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
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
because he cannot have the next Avoidance and so is the second part of Croke 691. Shelley's Case and that if one grants a third Avoidance and the Woman recovers that in Dower the Grantee shall have the fourth Co. 1. Inst agrees with three Cro. grantee of proximam Advocationem cannot have the second where one is granted before Dy. 35. a. b. 1 Inst 378. b. 379. a. 3. Cro. 790. 791. One had the Nomination of a Church to an Abbot and the Abbot to present the Church being in the King's hands he presented without nominating the Party may have a Quare Impedit against the Incumbent without naming the King for it lies not against the King and he that had the Nomination had the Patronage Vide Mo. pl. 147. Vide 14. H. 4. 11. He that has the Nomination brings the Writ Quod permittat nominari the Writ abated for it should have been nominare 1 H. 5. 1. b. Dy. 48. a. 1 Cro. Daviston against Yates F. N. B. 33. b. 14 H. 4. 11. Two Parceners the younger in Ward the Guardian marries the eldest and presents in both their Names the Church voids again and whether the elder Sister shall present as in her Turn for the younger quaere Dy. 55. a. The Jury finds the Church full of a Stranger presented by one not party to the Writ and that ex officio yet good Dy. 77. a. Co. 6. rep 52. a. In Quare Impedit one made Title to a fourth part of the Church in Grosle and that he presented and shewed that others were seised of the other three parts as appendant to certain Mannors and they presented and their Clerk dyed and so it belongs to him to present Dy. 78. b. Quare Impedit by the King the Bishop makes Title to a Stranger and he permitted a Lapse then the ordinary presented the Clerk pleads that he is Parson Imparsonee of the Presentment in causa forma preallegata It seems that the Plea by the Bishop that he presented c. is good enough though indeed he collated but the Clerk's Plea is per totam Curiam uncertain and void for in causa preallegata cannot refer to any thing in his own Plea because nothing alledged and to the Ordinary in cannot because to the Ordinary he is a Stranger not a Servant p. 14. H. 7. Pl. 4. Tr. 15. H. 7. Pl. 12. Quare Impedit by a Corporation the Defendant pleads that they are incorporated by another name and demands Judgment so where the Plaintiff goes but to the Right by Fitzherbert 't is ill sans doubt p. 26. H. 8. Pl. 3. a. In Quare Impedit he counts of an Avoidance by Deprivation and shews not how it became void or for what cause and that assigned for Error for it might be for Simmony or some such Cause that gives a Title to the King sed non alloc ' and Judgment was affirmed Episcopus Glouc ' against Veake 3 Cro. 678. Quare Impedit the Bishop claims nothing but as Ordinary the Writ good if a Writ against him immediate quaere the Plaintiff says he presented A. whom he refused he says he presented to the Church because litig ' if a Departure semble 't is for he intended to have pleaded it at first Tr. 5. H. 7. Pl. 3. In a Quare Impedit the Plaintiff claims by a grant of a next Avoidance by A. the Defendant says that A. was Tenant in Tail held of D. by Knights Service and describes the manner whereto c. and then usurped upon the Description and dyed his Heir within Age and the Lord granted the Ward to him adjudged the Plea not double tho the Usurper had Writ Remitter which was one thing and though the Grantee of the Ward should have the first present against the Grantor of the next Avoidance which is no more than a Lease for years which the Guardian shall avoid for his time and he have it after the Ward comes of Age for with pleading both he could not shew his Title Tr. 5. H. 7. pl. 3. Quare impedit and makes Title as appendant and that A. as Ancestor presents B. c. the Defendant protests 't is not appendant says that he presented D. c. The Plaintiff says that at the time he presented D. it was in Lease to E. the Defendant rejoyns that before the Lease his Ancestor presented I. 't is a Departure for he might at first have laid the Presentment in I. p. 10. H. 7. pl. 6. Tr. 11. H. 7. pl. 15. p. 27. H. 8. pl. 11. Quare Impedit for the King the Defendant pleads the Statute 25 E. 3. 