co. 7. 1. Theloal Digest de Breifs Lib. 1. ca. 6. 32 H. 6. 23. An Alien may be Administrator and have Leases for years as well as personal Chattels and Debts Cro. Eliz. 683. Cro. Car. 8. 9. One brings an Action as Executor Utlary in the plaintiff is no Plea because he sues in auter droit but it is otherwise of Excommunication 21 E. 4. 49. 34 H. 6. 14. 14 H. 6. 14. If the defendant plead that the plaintiff is an Alien born and conclude to the person yet it seems he may demand the View 3 H. 6. 55. For the Pleading of Matters of Record in Abatement observe That in Formedon for a Mannor another Formedon depending for 20 s. Rent out of that Mannor is a good Plea 3 H. 7. 3. That where in Trespass the defendant pleaded that the plaintiff had brought Replevin against the Mayor and Commonalty of A. for the same cause and that he was one of the Commonalty die Captionis c. Necnon die impetrationis Brevis and it was there agreed That in Trespass a Replevin depending for the same Cause is a good Plea if there be not more Defendants in the Replevin than in the Trespass 8 H. 7. 27. A Quare Impedit is brought against the Bishop and another as Incumbent the Defendants plead that the plaintiff hath brought another Quare Impedit against the said Bishop for the same Presentation which was then depending undetermined and demands Judgment of the Writ and it was adjudged a good Plea But the plaintiff might have brought divers Quare Impedits against divers Defendants Hobart 138. 9. So in an Assise of Darrein Presentment it is a good Plea to say That there is a Quare Impedit depending for the same Presentation Hobart 184. But where an Assise is brought of Lands in one County an Assise for the same Lands in another County and Judgment thereupon cannot be pleaded So of a Recovery in Ancient Demesne because it cannot be intended that the Lands recovered in the Assise or in Ancient Demesne are the same Lands 4 H. 6. 24. Rast Entr. 65. In Formedon in le Diseender it is no Plea to say that the Plaintiff at another time brought a Formedon in the Remainder of the same Lands except both the Counts be of one and the same Gift 40 E. 3. 31. Where the Heir brought two several Formedons upon one and the same Gift although the last did vary from the first Gift yet it is no Plea in Abatement for he might claim by two Ancestors sub dono 4 E. 3 8. If the Defendant in a personal Action pleads another Action depending at the time of the purchasing the last Writ he ought not to say that it is yet depending for the last Writ is abated in Law notwithstanding he is afterwards non-suited in the first Writ Co. 6. Ferrers Case Where Note the diversity when the writ is general as Covenant Detinue Assise c. and the Certainty is in the Declaration for there if the Plaintiff is nonsuited in the first before he counts or declares the last shall not abate and when the writ is special and the thing demanded is specified therein as in Praecipe quod reddat c. What persons shall be admitted to plead in Abatement and what not Note One Defendant may plead the death of the other before the Writ purchased or that there is no such person in rerum natura 20 H. 6. 30. b. But in Replevin if the Defendant avow upon an Estranger the Plaintiff in the Replevin cannot plead in Abatement of the Avowry 22 E. 4. 35. b. If the Cognizee of a Statute sue execution against one Terretenant only without the other he cannot plead in Abatement but is put to his Audita Quaerela against the other because that the Cognizee is not bound to take Notice of all the Terretenants 16 Eliz. Dyer 331. a. Nota That after a Continuance the Defendant shall not be admitted to plead that the Plaintiff was made Bishop or that the Woman Plaintiff took Husband depending the Writ except that he pleads it after the last continuance but it is otherwise of the death or Coverture of the Plaintiff at the time of the Writ purchased because these Pleas do abate the Writ de Facto 32 H. 6. 10. 11. In a Replevin where the Plaintiff admits the Avowry the Priee shall not plead in Abatement but as Amicus Curiae and not then except it be apparantly known per totam Curiam 34 H. 6 8. In a Praecipe against I. S. the Son of W. Edmond at the retorn of the Grand Cape the Defendant said that his Father was named Esmond and by Thorpe it is a good
c. The same law if an Abbot make a Feoffment in Fee and afterwards is deposed and sometime after is made Abbot now he shall have an Action against his Deed which he himself made when he was Abbot because that now he comes in as Successor and not in the place as he was before The same Law of Warden and Schollars But it would have been otherwise if he had disseised a Parson and made Feoffment in Fee with warranty or without warranty and afterwards is made Parson now if he will use an Action his own Feoffment shall be a Barr against him because that all that he shall recover by this Action is to his own use The same Law if a man disseise a woman and makes a Feoffment in Fee and afterwards he takes the woman to Wife in this case the Husband shall be Barred because that he will have advantage of this Recovery to his own use If a man hath right to have Land where his Entry is tolle and releaseth to the Tenant all manner of Actions and dye his Heir shall have his Action and recover the Land because that by such release no right is extinguished and if the Tenant makes Feoffment in Fee or dyes seised he that made the release shall have his Action against the Heir of the Tenant or his Feoffee against his own release and the cause is because that nothing is released but his Action against the same person and not any right If the Son disseise his Father and make a Feoffment with warranty or without warranty and after his Father dyes he cannot ouste his Feoffee because that it was his own Deed. A man hath good cause of Action sometimes and yet by matter ex post facto and by the Act of a Stranger his Action is destroyed As I am disseisee and he is disseisor and I release to the disseisor Also I bail or lend Goods to one a Stranger takes them the bailor sells them to a Stranger c. Action of Debt upon an obligation brought by an Executor the writ shall be detinet and not debet and for this cause they joyn in the same Action for an Horse delivered by themselves to the same Obligor The same Law if a man recover Lands by default in which I have an Estate for life and he recovers by another writ by default Lands wherein I have an Estate Tail I shall have a Quod ei deforceat because the conclusion of the writ serves me And so a man may joyn two or three things in his Action where the conclusion of his Action is pertinent to the several matters and doth not vary If two or three Acres are given severally in tail and the party discontinue the whole his Heir shall have Formedon for the whole because that the writ is le quel un I. dit S. dona and although the Acres are given severally that is not material forasmuch as the common Writ will serve in this case But if the Acres are given by divers or several men or that the one shall be given to the Heirs Males and the other to the Heirs Females and the third to the Heirs General in this case the Heir shall have several writs and not one writ because that one writ cannot serve for such several Gifts If I deliver Goods to one who is indebted to me and he dyes against his Executors I may have a writ for the Goods and for