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
pleaded it at first Also if the Plaintiff plead a Feoffment upon Condition to J. S. and that the Condition is broken and that thereupon he entred the Defendant may say that he released to J. S. after the Condition broken and then he enfeoffed him A Man pleads a Feoffment in Barr in Assize of the Plaintiff and the Plaintiff saith that he Let to him for Life and afterwards he made a Feoffment by which he entered the Tenant may well say that after the Lease and before the Feoffment the Plaintiff releas'd to him This is no Departure because that it is pursuant and yet it might have been said at first 1 E. 4. Quare Impedit against a Bishop he pleads that he claims nothing but as Ordinary and demands Judgment c. The Plaintiff replies that such a day he presented to him such a person whom he refused to which the Bishop rejoyns that the Church was void and shews how and that thereupon he collated by Laps Judgment c. This is no Departure 35 H. 6. In Assize the Defendant pleads a Lease of the Plaintiff for Years which is yet in being the Plaintiff shews the Alienation of the Tenant the Tenant saith that the Plaintiff released to him after the Lease This is a Departure by Marten 3 H. 6. Precipe quod reddat the Tenant pleads that J. S. was seized of the same Lands and that they were devised to him in Fee by Force whereof he entred and gives Colour c. The Plaintiff saith that J. S. was seized and that he died seized and that the Lands descended to him as Son and Heir and that he entred cum hoc that he will averr that the said J. S. was within the Age of 21 Years at the time of the Devise The Tenant rejoyns that the Custom is that every Infant of the Age of 15 Years may Devise and that he was of the Age of 15 Years at the time of the Devise The Court was of Opinion that it was a Departure 37 H. 6. In Assize the Tenant pleaded the Dying seized by Protestation of his Father The Plaintiff said that J. S. was seized and enfeoffed him and so seized c. To which the Tenant replied that his Father by Protestation died seized and that J. S. did abate and enfeoff the Plaintiff and that the Tenant as Heir to his Father entered and was seized by Fortescue This is no Departure because the Tenant hath maintained his Barr and hath only added new Matter to maintain it 37 H. 6. If a Man plead a Gift in Tayl in Barr and the Demandant reply ne dona pas if he shew a Recovery in Value it is no Departure In Assise the Tenant pleaded hors de son Fee the Plaintiff shewed that the Tenant held of him issint de son fee and the Defendant shewed a Release of all Right This is a Departure because this plea was a Barr 5 H. 7. In Formedon the Tenant pleaded ne dona pas the Demandant shewed a Recovery in Value issint dona The Tenant shall not plead a new Barr because that that would be a Departure quod nota 21 H. 6. Reg. 12. In all Pleadings where you claim as Legatee you must surmise the Consent of the Executor as cui quidem dimissioni idem J. S. consentivit After Verdict the Plaintiff dies viz. before the day in Bank in Error brought this is assigned for Error and the Plaintiff per Attornatum suum pleads that he was alive 't was tried and found that he was dead Argued by Mr. Allen That there was no Tryal proper for the Cause for that the Issue was joyned by a Stranger and that there ought to be a Scire Facias against the Executors or Administrators of the Plaintiff and that the Writ of Error is discontinued But per totam Curiam the Tryal is good and the Judgment revers'd for that Error in fait Mich 14 Car. 2. in B. R. Dove vers ' Dinkey Quare Impedit IN Quare Impedit to present by Turns to an Advowson in Gross Three Judges were of Opinion that the Commencement how it came presentable by turns must be shewed But two Judges were of a contrary Opinion Leek against Coventry 3 Cro. 111. A Viccarage and none presented to it for one hundred and sixty Years Resolved that all Viccarages are taken out of the Parsonage and are not remitted to them by Non-usage without some Act. Robinson against Beadle 3 Cro. 873. Quare Impedit by the King against A. he pleads that the King made a Lease for Years to J. S. and during the Term J. S. presented him c. And it was moved that he being Incumbent could not traverse the King's Title without making one for himself but shew that he came in by Usurpation during the Lease but in the Writ it was excepted that the Patron and Ordinary are not named but only the Incumbent which they ought to be in all Cases but that of Collation but because the Defendant shews that he came in during the Term in which Term the King could have no Right it was adjudged for the Defendant Regina versus Middleton vide Co. 7. rep 26 27. 25 H. 6. 62. a. 3 H. 4. 2 3 11. Writ against the Incumbent only adjudged ill and abated by 46 E. 3. vide 7 E. 3 11. 7 H. 4 26. Writ against the Incumbent only good 1 Leon. 44 45 46. vide 47. E. 3. 10 11. Quare Impedtt and Counts of an Advowson appendant that 't is become void and he presented J. S. The Defendant pleads that 't is in Gross and Let to him and that he presented J. S. absque hoc that 't is appendant the Traverse is good but where the Count is of an Advowson in gross c. and the Defendant pleads that 't is appendant there the Presentment is traversable not that it appendant For the Presentment makes it in gross Seignior Buckhurst against Epm. Winton 1 Leon. 154. In a Quare Impedit by Tenant for Life Exception was taken because he counted of a Presentment only in himself and laid not any in his Lessor but adjudged good For the Lessor may lay a Presentment on his Lessee therefore 't is good for the Lessee Palmes versus Epm. Peterborough 1 Leon. 230. Co. 5. rep 57. b. 3 Cro. 518. vid. M. 7 E. 4. pl. 22. con 8 H. 5. 4 Accord Quare Impedit against the Bishop and J. S. and Judgment they joyn in a Writ of Deceit and avoid the Judgment for Non Summons and of that a Writ of Error brought and assigned that they could not joyn and Adjourned Guilliams against Blower sed vide 3 Cro. 65. They joyn in a Writ of Error on a Judgment in a Quare Impedit 1 Leon. 293. One that had a Benefice was presented to another and then purchased a Dispensation it came too late and so the first was void and if that be such as that it avoids the last quaere Vnderhill against Savage 1