1. That the King shall not present to any living in Auter droit but such as fall in his own time and if he do the Court is not to hold plea Judgment Si Curia cognoscere vult per Thurning This is a plea to the Action not merely to the Jurisdiction For pleas for the Jurisdiction of one Court give Jurisdiction to another which this does not 11 H. 4. 8. a. Quare Impedit and Counts of an Advowson appendant and makes Title to a Gift in Tayl the Defendant pleads the Donee in Tayl was seized of it in Gross and granted per Curiam illam admit it once Appendant and not shew how it after came to be in Gross 44 E. 3. 15. b. Quare Impedit to present to a Church in Somersetshire the Defendant pleads that the Land whereto the Plaintiff supposed it to be reputed parcel of the Mannor of S. in Devonshire Issue of both Counties tryed it Bend ' 26. Release IF Money be due upon Recognizance and the Counsor pay part and the Counsee give him a Release if the Release mentions not the Recognizance it shall release so much as paid only For the Recognizance is entire and being destroyed in part is destroyed in the whole If a man be bound to pay an 100 l. to another on such a day and he tender the same at the day he is not bound to pay the same on any other day unless the Obligee will give him an Acquittance or Release Replevin IN a Replevin the Defendant avoyed to distrein for Rent Charge granted in Tayl the Plaintiff says that an Ancestor of the Defendant whose Heir he is was seized of the Lands discharged of the Rent and gave to him with Warranty No Assetts descended adjudged an illlegal plea First because he pleads Warranty from an Ancestor and shewed not what whether lineal or collateral Nor Secondly because he pleads that he was seized of the Lands discharged of c. and shewed not how viz. by Union or otherwise H. 21 H. 7. pl. 11. Replevin avows Damage feasant barr that the place where his Acre called A. whereof he is seized of 100 l. and has Common in the Residue after Verdict moved the Blank in the Declaration makes all uncertain quid resid ' est sed non alloc ' 't is found there is a Residue and be it what it will he
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
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.
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
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.
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
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
off and filed as of Hillary Term Else it would be Error to declare in a Joint Action upon Bail for one in Michaelmas and the other in Hillary Term quod concessum fuit per curiam If a Captas be awarded and Returned non est inventus against the Principal and the Bail bring him not in If the Principle dye although there be no Scire facias against the Bail Yet the Bail is chargeable For though the Court will excuse the Bail Yet the Bail if they bring in the Principle before the Return of the Second scire facias yet this is of grace and not of necessity If the Husband and Wife be Arrested for the Debt of the Wife and the Baron find Bail for himself yet he may be detained until â—e find Bail for his Wife but he shall not be detained until find Bail for her Husband or the Husband for himself Judgment was given against one in the Kings-Bench upon which he was in Execution and had another Judgment against him in the Common-Pleas in which Court his Sureties to save their Bail brought him to the Barr by Habeas Corpus to render his Body but before that he had brought a writ of Error in the Kings-Bench to reverse the Judgment in the Common-Pleas but the Record was not removed In this Case the Court said When a man comes in to save his Bail he shall not be committed if the party do not pray it but when Error is brought before that he be in Execution it is a supersedeas so that they cannot commit him at the Prayer of the party And Waller Prothonatory said That the Bail is to render his Body so that the Party may take it in execution but here he cannot in regard a writ of Error is brought and therefore the Sureties shall be discharged Mith. 14 Jacobi in Banco Communi In the Common-Pleas the Bail is bound in a certain summ but it is not so in the Kings-Bench and when a man enters Bail in the Kings-Bench in a cause they shall be charged in all Suits between the same partyes entred the same Term. The Bail shall answer for all Actions brought the same Term against