the Debt because that the writ is against the Executors for the Debt in the Detinet and for the detinue it is in the Detinet and therefore the writ well warrants the count to declare partly for debt and partly for Detinue but such an Action he could not have had against the Testator because that for the debt against him the writ ought to have been in the debet and detinet A Feoffment is made upon condition of payment by the Feoffor he commits Trespass and afterwards enters by force of payment c. yet the Feoffee shall have Trespass because his possession is affirm'd 43 E. 3. Assumpsit If he would relinquish such a debt to pay him 30 l. and sayes he did relinquish it c. and after Verdict for the Plaintiff Judgment stayed because he shews not how he relinquished it and it may be by parol which were void Gregory versus Lovell 3 Cro. 292. Assumpsit in Consideration he would discharge him from an Arrest and sayes that exoneravit ipsum moved in Arrest c. he shews not how he discharged him sed non allocatur for they might be per parol or for a time but in Pleading a discharge of a Rent or bond which must be by Deed and perpetual it must be shewed how King versus Hobs. 2. Cro. 930. 960. Assumpsit the Defendant pleads the discharge of the promise whereof Issue taken and found for the Plaintiff and divers defects in the Declaration moved in Arrest of Judgment but by Wrâ—y all these defects tending to the Assumpsit are cured by the collateral Plea Manwood v. Buston 2. Leond. 203 204. Assumpsit If he would make it appear c. and sayes he made it appear by the Court-Roll Good without saying what the Court Rolls were for the Infinitly So a Bond to save harmless from all Estreates good without shewing what for the same reason Vide 9 E. 4. 15. a. 22 E. 4. 41. a Mo. Pl. 1175. 3 Cro. 149 Pl 3. 919. Pl. 3. 3 Bulst 31. Latch 130. H. 2. H. 7. Pl 22. H. 6. H. 7. Pl. 8. 8. 22 E. 4. 15. ab 28. b. 29. a. Assumed he would assign Goods to pay c. and sayes he assigned and shews not how but per scriptum yet good Note after verdict Forth v. Yates Tr. 30 Car. 2. B R. Assumpsit against an Executor who Pleads solvit to such a one on a Bond of 100 l. and to another 100 l. on a Bond and so to divers others which he was forced to do the Payment being post exhibitionem Bille and Pleads a Recognizance in force not satisfied the Plaintiff Pleads non solvit to such a one 100 l. nor to such a one 100 l. Et si de ceteris hoc petit c. and to the Recognizance that it was satisfied and kept in force of Fraud the Defendant demurred quià replicatio multiplyed and double consisting of two matters where one goes to the whole but Judgment for the Plaintiff for the first objection to one 100 l. to another 100 l. make several Issues though que de hoc And in case of an Executor one may answer to every thing alledged by him H. 21 22. Car. 2. B. R. Jeffreys v. Dod. Assumpsit to permit Land to descend breach laid quod non permisit well being in the negative but in the affirmative it ought to be shewed how disposed though they could not descend H. 9. Jac. B. R. rot 3 Bulstr 18. Assumpsit to perform an Award and sets it forth the Defendant pleads
amended where the Christian name was omitted but entred in the Clerk of the Warrants Office upon the Statute of 38 H. 6. and it was amended Mich. 14 Jacobi in C. B. A Judicial Writ shall be amended by the Record because it came from thence Paschae 15 Jacobi in C. B. The Original Writ is primo Martii and in the Declaration it is primo Maii it is void for there is no such Record and it cannot be amended because the Count cannot be amended 4 E. 4. and Coâ—e Chief Justice said That a Judgment given without an Original is not void but voidable Mich. 10 Jacobi ubi supra Misprision shall be amended by the Statute of 14 E. 3. As upon Variance between the Count or Declaration and the Writ if it be in default of the Clerk it shall be amended The same Law if an Exigent be awarded retornable Octabis Michaelis and the Roll is Quindena Martini 7 E. 4. The same Law in Trespass the Parties were at Issue and Venire facias and Habeas corpora were served and Distringas awarded with Nisi prius the Roll was Quindena Martini and the Writ Mense Michaelis at the day in pais the Justices took the Enquest notwithstanding that it was brought without Warrant the Writ of Nisi prius shall be amended 7 E. 4 The same Law Ravishment de gard was brought against one Banaster and the Process was Vanastr ' and for that it was amendded Mich. 4 H. 6. The same Law if the Roll varie from the Original the Process c. 19 H. 6. Amendment is properly where there is default in the Clerk as where a man shews an Obligation to a Clerk of the Chancery and the Clerk doth not make a good Origiginal upon it now it shall be amended because the Clerk had sufficient Instructions but it is contrary if he shew the Clerk only a Copy of the Obligation The like Law if a man brings a Formedon and these words quam â—lamat esse jus et heredltatem suam are omitted there the Original shall be amended for the Clerk ought to look to his Register and there he might see in what Form he should make the said Writ So it shall be where the Original is good in any case and the judicial Process naught it shall alwayes be amended for it appears to be wholly the default of the Clerk The like Law shall be in Trespass the Defendant pleaded non cul et ponit se super patriam and the Clerk entred it Et def similiter where it should have been Et praedictus querens similiter this shall be amended because it appears that the default is in the Clerk as in other cases before But where no default is in the Clerk otherwise as if in a Plea that matter which he would a verre be omitted it shall not be omitted it shall not be amended for it is part of the Plea The like if a Colour be omitted in a Writ of Trespass or Assise And so see the diversity In Assise brought against two or three where one is Tenant and the other is Disseisor the Tenant takes the Tenancy upon him and Pleads in Barr now if the Plaintiff makes Title and Traverseth the Barr and concludes et issint fuit il seisie tanque per les trois disseisie this Plea is not good for he ought to maintain his Writ and there he shall have it pro falso clamore So it is in Trespass a second Capias is awarded and then an Exigent the Defendant appears upon the Exigent and shews the matter now the whole Process is discontinued and shall not be amended for it was the fault of the Party for he ought to pray his Process at his peril and then the Office of the Clerk is to make it as it should be c. So if Summons be awarded in Precipe quòd reddat and afterwards a petit cape or grand Cape be made it shall not be amended for the cause rehearsed A Judgment given in a Writ of Annuity was reversed for that the Writ of Annuity was Precipe quod reddat 26 marc ' 6d 8â— que ei aretro sunt de annuo reddit ' 4 marc ' per annum and the Count the 6s 8d were left out and because that there was a disagreement and it is the warrant of the Writ it was reversed for the Count is by the Party and not by the Clerk 9 E. 4. Venire facias was made Vicecomiti but Salop was omitted and the Sheriff of Salop impanelled the Jury and it was amended a Tryal and diversity taken whereby special Plea the issue shall be of another County and the Award of the venire fâ—cias special there it shall be ill but where upon general Issue or within the same County