is to have Common And here no Land is to be recovered so certain enough Sir Anthony Cope agaiust Temple Yel 146 147. Replevin the Defendant avows Forty shillings Rent for two Acres held of him the Plaintiff replies that he holds them and twenty more of him by 12 s. absque hoc that he holds the two last by Twenty shillings and though objected the plea double traversing that the quantity of the Rent And also that he holds the two Acres only adjudged good because otherwise he could not avoid the false Avowry M. 8. H. 7. pl. 1. Replevin and Avowry for that A. was seized in Jure Ecclesiae and leased good without saying that he was Parson supplied by in Jure Ecclesiae but not in Quare Impedit the Plaintiff that so he is a Parson Imparson ' because till then in that cause he cannot plead in Bar. Rolls against Walters Noy 70. If Cattel or Goods be distrained for Rent or otherwise for Damages then the party whose Goods are fo distrained may make Replevin and must prosecute his Replevin as Plaintiff and the Defendant must avow the taking but if by chance the Plaintiff in Replevin become Non-suit or Judgment against him then shall the Defendant have a Retorn ' hend ' averiorum upon which the Plaintiff in Replevin may bring his Writ of Second Deliverance but if he become Non-suit again or Judgment against him then the Defendant shall have Retorn ' hend ' irrepledgeable and keep the Goods for ever If Live Cattel and Dead Things be Replevied by one Writ as they may the Live Beasts or Cattel must be named before the Dead as thus Quendam Equum suum Catella sua quae B. cepit If a Man distrain Beasts or Goods for his Rent and the Tenants tenders Amends before the Distress is taken The taking the Distress is tortious Mesme le Ley pur Damage fesant But tender after the Distress be taken and before the Impounding the Detainer and not the taking is tortious But tender after the impounding neither the taking nor detaining are tortious for the Tender comes too late In Replevin the Plaintiff is Non-suited and the Defendant had a Writ of Retorn ' hahend ' and enquiry de dampnis the Plaintiff brings Second Deliverance This is a Supersedeas to the Retorn ' hend ' but not to the Enquiry By the Common Law when the Goods or Chattels of any person are taken he may have a Writ out of the Chancery commanding the Sheriff to make Replevin of them and this Writ is Viscontiel and in the nature of a Justicies in which the Sheriff may hold plea to any Value and in all Cases but when the Defendant claims Property and when more than one Live Beast is taken then the Form of the Writ is quod replegiari faceret J. S. averia sua and when only one Beast is taken then the Form is quod replegiari faceret J. S. quendam Juvencum suum vel bovem suum c. And when many Dead Chattels are taken then the Writ shall be quod replegiari faceret Bona Catella sua and the Plaintiff must ascertain them in the Declaration But if but one Dead Chattel be taken then the Writ shall be quod replegiari facias J. S. quoddam Plaustrum cum furnitura c. By the Statute of Marlbridge cap. 21. the Sheriff upon Plaint made to him in Court or out of Court ought to make Replevin of the Goods or Chattels taken In Replevin the Sheriff ought to take two sorts of Pledges by the Common Law Pledges de prosequendo and by the Statute Pledges de Retorn ' habend ' Co. Com' 145. b. A Man who hath but only a special Property may bring a Replevin as when Goods are pledg'd to him or Beasts are taken by him to compost his Land and the Writ may be General or Special 41 E. 3. 18. b. 22 H. 7. 14 b. 11 H. 4. 17. If this Plea be before the Sheriff by Writ then it may be removed into the Kings Bench or Common Pleas by pone by the Plaintiff without Cause and by the Defendant with Cause mentioned in the Writ But if it be before the Sheriff by plaint then it may be removed by Recordare issuing out of Chancery by the Plaintiff without shewing cause and by the Defendant if he do shew cause in the said Writ A Replevin lies of such things whereof a man hath but a qualified Property as of things that are ferae naturae and are made tame so long as they have Animum revertendi le Case de Swans in Co. 7. rep So Replevin lies of a Leveret or of a Ferret 2 E 2. Fitz. tit Avowry 182. Also Quare cepit quoddam examen Apium c. Register Original fol. 81. In many cases this Action or Trespass lies at the Election of the Plaintiff but against the Lord Trespass lies not 7 H. 4. 28. b. 6 H. 7. 9. A Replevin lies against one de Averiis capt ' per ipsum simul cum alio Co. Ent. 600. 2 Inst 533. So it lies de averiis capt ' detent ' quousque c. de aliis averiis capt ' adhuc detent ' Rast-Entr 567. 