the Party for whom he is Bail but if a man be bail for another and hath Lands in Fee and he declares and afterwards the Bail sells his Lands and an other commenceth a Suit against the party the same Term he shall not be charged with the other Actions Cro. lib 2. fo 449. Term. no Sci ' Hillarii Anno 15 Jacobi Regis One Gabriel Mihil was indebted to A. B. and put in Bail in the Common-Pleas to pay the same and afterwards A. B. Arrested Mihil in London for the same Debt whereupon Judg Forster the other Judges being in the Chancery awarded an Attachment against A. B. for this Contempt and herewith agrees 2 H. 7. Hill 15 Jac. in C. B. Bankrupt IF Creditors after a Commission of Bankrupt is sued forth although at the first they refused yet within three or four months they come and tender their proportion towards the charges of the Commission They shall be received to have their parts as the other Creditors if no distribution hath been made of the Bankrupts estate before The Commissioners of a Bankrupt may sell the Goods of a Bankrupt altho the Bankry had sold them or disposed of them to his Creditors if the sale or disposal thereof were after he became a Bankrupt The Commissioners may sell the Copy-hold Lands of a Bankrupt for and towards the payment of his Debts by Deed indenâ—ed and inrolled declaring how he was found a Bankrupt and expressing to the use of the Creditors and at next Court the vendee shall be admitted and have his Copy I. C. and R. C. brought an Action of Debt jointly upon a joint Debt assigned to them by Commissioners upon the Statute of Bankrupts and it was said by the whole Court that the Commissioners had not pursued their Authority by that joint Assignment for they ought prorata to have assigned to every one but quere if the joint Debt may be divided among the Câ—edâ—tors and the Lord Chief Justice said That a Custom may devide a Debt and then à fortiori an Act of Parliament may Mich. 10 Jacobi in C. B. A Bankrupt cannot make sale of any of his 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 all these shall not be charged within the Statute But if a man sells those Goods which he hath as Executor and afterwards retakes an Estate to himself or converts them to his own use this is within the Statute Per dom Coke et alios justic ' Pasch 9. Jac. in Com Banco A man shall not Forfeit those Goods which he hath as Executor by Outlary ib. Barr. A Man may be Barred pro tempore and yet afterwards he shall have his Action IN Debt against an Executor he Pleads plene administravit and so it is found the Plaintiff shall be Barred and yet if Goods comes to his hands which were the Testators he shall have a Writ of Debt The same law in Debt against an Heir who pleads Riens per discent which is found so and afterwards he hath Lands by discent c. In Formedon the Tenant pleads the warranty of the Ancestor of the Demandant with that that he hath Assets by discent he pleads that he hath nothing and it is found that he hath he is Barred To plead a thing by way of Barr or Estoppel which the Demandant or plaintiff is to defeat or destroy by the Usageof his Action is no good Plea AS in Attaint brought upon a Verdict de nativo habendo Villenage is no Plea Also where Reversion and Rent pleaded for Assets is not Assets there the Heir is to defeat the Assets If a man sues a Prohibition and the Defendant alledgeth Excommunication in the Plaintiff he may say t is for the same cause If a Villein brings a Writ of Error upon Judgment had in nativo habendo Villenage is no Plea Where a man Pleads a Recovery in Barr he ought to add more to it or otherwise the Recovery is no Barr. ANd that is where the Tenant Pleads a Recovery by default against the Demandant he ought to add more to it viz. with that that he will averr that he was Tenant at the time of the Recovery The same Law if Tenant in Precipe quòd reddat will Plead a Recovery in a Writ of Cosinage by default he ought to shew how he was Cosin Also if the Tenant will Plead a Recovery in a Writ of Right against the Demandant by default he ought to shew of what possession his Writ of Right was conceived But otherwise it is if he will Plead a Recovery in Formedon by Action tryed this Recovery is a good Barr without adding any thing more to it where note the Diversity Where a man
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.