the Award is fiat inde Jurata there it sâ—all be amended Yelvertons Rep. Lee vers Lacon 69. and 2 Cro. 73. Appearance A Man is Arrested upon mean Process and gives Surety to the Sheriff by bond to appear and after Supersedeas comes to the Sheriff before the day of appearance Yet the Defendant ought to appear otherwise the Bond is not saved By the Statute of W. 2. a man of 70 years old shall not be amerced for not appearing upon the Jury per tot Cur. Mich. 9 Ja. in C. B. Annuity AN Annuity is granted pro consilio impenso et impendendo to one Plumer an Attorney There is a Suit depending between the Grantor and a Stranger The Attorney gives Councel to the Stranger That is adversary to the Grantor But it is not required to give Councel to the Grantor in that Cause Whether this was against the effect and intent of the Grant aforesaid And it was held not by the Court and that the Annuity should continue Note in Annuity it is not necessary to express in the Declaration the Estate of the Grantor but only to say That the Grantor did grant the Annuity Co. Entr. Fol. 49. Arbitrement DEbt upon Obligation or upon arrâ—arages of account cannot be put in arbitrement with other Trespasses or such like notwithstanding the submission be by Deed but it is otherwise of a contract quod nota Arbitrement is not good except that the party can perform it without the aid or licence of an other as if Arbitrators award that the one Party sâ—all enfeoffee the other of the Mannor of D. of which I. S. is seised this is a void Arbitrement and yet it is possible for he might disseise I. S. and make Feoffment c. or might purchase the Mannor of I. S. and thereof make Feoffment according to the Award but the party shall not be charged with these mischiefs and therefore the Arbitrement shall be void Otherwise it is if the Award was that one of the parties sâ—all Enfeoffe the other of the Mannor of D. generally without speaking of I. S. that he is there compellâ—d to make Feoffment thereof And so note the diversity where it appears upon the Award and
demands a Debt or any thing by Deed he shall not be Barred but by deed or a thing of as high a nature AS Trespass for taking of an Apprentice it is no Plea to say he discharged him â—â—â—â—out speciality Mich. 22 H. 6. The same Law in Debt upon an Obligation it is no Plea for the Defendant to say that the Plaintiff hath received parcel at such a place depending the Writ Judgment 7 E. 3. The same Law in Debt upon Arrearages of Account the Defendant Pleaded Arbitrement it is no Barr because that Debt upon Arbitrement is not of so high a nature as Debt upon Arrearages of Account for there he cannot wage Law The same Law in Debt upon an Obligation it is no Plea to say that he hath paid the Summ in demand to the Plaintiff because that he ought if he will avoid the Deed to say that he hath the Plaintiffs Release or Acquittance to shew The Disseisor Levies a Fine with Proclamations the Five years pass the Disseisee is bound afterwards the Disseisor reverseth the Fine by a Writ of Error then the Disseisee may enter and yet he was once Barred Vide Barr pro tempore Where a man shall Plead a Barr which shall comprehend one matter in fait and where it shall comprehend two matters IF a man Pleads in Barr an Arbitrement he ought to say where the Submission was and also where the Award was made and so to make the Plea certain But when he Pleads a Plea which comprehends two matters he ought not to shew the certainty until the Plaintiff hath Traversed one of them Of Barrs perpetual A Woman is bound to me in an Obligation and I afterwards take her to Wife I am once Barred and allwayes Barred Tenant in Tail leaves Assets which is Pleaded against him who is Heir both he and all his Heirs are Barred for ever A man is bound to pay the Abbot of Westminster and his Successors every year Twenty shillings the Abbey being dissolved he is discharged of the Twenty shillings for ever Also if a man be obliged to keep my Court in Dale I purchase all the Copy-holds and Free-holds of the said Mannor he is discharged from keeping the said Court for ever See Pleas and Pleadings Cinque-Ports AN Elegit to extend Lands within the Cinque-Ports was directed to the Constable of Dover But he would not extend so that the Plaintiff was compelled to have a Certiorari to remove the Record out of the Kings-Bench into the Chancery And from thence by Mittimus sent to the Constable to make Execution Custom 's and Prescriptions ALI Customes against Cannon-Law are to be Tryed at Common-Law and not in the Ecclesiastical Courts Customs are payable to the King by the Common-Law the Reasons why they are so paid see in Davies Rep. fo 9. ct 10. Le case del Customs See the difference between Malum in se etmalum prohibitum and how the King may Pardon it but not licence it to be done 11 H. 7. fo 12. et Davies Rep. fo 73. Where Debt or damages are recovered in a Court-Baron the Bailiff ought not to sell the Goods of the Defendant and deliver the money to the Plaintiff But to impound them and keep them as pledges until the Defendant makes his agreement but where it hath been the use of the Court to award a Levari facias it is good by Custome Where the younger son in Burrough-English dyes the Middle Son not the Eldest shall have the Land The same Law for Customary or Copy-hold Lands It was the Custom of the Kings-Bench every Term once or twice to send the Coroner of that place to the Marshal to view the Prisoners that are in the Marshals Custody by Commititur or matter of Record and if any of them are wanting that he could not find them there then to mark their names in his Coroners Book and to inform the Court thereof And thereupon the Court did pose the Marshal who was to inform the Justices what was become of those Prisoners And if he found not sufficient cause of excuse the Court would Record their escape against the Marshal And the abusing of an Office is the escape of Prisoners in the Marshal an abuse of his Office and just cause of Forfeiture If an Alien have a son that is also an Alien and after the Father is made free and then hath another Son and after purchaseth Lands and dyes The second Son born after the Freedom shall be Heir and not the Eldest by the Common-Law and usage of the Realm And also if there be three Brothers and the middlemost purchaseth Lands and dyes without Heir of his Body the Eldest Brother shall inherit and not the Youngest By the Custom of London a Feme Covert that is to say a Sole Merchant may sue and be sued in absence of her Husband Bulstrode part 1. fo 14. where you may read of three sorts of Customs that are void and against Law 1. a Custom against Justice 2. a Custom against the Benefit of the Common-Wealth and 3. a Custom that is to the Prejudice of a third Person Custom and usage in the intendment of the Law is such a usage as hath obtained the force of Law and is binding to such particular place as Gavelkind in Kent and Burrough-Euglish in many Corporations in England When the Custom of the Realm is the Common Law WHen it is the Common-Law a Custom ought not to be alleadged or Pleaded But an Action against a Carrier Hoyman Common Hosteler and for negligently keeping of Fire the Plaintiff may declare upon the General Custom of the Realm or not at his Election And note That a Custom is always Local and to be alleadged in one certain place but a Prescription is personal and ought to be alledged in some persons certain as in such a man his Ancestors or Predecessors or those whose Estate he hath 22 H. 6. 22. A Prescription is always to be of such a thing and in such manner as may be intended to have a lawful and legal commencement or otherwise it is not good but a Custom may be contrary to the Rules and Maxims of the Law as Borough-English Gavelkind Copy-hold Tenures So Lands devisable by Custom So that the Custom be reasonable Co. 6. Gatewards case lib 5. Perimans Case None can prescribe but who hath Fee but all other Estates derived out of the Fee as Lessee for years Life or at Will ought to prescribe in him who hath the Fee Gatewards case ubi supra A Lord prescribed that he and all those whose Estates he hath in the Mannor have hitherto used to have a Herriot after the death of any Tenant for life or for years within the Mannor and good notwithstanding the Estates of the Tenants have no continuance 21 H. 7. 15. Prescription ought not to be in the Negative but if it be in the Negative with an Affirmative it is good 14 H. 6. 3. 22 H. 6. 36. 11 E. 4
