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
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
Plea in Abatement of the Writ before the default saved 40 E. 3. 2. In a Writ of Aiel Besaiel and Cosinage one shall not plead to the points of the Writ after he hath pleaded in Barr but it is otherwise in an Assise of Mortd ' ancestor as it seems 40 E. 3. 19. Where the Writ abates in part by the Act of the Court and where it is abated by the Parties own Confession As if an Executor brings an Action de clauso fracto de bonis asportatis in this case the Writ shall abate for part and as to the rest it shall be effectual But where the Writ is abated by the Plaintiff it is reason although that it be of his own Conusans that if it abate that the whole shall abate In Assise against two the one pleads in Barr as to a moiety the other pleads jointenancy with a third person the Plaintiff may choose him who pleads in Barr for his Tenant and confess that his writ is false for the other part In Assise against two the one is Tenant the other is Disseisor which Disseisor makes default the other accepts his Companion Tenant with him and pleads in Barr the Plaintiff dissables the Tenant and doth not answer to the Barr for in this case he hath accepted a Tenant which is not Tenant As if Praecipe quòd reddat be brought by two where one is a Bastard or by two persons as Heirs where one of them in truth is not Heir in these cases the whole Writ shallabate because that that is meerly false whichis supposed to be true Two Executors bring an Action of Trespass of Goods carried away in the life-time of the Testator and also of Trees cut down here the Writ is good notwithstanding that the Executors cannot have the Writ for the Trees cut down and if they pray to have an other Writ for the Trees cut down then the whole Writ shall abate quod nota A Defendant or Tenant cannot abate a Writ by his Act but the Act of the Plaintiff or Demandant and the Act of God and also the Act of an Estranger may abate the Writ In a writ of Ravishment de gard by the death of the Infant the writ shall not abate Tenant by Statute-Merchant is disseised the disseisor lets for life the Tenant by the Statute brings an Assise the Lessee dyes the writ shall not abate because he shall recover all in damages But it is otherwise where he is to recover the Freehold because in that case he cannot have the effect of his Judgment A Writ of Admesurement of Common is brought by one against three depending the writ the Plaintiff and one of the Defendants exchange their Lands to which the common is appendant if the writ shall abate it seems not because that notwithstanding the exchange the Plaintiff may have the effect of his Suit which is that the Common may be admesured and at all times pending the writ the Plaintiff and the Defendant who made the exchange were Tenants and the Writ of Admesurement granted between them by reason of their Tenure for there was no mean-time between the parting from the Free-hold in one Acre and the taking the Free-hold in the other Acre and that very instant that the Freehold of the one Acre was parted from the other was vested so that there was cause of Admesurement between them as well after the exchange as there was before A Writ of Admesurement is brought against three one hath nothing in the Common so that the Writ ought to abate because that non-tenure is a good Plea in this Action yet if he that hath nothing before any exception be taken to the Writ purchaseth an Acre of Land by which he ought to have Common in the same Land the Writ is made good As in Praecipe quod reddat brought against him that hath nothing and pending the Writ he purchaseth the same Lands the writ is good So it seems the writ is good notwithstanding no time between the exchange ergo à forciori when there is no mean instant But by the better opinion it seems that the writ shall abate notwithstanding that the party may have the effect of his Suit for that ground is not obsolutely general as Praecipe quòd reddat is brought against me and I have nothing in the Land and pending the writ the Land descends the writ shall abate I bring an Action of wast by reason of the reversion or a Quid juris clamat depending the writ I alien the same Reversion and after purchase the Reversion again yet the writ is abated If a writ of Partition or Nuper obiit be brought and pending the writ the demandant aliens and retakes the Estate to him yet the writ shall abate And yet in all these cases the Plaintiff may have the