1. B. R. Sti 4. Debt upon an Obligation he pleads that he pay'd at such a day the Jury find he did not pay at that day the Truth was theâ—e were two dayes of payment and he payd one part the one day and the other at the other day the Court seemed he is condemned by the Verdict and his own Plea P 24. Car 1. B. R. Sti. 93 94. Debt upon Obligation to perform Articles the Defendant pleads Covenants performed Issue and Verdict for the Plaintiff who moved for a new Tryal to prevent Error because no Issue joyned but the Court said it was a good issue but ill plea whereon he might have demurred and ruled the Defendant shews Cause why a Replication should not be Weights Case M 24. Car 1. B. R. Sti. 139 140. In Debt upon a single Bill the Defendant pleads he had paid and the other accepted part since the Action brought ruled a good Plea in Abatement of the Writ not in Barr of the Action as here 't is Hillingworth versus Whetstone P. 1649. B. R. Sti. 112 163 Co. 9 Jnst 303. 2 Cro. 304. 959. H. 10. H. 7. Pl 3. M. 21. E. 4. Pl. 38. Debt for 40. l. against an Executor he pleads that he received but 10 l. and 40 l. was due to him the Plaintiff replies that he is Executor de tort and has more goods Et hoc parat c. where it should be Et hoc petit c. ill and that discontinues the whole Plea Alexander versus Lane In Debt for Rent Lessee pleads that Lessor nil habet c. he replyes quod habet 't is ill not shewing what estate but cured by Verdict if Issue be joyned and found quod habet Hill versus Glassey Yel 227. 2 Cro. 312. Debt upon two Bonds whereof one is not due the Defendant pleads a Release of that and another Plea to the other both found against him and this shewed in Arrest of Judgment yet shall not be stayed for by his pretending a false Release he passed over that Advantage So in Debt by an Executor the Defendant pleads he has a Co-Executor who has released to him and found against him the Plaintiff has Judgment Friths Case 3 Cro. 68 69. 4041. 110. 111. In Debt on an Obligation the Defendant pleads al jour and issue of it puis darr contin he pleads that the money was attached in his hands in London Pel versus Pel 2. Cro. 101. Debt upon two Bonds the Defendant demands Oyer of the Condition one of which was to pay c. after performance of a Will the other was to pay c. within two years after the Devisor's death and performance c. and pleads that the Will was that he should make a Release and alledges the death to be at such a day which is within two years and that he required the Defendant to make a Release and he refused Issue of the death and all found for the Plaintiff moved in Arrest c. one day is not come and damages intire so no Judgment to be but per Cur. 't is only the Allegation of the Defendant that he dyed at such a day which if true the Defendant would have rested on it and not have pleaded a false Plea whereon the Issue is taken and found against him Thurbettle versus Reeve and Tye 3 Cro. 110. 111. 40. 41. 68 69. Debt upon an Obligation the Defendant pleads non est factum 't is found that he Sealed c. and the Seal was torn off after the Plea pleaded but on atthe time of the Plea 't is against the Plaintiff Mirral versus Scebrith 3 Cro. 120 Co. 5 Rep 119. b. Debt for Rent against an Executor he pleads Levy per distress and sans Detinet void find no Levy by distress but that an assignment was made by the Testator and the Rent paid by the Assignee and adjudged for the Defendant for the substance is on the new Detinet and the rest but circumstance S. Tho. Cecil versus Harriot 3 Cro. 140. Debt on a Bond conditioned to save harmless against another Bond of Fifty two pounds And so he saved him harmless but because that he shews not that he was not damnified before ill Denis versus Thomas 3 Cro. 156. In Debt on a Bond by A. and B. the Defendant pleads the Obligation was made to them and B. And that all three have an Action depending against him Judgment is got but because the Bond to three cannot be intended And that the Plea goes in Abatement and he has concluded in Barr ill Isumet Priscot versus Hitchcot 3 Cro. 102. Debt on Obligation conditioned If such Lands be four miles distant c. the Defendant pleads that 't is four thousand paces distant the plea Ruled good for a thousand paces is a mile So it tantamounts the Condition but how a mile or the spaces shall be reckoned per communem viam or strait as a Bird could Fly qu. Mirige versus Eat 3 Cro. 212. 