our Law and if he sue for that ten pounds in Court Christian Prohibition lies but if he promise one with his Daughter in Marriage ten pounds he shall sue for that in Court Christian 17 Ed. 4. fol. 4. If a man promise a certain summ of Money to another to marry his Daughter or Servant which he marries accordingly Debt doth not lie for it is Spiritual contrary Rogers and Sulyard for it is one for another though it were said contrary and the reason was it shall be sued in the Spiritual Court for this Cause 22. Book of Assises 70. If one promise that if he will marry his Daughter he shall have ten pounds this is a Contract this is a Promise in our Law and he shall have Debt but if he say he will give with his Daughter ten pounds he ought to demand that before the Ordinary 45 Ed. 3. f. 24. Where Covenant was by Deed between the Plaintiff and Defendant that if the Plaintiff took to Wife the Daughter of the Defendant that then he shall be bound to him in a hundred pounds and if he takes her to Wife Action of Debt lies and the Court shall not be out of Jurisdiction though that touch Matrimony for that that this was by Deed but otherwise it is if it were without Deed. 37 H. 6. f. 9. By Prisot if an Agreement be made that A. shall take the Daughter of B. in Marriage and if he marries her there it is said that he shall not have Debt for it seems it is not Quid pro quo Inquire for if one sels a Horse for ten pounds and hath no Horse yet he shall have Debt for that and yet it is not one for another and where I sell my Land in D. for ten pounds Debt lies and yet he hath not the Land before Livery 27 Book of Assises 29. Where a man sels all the Trees in his VVood and agrees that the same Buyer shall not cut them before Michaelmas next if Hauks in the mean time are in the Trees it seems that the Seller shall have them 14 H. 8. fol. 1. If a man let Land except the VVood and under-wood and Hernes and Shovelers make their Nests in the Trees the Lessor shall have them for the Trees are excepted and the Nests in the Trees and the same Law of Akorns which come by reason of the Trees 7 H. 7. fol. 5. If a man sell a Lease of Land and certain Cloth for ten pounds the Contract is intire and cannot be severed and if one of them were by defeasible Title and devested from the Vendee yet the Seller shall have the whole summ for the Contract is intire and cannot be severed See 12 H. 8. f. 13. 9 Ed. 4. fol. 1. 9 H. 7. f. 22. If a man sell stuff for forty pounds and deliver the stuff and no Money paid nor Day appointed yet it is a good Bargain and he shall have Debt for the forty pounds but 11 H. 4. f. 33. If one assume to make the Plaintiff a House before such a Day and doth not unlesse it be for such a summ of Money Action upon the Case doth not lie for it is a naked Bargain 9 Ed. 4. f. 54. By Littleton if a man recovers in Debt upon a Contract and doth not take Execution yet he cannot have new Action of Debt upon the Contract for the Contract is determined by the Judgement and the nature of the Duty changed to a Record And by Danby and Moyle in Account Debt Trespasse and such like it is no Plea that the Plaintiff at another time recovered in them unlesse he said that he had Execution also contrary Littleton and Choke See there in Debt upon an Obligation seems contrary 2 R. 3. f. 14. Where one brings Detinue and is barrd by Law waging he shall not have an Account afterwards for Detinue affirmes property in him and Account disaffirmes that 12 Ed. 4. fol. 13. Where is a Barr by waging of Law in Detinue one shall not have after an Action upon the Case for negligent keeping the thing as it seems 40 E. 3. fol 27. Where in Trespasse one recovers in London and be brought in the thing judged he cannot refuse this Judgement and sue for the Trespasse in a higher Court. 20 H. 6. fol. 12. Trespasse of Goods taken it is a good Plea that you at another time brought Trespasse against me and J. S. and that J. S. appeared and pleaded not guilty and it was found against him and that the Plaintiff had Judgement for it is carried in Damages and reduced into the thing judged and may have Execution at his pleasure but otherwise it is in Debt for there it is not a good Barr unlesse he pleads that he had Judgement and Execution against one 23 H. 8. Tit. 105. Action upon the Case Debt of twenty pounds if the Defendant hath waged his Law in this Action and the Plaintiff brings an Action upon the Case it is a good Plea for the Defendant to say that at another time he was barred in Debt for the same by waging of Law 2 R. f. Trespasse if in Debt or other Action in the common Bench the Defendant pleads Recovery of that in a Court of Franchise or that the Plaintiff is barred in a Court of Franchise though it be not of Record here yet it seems that the Defendant shall have advantage of Record and otherwise shall be a mischeif 46 Ed. 3. f. 17. 