effect of his Suit But that which causeth the writ to abate is the Act of the Plaintiff for the writ depending he hath aliened that which gives him his cause of Action and therefore the writ shall abate as in the cases aforesaid for as to the Plaintaiff's part his own Act shall abate the writ and not the Act of God nor of the Law except in some cases and as for the Defendants or the Tenants part his own Act shall not abate the writ but the Act of God or of the Law may for if the Tenant aliens depending the writ yet the writ shall not abate but the Demandant shall recover and he that comes in by the Tenant shall be bound by that Recovery And if an exchange had been made by the Plaintiff with a stranger who had nothing in the Common the writ should have been abated without question So for that Acr◠which he had when the writ was brought he cannot maintain his writ for put the case that the day the writ was purchas'd the Plaintiff had not any Land by which he ought to have common and afterwards pending the writ he purchas'd an Acre of Land to which the Common is appendant this shall not make the writ good which was nought from the beginning When the writ is made abatable by the Act of the Plaintiff or Demandant Videlicet by his aliening of that thing which gives to him the cause of Action if he pending the writ doth purchase the same again it shall not revive the writ nor make it good WHere the Grant shall be good ab initio although it was incertainat the commencement Note If a Parson will Grant to me all the Wooll which he shall have for Tithe the next year to come this Grant is good and yet the quantity of the Wool is incertain at the time of the Grant But because it may be reduced to a certainty after the Grant it was held good enough 21 H. 6. 43. And so if a man will Grant to me the Perquisits of his Court this incertain Grant is good causâ quâ suprà 21 H. 6. 43. The same Law is where a Feoffment is
Tenant the Tenancy in Fee 2. Avowry upon my very Tenant by the manner as I make a Gift in Tail remainder over reserving Rent Also if Tenant by the Courtesy I avow upon him as before Also where a man dyes seised of three intire Mannors and if his Wife be endowed of one Mannor intire 3. Avowry upon my Tenant by the manner as Lessee for life rendring Rent Also if à Woman be endowed of the third part of a Mannor the Heir distrains her and avowes 4. Avowry upon the Land as a Rent-Charge is granted the Grantee avowes in the Lands charged with his distress 5. Avowry upon my matter as I am seised in Fee and let for years for certain Rent and so shew the whole matter Avowry for Homage or for Rent-service although that the Avowry be made upon the person incertain yet in this case he that is a Stranger cannot plead any thing but hors de son Fee or that which is Tantamount as a Release c. which prove the Land to be out of the Fee of the Lord. A Man cannot avow the taking of Beast for Rent arrear if those Beasts were taken by Night but for damage Fesant he may Pasch 10 E. 3. Where the Avowant shall justifie and where he shall make Avowry Where the Avowant is of right to have the thing for which he distrains he shall make Avowry although that the Estate of him upon whom he avows be determined as if I let Lands for term d'auter vie and I distrain for the Rent cestuy que vie dies the other sues Replevin I make Avowry for homage he that ought to do homage dyes his Executors sue Replevin now I ought to justifie because the thing for which the the distress was made by his death is gone and extinct As two Jointenants the one enfeoffs a Stranger of all that c. upon Condition the Feoffee gives notice to the Lord here he holds of the Lord pro particula illa and the Lord shall have several Rents of the Tenants And yet if the Lord grant the services of the Feoffee to a Stranger and he attorne and afterwards the Condition is broken by which the Feoffor who was jointenant enters again here the Jointure is reviv'd and they hold the grant of Services of his part and the other Jointenant holds of the Lord as he held before and yet they are Jointenants Avowry by the Lord for homage and alledgeth seisin by the Husband of Lands which he hath in Right of his Wife The Plaintiff alledgeth that the Husband hath nothing but in right of his Wife and although he alleadgeth seisin by the Husband c. yet he sheweth that the Husband was seized in his demesne as of Fee without that that the Wife hath any thing c. 11 H. 4. If a man makes Avowry upon one as Son and Heir of his Mother where he is