267. Debt super Obligation conditioned to pay 35 l. at Michaelmas and 33 at Lady-day he pleads payment of the 70 l. secundum formam Conditionis good though objected he should have pleaded several payments for the several Conditions do implye it Lox versus Lee 3. Cro 256. In Debt a good plea in Barr replication ill Judgment by nil dicit because the Defendant never rejoyned shall not be reversed for that ill till all be made up herewith agrees Co 5. Rep. 55. a Princ. Boyer versus Jennings 3 Cro. 284. Debt against an Executor the Defendant pleads that pending the Action another brought an Action for a true Debt of the Testator which he confessed and that he has nothing wherewith to satisfie the Judgment the Plaintiff protestando that was a true Debt pro placito replyes that the Recovery was by Covin to deceive him Defendant demurrs and adjudged against him for the Covin is not Issuable but reversed in Error nor could the Recovery be by Covin if the Debt true Greene versus Wilcox 3. Cro 462 463. Obligation conditioned to appear in the Kings-Bench the Defendant pleads that the Court was adjourned to Hartford and that he appeared there ill not saying prout â—atet per Recordum Corbet versus Cooke 3 Cro 466. Debt super Obligation covenanted to appear in the Kings-Bench such a day and there elect two Arbitrators who with two more to be elected by the Plaintiff shall Award c. the Defendant pleads that he appeared there at the day and there elected two the Plaintiff was not there time enough for the Award to be made nor that he had his Arbitrators there Edwards versus Marks 3 Cro 549. Debt upon Obligation conditioned that if he upon request deliver the Plaintiff all the Tallow that shall be made before Michaelmas of all Beasts killed by him or his servants then c. the Defendant pleads generally prout in Condition the plaintiff demurred supposing he ought to set out particularly
Record Foâ— versus Iucks 2 Cro. 13â— In Debt against an Executor he pleads a Judgment in Barr and because he did not plead prout patet per Recordum it was resolved to be ill 2 Cro. 226. Defendant in Debt to perform an Award which was to enfeoff or Release or pay 20 s. pleads performance ill not shewing which for performance of any one is good excuse wherefore he must shew what he hath performed 27 H. 6. I. b. In Debt against an Executor or Administrator he pleads a Judgment and that he hath not Goods preterquam que non c. Co. 9. Rep. 109 110. 'T is held ill on general demurrer not shewing what summ he has but Hob. 133. More versus Andrews 't is held but form and good on general demurrer and Vide Co. Entr. 446. a. 148. Pl. 27. 152. a. 269. a. 617. b. It is oftner pleaded in the general then to plead a particular summ c. here the Court held it but a form and cured by General demurrer Davies versus Davies Tr. 16. Car. 2. B. R. Debt on a Bond conditioned to pay all c. Defendant pleads he paid all without shewing what the Plaintiff replied he received some summs and has not paid the replication good for the knowledg is on the Defendants side what he received therefore to have been set out by him and not by the Plaintiff in the Replication and therefore the Barr ill Woodcock versus Cole Tr. 16. Car. 2. B. R. Debt super Obligation conditioned to deliver such Letters by such a day plea that he delivered them secundum Conditionem ill for being to do a particular thing by a particular day he ought to have pleaded particularly and not generally secundum conditionem Brook versus Deane P. 16 Car. 2. B. R. Rot. 451. Debt upon a Bond at London conditioned that if a ship do not miscarry c. Defendant pleads she miscarryed in Cornwall ill for he cannot plead transitory matter in another County then the Action is laid and so altered the Trial and if he have local matter to plead he must shew it Collings versus Sutton Tr. 16 Car. 2 B. R. rot 1666. 11 H. 4. 50. a. b. Debt and counts that one possessed of a Term granted him a Rent by mean Conveyances is come to the Defendants and shews not how yet ruled good aliter if the Term be pleaded to come to himself or any that he is privy to Note This was after Verdict but no advantage taken of the Verdict Cotes versus Wade m. 18. Card. B. R. Debt for an Escape and begins with the Writ of Execution and Arrest ill not shewing the Judgment quod cum recuperasset c. Jones versus Pope M. 18. Car. 2 B. R. Debt on a Bond conditioned to save against another Bond Defendant pleads that he did save not shewing how the Plaintiff sayes he was sued at Law pro eo quod the money was not paid and pleads not the Writ c. as he ought the Defendant rejoynes he had not notice which is a departure and not material the Plaintiff demurrs Resolved the Barr ill but if not to have it specially assigned for cause Secondly the eo quod affirmative and Traversable as well as if said in facto Thirdly the Replication ill not pleading the Writ c. Fourthly because the rejoyner is a departure and admits it being but ill for incertainty and circumstance has cured it Cather versus Peirce Soutbres and Falker M 18. Card. 2. in Sci. Debt against an