17 Ed. 3. Tit. Barr 246. Debt upon an Obligation it is no Plea that at another time before the Mayor of London the Plaintiff recovered upon the same Obligation against the Defendant and had Execution it is no Plea for that that the Obligation was not Damnum nor the Defendant doth not shew Acquittance and the Plaintiff by Award of the Court recovered 4 H. 7. f. 8. Three bound in an Obligation joyntly and severally it is no Barr for one to say that he recovered against another but that he recovered and had Execution is good and he ought to shew Acquittance of the Payment or otherwise he shall be charged 5 Ed. 4. fol. 5. Debt by severall Precipes against two by Choke where he hath Execution against one he shall not have against the other afterwards 22 Ed. 4. fol. 7. Two are bound in an Obligation joynty and severally if I have Execution against one this is a Barr against the other but not Judgement onely Husband and Wife What Contract and Act of a married Wife Bailiff and Servant shall binde the Husband or Master and what not A Married Wife hath no Will but the Will of her Husband and for that if a married Wife sell or give Goods and the Husband agree before or after it is good and it is his Will and his Sale and if the Bargain be advantage or disadvantage to the Husband Agreement of the Husband makes it good the same Law of an Assumpsit made to a married Wife to deliver one out
in Maintenance if he justifie he shall say he shall say without that that he maintained in other manner 32 H. 6. f. 1 Trespasse of Assault and threatning the Defendant saith that the Plaintiff called him Traitor and he said thou lyest in thy throat it is no Plea for he doth not confesse any threatning 37 H. 6. f. 3 Conclude Order and form how one ought to conclude in his Plea WHere to a Bar there ought to be a Reply the Conclusion of his Plea shall be and this he is ready to prove c. and where but ready that so there it is otherwise 33 H. 6. f. 21 12 Ed. 4. f. 13 the same As in Dower the Tenant pleaded not ever seised that Dower he ought to conclude and of this he puts himself upon the Country for no Reply shall be but ready that so Where the Defendant pleads to the Issue the conclusion shall be and of this he puts himself upon the Countrey and where the Plaintiffe pleads to the Issue he shall say and he desires that this may be inquired by the Countrey 26 H. 8. f. 4. If one plead a Plea which is not traversable as no wrong or generall Issue or Record as Outlawry he need not in his conclusion averr his Plea that is and this he is ready to prove c. 36. H. 6. fol. 17. When the Defendant justifies he ought to conclude and this he is ready to prove c. and when he pleads the generall Issue he need not 6 H. 4. fol. 18. and the Book of Entries fol. 152. the same Quare impedit If the Defendant plead that it is incorporated by another name Judgement if Action this conclusion is not good but he ought to conclude Judgement of the Writ 26 H. 8. fol. 1. â—nd 4 H. 6. fol. 27. Where the Defendant saith that the Parties to the Fine have nothing but one such a one whose estate he hath he ought to conclude and this he desires may be inquired by the Countrey and the aforesaid Plaintiffe likewise it shall be entered for here needs no Reply but ready that so as above 12 Ed. 4. fol. 13. Debt upon Obligation the Defendant saith that it was endorsed upon Condition to perform Covenants of an Indenture and that part was read and part not and that he was a man unlearned there he ought to conclude Judgement if Action the same Law is where he saith it was made by constraint or that he was under age or that it was delivered as an Eserow 7 Ed. 4.3 B. he ought to say Judgement if Action 14 H. 8. fol. 30. Debt upon obligation to plead payment and delivery of that in place of an Acquittance he ought to conclude judgement if action but if he avoid that for that it is raced or interlined there it shall be concluded not his deed for where a Deed is void he ought to conclude not his Deed and where voidable or matter in Law judgment if action 1 H. 7 f. 14. Debt upon Obligation to say he is a man unlearned and this was read to him to be with Condition and so this Obligation being single is not his Deed 7 Ed. 4. fol. 5. 15 Ed. 4. fol. 17. 