in as Heir to his Father the Avowry is abated In Avowry for Rent Service or any other Rent except that he shews the Commencement of the Rent as a Gift in tail or a Grant of a Rent-Charge he ought to alledg no seisin of the Rent in his Avowry because he shews the Commencement of the Rent In Avowry for Homage or Escuage if he shew not the Commencement of the Tenure he ought to shew seisin of the Homage or otherwise it is not good Avowry for Releif or aid pur file marrier he ought not to alledg seisin of the Releif nor of the Aid because that they are no parcel of the Tenure as Homage or Escuage be but incident to the Seigniory Where in Avowry the Defendant shall answer to the seisin and where he shall traverse IN Avowry the Lord alledgeth seisin of the services the Tenant cannot traverse the Tenure in part but he shall answer to the seisin For in Avowry the Tenant shall not avoid encroachment of Services but in a Writ of Rescous or in Assife he may avoid the encrochment and not answer to the Tenure If the Lord encroch an other thing which was not part of the Tenure before the encrochment it is void and the party shall avoid it and Travers it notwithstanding seisin alledged as where the Tenant holds by Homage and Ten shillings the Lord encroches a Horse this encrochment is void because it is an other thing and other then the Tenure was before Also where the Lord avowes for Homage and Ten shillings Rent the Tenant may say that he holds of him by Homage Ancestrel without that that he holds of him by Homage and ten shillings in this case he shall not answer to the seisin because that he may traverse the entire Tenure of the same thing quod nota Where the Effect of the Plea shall be Traversed THe Avowant avows that I. S. was seised of an Acre of Land and so seised grants him Twenty shillings Rent in Fee The Plaintiff saith that the said I. S. had nothing but for Term of Life of the Lease of the Plaintiff the which I. S. is dead this is a good Plea and the Plaintiff shall not say without that that I. S. was seised in Fee and yet the Avowant alledgeth that he was seised in Fee and the Plaintiff saith that he had nothing but for Term of Life which is in a manner contrary and yet the plea is good and he shall not be compell'd to say without that that he was seised in Fee and the reason is because that seisin in Fee was not the effect of the Avowry but the Grant which is confessed and avoided and because Seisin in Fee is not the effect the Plaintiff may answer it by an Affirmative and shall not be compelled to travers with a without that The same Law is in Avowries when the Avowant saith that he was seised of an Acre in Fee and let the same to the Plaintiff for Life or for years reserving Rent and for Rent arrear he avows The Plaintiff saith that one I. S. was seised in his demesne as of Fee and let to the Avowant for the life of I. N. the which I. N. dyed and the said I. S. entred before whose Entry there was nothing arrear this is a good Plea and he shall not need to say without that that the Avowant was seised in Fee at the time of the Lease for if the Seisin had been the Effect of his Avowry he ought to have Traversed or Confessed and Avoided and this he hath notdone for the Avowant saith that he was seised in Fee and the Plaintiff saith that he was seised but for Term of Life the which is no direct Travers but Argumentative but the Plea is good enough because that the seisin is not the Effect of the Barr but the Lease quod nota Bail ALattitat is sued out against two in a Joint Action and both taken one puts in Bail as of Michaelmas and the other of Hillary Term The Court was moved That the Bail of Michaelmas Term might be taken
demands a Debt or any thing by Deed he shall not be Barred but by deed or a thing of as high a nature AS Trespass for taking of an Apprentice it is no Plea to say he discharged him â—â—â—â—out speciality Mich. 22 H. 6. The same Law in Debt upon an Obligation it is no Plea for the Defendant to say that the Plaintiff hath received parcel at such a place depending the Writ Judgment 7 E. 3. The same Law in Debt upon Arrearages of Account the Defendant Pleaded Arbitrement it is no Barr because that Debt upon Arbitrement is not of so high a nature as Debt upon Arrearages of Account for there he cannot wage Law The same Law in Debt upon an Obligation it is no Plea to say that he hath paid the Summ in demand to the Plaintiff because that he ought if he will avoid the Deed to say that he hath the Plaintiffs Release or Acquittance to shew