Executor who pleas three Judgments in debt had against him and sayes nor pro vero debo and concludes prout patet per seperalia recorda et inde exeeution tato it for both Cases no resolution Palmer verses Lawson M. 18. Car. 2. R. R. Rot. 302. Debt on a Bond to perform an Award Ita quod it be made before 25 March pleads nul Award replication that ante 27 May they made an Award good without saying infra tempus limitat they may traverse nullum c. without traversing the day if not before the day the Jury is to find it Skinner versus Andrews Hill 20. Car. 2. B. R. Rot. 292. Debt against two Executors they plead a Judgment had against one as Administrator who ultra to satisfie hath not Assets et bene Parker versus Amy. Hill 20 21. Car. 2. B. R. Debt on a Bond against an Executor who pleads a Judgment and a Bond the Plaintiff replies the Judgment satisfied and satisfaction given Et hoc paratus est verificare And to the Bond assets ultra Et hoc petit quod inquiratur per Patriam Defendant demurrs and adjudged for the Plaintiff though not said to the first per Recordum for but form and cured by the general demurrer also he has not answered the last issuable Plea Hancock versus Proud M. 21. Card. 2. B. R. Debt on a Bond conditioned to do several things Defendant pleads performed generally and demurr adjudged ill he should have answered to all the particulars expressed in the Action aliter where 't is to perform Covenants Winbleton versus Helderup Trin. 22 Car. B. R. rot 704. Debt on a Bond conditioned to perform Covenants which were within two years to deliver a Mapp of all Land in D. in the possession of A. Lessee of B. and B. pleads performance repl Assigns breach that Lessee did not deliver a Mapp within two years of all the Lands in D. in his Occupation and in the occupation of B. and C. and the replication seems ill first because he does not say Lessee nor his Executors Secondly in his occupation is uncertain what is meant by it Thirdly he ought to shew what Lands were in the possession of B. and C. Q. If the recital not an Estopel to say none were Palmer versus Greenhil Executor of Greenhil Pa. 11 Jac. Rot 688 Bridg. 46. Debt by two Barons and their Femes on an Obligation made to their Femes when sole and say the money was not paid them good and though not said vel licaui eorum for payment to one is payment to both Sparmer versus Stone et ux ' vide Pa. 77 et Latch 49 and Pop. 161 ibm 3. Count jointly and severally in Action against one sufficient to say he paid not but if against all that they nec aliquis eorum Noy 69. Executors sue on a Bond Testat plea non est factum after Verdict for the Plaintiff moved yet he had Judgment Noy 79. A. and B. joyntly and severally bound to stand to an Award betwixt them and I. S. Arbitrators awarded A. to pay B. 3 s. B. to pay 10 s. to I. S. in debt on the Bond in Plea for A. to say he had performed the Award without shewing how and how B. had performed it for he is bound to him also Bendlo 5. Debt on a Contract Defendant pleads payment in a Forraign County and on demurrer adjudged ill he might have pleaded in the County and so
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
Common Law wherefore prohibition prayed but granted only quoad the lands and that it be proved quoad bona Hill against Thornton 1 Cro. 118. Debt on a Bond conditioned he permit his Wife to make a Will to the value of 50 l. and 't is found on Issue Nullum fecit voluntatem c. that she did make a Will of 50 l. but was covert 't is for the Plaintiff for though properly a Feme-Covert can make no Will in Law yet 't is a Will within the Intent of the Condition and the Husband is bound to perform it Marriot vers Kinsman 1 Cro. 159. And so Tilly and Parryes Case 273 274. Bond to pay 300 l. to such Persons and Uâ—es as the Wife should appoint she appoints in form of a Will he is bound to pay it And 433 Bond to permit her to make a Will and pay c. Plea that he permitted c. without pleading payment not good Action upon the Case lyes not for Non-payment of a Legacy for no Duty in our Law so it cannot take notice of the wrong in Non payment Mich. 18. Car. 2. Nicholson against Sherman in Banco Regis Bond conditioned that the Wife shall make a Will of 300 l. in presence of the Husband if he will be present if not in his Absence she makes it and it appears not that he was requested to be or that he was present of 250 l. to several persons and not an entire Legacy yet after Verdict the Plaintiff had Judgment for the Intent was that she should make a Will whether he would or not and she needed not devise all to one nor devise the whole 300 l. for Cui licet quod majus c. Mich. 14. Car. 2. Harris against Bury in Banco Regis Debt by A. as Executor the Defendant prays Oyer of the Will