16 Ed. 4. f. 1. the same 9 H. 5. f. 15. and 3 H. 6. fol. 52. Debt upon a Lease to plead payment in another County or levyed by Distresse without concluding and so he ows him nothing is good 9 Ed. 4. fol. 57.3 H. 7. fol. 3. and 33 H. 6. f. 4. the same but levied by Distresse or payment in the same County is not good without concluding and so he owes him nothing Debt for Wages upon a Bargain to plead payment in the same County and conclude and so he oweth him nothing is good 40 Ed. 3. fol. 24. Debt upon a Lease by Indenture for the defendant to plead payment in the same County it is no Plea without concluding and so he oweth him nothing to the point of the Writ 1 H. 5. fol. 6. Where he ought to conclude and so not his Deed. DEbt upon a single Obligation the Defendant saith that he is a man unlearned and this was read to him with a Condition and so not his deed 1 H. 6. fol. 3 H. 6. fol. 38. Debt by a Husband and his Wife of an Obligation made to them the defendant being Executor J.S. pleads Release of the Husband made to him and the Release was of all actions and demands as Executor and all actions personalls and other demands and the Plaintiffe saith that he is a man not learned and it was read for Actions as Executor and so not his deed and good See 3 H. 7. fol. 5. and 19 H. 8. 1 H. 7. fol. 14. If the defendant confesse that once by his own Plea his deed he cannot afterwards conclude and so not his deed As if an Infant makes a deed or a man by constraint if he plead these matters to avoid that he cannot conclude and so not his deed but where an Obligation is void he ought to conclude and so not his deed as where an Obligation is made by a married Wife or a deed raced or interlined 1 Ed. 3. fol. 5. the same Where he ought to conclude according to his matter pleaded LIttleton f. 39 Six manner of men are against which if they sue Actions Judgement may be demanded if they shall be answered in the Conclusion of his Plea and first if he say that the Plaintiff is his Villain he shall say Judgement if he shall be answered second is outlawed third is a stranger born fourth is one attaint in a Premunire fifth is professed in Religion sixth is excommunicated the Defendant may plead these and demand Judgement if the Plaintiff shall be answered 34 H. 6. fol. 9 If the Tenant plead Joint-tenancy or other Plea in Abatement he ought to conclude Judgement of the Writ and where one pleads in Barr he ought there to conclude Judgement if Action 49 Ed. 3. f. 24 Account of Receit in C. the Defendant saith that C. is within the five Ports Judgement if the Court will acknowledge it and so alwayes to the Jurisdiction that is Conclusion as Parson sue for Tithes c. In divers Cases they ought to conclude in the Negative where so to the Affirmative pleads that his Plea is but as an Argument and not full Answer and also to make the matter in Law plain SCire facias against a Parson of Arâ—erages of an Annuity the Defendant pleads that before the Writ purchased he resigned and so not Parson and it is good 7 Ed. 4. fol. 16 10 H. 7. f. 4 Said in Debt upon a Lease for the Rent behinde if the Defendant pleads Payment in another County this is good without concluding and so he owes him nothing c. But if he plead Payment in the same County it is no Plea without concluding and so he owes him nothing 9 Ed. 4. f. the last 9 Ed. 4. fol. 15 Debt
made before the Statute of quia em tores terrarum after the time of memorie and the Lord said that he did not give after the time of memorie and is good notwithstanding it be a pregnant Negative 39 H. 6. f. 8. Debt upon Obligation the Condition to repair a House and saith that A. disturbed him by the Plaintiffes command the Plaintiffe saith that he did not disturb him by his commandement and it is a pregnant Negative and double and for that saith that he did not command him and took the other by Protestation 9 H. 6. f. 44. Debt upon Obligation the Defendant saith it is indorsed upon condition to be at the arbitrement of B. so that it be delivered to the parties before such a day the Defendant saith that the Arbitrators made no such Award and delivered to the parties and it is good notwithstanding that it be a pregnant Negative for that it is Condition and is the whole Condition 10 Ed. 4. fol. 6. Debt upon the statute against a Vicar for taking Farmes he had not nor held not against the forme of the statute is good though it be a pregnant Negative for that it is to the point of the statute 27 H. 8. f. 25. Action upon the Case against a common Inholder of his Goods taken where they were laid the Defendant