The Disseisor Levies a Fine with Proclamations the Five years pass the Disseisee is bound afterwards the Disseisor reverseth the Fine by a Writ of Error then the Disseisee may enter and yet he was once Barred Vide Barr pro tempore Where a man shall Plead a Barr which shall comprehend one matter in fait and where it shall comprehend two matters IF a man Pleads in Barr an Arbitrement he ought to say where the Submission was and also where the Award was made and so to make the Plea certain But when he Pleads a Plea which comprehends two matters he ought not to shew the certainty until the Plaintiff hath Traversed one of them Of Barrs perpetual A Woman is bound to me in an Obligation and I afterwards take her to Wife I am once Barred and allwayes Barred Tenant in Tail leaves Assets which is Pleaded against him who is Heir both he and all his Heirs are Barred for ever A man is bound to pay the Abbot of Westminster and his Successors every year Twenty shillings the Abbey being dissolved he is discharged of the Twenty shillings for ever Also if a man be obliged to keep my Court in Dale I purchase all the Copy-holds and Free-holds of the said Mannor he is discharged from keeping the said Court for ever See Pleas and Pleadings Cinque-Ports AN Elegit to extend Lands within the Cinque-Ports was directed to the Constable of Dover But he would not extend so that the Plaintiff was compelled to have a Certiorari to remove the Record out of the Kings-Bench into the Chancery And from thence by Mittimus sent to the Constable to make Execution Custom 's and Prescriptions ALI Customes against Cannon-Law are to be Tryed at Common-Law and not in the Ecclesiastical Courts Customs are payable to the King by the Common-Law the Reasons why they are so paid see in Davies Rep. fo 9. ct 10. Le case del Customs See the difference between Malum in se etmalum prohibitum and how the King may Pardon it but not licence it to be done 11 H. 7. fo 12. et Davies Rep. fo 73. Where Debt or damages are recovered in a Court-Baron the Bailiff ought not to sell the Goods of the Defendant and deliver the money to the Plaintiff But to impound them and keep them as pledges until the Defendant makes his agreement but where it hath been the use of the Court to award a Levari facias it is good by Custome Where the younger son in Burrough-English dyes the Middle Son not the Eldest shall have the Land The same Law for Customary or Copy-hold Lands It was the Custom of the Kings-Bench every Term once or twice to send the Coroner of that place to the Marshal to view the Prisoners that are in the Marshals Custody by Commititur or matter of Record and if any of them are wanting that he could not find them there then to mark their names in his Coroners Book and to inform the Court thereof And thereupon the Court did pose the Marshal who was to inform the Justices what was become of those Prisoners And if he found not sufficient cause of excuse the Court would Record their escape against the Marshal And the abusing of an Office is the escape of Prisoners in the Marshal an abuse of his Office and just cause of Forfeiture If an Alien have a son that is also an Alien and after the Father is made free and then hath another Son and after purchaseth Lands and dyes The second Son born after the Freedom shall be Heir and not the Eldest by the Common-Law and usage of the Realm And also if there be three Brothers and the middlemost purchaseth Lands and dyes without Heir of his Body the Eldest Brother shall inherit and not the Youngest By the Custom of London a Feme Covert that is to say a Sole Merchant may sue and be sued in absence of her Husband Bulstrode part 1. fo 14. where you may read of three sorts of Customs that are void and against Law 1. a Custom against Justice 2. a Custom against the Benefit of the Common-Wealth and 3. a Custom that is to the Prejudice of a third Person Custom and usage in the intendment of the Law is such a usage as hath obtained the force of Law and is binding to such particular place as Gavelkind in Kent and Burrough-Euglish in many Corporations in England When the Custom of the Realm is the Common Law WHen it is the Common-Law a Custom ought not to be alleadged or Pleaded But an Action against a Carrier Hoyman Common Hosteler and for negligently keeping of Fire the Plaintiff may declare upon the General Custom of the Realm or not at his Election And note That a Custom is always Local and to be alleadged in one certain place but a Prescription is personal and ought to be alledged in some persons certain as in such a man his Ancestors or Predecessors or those whose Estate he hath 22 H. 6. 