which was thus Memorandum Quòd A. B. fecit Testamentum Nuncupativum in hunc modum viz. Constituit C. D. fore Executorem suum And this was under Seal of the Ordinary and resolved a good Will and he Executor and well able to sue and so was it decided upon Appeal to the Delegates Mich. 16. Car. 2. Lewis against Shaw in B. R. Witnesses HE that is attainted of a false Verdict Conspiracy or convicted of Perjury Premunire or Forgery upon 5 Eliz. or Felony or that has stood in the Pillory lost his Ears been stigmatiz'd c. whereby he becomes infamous or Recreant in a Writ of Right or an Infidel under Age of Discretion or interessed ought not to be a Witness nor a man's Wife for or against her Husband But one outlawed in personal Actions may be a witness Co. 1. Inst 6. b. 25. J. K. Witnesses are not to prove a Negative ibid. Where Tryal is by Witnesses there ought to be two at the least ibid. A Juror may give Evidence as a Witness to his Companions but it must be publickly by Examination in Court not privately to his Fellows Stiles Rep. 233. Bail for the Defendant being a Witness for him upon motion was taken off the File and new Bail filed Idem 385. A Felon that has been burned in the hand may be a Witness for he may purchase and his Punishment has satisfied his Offence Idem 385. In Ejectment he that had the Inheritance of the Land was admitted as a Witness where note the Plaintiff and Defendant both claimed under one person Idem 482. A Counsellor at Bar being examined as a Witness for his Clyent was denyed to be examined on the other side for he shall not be put to discover the Secrets of his Clyents Cause Idem 449. Debt on 5 Eliz. 9. because the Wife did not appear whereas he served her and tendred to her her Charges c. to his Damage And though not laid what Damage yet being for the 10 l. upon the Statute not for his damages for her not appearing and a Feme Covert being within the Statute 't was held good enough 3 Cro. 130. 1 Leon. 122. Note she being the person who was to appear the Charges are to be tendred to her or her Husband Iidem ibid. Debt for 10 l. against a Witness that being Subpenaâ—d appeared not moved first 't is not shewed that the Subpena was left resolved it needs not for it might be for more Witnâ—sses 2. There was but 12 d delivered but resolved since he promised to pay the rest and the Witness accepted the 2 d. 't is good else the Witness had not been bâ—â—nd 'till the whole Charges had been tendred But thirdly because he avâ—rred not that he was damnified by the Non-Appearance of the Witness though the Action be but for the ten pound Pâ—nalty and not for the Damages over Râ—â—olved it lyes not 1 Cro. 376. 388. Judgment staid because the Verdict was had upon the Testimony of one Witness and he since convict of Pâ—rjury in the very same thing Pasch 17. Car. 2. Banco Regis In Deceipt for forging a Will one that took a Legacy by the same Will was allowed and sworn as a Witness in a Tryal for the Forgery for this makes nothing to the Probate of the Will or Recovery of the Legacy in the Spiritual Court nor do they take notice of it Moved to examine a material Witness that lay dying and it was said by the Court that if the adverse party did consent it might be done else they could not compell him Mich. 13. Car. 2. B. R. A Councellor may be examined as a Witness against his Clyent so far as it is of his own Knowledge not what he knows by the revealing of his Clyent Pasc 15. Car. 2. B. R. One shall not justifie what he heard an other say ibid. In an Indictment for beating one of the King's Messengers the Witnesses for the Defendant were sworn because though against the King and criminal yet not Capital Pasch 17. Car. 2. B. R. One that was a Witness indorsed to the Livery upon a Feoffment having part of the Lands as Tenant at Will was allowed as a Witness in the Tryal on the Feoffment afterwards in a Tryal at Bar. Bulstrodes Rep. 202. A Person attainted of Felony though afterwards pardoned by the King is uncapable after of being a Witness and therefore a Suggestion being proved only by two such a Consultation was granted 2 Bulstr 154. Words TO say of a Woman that J. S. did beget her with Child and she had a Child by him by speaking whereof she lost a Marriage with I. D. Although these words are a Spiritual Slander yet the loss of Marriage is Temporal and therefore the Action lyes for them Co. 4. 16. b. Ann Davis against Gardner adjudged So if a Man saith of a Woman that J. S. had the use of her Body by which she loseth her Marriage an Action lyes Pasch 5. Jac. B. R. Dame Morison against Case adjudged If a man says to J. S. Thou art a Whore-Master for thou hast lain with B's Wife and hadst to do with her against
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