saith that they were not taken in default of him nor of his Servants and it is not good for it is a pregnant Negative the same Law is where the Defendant saith that he delivered to the Plaintiff the Key of his Chamber and he carried A. and B. with him which carried out the Goods the Plaintiff saith that A. and B. which he brought in with him did not carry out his Goods and it is not good for it is a pregnant Negative 22 H. 6. fol. 22. Waste of ten Oakes the Defendant saith that the Plaintriff gave them to J. S. and commanded the Defendant to cut them and to give them to J. S. which he did 〈◊〉 the Plaintiff saith he did not cut them by his dommandement and it is not good for it is a pregnant Negative and for that he saith that he did not command 21 H. 6. fol. 49. Action upon the Case of his House burnt in dosaâ—â—â— of good keeping the Fine of the Defendant the Defendant saith that the House was not burnt in default of his good keeping of his fire in manner and forme and it is a pâ—egnant Negative and was pleaded in Ariest of Judgement for that that in this are comprised two Sentences one that the House was not burnt the other that it was not in default of the Defendant 28 H. 6. f. 8. Obligation Here I intend to shew to you how the Condition of Obligations ought to be pleaded performed WHere one pleads Conditions performed and his Plea is in the Affirmative he ought to plead in certain as where the Condition is to discharge the Obligee it is no plea to say that he hath discharged him but he ought to plead now he hath discharged certainly 5 H. 7. f. 8. 6 H. 7. f. 5. But if the Condition be to save him without damage to pleade in the Negative he was not â—amnified is good 7 H. 4. f. 13.38 H. 6. f. 14. 10 H. 7. f. 13. By Hussey if Condition be to save the Plaintiff harmlesse to plead he was not damnified is good but it the Condition be to discharge or acquiâ— him he ought to plead how specially he hath acquitted and discharged him 22 Ed. 4. f. 43.35 H. 6. f. 13. 40 Ed. 3. f. 20. If the Condition be that if the Defendant acquit the Plaintiff against J. S. and he pleads that J. S. released to the Plaintiff at his request and this is a good Acquittall 1. H. 7. f. 30. Condition was to discharge a Sheriff it was held clear that the Defendant shall say generally that he hath discharged him without shewing how for he cannot shew speciall discharge where there was no Charge I suppose this was for that it was infinito◠〈◊〉 Ed. 〈◊〉 f. 10. 21 H. 7. fol. 30. Condition that if he keep J.S. discharged of all Escapes of all Felone in such a Prison the Defendant saith there were but two Prisoners that is J.S. and R.K. and that he was not damnified and a good Plea If the Condition be to gather all the green Wax of the County the Defendant may plead generally that he gathered all without shewing specially what that is for that that it is infinite 2 H. 7. fol. 15. If Condition be that if the Defendant serve the Plaintiffe without absence for seven yeares speciall license excepted the Defendant may plead that he hath served the Plaintiff this seven yeares and not absented himselfe speciall license excepted and it is good for it may be he hath licensed him diverse times and he need not shew all 6 Ed. 4. fol. 2. If the condition be that if the Defendant finde sufficient Meat Drink and Apparrell to one till he be of the age of twenty foure yeares it is a good Plea to say that he hath found him Meat Drink and Apparrell sushcient at D. for all the time aforesaid without shewing in speciall what Meat and what apparrell and the Plaintif takes Issue that he did not finde to him sufficient Apparrell And took not Issue upon all for doublenesse 12 H. 7. f. 14. If condition be that if the Defendant shall not prove that J.S. was not presented and instituted to the Church of D. that then c. The Defendant may say that J.S. was not instituted and it seems good for the condition is negative and therefore it sufficeth to say as above in the negative The same Law is if the condition were that if the Defendant prove that he oweth nothing to the Plaintif it sufficeth to say he owes nothing The same Law is if the condition be that if I prove my Wife not guilty of such a Trespasse it sufficeth to say that she is not guilty 15 Ed. 4. fol. 25. If the condition were that if he prove within one year that it was the will of J.S. to say that J.S. made this Will which he brought to the Plaintif within one year written is not good But by 3. Justices proof of that by two Witnesses to plead that is good though it be not by Jury 10 Ed. 4. fol. 11. If the condition be that if he do not enter and claime the House the Defendant may plead that he did not enter nor claime that and the Plaintiff shall say that he claimed and shew the manner of that 4 H. 7. f. 13. Condition if the Defendant make an estate to the Plaintif before P. as it shall be demised by the Councell of the Plaintif The Defendant may plead that the Councell gave no advise or no advise was given by Councell and good in the negative and the Plaintif then in the affirmative cannot say that the Councell did give advise