572. And in this Case when the Plaintiff declares that the Defendant yet detains the Cattel and the Defendant appears and makes Default the Plaintiff shall recover all in Damages F. N. B. 69. b. Co. Ent. 610. When the Beasts are chased into another County after they are taken the party may have a Replevin in which of the Counties he pleaseth or in both Idem 65. 6. When the Cattel of several men are taken they shall not joyn in Replevin nor is it a Plea to say that the property is to the Plaintiff and another Co. Com. 145 b. In Replevin the Plaintiff ought to alledge a place certain where the Cattel c. were taken When the Plaintiff is Non-suited before Declaration and he sues Second Deliverance and is Non-suited also again before Declararation the Defendant shall have the Cattel irreplegiable without any Avowry c. Dyer 280. Scire Facias SCire Facias by the King to repeal a Patent the Defendant pleads a Plea whereon the Attorney General demurrs the Defendant joyns in Demurrer and pleads over part of a Statute and Informand ' Curiam Co. 8. rep 12. b. Scire Facias against an Administrator who pleads a special Plene administravit Replic ' quod devastavit and says not who devastavit issue quod praedictus J. S. non devastavit found for the Defendant the Plaintiff moved in Arrest c. 't is not said who devastavit so might be the Executor at Age but per nonnullos the Plaintiff shall not after Issue find a Fault in his own Replication Oxford against Rivet and 1 Cro. 135. Plaintiff after Verdict when no Advantage of his own ill Declaration 1 Cro. 56. 66. vide Co. 7. Rep. 4. 6. 5. rep 39. b. 8. rep 59. a. 1 Cr. 39. Scire Facias
he had his possession excused him Scable against Avery 1 Cro. 69. In Trespass Quare clausum fregit in Dale the Defendant justifies in Sale absque hoc that he is Guilty in Dale It seemed to be an ill plea amounting but to the General Issue but Fitz-herbert douts because Dale and Sale may be adjoyning and it may be doubtful in which the Close lies Dyer 19. a. In Trespass in several things in a Park the Defendant made several Justifications and pleaded that quidam J. S. granted c. quidam J. S. granted c. and so began every plea with quidam J. S. which shall be intended several men and it all being about one Office 't is ill for several men could not severally grant him it 3 Cro. 401. quidam J. S. intended the same person that it was mentioned before And so Sti. 329. and 18 E. 3 49 b. and Brid 100. Hat 84. quidam found by Special Verdict doubted if good In Trespass the Defendant pleads a special plea and justifies the Plaintiff replies de Injuria sua propria but did not Traverse absque tali Causa Issue and Verdict for the Plaintiff Judgment staid and Repleader awarded For here is no Negative but an Affirmative of the first Declaration but no denying the Defendant's plea by the Impa ' Jennings versus Lee M. 24. Ca. 1. B. R. Sti. 150 151. In Trespass the Defendant justifies his Entry by Vertue of a Lease for Years and adjudged no good plea amounting but to the General Issue Jaynes Case 1651. in B. R. so 2 Cro. in Trover the Defendant pleads Sale in Market Overt not good in Trover The Defendant pleads that A. was possessed of Goods and sold them to the Defendant and retained them in his Hands and sold them to the Plaintiff and they cme to the Defendant's Hands and he converted ill amounting but to the General Issue and leave no Color for the Plaintiff's Action whereupon a Writ of Enquiry was awarded and not ruled for that the Defendant pleaded Not Guilty Sti. 355. 2 Cro. 165 319. Hob. 187. 1 Cro. 112. 2 Cro. 146 147. 169 435 532. 555. In Trespass the Defendant pleads the Statute of Limittions the Plaintiff replied that he sued an Original within six Years Et hoc pet ' quod c. an ill Conclusion For thereupon he lies upon the Defendant and binds him to an Issue which he cannot pass over but he should have ordered his Plea Et hoc paratus c. Whitehead versus Buckland Hill 1651. B. R. Sti. 401 402. Yel 138. Trespass for taking and Imprisoning him such a day the Defendant justifies by Warrant on a Capias ad Satisfaciend ' the Plaintiff shews that after the Writ issued and before executed he paid the Money to the Sheriff who gave him a Supersedeas to all Bayliffs c. and the Defendant Arrested him whereupon he shewed him the Supersedeas â—ho yet detained him an Hour The Defendant says he was not Letter'd and took that time to advise Whereon 't is demurred and adjudged for the Defendant not on the Matter in Law but the plea for the Declaration charges him with a taking and imprisoning and the Replication with a detaining only so a Departure Stringer against Fanlake 3 Cro. 404. Trespass for breaking two Gates and three Pearches of Hedging the Defendant prescribes to go in Preambulation that way in Easter Week and given the Plaintiff two Gates and three Pearches of hedging he broke them and upon Demurrer adjudged the Plea ill because he says not praedictas and the two Gates and the three Pearches may be other than those laid in the Declaration Gooday against Mitchel 2 Cro. 441. In Trespass against several that entred to take the Corn whereto one of them had Right upon the Determination of a Lease depending on a Lease for Life ended the Defendant pleads Not Guilty and all the matter found specially though their Entry were lawful as in the Right of one yet it being by a License in Law which must have been pleaded and is not to be given â—â— Evidence or by a special Verdict for that Cause Judgment was against them for their entring though against the Plaintiff as to the taking the Corn. Sir Henry Knivet against Powle c. 2 Cro. 463. 