abjure the Realm for Felony or be outlawed of Felony the Land shall escheat and the Son shall not inherit and yet both are Attainders in Law But every Custom that is against the Common-Law shall be taken strictly Debt DEbt super obligationem in London the Defendant Pleads Delivery as an Escroul in Midd super Conditionem c. et Issint non est factum by the Issint c. the special matter is weighed and amounts to the general Issue to be tryed in London per distre in Midd. et issint Rien luy doit is a waver of the special matter and tender of the general Issue P. 27 H. 8. Pl. 34. Debt against two Executors one Pleads plene administravit the other Pleads non est factum Testatoris and if they sever and have those several Pleas in Barr multum altercatur Choke they may Moyle they may not Danby Executors may sever but if they shall have these several Pleas doubted vide I' 37 H. 6. one Pleads Misnomer the other that he is Administrator doubted if Pleadable and ibidem the Authorites they are cited and vide 21 E. 3. 10 11 12. Defendants plead not Executors cannot plead severally in dilatories but in Barr they may P. 7 E 4. Pl 19 Debt upon Obligation to perform Covenants all being in the Affirmative he Pleads Performance general and by Inglefield and Fitz he ought to shew how he performed each specialty Sed vide Co. 1 Jnst 303. a. b. In Debt upon an Obligation conditioned to discharge the Sheriff Plea That he discharged the Sheriff without shewing how M. 5 E. 4. Pl. 21. Debt super Obligationem conditioned to pay to the Chamberlain of London and his Successors he Pleads Payment to A. Chamberlain and his Successors he must Plead how he came out of his Office and how the Successor came in Else A. shall be intended to continue in M. 4. E 4. Pl. 30. Debt against three Executors who Plead several Pleas and each goes to the whole per Danby Moy'e and Clark the Plaintiff may elect which he will have Tryed first Needham contra the most peremptory shall be Tryed first Hill 8 E. 4. Pl. 3. Debt against Executors they Plead a Judgment against the Testator by A. for 200 l. and another by B. for 100 l. And that they have not Assets but to satisfie the 200 l. per Bryan the Plea is double having Pleaded 2 Judgments and rely upon one 9 Eâ— 4. 12. a. Bond to pay 20 l. when A. comes into England from Venice Plea That A. was not at Venice not good for where part is to be done within part without the Tryal must be within Tr. 19. El. et B. Hales Case Ow. 6. One bound to save another harmless Pleads that he had saved him harmless and shewed not how 't is not good but non fuit damnificat generally is good et Pop. 297. dictum per Jones If the first be generally demurred on the advantage of it is lost for which I think it not Law for in Mansels Case Co 2. the Demurrer is general upon such a Plea and Judged ill et 2 Cro. 165. 363. One Action against several Defendants for one Debt c. they may sever in Barrs but not in Dilatories Hatton 26 Hob. 245. In Debt upon a Lease for years the Defendant pleads non habuit nec occupavit adjudged no Plea other then Tenant at Will by Fitz Herbert Dy. 14. In Debt upon an Obligation with Condition payment is a good Plea with Acquittance as appears Dyer 15 b. 1 Cro. 55. 2 Cro. 59. 360. 558. but payment on a single Bill Obligatory is no plea without Acquittance nor it seems upon an Indenture to pay so much for a forfeiture Dy. 6. a. 51. a. Co 5. rep 43. 2 Cro. 86. 377. 3 Cro. 157. 3 Cro. 455. Debt upon a Statute of Usury and misrecites the Statute of Usury and sayes in the Action the Defendant lent money usuriously and received the principle and so much for Usury and that is Traversed and found against the Defendant and moved to be a Jeofail but it seems both Surplus and he need not shew the Cause of Action in the Writ And shewing the Receipt was more then received for the very lending usuriously is against the Statute though he never received it Where one has special matter and pleads it and concludes with the general Issue It waves not the matter precedent as in Debt to plead unlettered issint non est factum or a special Payment issint Riens â—uy doit or for one to Plead that he was Joyntenant with his Feoffee at the time of the Feoffment et issint Riens passe per le fait 10 E. 4. 3. b. M. 9 E. 4. Pl. 15. et fo 19 b. Debt on a Bond against an Abbot he pleads Predecessors imprisoned the Prior and threatned the Monks to imprison them if they would not seal it double one the Imprisonment of the Prior the other the threatning of the Monks And if both should be traversed and one found for the other against the Plaintiff the Court should not know for whom to give Judgment M. 15. E 4. Pl. 2. In Debt of 100 l. the Administrator pleads Judgment of 200 l. to another So plene administravit and that he had not goods preterquam non attingen ' ad 200 l. the Plaintiff demurrs generally because he shewed no certain summ whereto the goods amounted according to Co 9. Merriel Treshams Case 109 b. Hob. and Winch held performance the substance Hob 133 Moore vers Andrews The King brought an Action of Debt and averdict upon non est factum pleaded and after pardoned the Debt which Debt he at the day in Bank pleaded and was allowed to do it because he could have no Audita Querela or sei facias against the King Co. 3. Jâ—st 135. Debt and shews that he made a Lease for years Rend c. the Lessee was thereby possessed and devised it to the Defendant and he entred and Null possession c. ill first because he shewed not that any was made Executor or that he entred by his Assent nor 2 that virâ—ute legationis he entred and then it might be for another Title Dy 254. b 3. Cro 537. Debt of an Obligation conditioned that he and his Wife should appear he pleads that at the time of the Obligation he was solus and innuptus Rolls held it did not amount to ne unque Loyalment accouple and ruled for Judgment upon Demurrer nisi Causa Yeane vers Skelton H 23 Car. 1. B. R. Sti. 17. Debt to perform an Award made 10 May ready to be delivered the 11 th of May Nul Award pleaded he replyes that the Award was made the 10 th of May to be delivered the same 10 th day of May The Defendant demurred for doubtfulness or departure Resolved not yet being a thing whereof Issue is to be of the Award not of the day of the Award Tyers Case Trin 23. Car.