23 H. 8. chap. 15. If any be troubled by attachment or arrested by Latitat or in London or in a Court which hath liberty to hold Plea and no Count be put in within three daies after the Baile put in otherwise appeares unlesse the Court of discretion gives longer day the Defendant shall recover costs and dammages the same Law is if a Suite be discontinued after Count or that the Plaintiff be non-suited then the Defendant forthwith by discretion of the Court shall recover costs and the Statute gives Debt for the costs 8 Eliz. Chap. 2. But one arrested by Bill of Middlesex shall not recover costs though the Plaintiff do not count to be nonsuited If a matter passe against an Informer by Verdict or Judgment the party shall have costs and shall have execution by a Capias to satisfie fieri facias or Elegit but these two last Statutes do not extend to a Court-Baron 18 Eliz. C. 5. 22 H. 8. B. Tit. Costs 25. in quare impedit the Plaintiff shall not recover costs for that the dammages are great 35 H. 8. Tit. 258. 2 Ma. Tit. Costs 23. Debt by Lessor if he be non-suted or bar'd the Defendant shall recover costs by the Statute for it is upon a contract for Rent 2 H. 7. f. 13. Account the Plaintiff shall not recover costs but where the Defendant is adjudged to account and pleads Barr c. It is otherwise 9 H. 6. fol. 66. He shall not recover costs for that the dammages are tremble by the Statute 14 H. 6. fol. 13. forcible entry the same In London by act of common Councell in trespasse by force of Armes and in all other Actions personalls if the Plaintiff be non-suited or a Verdict against him and Judgment upon it or Judgement upon demur against him the Defendant shall recover his costs by discretion of the Court but if the Plaintiff sue as Executor or Administrator which is not upon his own act the Defendant there shall not recover costs and yet trespasse by force of Armes is not within the Statute 23 H. 8. chap. 14. to have costs Damages IT seems if one take my Beasts and after they return to me again I shall have trespasse for taking but upon the evidence I shall not recover the value though the value be in the Writ 11 H. 4. fol. 23. 1 H. 6. fol. 8. 19 H. 6. fol. 34. In what plaints Damages shall be recovered in Court-Barons and in what cases in Court-Barons and other Courts and in what not In plaint in nature of Assise of novell disseisin Grandfather and Great Grandfather Entry by disseisin Dower Nuper obiit Mortdancester Cozenage Replegiare Covenant Debt Action upon the Case Deceit and trespasse Damages and costs shall be recovered by the Plaintiffe Eight Marks were given in plaint of Land in Court-Baron Plowdens Commentaries f. 394. B. If any avow for Rent or doing damage custome or service if the Plaintiffe be non-suited or otherwise barred then the Avowant shall recover damages and costs as the Plaintiffe ought See 19 H. 8. fol. 8. 12 H. 8. chap. 19. Rast tit Avowry 1. Discent THen for that that the second Article is to inquire who is Tenant and what advantage the Lord shall have by the death of his Tenant It behoveth to know who is in by discent to be your Tenant that you may know of whom to have releife and who to be in Ward and who not and who shall be sayd in by discent and where by purchase and where hee shall not be in by discent Gift to one in taile remainder to the right heires of J. S. which was dead T. S. hath that as right heire and is in by purchase and shall not pay releife nor be in ward 40 Ed. 3.9 32 Ed. 3. Fitzh Discent 8. Lord and Tenant the Tenant aliens in Mortmain and the Alience is disseised and the Disseisor dyeth seised his Heire is in by discent yet the Lord may enter within the yeare for he hath only a Title to enter and cannot have an action but contrary of him that hath right of entry and may have action 1 Ed. 6. Tit. Mortmaine 6. Bro. Lease for life the remainder to the right Heires of J.S. the Tenant for life dies living J.S. the remainder is void and J.S. nor his Heires shall not be said in by discent to pay releife nor otherwise shall