464. In Trespass the Defendant justifies Damage feasant the Paintiff made a new Assignment the Defendant justifies there for an Herriot the Plaintiff demurred supposing it a Departure but adjudged not for by the new Assignment the Barr is out of doors and that in the Replication is as of a new thing and could not be pleaded otherwise for it may be he took one on Damage feasant and the place mentioned in the Barr and another for an Herriot in the Replication Odyham against Smith 3 Cro. 589 590. Trespass for taking an Hide the Defendant justifies because the Mayor c. of London is seized of a House called Leaden-Hall and 't was there Damage feasant for he by c. The Plaintiff replies that Leaden-Hall is an ancient Market on Fridays and he bought it there and had it on his Back to carry away and though objected the Replication not good because he concludes not que est eadem c. because he varies from the manner of the Caption and by his Plea takes from the Plaintiff his Authority yet resoplved good without it agreeing with him in the time and place of the Caption Sawer against Wilkinson 3 Cro. 627 628. In Trepass one as Bailiff pleads quod presentat ' existit that such an one surcharged the Common and for that was amerced therefore distrained 't is good without saying in facto that he did surcharge the Common for he is to take notice of no more than what is done in Court Volleston against Alimond 3 Cro. 748. 386. com 1. Leon. 292. 2 Cro. 582. Trespass for taking two Hides the Defendant justifies for a Distress the Plaintiff replyed that he tanned them the Defendant rejoyned they could not keep else he did it to save them ill and a Departure Duncomb against Reeve and Green 2 Cro. 783. Trespass the Defendant pleads that he is Clericus seisitus de Rectoria in Jure Ecclesiae and prescribes that he and all his Predecessors Parsons of that Church have had a way and so he says not that he was Parson and so it was objected he had not enabled himself to make a Prescription yet saying he is seized Jure Ecclesiae it tant ' amounts and is good Dom. Sandr against Pender 3 Cro. 8. 98. In Trespass the Defendant justifies because per quandam Indenturam A. bargain'd and sold Land habend ' to B. the Plea ill because not said in the Premises to whom he being c. but 't is the habend ' and the Granter and Grantee must be named in the Premises but because the Plaintiff replyed Quod bene verum that A. granted to B. that is a Confession to whom the Grant was and mends it
and afterwards the Defendant said of him He is a forsworn Rogue in taking an Oath at the Sessions House an Action lyes for these words although it was objected in Arrest of Judgment that if he swore falsely before an Inquest of Office it is not within the Statute of 5 Eliz. for admit it were not yet they all agreed that for such forswearing at the common Law he may be indicted and therefore if it be out of the Statute yet an Action lyes for this Slander Mich. 13. Car. Pruer against Moadman If a man saith of an other He is a Perjurer he swore once for me and the second time hath perjur'd himself with J. S. a Stranger Action lyes Mich. 9. Car. in Camera Scaccarii Adjudg'd in Writ of Error If a man saith of J. S. I will prove J. S. forsworn and that ten men can justifie and I could prove him perjur'd if I would The Action lyes not for the first words but it lyes for the latter for it is a great Slander to be reputed that it is in the power of any man to prove him perjur'd Pasch 5. Jac. B. R. Whitacre against Loverden per Cur. If a man saith to another I did not know that Mr. W. was your Brother he hath forfworn himself and I will prove him perjur'd or else I will bear his Charges Action lyes for these words although they are spoken conditionally to beaâ— his Charges if he did not prove him perjur'd Mich. 37. 38 Eliz. Woodroffs Case adjudged If a man saith of an other That he was perjur'd and he would prove him so by two Witnesses Action lyes for these words although he doth not say in what Court he was perjur'd or how Trin. 39. Eliz. B. R. Rayners case adjudged If a man saith to an other Thou wast perjur'd in a Court of Tottenham Action lyes for it shall be intended a sufficient Court to hold Plea Pasch 40. El. B. R. If a man saith to another Thou art a forsworn Knave and wast indicted by twelve men and hast compounded for it Action lyes for all being laid together it appears that he intended a Perjury in a Court of Record Mich. 1. Car. Gilbertin against Row adjudged in Arrest of Judgment If a man saith to another Thou art a forsworn Knave and I will prove thee forsworn in the Ecclesiastical Court Action lyes for these words for the Ecclesiastical Court is a Court known Pasch 40. Eliz. B. R. Shaw's Case adjudged To say to a man Thou art a Whore master or to a Woman Thou art a Whore no Action lyes because that it is merely spiritual without any temporal loss Trin. 11. Jac. B. R. Matthew against Croze per Curium 2 Cro. 323. To say of marryed man He hath had two Bastards thirty six years agone and he should pay for keeping of them no Action lyes altho he aver that by force of those words there was Contention between him and his Wife and he was in danger to be divorc'd for there is not any temporal Loss and the Offence was pardon'd by many general Pardons it being 36 years before Pasch 16. Jac. B. R. Randal against Beal adjudged in Arrest of Judgment He had a Bastard-child by Jennings his Wife of Northampton by speaking of which words the Plaintiff saith in his Declaration that he refused to marry with A. S. whereas it ought to be that A. S. refused to marry with him The Action lyes not Mich. 