was the Opinion of Twisden in the King's-Bench H. 22 23. Car. 2. That if a Forraign plea which is not local be pleaded the Plaintiff may demurr upon it but if it be local he cannot demurr upon it but then the plea must be sworn Debt on a Bond to account he pleads he accounted Plaintiff Assigns breach in 30 l. received not accounted for Defendant rejoynes and saies Robbed of it and gave notice Et hoc paratus c. good and not Et hoc pet it c. for now he leaves the other to traverse the Robbery though it makes a negative and affirmative Vere versus Smith P. 23. Car. 2 B. R. Cook versus Whorewood Debt on a Bond to perform Covenants to enjoy such Land against A. and B. Defendant pleads Covenants performed Plaintiff replyes and sayes A. and B. habentes jus virtute tituli eis inde fect ' ante Burg. predicta ' entred the Defendant demurrs because the breach Assigned too general but per Hall good enough he being a Stranger Twisden doubted Proctor versus Newton Trin. 23. Car. 2. B. R. Rot. 826 Debt on a Bond to save harmless from payment of Legacies and Assigns breach that A. sued in Chacery for a Legacy first not shewing were the Chancery was Secondly saying he sued for a Legacy and saies not in fact a Legacy was given Dainty versus Faire Mich. 10. Jac. B. R. Debt upon an Obligation dated at Hamburgh was brought in London and good for Hamburgh in that sence shall be taken for a place as Antwerp Tavern in London not for the Town of Hamburgh in Germany and it was brought in the Detinet only and yet good because of Forraign Coyne But naught if for English money A man may bring an Action of Debt upon a Statute-Merchant but not on a Statute-Staple Debt against a Prisoner for Debt or for an Attorney for Fees no Wager of Law lyes But a Prisoner for Lodging and Dyet may wage his Law It lyes not for Rent it lyes upon a simple contract if it be brought in Debt But if it brought in Case the Defendant cannot wage his Law A man brings an Action of Debt against two and hath Judgment and two Precipe's against them and Arrests one by Fieri facias and the other by Capias ad satisfaciendum it is vicious per totam Curiam But he may Arrest one by one Capias and the other by another Capias and if one of them satisfies the Judgment the others Body is free and with this agrees 36 H. 6. Hillary's Case and 4 E. 4 it is said that the Plaintiff shall have but unicam executionem i. e. unicam satisfactionem Mich 11 Jacobi in Communi Banco An Action of Debt ought to be brought in the Debet et Detinet against an Heir but against Executors only in the Detinet per Coke Lord Chief Justice ib. A man brings a Writ of Debt upon a Deed and declares de octinginta Libra the Defendant prays oyer of the Deed and hath it and it was octogesima Libra and good per totam Curiam and with this agrees 9 H. 6. et Pasch 12 Jacobi where yginta for viginti was adjudged good Mich. 13 Jacobi in C. B. Detinue IN Detinue of a Box of Writings the Defendant pleads that A. B. and C. have each of them severally brought their Writ of Detinue against him and brought the Writings into Court ready to deliver to whom the Court shall award they shall interplead and the interpleader shall be on the eldest Original viz. A. shall interplead with the Plaintiff to Barr his Title and B. shall plead against them all But vide if there be variance of the Writings c. in the Declaration when no interpleader shall be P. 4. E. 4. Pl. 11. 11. E 4. 11. a. 3 H. 6. 20. a. 32 H. 6. 25. b. 25 H. 6. 20. a. Trin. E. 4. Pl. 2. Detinue and counts of a purchase of an Annuity and the deed the Defendant pleads non Detinet Jury find the sale c. but it is not agreed that the Defendant should detayne the Deed till the money payd which is not before the plea but on the general Issue he ought not to have given that in Evidence but should have pleaded it for upon the general Issue that which would make a special Barr cannot be given in Evidence or if found by the Jury is it material vide Cest Case title Averment 22 H. 6. 37. Detinue of Charters and Counts of a writing Cont ' that I. S. infeoffed c. And though he said but in facto a Deed whereby I. S. infeoffed c. but Cont ' that c. And so for ought appears no Livery might be yet per curiam well for 't is a deed though nothing passed and the Action lyed But Princ. it may work by Confirmation 39 H. 6. 37. b. In Detinue after Verdict 't was moved in Arrest of Judgment that Sattago was not good but Sartago and igneum ferrum anglice a firegrate improper yet the Court adjudged the Declaration good enough Smith versus Warder 13 Car. 2. in B. R. Of Disclaimers and Discontinuances of Actions ONe brought an Action of Covenant and had Judgment and a Writ of Enquiry of damages and afterwards it was discontinued by Rule of Court Trin. 10 Jac. in communi Banco If a man brings an Action of Trespass in 3 Towns and mentions but 2 Towns where the Trespass was committed the whole is discontinued 16 E. 4. 11. So 9 E. 4. 51. A man brought an Action of Debt and demanded by his Writ 10 l. 6 s. 8 d. and his Declaration was but of 10 l. and his Writ did abate An Action of Trespass was brought in the Court of Common-Pleas oâ— several things one of which was discontinued and by Warberton Justice the whole Action was thereby discontinued adjudged in Sir Fran Pawmes Case If two are bound jointly and severally and an Action of Debt is brought against them both and it was discontinued against one of them it shall abate against both 7 H. 4. Fitzh Tit. Breif 279. 5 E. 4. 107. But by Hobart Chief Justice a man may put more in the Writ than in the Declaration but not more in the Declaration than in the Writ Hill 12. Ja. Pl. 4 in C. B. In Audita quaerela scire facias or Attaint by 2 the Nonsuit of one shall not be Nonsuit of both and his Release shall only Barr himself and the reason is because they are compell'd by the Law to joyn in the Action and the cause of Action accrues not by their deed but by Act in Law and for that the Law is favourable to them So that if one will not sue the other may sue by himself But if a debt be due to two by reason of Contract or by Obligation or two Jointenants have cause to have an Action of Trespass in this case the Nonsuit of the one or the Release of one shall Barr the other because it
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
that the Lapse shall incur within a Month if upon a Disturbance the Lapse be suffered he shall recover Damages within the Equity of Westm ' 2. though it says per tempus semestre and yet here 't is but one Month. 2 Inst 362. The two years Damages or Imprisonment are given whereby the party loses his presentation by the Disturbance or might lose it by the six Months passing but if the Church remain void after the six Months so as he may have his Turn he may pray a Writ to the Bishop and take's half years damage for two years and loses his Turn 2 Inst 363. Westm ' 2. Cap. 5. gives the Quare Impedit de Prebendis Capellis Vicariiis Hospital c. yet de Capella a Writ was before 2 Inst 363. If one Parcener usurp the Turn of the other it puts not the other out of possession but he should have his Turn when it happens and this extends to their Assigns so if one Joynt-tenant presents alone it puts not his Companion out of possession Ib. 365. 1 Inst 186. b. Tr. 1. 243. a. In a Quare impedit the Ordinary must shew the Cause of Refusal specially and directly that the Court by Advice of Learned men may judge whether sufficient Causes of refusal may be in respect of the person as Bastardy Villany Outlawry Excommengement Laity under Age c. in respect of Inability as unlearned c. and if the Refusal before Ecclesiastical Causes as Heresie Schism Want of Learning c. he must give notice to the Patron if Temporal as Felony Homicide or other temporal Crimes or the Party be disabled by Statute or Temporal Law notice need not be unless so provided by the Statutes and the Ordinaries Refusal concludes not the party but he may deny it and then the Court shall be certified by the Metropolitan or if temporal it may be traversed and tryed by Issue and if the party refused be dead it shall be tryed per Patriam least there should be a Failure of Justice because the King cannot examine him 2 Inst 632. 5. rep Speccot's Case Dy. 254. b. 291. b. 6. rep Green's Case 4 rep Holland's Case Dy. 327. 328. 