22. A Prescription is always to be of such a thing and in such manner as may be intended to have a lawful and legal commencement or otherwise it is not good but a Custom may be contrary to the Rules and Maxims of the Law as Borough-English Gavelkind Copy-hold Tenures So Lands devisable by Custom So that the Custom be reasonable Co. 6. Gatewards case lib 5. Perimans Case None can prescribe but who hath Fee but all other Estates derived out of the Fee as Lessee for years Life or at Will ought to prescribe in him who hath the Fee Gatewards case ubi supra A Lord prescribed that he and all those whose Estates he hath in the Mannor have hitherto used to have a Herriot after the death of any Tenant for life or for years within the Mannor and good notwithstanding the Estates of the Tenants have no continuance 21 H. 7. 15. Prescription ought not to be in the Negative but if it be in the Negative with an Affirmative it is good 14 H. 6. 3. 22 H. 6. 36. 11 E. 4
dig to make a drayne in a Meadow Ibidem Owen 66. 67. Hutt 103. Dy. 37. a. Co. 1. Inst 53. 2 Leon. 174. Lessee builds a new house 't is wast to suffer it to decay not if the Lessor builds it after the Devise Ibidem Co. 1. Inst 35. s. Hutt 103. Whether Tenant by the Curtefie were punishable for wast by the Common Law Or not Vide Co. 2. Instit 299. 145. The first Statute that gave prohibition of wast and damages against Farmers was Marlbcapâ— 23. And where the Statute says vastum c. non facient 't is to be understood also non permittent vastum and so 't is in the Condition of a Lease Co. 2. Inst 145. None can claim to be dispunishable of wast in a particular Estate but by deed because 't is the Lessor's disherison Co. 2. Inst 146. Dyâ— 281. a. Lessee of a Mannor commits wast in a Tenement escheated the Lessor shall declare in wast of a Lease of the Tenement and maintain it by special Matter Co. 2. Inst 146. At the Common Law to prevent wast by Guardian Tenant in dower or by the Curtesie the Party might have a Prohibion to the Sheriff and by that he might have a posse Comitatus and so it may be done at this day And such Remedy as is against them at the Common Law is against Farmers c. by Marlb ca. 23. Co. 2. Inst 299. Vide Stat. 10 R. 2. c 14. If a Lease be made to A. for his own life Remainder to him for the life of B. or where a Remainder for years is upon an Estate for life there if A. does wast it shall be punished because himself had both Estates and in the latter case the Remainder shall not destroy the Term for years Co. 1. Instit 54. 2. Inst 301. The Husband that holds in Right of his Wife Lessee for life does wast the Wife dyes the wast is not punishable because the Husband held not but in his Wife 's Right and the Estate was her's Clifton's Case ibidem Co. 5. Rep. 75. b. Although Tenant in Tail after possibility of Issue extinct be dispun of wast yet if he grant over his Estate it is punishable in the Assignee ibidem 302. Tenant by Statute Merchant Staple or Elegit though they have but a Chattel are not within the Statute of Glocester 1. 5. Executors shall be punished for wast done in their own time not in the Testators He that holds a third or fourth part pro indiviso is within the Act. Tenant for years assigns upon Condition the Assignee does wast and he enters for that Condition the Action must be against the Assignee Ibidem Tenant for Years or Life assigns and takes the profits and does wast the Action lyes against the pernor of the profits by 11 H. 6. c. 5 Co. 5. Rep. Booth's Case 77. Tenant assigns the Term except the Trees Wast is done in the Trees the Action lyes against the Assignee Co. 5. Rep. Saunder's Case Lessee commits Wast and then assigns Wast in the Tenant shall be maintained against the Lessee and the place wasted and treble Damages shall be recovered against him Non Tenure general is no Plea in Wast but special non Tenure is Assignment and no Wast done before the Assignment or Wast done by the King's Enemies or Tempest or Lightning is not punishable Co. 2. Inst 302. 