11. Car. B. R. Carters Case per Cur ' If a man saith to a Feme Covert Thou bold Cullobine-bastard-bearing Whore thou didst throw thy Bastard into the Dock at White Chappel no Action lyes for these words altho it may be intended that she had a Bastard by the said Cullobine who in truth was her husband before Marriage inasmuch as there appears not to be any temporal damage by it by loss of any Marriage but only a Punishment by the Statute for having a Bastard which is not sufficient cause to maintain the Action Hill 10. Car. B. R. Cullobine ux ' against Vinor adjudged in Arrest of Judgment In an Action upon the Case if the plaintiff declare that whereas divers persons conabantur desiderabant to marry their Cosins and Friends to him the defendant being a woman on purpose to scandalize the Plaintiff and to hinder him from marrying with any Woman preferr'd a scandalous Libel against the Plaintiff in the Spiritual Court thereby charging him that he under colour of being a Suitor to her in the way of Marriage resorted often to her in the Night and lay with her and begot a Child of her body and after published and affirmed the same matter before divedrs persons falsly and maliciously whereby the plaintiff was so much scandalized that all honest persons having the fear of God before them aliquem mulierem de filiaâ—us aut consanguineis suis in legitimo Matrimonio cum quaerente copulari jungi semper postea hucusque omnino recusaverunt adhuc recusant And upon Not guilty pleaded the Jury found a special Verdict scil that the defendant preferred the said Famosum Scandalosum Libellum c. and that she afterwards at the Sessions of the Peace being examined who was the Father of the said Child begotten of her body said and affirmed that the Plaintiff was and that she did affirm it falso injuriose of the Plaintiff and that by reason thereof the Plaintiff was much scandaliz'd in his name and Fame and that all honest persons having the Fear of God before them Aliquam mulierem de filiabus consa guineis suis in legitimo matrimonio cum quaerente copulari jungi semper postea hucusque rccusaverunt adhuc recusant The Action in this case lyes not upon this special Verdict because here doth not appear any malicious Prosecution and here there is not alledged or found any loss of any particular Marriage or that he had any Communication of any particular Marriage and this general matter That all honest persons refuse by reason thereof to marry their Daughters or Cosins to him is too general Mich. 11. Car. B. R. intâ—r Norman and Simons per Cur. Adjudged in the Exchequer Chamber and the Judgment given è contra in B. R. reversed accordingly If a man saith of another that hath Land by Discent that he is base born no Action lyes for these words taken in mitiori sensu are not actionable Mich. 3. Jac. in B. R. per Curiam If a man saith of the Son and Heir apparent of J. S. that he is a Bastard no Action lyes because he hath no prejudice by it yet Mich. 3. Jac. in B. R. per Curiam If a man saith to a woman Thou hadst a Bastard no Action lyes because it doth not appear thereby that he intended that the Bastard was chargeable to the Parish in which Case a corporal punishment is to be inflicted by the Statute Hill 5. Câ—r B. R. Lightfoot against Pâ—got Rot.
THE TOUCHSTONE OF Precedents Relating to JUDICIAL PROCEEDINGS AT Common Law By G. F. of Grayes-Inn Esquire In magnis voluisse sat est Hor. LONDON Printed for Awnsham Churchill at the Black Swan at the lower end of Paternoster-Row near Amen-Corner 1682. TO THE READER NOtwithstanding the present Age hath so plentifully abounded with Books of Pleading in Publick yet certainly there hath been as manifest a Deficiency of some good Directions for the Understanding them tho' perhaps one Reason hath been for that Pleading is esteemed by the Learned the most difficult part of the Study of the Law and therefore Collections of this Kind more liable to the Censure of the Over-critical 'T is true there are two Tracts extant upon this Subject but it happens so unluckily that one is but the particular Observations of a single Person in part of his Time at the Bar and the other as Antique or Obsolete as the Language it is writ in and much wanting the finishing hand of the Designer Such hath been our misfortune as to this Subject and we may well deplore our ill fate that none of the Learned Gentlemen of the Long Robe hath yet given us their Rules and Methods on a Subject so Excellent as the Incomparable Littleton doth Characterize it viz. And know my Son that it is one of the most honourable laudable and profitable things in our Law to have the Science of good Pleading in Actions Real and Personal and therefore I counsel thee especially to employ thy Courage and Care to learn it The Reader will here find most Excellent Directions to guide him in his Practice through the Difficulties of the several Parts of Pleading wherein the Nature of Writs Counts Barrs Pleas Replications Rejoinders Issues as also Disclaimers Discontinuances Estoppels Conclusions Departures Double Pleas c. are Succinctly and Methodically handled from Authorities in the Law both Ancient and Modern far more useful and beneficial than any Collection hitherto Published as will sufficiently appear to any intelligible Person upon a strict and serious perusal of the Book it self Abatement of Writ or Count. IN Debt by two Executors one was summoned and severed and dyed and it was adjudged that it should not abate the Writ Co. 10. Read and Redman's Case If there be two Joynt-Tenants and the one is