58. Yel 7. If an Alien be presented to a Living the Bishop ought not to admit but may lawfully refuse him 4 Inst 438. One that has Judgment to recover in Quare Impedit is sued to be outlawed Quaere how the King shall have it Whether the King shall have it either by Scir Fac ' against the Plaintiff or Incumbent that is presented by Lapse Beverly against Arch-bishop of Canterbury Ow. 53. Dy. 26. a. 129. 130. 269. a. 283. A Mannor whereto Advowson is appendant the Church is void a Grant of the Mannor which the Advowson passes not the Avoidance neither in the King nor in the case of a common Person for 't is a Chattel vested Dy. 300. a. Next Avoidance is granted to A. and B. and becomes void and then B. releases to A. totum Jus c. and A. being disturbed brings a Quare Impedit in his own Name for by the Release Nichil operatur therefore his Companion shall joyn with him Ow. 65. 32. 1 Aud. pl. 241. Quare Impedit it lyes of a disturbance of a Presentation and Nomination to an Archdeaconry Ow. 99. Sale against Epm ' Litchfield Several have an Advowson to present by Turns and one presents c. if his Clerk be deprived yet it shall go for his Turn unless the presentations c. were all void as 't is for not reading the Act or as in Windsor's Case where one prosecuted upon the Deprivation of another and the Deprivation taken off and the Parson restored by future Sentence and the Advowson is granted over after the Church void by Deprivation quod non est lex For one Grantee cannot release to his Companion Co. Inst 276. b. Ow. 131. Lees vers ' Epm ' Coventry 5 rep Windsor's Case Assize of D. Darrein presentment against several one makes Default if they do not plead in Abatement The Assize shall not be awarded because it cannot be taken by parcels therefore a Re-summons shall be awarded against him that makes Default and the like to the Jury Hutt 3. By an Usurpation upon a Grantee or Lessee for Years the true Patron is out of Possession and the Usurper in possession of the whole Fee so that against him the Writ of Right lies but by Westm ' 25 he in Reversion may have a Quare Impedit whent he Church is void and re-continue it Hutt 66. Hob. 240 322. 1 Inst 249. a. The King having no Right presents one by Lapse the Church is not void as to Spiritual matters to wit to have Tithes c. for to that purpose he is Incumbent but as to hinder the true Patron of his Presentment he is not but the Church void Hutt 66. Hob. 302. He that recovers in a Quare Impedit presents his Clerk and has him admitted without any Writ to the Bishop 't is as good as if he had like one that entered after Judgment without habere facias possessionem Hutt 66. The King presents having no Title the Patron gives another a presentation and then recovered against the King 's Presentee then the presentation was exhibited to the Bishop Issue being if the Church were void when the Patron presented held it was For he presented when the presentation was exhibited and that was after the Judgment and so it had been if it had been exhibited before the Bishop Then the Patron recovers and then exhibited to the Bishop again 't is a good Presentation For the Patron could not revoke or give a new presentation for he had passed over his Title by that Hutt 66. In a Quare Impedit the Plaintiff made his Title from the Colledge of c. and was seized and presented and that after the Plaintiff's Ancestor was seized and presented and that he was attainted of Treason and the Colledge usurped on the King and that afterwards the Attainder was reversed and the Church became void and so it belonged to him to present And the Defendant demurred and had Judgment without making any Title Dy. 24. b. The Church being void the Patron grants proximam praesentationem c. the next Avoidance passes not being a thing in Action but the Grantee shall have the next after 2 Cro. 91. if the Church voids by the Incumbents taking a Bishoprick or Plurality the Grantee must take that Avoidance and cannot have the next Dy. 26 a. 31. Ow. 131. 53. Dy. 121 130 282 283 269. a. 1 And. pl. 32. If Co-parceners agree to present by turns the Composition is exempted by presentment by every one in their Turn and in Quare Impedit afterwards brought he need not mention the Composition because exempted Dy. 29. a. F. N. B. 33. l. One seised of an Advowson grants proximam Advocationem to one and then granted proximam Advocationem to another Fitzherbert held the second Grant void
prout ei bene licuit but not to say per infortunium contra voluntatem suam or casualiter or such like is no good pleading to excuse a Trespass or Wrong done One Train-Band Souldier in Skirmishing hurteth another in Discharging his Musquet who brings Trespass and the Defendant justifies and excuses himself as being a Souldier upon his Duty and upon a Demurrer Judgment for the Plaintiff for tho' the Law be that if two men Tilt or Turney in the presence of the King or two Masters of Defence in playing a Prise the one Kills the other this shall be no Felony So if a Lunatick Kill a Man it 's no Felony because Felony must be done Animo Felonice But yet in Trespass where Damages are to be recovered according to Loss or Hurt it 's not so And therefore if a Lunatick hurt a Man he shall be answerable in Trespass wherein no man shall be excused except it may be adjudged utterly without his Fault If there be a Lease of a House for Years and the Lessor Enters to see if Waste be committed or want of Repairs and then he takes away some of the Lessee's Goods against the Will of the Lessee he shall be punished as a Trespasser ab initio So of one that comes into a Tavern and carries away a Cup for though the Entry were lawful in both Cases at the First yet if they do an evil Act after the Entry it makes the Entry and all the rest unlawful And the reason is for that the Law gives liberty to enter for one intent and he useth the same for another ill Intent The same Law is where Goods are seized for Rent or Damage feasantâ— and the Goods are abused A Man may Distrain in an House if the Doors be open otherwise not but a man may distrain per Ostia senestras so that a Distress taken out of a Window is good You cannot present in a Court Leet any thing that is particular Trespass to particular persons but only such things which are a Common Nusance to all neither is such Offence punishable there As if a Freeholder erect a Dove-house it is only Trespass to those whose Corn they eat and not punishable in the Leet Also every Man's Land is supposed to be Inclosed though it lie in the open Field and if Trespass be done the writ is quare Clausum fregit If a Man doth a Lawful Act which proves unlawful it is Dampnum sine injuria As if in Plowing my own Land the Cattel are so unruly that they carry the Plow upon another's Land against my Will this is a good Justification In all Trespasses there must be a voluntary Act of the Trespasser and a Damage to the other party else the Trespass lies not In Trespass for Beating and Assaulting the Wife the Husband shall have the Action aone without mentioning the Wife because whatever Damages are Recovered shall go to the Baron only In all Actions of Trespass vi armis c. there ought to be an express Averment of the Force in the Declaration and ought not to be expressed with a whereas there was such a Force In an Action of Trespass against one with a Simul cum against others if nothing be proved against the other they may be examined as Witnesses in the Cause And if recovery be had against the Defendant named in the Declaration those in the Simul cum can never be sued afterwards for the same Trespass Trespass against three they plead that they had Common and each put in his Cattel to use it and the plea adjudged single and good enough But in Trespass against one and he pleads that A. had Common and to B. and S. C. and he as their Servant acct ' in c. 't were confused and ill but if he pleads that as a Servant to A. he put in such and to B. such c. 't is good enough vide Title Joyntly and Severally Tr. 15. H. 7. pl. 18. In Trespâ—ss the Defendant pleads that the Plaintiff delivered Goods to the Defendant to carry to such a place The Plaintiff replied de Injuria sua c. per nonnull ' no plea For where the Defendant claims under a Gift or Delivery of the Plaintiff the Plaintiff must answer to the Gift or Delivery by himself and not the mean Conveyance which Bryan granted but held that de Injuria c. was a good Traverse that he delivered them M. 16. H. 7. pl. 2. M. 10. H. 7. pl. 15. H. 15. H. 7. pl. 6. Tr. 15. H. 7. pl. 19. Trespass the Defendant justifies for taking a Distress for an Amerciament as Bay liff of a Court Baron good though he shewed no Warrant in Writing for the Precept may be per parol but because he pleaded not that he returned the Precept 't is ill as if the Sheriff returned not the Cap ' he is a Trespasser Trin. 16 H. 7 El. 9. 