303. The Tenant shall answer for permissive Wast unless in such case where he could not prevent the Wast as where he is ousted by Cotssee of a Statute entred into before his Lease and that Cotssee does wast or by any precedent Title ibid. 303. Feme Tenant in Dower of a Mannor and Copy hold commits Wast the Action lies against the Tenant in Dower Ibid. 303. Femes Coverts and Infants shall answer for Wast done by Strangers though some have held the contrary and so shall the Wife for wast done by the Husband for Lease made to them for Life if she agree to the Estate Ibid. 303. Where the Wast is done Sparsim in houses Woods or Meadow there the whole shall be recovered ibid. 304. One may have an Action of Wast in the Tenct after the Term is determined by Expiration Death or the Act or Wrong of the Tenant and theresore if the Term end hanging the Writ it shall not abate because maintainable for the damages but if the Tenant surrender after the Wast done no Writ is maintainable for the Lessor cannot by his own Act alter the form of the Action Ibid. 304. The Heir cannot maintain an Action for Wast done to the Ancestor because the damage belongs not to him yet if two parceners be and wast is done and one of them dyes and wast is done again one Action shall be maintained for both and the Writ shall say both Wastes were to both their Disherison but the Judgment shall be for the place wasted to them both and for the damages severally in their several Tenures Ibid. 305. Guardian shall not be punished for Wast done by Strangers unless it be such as he might have prevented and would not for then qui non prohibet jubet ibidem 305. If the Gnardian commit Wast he shall by Gloue ' Ca. 5. lose the Wardship and single Damage and if it be done so near his Age as he could not bring his Action of Wast or had not notice of it then he shall recover treble damages upon the said Statute as a common person shall Ibidem 306. Wast upon the Stat. of Glouc ' Ca. 5. lyeth not in Ancient Demesne because they cannot award a Writ to the Sheriff to inquire Ibid. 306. Owen 24. contra In an Action of Wast by two in the Tenuit if one relinguisheth it barrs both not so of an Action in the Tenet Ibid. 307. A. has B. and C. in his Wardship Ratione Custodiae and commits Wast in the Lands of B. yet he shall not lose the Wardship of C. because the Wast was not to his Disherison Ibid. 306. At the Common Law there lay an Estrepement after Judgment Glouc. c. 13. gives it Pendente placito and may be sued out with the Original If the Tenant alien pendent the Plea the Estrepement may be against him and his Alienee and the Defendant shall not have his Age in it And tho the Statute says Du Tenement in demand yet in the Scire Facias to execute a Fine in a Quid juris clamat or in Wast an Estrepement may be had yet no Land is demanded in the Writ Upon the Statute the party shall recover damages after delivery of the Lands Co. 5. Rep. 114. b. It lyes before or after Judgment in Wast and the Sheriff may take the Posse Comitatus to prevent the Wast Co. 2. Inst 328. 329. In Wast the Process is Summons Attachment Distress and then upon default a Writ ad Inquirend ' and the Sheriff by the Statute is to go in Person and with the Jury view every place in every
take the Inquisition at another place Co. 8. R. 15 2. b. Lease for Life Sans Impeachment of Wast per parol mult ' alterâ—at ' and not resolved whether the Priviledge be good without deed but resolved if the Priviledge be void without Deed yet the Estate is good as an Estate without the Priviledge Co. 9. R. 9. a. 10. b. In Wast for cutting down a tree nothing shall be recovered but the Circuit of the Root and not according to the Latitude of the Branches Co. 11. R. 50. a. Lease for years Sans Impeachment c. Lessor confirms his Estate for Life the Term is merged and he punishable for wast so lease pur auter vie Sans Impeachment c. Remainder in him for his own Life it merges his first Estate c. he is bare Tenant for Life punishable for wast Co. 11. R. 83. b. Term expires Lessee continues in Tenant at Sufferance and does voluntary wast his Lessor also being Tenant for years brings Action upon the Case and adjudged it lyes and not Trespass as objected by Littleton it ought to be and the rather here because the Plaintiff being but a Termor subject to Wast ought to sue his Action to have as much in Damages as he may be charged over West against Trend 1 Cro. 135. vid. Co. 5. r. 13. b. Error of a Judgment in wast assigned first because the Wast being assigned in several things entire Damages are taxed which ought not to be for some of them be Pettits not punishable and the Court is to judge Sed non allocatur being found not intended any of them Pettit Secondly thirteen Jurors enquire and they not an Inquest of Office as Writ to enquire of Damages for Attaint lyes but that seemed well enough also Thirdly the Wast is assigned in cutting twenty Trees and the Jury found him guilty but of two and yet no Misericordia pro Resid ' But Barkley held it well for when they find any part of the same thing assigned there needs no Miserecordia pro resid ' But if they find wast in some things and no Wast in any part of one thing as if Wast assigned in Domibus Boscis and they find it in part in Domibus and none in Boscis he shall be in Misericordia pro Boscis but where they find a less number of trees than assigned Jones and Cro. doubted K. uxor against Fitzh 1 Cro. 299. 