summoned and severed and dyes the Writ shall abate but in a Stire facias the death of one after Summons and Severance shall not abate the Writ Co. ib. Where note the difference between a Writ Original and a Judicial Writ Two Coparceners one is summoned and severed and hath Issue and dyes there the writ shall abate for that his Issue hath Title to the Moiety Co. ibid. But if one of the Coparceners takes husband the writ shall not abate In all Actions personal or mixt where the intire thing is to be recovered as in Quarâ— Impedit Detinue of writings and the like there after summons and severans the death of one shall not abate the Writ Also the death of one after Judgment in personal Actions shall not abate the writ although there be no severans Co. ib. Where the Writ goes in discharge as an Audita Querela and the one is summoned and severed and dies the Writ shall not abate Co. ib. Note In all personal Actions where no severans lyes there the death of one of the parties shall abate the Writ but not if it be a Judicial Writ after Judgment Co. ubi supra In Formedon against divers some plead Non tenure and others take the Tenancy upon them intirely the writ shall not abate and those who plead Non tenure shall not have Judgment 22 E. 4. 4. 4 E. 4. 33 a. Stat. 25 E. 3. 13. Misnosmer in a Scire facias shall abate the writ 9 E. 4. 35. a. If a Praecipe be brought of a Mannor and 20 s. Rent it is a good Plea to say that the Rent is parcel of the Mannor So in Formedon for Land it is a good plea to say that the Demandant hath brought another Formedon of 20 s. Rent issuing out of the same Land 3 H. 7. 3. A Writ was brought against A. Rector of B. de placito debiti 100 s. The Defendant pleaded That die impetrationis predicti brevis he was commorant at C. in another County but the Court would not allow the Plea because a Rector is always supposed to be resident upon his Benefice quod nota So a man that hath two Benefices shall be intended to dwell upon them both although he doth not deny that he is Parson 10 H. 6. 8. Co. 11. Magdel Colledg Case In a Writ of Right of Advowson against A. B. Dean of C. he pleaded That by Authority of Parliament the Corporation was defeated and avoided and it was held by Brian to be a good Plea 4 H. 7. 7. Rast Entr. 101 182. In Assise it is a good plea to the Writ to say that the Plaintiff was seised of the Freehold of the Lands in the Plaint but in a Forcible Entry it is no plea to say that he was seised the day that the Writ was purchased 5 H. 7. 41. Death or Coverture at the time of purchasing the writ shall abate the writ de facto but Coverture afterwards makes it but abateable 32 H. 6. 11. 3. Br. 138. Co. Entr. 173. Rast Entr. 107 108 126 161. It is no Plea to the Writ to say that the Summons were of other Lands for the Defendant may wage his Law de non Sum. 37 H. 6. 26. A Quare Impedit was brought and the Plaintiff made his Title to the Advowson as appendant The Defendant said that a Moiety was in Gross and it was doubted whether this Plea should go to the Writ or to the Action 32 H. 6. 10 11 12. A Quare Impedit is brought against the Incumbent without naming the Patron he being alive this makes the Writ only abateable and is not good upon a Writ of Error In a Writ of Quare Impedit or other Original Writs the death of the King before Judgment shall abate the Writ de facto but it is otherwise where the Defendant dies But in an Information for the King or for the King and the Informer upon the death of the King before Judgment the whole Proceedings are discontinued but the Information it self shall stand good and Process shall be awarded against the party de novo So of Indictments that are not for Felony or Treason for after Trial they are within the Statute of 1 E. 6. ca. 7. When the Original bears Teste before the cause of Action accrues the Writ shall abate de facto propter defectum Anderson 1. 241. a. 96. Rast Entr. 459. Co. Entr. 624. Brown's Entries 1. Part Tit. Abatement The death of the Plaintiff of Plaintiffs or of one or more of the Plaintiffs where there be many shall abate the writ Rast Entr. 416. Fitz. N. Br. 35. B. Where it appears by the plaintiffs own shewing that he had
not an Action for the whole or for part the Writ shall abate de facto as in Quare Impedit if it appears by the plaintiff's shewing that the Church is full by his own Presentation the Writ shall abate de facto Some Pleas abate the Writ in the whole and some but in part As In Trespass against two one appears and pleads that the other was dead die impetrationis brevis or that there was no such person in rerum natura there the whole Writ shall abate But it is otherwise where one of the Defendants dyes after purchasing the Writ 18 E. 4. 1. 2 H. 7. 16. Rast Entr. 126. Trespass against husband and wife after Verdict and before the day in Bank the husband dyes in Cro. Caroli 509. it is doubted if the writ shall abate but it is agreed there That if the wife dyes it shall not abate against the husband But in case for Slander by the wife the writ shall abate after Verdict Heb. 129. Account against two one dyes after the first Judgment the Writ shall abate only against him In Right of Advowson the Defendant pleads that the Plaintiff was seised of the sixth part die impetrationis brevis this shall abate the whole Writ 5 H. 7. 7. In Debt upon an Obligation the defendant pleads That after the writ purchased the plaintiff had received parcel and shews an Acquittance the whole writ shall abate and yet it is a good plea in barr for that part 5 H. 7. 41. a. Rast Entr. 160. 