15. Trespass and Battery against a Constable he pleads that the Plaintiff was beating another and he came to keep the Peace and laid Hands on the Plaintiff and he beat him and so justifies per Ryder Just 't is double For he justifies as Constable and also in his own Defence Kingsmil contra the Beating had not been Lawful but that he first beat the Constable P. 2 H. 7. pl. 5. Trans ' de domo fracto muris â—jusdem domi the Defendant pleads Not Guilty to the breaking of the House and as to the Wall justified ill For the Wall is part of the House so he cannot be Not Guilty of all and justifie for part for that is repugnant pl. 21 H. 7. pl. 7. Trespass of a thing done at D. and after in plea they alleadge another thing in pursuance of the former to be done at D. and though they say not at D. yet intended so and ruled well M. 21. H. 7. pl. 10. Trespass for Digging c. the Defendant justifies as Commoner to dig a Trench to let out Water wherewith it was usually surrounded in the Winter as well for the saving the Lands as the Commons and by some this seems double for either of them was a sufficient Justification of Issue And where one pleads two things either of which is a plea of it self 't is double Tr. 17. H. 8. pl. 1. He that pleads a Fine in Barr in Trespass or in Warranty must conclude Judgment Si Acco ' and not râ—ly on the Estoppel for that goes to the Realty which is not in question in Trespass Tr. 27. H. 8. pl. 19. Trespass against A. for Imprisonment c. he pleads that the Plaintiff had committed Felony and he prays the Constable c. and thereupon they went and arrested him ill because he answers nothing for himself that he by Command of the Constable c. P. 2. E. 4. pl. 20. Trespass the Defendant pleads that his Father was seized and let to A. for Life to enfeoffee c. And A. died and his
ab Actione praecludi ill being specially demurred on it ought to be petit Judic ' et dampna sua sibi adjudicari Lady Broughton against Holly Tr. 21 Car. 2. B. R. Trespass for Battery Defendant pleads son Assault demesn Plaintiff replies the Defendant would have rid over him and he molliter assaulted the Defendant in defence of his person and so the Battery was of his own Assault qui est idem insultus In the Barr the Defendant demurrs and Judgment for him for the Replication molliter assaulted ill it should have been molliter manus imposuit Jones against Trysillian Tr. 21 Car. 2 B. R. Trespass for taking his Cattel Defendant justifies damage feasant in his Free-hold Plaintiff replies and claims Common to a Messuage c. Defendant rejoyns that he set sufficient Common for all the Cattel levant and couchant in the Messuage Plaintiff demurrs and objected he should have averred sufficient Common to the Messuage for all levant c. for at that time he might not have so many levant as he had right of Common for but adjudged the Rejoynder good Leech vers ' Mickley H. 21 22 C. 2. B. R. Trespass Defendant justifies as Owner of an House and says That long before the Trespass he was et adhuc seisit ' existit and doth not say necnon tempore Transgression ' praedict ' yet per Hob. Winch and Hutton good Grise against Lee Winch 16 17. Trespass for Battery of A. and B. his Servant per quod servitium amisit Defendant justifies because A. and B. would have erected a Building to the Nusance of his Lights and on demurrer adjudged ill because he says not as Servants or by command of the Plaintiff And then he answers the quod servitum amisit which is the Gist of his Action Norris against Baker H. 13 Jac. Bridg. 47. Trespass for entring and breaking his Close and driving his Cattel Defendant justifies as to the Entry and driving the Cattel Issue of it and Verdict but Judgment against him because he proved not the Breach as well as the Entry Praunce against Tuckle P. 8 Jac. B. R. Rot. 138. 1 Bull. 164. Trespass str May Defendant Justifies 7 May quae est eadem c. and on demurrer adjudged a good Plea without a Traverse and if he had Justif ' of the same time he need not say quae est eadem but at another time he must Vasterope against Taylor H. 8 Jac. Rot. 1337. Trespass for Assaulting Wounding Taking and Imprisoning the Defendant quoad the Assault and Wounding pleads Not Guilty and as to the Taking and Imprisoning justifies and on Demâ—rrer ill because he justifies not the Assault and there could be no taking without the Assault and the quoad captionem and Imprisonment does not imply and include the Arrest Wilson against Dodderidge Hill 12 Jac. B. R. 2 Bulstrod 335. Trespass Defendant makes Title by Descent from J. S. to himself as Heir Plaintiff demurrs generally resolved then of the not saying how Heir but forme and amendable Duke of New-Castle against Wright M. 18. Car. 2. B. R. Trespass for breaking six Closes Not guilty to two pedibus ambulando for the rest pedibus ambulando he justifies for a way upon which Issue For the Trespass cum Averiis he pleads want of Inclosure The Plaintiff saith the Inclosure was good and the Defendants Cattel unruly absque hoc that they were out of Repair upon which the Defendant demurrs and for cause shews that the matter of Inducement is idle Opinion of the Court was that 't was good and the Traverse necessary upon that Inducement that an Inducement is not material a man may have many if the Issue offered be single resolved the Replication good Parnell against Row Anno 15 Car. 2. in B. R. Trespass Quare clausum fregit cuniculos suos ad valentiam c. Verdict for the Plaintiff moved in Arrest of Judgment that it ought not to be ad valentiam of a living thing but precii 2. That it ought not to be cuniculos suos resolved by the Court 1. Ad valentiam was but matter of Form 2. That it shall be intended that it appeared upon the Evidence that they were domestick Coneys and that the Jury were directed by the Judge Also that the Jury gave not any greater Damages in Respect of Property alledged by the Plaintiff in his Count. Judgment for the Plaintiff per totam Curiam Sir Orlando Bridgman also declared that the Opinion in 1 Cro. 15 Car. Child against Greenhill that of Deer in a Park or Coneys in a Warren a man might say suos is not Law and contrary to Coke lib. 7. Case of Swans Saywell against Thorpe 16 Car. 2. in C. B. Trespass quare coepit c. 100 Oves Judgment for the Plaintiff Damages 2 d. after which upon another Action for the Conversion it was resolved that the damages were only for driving them away and not for the Conversion 1 Cro 36. Lacon against Bernard He that hath the possession of an Hawk may have an Action of Trespass for striking and killing her 1 Cro. 18. Sir Fran. Vincent's Case Trespass a man after he is arrested upon a Latitat tenders Amends according to 21 Jacobi resolved it comes too late 1 Cro. Wats against Baker 264. Trespass lies of Trespass done in an Hamlet Yelv. Lapworth against Wast fo 77. Trespass the Plaintiff lays it in an Acre bounded c. with Abuttels the Jury found it to be in Dimidio Acrae infrascript ' 't is good also if the Jury had found it to be half an Acre whereas it was assigned an Acre 't were well enough Yelv. Winkworth against Man 114. But in an Ejectione firmae 't were incertain and void Yelv. ibid. 2 Cro. 183. 2. Wager of Law IN Debt for an Amerciament in a Court-Baron 't is said one cannot wage Law But two or three Presidents are there cited where in such Cases Wager has been Mo. Pl. 430. In Debt by an Attorney for his Fees the Defendant cannot wage Law But for Monies laid out by him as a Solicitor he may Rolls versus Jermin Mo. Pl. 500. Tenetur that the Defendant cannot wage Law in Account for the profits of Lands Popworth versus Archee Mo. Pl. 670. A wager of Law may be done by eight ten or twelve hands As the Court shall appoint The Party is to swear directly that he oweth or detayneth nothing The Compurgators that they beleive that he oweth or detaineth nothing Term. Ley. 341. Cooke sayes Debts by simple Contract are forseited by Outlary though it puts by the party his Wager of Law and so he sayes is the latter opinion of the Books and of the Judges now And he sayes in every Quo minus by the Kings Debtor it puts the Defendant by his Wager of Law for the benefit of the King though not party à fortiori where the King is adjudged party Slades Case Co. 4. Rep. 93. a. 95. a b. 9 Rep. 88. a. 89. b.