have the Land as purchasor 9 H. 6. f. 24. Perkins f. 12. the same Lease for life the remainder to the right Heires of J.S. and J.S. dies Tenant for life hath aid of T.S. Son and Heire of J.S. and though he were within age he shall not have his age and shall not pay releife nor be in ward if they hold by Knight service and be within age for that he is in as a Purchasor 11 H. 4. f. 74. Lease for life the remainder to another in taile which dies his Issue within age and after the Tenant for life dies the Issue is in by discent and if he be within age and hold by Knight service he shall be in ward to the Donor 33 H. 6. f. 5. And for that that in the said second Article of Charge you ought to inquire if any Tenant be dead who is his next Heire Let us now see where a Woman is with child at the time of the death of her Husband Tenant and by whom she shall be Judged with child and who shall be said in after the death of the Husband as Heire and shall be Tenant to the Lord and who not IF the Husband Tenant dye seised and his Wife with Child and a Brother of the Husband enter as Heire as he may and after Issue is born this Issue is Heire to the Husband and Tenant to the Lord and not the Brother though he were Tenant and Heire before the Issue was borne 41 Ed. 3. fol. 11. A man Tenant hath a Daughter his Wife with child with a Son and makes a Feoffment upon condition and dies and the Daughter enters for the condition c. and after the Son is born this Son shall not be Heire nor Tenant of this Land the same Law is where there is a Lease for life the remainder to the right Heires of J.S. Tenant for life dies the Daughter enters and after the Son is born he shall not be Heire and Tenant of that Land 9 H. 7. f. 25. Plow f 56. Daughter enters after the Death of her Father Tenant and takes profits and after the Son with which the Wife was with child is borne he may enter and have that as Heire and shall be in by discent and Tenant but hath no remedy for the profits taken by the Daughter before he was born 9 H. 6 fol. 26. If a Woman Tenant seised in Fee hath a Daughter and being with Child with a Son the Husband dies and after the Wife is ravished and consents to the Ravishor and the Daughter enters by the Statute as next of blood as
said that Scandulum is a Greek word which goes to the overthrowe of one and for that it hath been thought that if the words intend to the destruction of the Plaintiff that he shall have an action upon the case and for that where the Defendant saith that the Plaintiff was infected with the robbery of Jerom H. and smels of it the opinion was that action upon the case for those words doth not lie Adjudged in London that an action upon the case lies brought by Huson Inholder for that the Defendant said falsely that he had buryed divers which died of the Plague in his house in his Garden when the plague was not in his house by which his guests refused to come to his house Also it was the opinion of the Kings Bench that an action upon the case doth not lie for calling the Plaintiff false knave Essex in the Kings Bench Roll. 149. Hill Terme 26. Eliz. Rich. Kerby Gentlemen brought his action upon the case against John Waller for saying these words that is thou Kirby art a false cozening knave and hath falsely cozened my two Kinsmen William Walker and Thomas Walker Brothers of the said William of Lands worth 6000 l. the manner of Pyâ—on in Rameshold and I will bring thee to stand upon the Pillory for that And adjudgad that the action doth not lie and the Jury taxed damages to a 100 l. and upon that adjudged that the action did not lie London Thomas Gittens Carpenter Anno 26. brought his action upon the case against James Redforne in the Exchequer for saying these words Thomas Gittens is a cozening knave and I have proved him a cozening knave before my Lord Maior of London for selling a Saphir for a Diamond and adjudged that it doth not lie Action upon the case upon a warrant â—f a thing sold and upon knowledge without wairant ACtion upon the case lies for selling corrupt wine and the writ is knowing it to be corrupt and warrant is not to purpose for it is ordained that none shall sell corrupt victual if he know it and so the Issue was whether it were good and not corrupt An action upon the case lies for selling corrupt victual if he know it and so the issue was whether it were good and not corrupt an action upon the case lies for selling so much Cloth and not well fulled where he warrants it 11. H. 6. fol. 22. Note the use where Measel Porks are fold at Rumford to have restitution of his money if they prove Measel 9 H. 6. fol. 53. 