7 E. 4. 19. 15 H. 7. 10. 3 H. 7. 3. Quere if in Debt upon simple Contract the plaintiff receives part pendente brevi if it shall abate the writ In Debt upon an Obligation with Condition to deliver 20 Quarters of Barley the defendant pleads in Abatement that pendente billa the plaintiff had accepted 15 parcel of the said 20 and adjudged to be an ill Plea because it is collateral and not parcel of the Sum contained in the Obligation 3 Cro. 253. Where the defendant pleads matter that entitles the plaintiff or demandant to a better writ it shall abate the other as in a Writ of Ayel Seisin of the Father So in Mortd ' ancestor his own Seisin c. But in Formedon or Writ of Right darrein Seisin is no Plea for in Formedon the Gift and not the Seisin is the Title and it is not within the Statute of 32 H 8. of Limitations to be brought within 50 years 12 Eliz. Dyer 290. 4 E. 4. 32. b. If the Tenant brings a Writ of Mesne of two Acres and depending the writ he alieneth one of them the writ shall abate The same Law in an Action of Wast brought of two acres if the plaintiff aliens the Reversion of one of them the writ shall abate Where it appears that the writ was never good in part it shall abate in the whole As in Trespass against 3 if one be dead after the writ purchased the writ shall abate in the whole per 7 E. 4. The same Law if Trespass be brought against three and one saith that there is no such Name in Rerum Natura as the third person's name Judicium de Brevi if it be found the Writ shall abate in the whole because that I have joyned with me such a person who hath no colour or cause of affirmance my affirmance shall abate Where the writ is good for part and for part shall abate As in Debt upon Obligation against two they both deny the deed and it is found the deed of one of them and not of the other yet the Plaintiff shall recover against him whose deed it is 40 E. 3. Praecipe quod reddat against Tenant for life the Reversion descends to him depending the writ the writ shall not abate Misnomer in Trespass shall not abate the writ but only against him who pleads the Plea 5 E. 4 2. 13. 2 H. 7. 16. 33 H. 6. 23. A Praecipe is brought by three joyntly several Tenancy in parcel or in the whole is pleaded by one of the Tenants it shall abate the whole Writ and against all Rast Entr. 248. 270 1 2 3. 364 5. 282. In Right of Advowson against two as Jointenants the death of one shall abate the writ but secus in Assise of Novel disseisin or Mortd ancestor for there it sufficeth if there be any Tenant to the Freehold Cro. Car. 574 583 Rast Entr. 107. In an Appeal against two no such person in Rerum Natura as to one shall abate the whole writ but it is otherwise of the death of one as it seems 29 H. 7. 21. 2 H. 7. 8. But it is otherwise in an Assise or Writ of Dower as in Pollard's Case Com' 89. b. In Trespass in F. and H. the defendant said that there is not any such Vill or Hamlet in the said County and the better Opinion was That this Plea shall abate the whole Writ 4 E. 4. 33. a. Co. Lit. 155. b. Rast Entr. 108 298. Co. Entr. 121. But Quaere how it should have been tryed for it seems by a Jury of the Visne or Neighbourhood of F. Debt against two Executors one said That whereas he is nam'd of S. that he was of D. the day of the Writ purchas'd and prayes Judgment of the Writ and agreed That if the Plea was found for him that the Writ should abate against both and yet the other shall answer but the other plea shall be first tryed 21 H. 6. 4. Rast Entr. 108 295 298 299. 160. In Trespass against two one pleads that the place in question is within his Fee and demands Judgment of this writ quare vi et armis the writ shall abate against him only So where the one is Feme covert Jointenancy in the Demandant or Coparcener shall be pleaded in Abatement 22. E. 4. 4. 2 H. 7. 16. Cro. Eliz. 554. Rast Entr. 615. In a Quare Impedit against two one pleads that there was no such Church as was named in the Writ the other pleaded that there was no such Bishop of Lincoln as was there named and Issue was joyned upon the first Plea but to the second Plea the Plaintiffs demurred and the first being found for the Defendant the whole Writ did abate Hobart 250. In a Writ of Error the death of one of the Plaintiffs shall abate the whole writ Some Pleas in Abatement go only to the person of the plaintiff or defendant others to the Writ or Action As Excommunication in the Plaintiff or Demandant may be pleaded in disability of his person but every Excommunication shall not disable As if a Major or Bailiffs and Communalty or any other Body aggregate of many bring their Action Excommunication in the Major or Bailiffs shall not disable them because they sue and answer by Attorney but it is otherwise of a sole Corporation So if Executors or Administrators be Excommunicated they may be disabled for every one that hath to do with aâ—person Excommunicated either by commerce
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