House c. he cannot but on a Lease of Goods or Chattels he may No Ley gager in Debt for dyet of a Pentioner P. 9. E. 4. Pl. 1. H. 15. E. 4. Pl. 2. Co. 9 R. 87. 6. 19 H. 6. 10. a. Debt on a Contract the Defendant pleads the Contract was made with him and Br. and abates the Writ yet in another Action he may wage Law though herein he confessed the Contract for he may have pleaded it after per Littleton and not denyed ibidem by him In Debt against Baron and Feme on a contract by the Feme dum sola both shall wage though he a Stranger to the Contract for by the Marriage he hath made himself lyable to it And to this last agrees M. 15. E. 4. Pl. 4 Sed vide 33 H. 6. 43. b. If she make default at the day 't is the Default of both and binds the Husband 9 E. 4. 2. 4. b. Debt and Counts of a Retainer to shape and make such Cloaths In this case the Defendant may wage his Law and in similiter not against a Labourer compel to wage by the Statute 1 H. 6. 23. b. Not wage in debt by a Servant for his Wages H. 16. E. 4. Pl. 3. Mo. Pl. 971. Co. 9. R. 88. a. b. Detinue of a chain of Gold of four ounces weight of the value of twenty pounds though the Defendant have and detain them yet if it be but two ounces weight he may wage Law as if it were a black Horse and the Suit for a white one but if the Count were of a thing certain in the quant or qual as six yards of cloath tho he mistake the Price as ten Shillings for eighteen Shillings yet the Defendant cannot safely wage law Count of a Contract for 500 l. It was for 500 l. to be paid in Jewels Defendant waged law 39 H. 6. 34 35. 3 H. 6. 49. b. Count of a Contract for 40. l. plead that it was for 20 l. and wage law for the rest P. 22. E. 4. Pl. 8. 9. Mo. Pl. 1. 48. Vide 39 H. 6. 34. 35. Debt by a Keeper of the Tower for Manger and Boyer for one committed there for Treason Defendant cannot wage law Et dict for debt by a Priest for his Salary Defendant may wage law 28 H. 6. 4. b. In Account of Receipt per auter maines no Wager lyes because the Receipt is the cause of the Action and that 's notorious al pais being per auter mains but in Detinue on a Delivery per auter mains Wager lyes because not the Livery but the Deteiner which is in a manner the cause of Action but in next Case 't is the Usage which makes the law of Wager therefore in debt it lyes in Trespass it lyes not 33 H. 6. 9. a. Debt on a Judgment in Court-Baron the Defendant pleads Nul tiel Judgment 't is no Record therefore tryable per Pais Defendant not wage Law 34 H. 6. 49. No Wager lyes in debt or Arrearages of Account before Auditors but that was not at the Common Law but is given by the Statute of Westminster 2 Ca. 11. But though the Statute gives it only in Case where the Lord sues for the Arrearages against the Receiver yet it seems by Needham and Prisot the Wager lyes not where the Bailiff or Receiver sues the Lord for Surplus on the Account 38 H. 6. 5. 6. Debt for Wages and on a Reteyner to serve in all Occupations the Master wages law because it may extend to other things besides Husbandry which the Reporter holds to be otherwise for the Service and Wages being entire and no Wager for part he thinks there should be none for the rest for Magis dignum trahit ad se minus 38 H. 6. 13. 14. Party wages Law and day given to make it either of the Parties at that day may be excused by Essoin but if either make default it is adjudged against him or if the Defendant do not bring twelve sufficient men 't is a default as if any of them prove Execution Attachment c. Et ibidem if in Replevin the Plaintiff say that the Defendant kept himself out of the way that he could not tender Amends and bring his Suit of it Defendant may wage law of it but if he bring no Suit he need not wage for against one single Voice he need not wage whereby since moy semble he means Proof and so Selden upon Fortescue expounds it vid. Brit. 60. a. Debt and Counts upon a Lease for three years of certain Sheep the Defendant wages law per Cur ' he may though not in a Lease of Land Vid. 9. E. 4. 1. b. 1. H. 6. 1. a. b. No Wager in Law lyes in debt by a Servant for his Wages sed quaere for that seems such a Servant only as is retained according to the Statute 3 H. 6. 33 B. 34. a. Debt and Counts of Reteyner to scald his Hogs and foul by the Year taking 100 s. The Defendant may wage his Law and so he may upon a Retainer to serve him at Plough a year and to find Ploughs c. for these not Reteyners according to the Statute and so of a Reteyner to be his Counsel for a year c. 3 H. 6. 42. One waged law and brought twelve with him one whereof was challenged for that he was under Age and he was tryed by Inspection of Court to be of full Age whereupon the Party made his Law and went quit 8 H. 6. 15. b. Debt of a Box of Writings and Charters and Counts of one Charter in Special To which the Defendant pleaded non detinet and to the rest wages Law bon for if one Count of a box of Charters and shew not in Special he may wage Law as to all for unless one Charter be certainly set out the Box and all counted Chattels Vid. 14. H. 6. 1. a. Detinue of Goods and Chattels defendant wages Law quoad the Goods and pleads to the Charters 44 or 4 E. 3. 41 b. and 19 H. 6. 9. b. Debt Defendant having answered in Court that he bought c. to the use of the King waged Law and was admitted for notwithstanding he acknowledged the debt it being a Contract and he might have paid or pleaded it in pais the Wager allowed simile 11 H. 4. 28 and 3 H. 4. 40. 7 H. 4. 7. a. Account by the Husband or an Abbot and counts of Receipt per manus de Son feme or de Son Comoine good and needs not count of a Receipt by his own hand yet 't is as a Receipt by his own hand and the Defendant may wage Law And so vice versa in Account against Baron or Abbot Count of Receipt per manus del Feme oâ— Cemoine le Defendant and so is 2 H. 5. 2. b. vid. 47 E. 3. 16. 13 E. 4. 8. a. Debt against two one makes default the other wages law and at the day makes it The whole Writ is
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