327. Eradication of white Thorns is wast not succidendo and vendendo unless they grow in places for defence of Cattel and it be so averr'd 2 Cro. 126. Lease for years with House-boot and Hay-boot sine impetitione vasti as good as sine impetitione vasti and traverse to the whole not the House-boot and Hay-boot Ley against Eyre 2 Cro. 226. or 216. Wast and Counts general of wast done ad exhered ' 't is found that the Defendant was Lessee for years Remainder to D. Sans Impeachment of Wast who is dead and if the wast was committed in the Life of B. yet good amover for though then no Action lay and B. might have licensed him to do wast yet now he may count of it as Wast immediately done to himself Bray against Tracey 2 Cro. 688. Wast and Counts of a Lease for Life Defendant pleads 't is part of an Hospital whereto the Plaintiff presented him for life it seems it lyes not for he is in from the Foundation and though in but for Life the person has the time no Revertion in him 21 H. 6. 2. Wast by an Abbot and Counts of a Lease by the Predecessor and assigns wast general without saying whether in the Predecessors time or his own and good for were the wast committed in the Predecessors time the Successor shall punish it and so is 42 E. 3. 22. And if the Predecessor had released it yet the Predecessor may punish it for being in the Realty the Predecessor could only release for his own Life eod Libr. E. 3. yet there 't is doubted if an Agreement had been made with the Predecessor for the wast if it had not been a Bar. And in 21 H. 6. where one justifies to cut Ashes for Fire-wood could be had and that per Curiam yet note in the end of the Case t is pleaded and that no under-wood was there And in this case 't is held by some that Ashes Oaks c. under twenty years growth may be taken for Fire-boot c. but denyed by others for they are Ashes and 't is held that Lessee Sans fait may take House-boot c. as well as if by Deed and that if Lessor in the Deed of Lease granted that he will require the House Lestue may take Trees in his default and pleaded it in Bar of the wast and so seems Dyer 198 b. 124. a 24 H. 6. 46. 47. 48. The Summons Attachment and Distress all retorned nihil and whether a VVrit to enquire of the VVast shall be awarded no VVrit being retorned served or an Alias distringas multum dubitatur alter catur but at last the VVrit was awarded To inquire of Wast vide 41. or 14. H. 6. 2. b per Roll. If Baron and Feme Tenants in Common of a Term be and wast is done wast lyes against her after his Death quod alii concesserunt Trav. denyed Et vide F. N. B. 59. Baron and Feme Tenants for Life she shall not be punishable after his Death for VVast done by him 46 E. 3. 25. vid. Case 21 H. 6 56. a. b. H. 6 25. b. VVast and assigns wast in cutting down so many Oaks and in cutting down the Springs that came up from the Roots again Resolved this is double wast and so may be double Assignment and is not a double Assignment of the same wast and treble Damages shall be given for each cutting tho by some it can be recovered but once 2 H. 12. a. b. Tenant in Dower or by the Courtesie grants over their Estate yet the Husband shall maintain an Action of Wast against them but if he assigned his Reversion his Assignee must have it against their Assignee Co. 1. Inst 316. a. F. N. B. 45. Two bring an Action of VVast one releases it bars both if it be in the Tenuit wherein Damages only are to be recovered not if in the tenet where locum vastatum is to be recovered also Co. 1. Inst 355. b. In Co. 1. Inst 't is held of one side and denyed by the other that an Attachment lyes upon an Inquiry of wast But 1 Cro. 't is held clearly that it does And F. N. B. fays it was fo resolved by the Court 2 H. 4. But his Opinion is contrary Co 1. Inst 355. b. 1 Cro. 299. F. N. B. 107. c. The Reversion must continue in him that brings the Action at the time of the Action brought because 't is said Ad Exheredationem and it must be in him at the time of the wast done unless in special Cases as Tenant for Life