point of the Action as in Debt upon a Lease he may plead non dimisit In Debt for Arrearages of Account he may plead non computavit but in Debt for Money or Wares sold to him he may plead non debet and traverse that he sold them Dyer 121. b. In Account the Defendant pleads ne unque Receiver and waged Law thereon and had day and at the day would have waved his Law for part and confessed the Action for it and waged Law for the Residue per Curiam he cannot without the Plaintiffs assent Dy. 261. a. 'T is held that at the Common Law he that waged Law in a Court of Record was to bring with him Fideles Testes wherewith Glanvil agrees Lib. 1. C. 9. But in inferiour Courts one might wage Law without Witnesses to prevent which was Magn. Ch. 28. made Nullus Ballivus ponat aliquem ad legem c. sine testibus fidelibus ad hoc inductis Others hold that Ballivus there extends to all Judges Co. 1. Inst 168. b. An Infant cannot wage his Law but the Husband and Wife for the Debt of the Wife may 18. E. 3. 53. a. A Mute wages Law by Signs Co. 1. Inst 172. Wager of Law is not allowed in any case where a Contempt Trespass Deceit or Injury is offered but 't is allowed in some Cases in Debt Detinue and Account 't is not allowed when there is a Specialty Co. 1. Inst 295. a. One Infamous cannot wage Law nor an Infant but a Femâ— Covert with her Husband may No Wager lyes where the Suit is for the King or his Benefit by Quo minus no Wager against an Infant An Alien must wage Law in his own Language No Wager against Receipt Pâ—r auter maines on Account unless his Wives or his Companion Bailiff of a Mannor cannot wage Law in Account in Debt for Rent or nue for a Lease no Wager because sounding in the Realty It lyes in Debt for a Fine in a Leet because a Court of Record otherwise for an Amercement No Wager in Debt upon Account before Auditors otherwise if but one Auditor No Wager in Debt by a Goaler for Victuals nor against an Attorney in Debt for his Fees nor against a Servant retained according to the Statute in Debt for his Wages One charged as Executor c. shall not wage no Wager in Debt for a Penalty given by a Statute Co. Ent. 118. Pl. 1. Error of a Judgment against an Executor in Bristol upon a Concessit solvere per Custom there to pay a Debt of the Testator by simple Contract because it takes from the Wager of Law Cur ' advise c. Wigg against Roberts H. 22. C. 1. b. r. Rot. 956. Pascal against Spurning p. 1649. b. r. Rot. 75. Sti. 145. 198. 199. 228. In Debt against Baron and Feme for Beer sold to the Feme dum sola they waged Law So note he waged Law for the Defendant Hucks against Holmes 3 Cro. 161. Debt against an Executor for Money awarded to be paid by the Testator it lyes not for the Testator might have waged his Law which the Executor cannot Hampton against Bower Sed vide Latch 213. Symonds Case no Wager of Law against an award P. 1. H. 7. Pl. 18. 13. H. 3. Noy 96. No Wager against an Award because the third Person cannot 3 Cro. 557. 600. 11. H. 4. 56. b. Wager in Debt for the Son award In Account against A. as Bailiff of his Mannor of D. the Defendant waged Law and had day to make it but at the day 't was ruled that Ley gager lyes not in this Case being a matter tryable per Pais Archees Case 3 Cro. 579. Debt on a Contract against two one pleads Nil debet per Patriam the other waged Law he cannot but must plead per Patriam being joyntly concerned in one Contract 3 Cro. 645. Debt sued by one in Chancery a Servant to the Lord Keeper Defendant as to part waged Law and to the Residue pleaded Nil debet per Patriam And being sent into the King's Bench 't is doubted if he may make his Law good but de bene esse it was done Audley against Franke. 3 Cro. 648. In Debt for Money on sale of Land doubt if the Defendant could wage Law being on a real Contract and resolved he may and he did make his Law Miller against Eastcrowe and so 't is held by Newton 22 H. 6. 11. a. and not denyed 3 Cro. 750. In Account against one as Bailiff he cannot wage his Law but as Receiver he may Sheffeild against Barnefield Note it was Account against him as a Bailiff of Towngoods as Merchandize not a Bailiff of a Mannor 7 Cro. 790. Debt against a Defendant for his Dyet he would wage his Law but could not and pleaded ad Pais Bish against Walford vid. 39. H. 6. The Court divided in this point H. or E. 19 H. 6. 10. a. Per totam Curiam he may wage in Debt for Dyet 3 Cro. 818. In Account upon a Receipt by the hands of the Plaintiff's Wife the Defendant was to wage his Law because that is not a Receipt per auter maines upon a Receipt by the hands of the Plaintiff's Wife they being one Person Goodrick's Case 3 Cro. 919. In Debt against the Abbot of D. on a Contract by the Predecessor for Goods that came to the use of that House the Defendant would to wage Law Et per opinionem Curiae he may and vide there divers Cases where one may wage Law on anothers Contract Prior de Dunstable's Case P. 1. H. 7. Pl. 18. M. 13. H. 7. Pl. 2. H. 22. E. 4. Pl. 39. H. 6. 22. a. In Detinue of a Bailment per auter mains the Defendant may wage Law so in Debt on a Contract per auter mains otherwise on Account on a Receipt per auter mains for there the Receipt is traversable but in the first Bailment 't is not but the Detinue M. 18. H. 8. Pl. 15. In a Writ of Right of Advowson Grand Cape issued for default the Defendants came and offered to wage Law of Non-Summons and because some said the Writ was peremptory so as he could not have another the Ley gager was respited Tr. 27. H. 8. Pl. 2. In Account upon a Receipt at the Plaintiff's hands though by Writ the Defendant shall wage his Law and by Detinue upon a Bailment by deed for he might take them again and 't is that Detinet is the cause of Action not the Bailment Er. 27. H. 8. Pl. 14. Debt against J. S. he waged Law and at the day appeared to make it the Plaintiff said there is J. S. Senior and J. S. Junior and the Action brought against the elder and this is the younger and in tant ' the elder makes default prays Judgment Er. 5. E. 4. Pl. 22. In Debt for dyet the Defendant may wage Law whether the dyet were for himself or another 22. H. 6. 13. b. But on a Lease of a