7 H. 4. fol. 16. Action upon the case lies for selling corrupt wine knowing c. the Defendant saith that he tasted it and accepted it for good the Plaintiff saith he accepted it for good upon condition if he liked it after it came to his house c. 19 H. 6. fol. 49. If one sell wine without warranty if that be corrupt action upon the case lies for it is prohibited by law 7. H. 4. fol. 76. 13 H. 4. fol. 2. If one sell to me a Horse apparent blind and warrant him sound of all his Members and I see him I shall have no deceit for that I might see it otherwise it is of a disease within his body there upon the warrant I shall have deceit But if one sell a blind horse and warrant him to one that doth not see him deceit lies If one sells to me wine and I bid my Servant to taste it deceit doth not lie if it be corrupt for that he hath tasted it Fitzh 94. C. If a man sell a horse to another and warrant him to be sound and good c. If the horse be lame or diseased that he cannot work action upon the case lies And so if one bargain and sel to one certain Pipes of wine and warrant them to be good and they are corrupt action upon the case lies against him and by Fitzh it behoveth that he warrant the horse and also the wine otherwise action upon the case doth not lie inquire of the wine Fitzh 98. K. If a man sell Clothes and warrant them to be of a certaine length if they be not of such a length he he which buyes them shall have a Writ of Deceit against him but if the warranty be made after the bargain is otherwise 11 Ed. 4. fol. 7. Where one sells Clothes and warrants them to be of such a length and they are not deceit lies for he could not know but by measure and he beleeved him but it is said if he warrant Seeds to grow that is in Cod or that a Horse shall carry one ten miles in two houres which is to come or warrant Cloth to be murrey where it is blue and see it deceit doth not lye but if he warrant Cloth to be of such a Country when it is not deceit lies 11 R. 2. Statham If one sell a Horse knowing him to be lame and warrant him to be sound the Defendant saith that he sold him sound without that that he warranted him 31 H. 6. fol. 11. Statham If one sell a Horse knowing him to be lame and do not warrant him action upon the case doth not lye 20 H. 6. fol. 37. By Paston and not denied if a man sell a horse which hath a disease the Buyer may have action upon the case that the Defendant knowing his Horse to be diseased sold him though he do not warrant him to be sound notwithstanding it seems otherwise where the Buyer may see the disease by looking upon him as a splint a spavin or an eye 9 H. 7. f. 22. If one sell a thing and warrant that at the same time he may have deceit notwithstanding that he hath not paid the Money for that that he might have debt at his pleasure for the Money Action upon the case for cosenage and deceiving of one ACtion upon the case was brought against W. C. for that the Defendant took eight Oxen of J.S. and offered to sell them to the Plaintiff as his proper Goods and by this salsity the Plaintiff trusting to the honesty of the Defendant bought them and paid seven pound and after the owner tooke the Oxen by which the Plaintiffe lost the Oxen by this falsity to his wrong and damages c. Book of Ass 8. 20 H. 6 fol. 25. Deceit was brought for that the Defendant was his Attorney and ought to have taken an Obligation of J.S. for a hundred pound to the Plaintiff and he took it to himselfe and it is sayd he ought to declare that he took a Fee of him And so lyeth an Action upon the Case for such Cosenage and Deceits VVhich note 9 E. 4. fol. 12. By Littleton Debt against two as Executors and one is no Executor nor never administred c. Yet he acknowledged the Action and the other made default the Plaintiffe recovers the other hath no remedy but an Action of Deceit that is Upon the Case for he is party to the Judgement 42
Ed. 3. f. 14. Conspiracy in the nature of an Action upon the case was brought against three which conspired to make one of them Attorney for the Plaintiff and to plead as they pleased and so to cause the Plaintiff to be found a Villain to one of the Defendants and it lies 26. Book of Assises 62. 47 Ed. 3. f. 15. Action upon the case lies in nature of a Conspiracy for that the Defendant procured and caused a false Office to be found by which the Mannour of the Plaintiff was seised into the Kings hands Tit. Conspiracy 8. B. See 27. Book of Assises 73. Fitzh 114. D. 43 Ed. 3. f. 20. Deceit for that the Defendant procure J. S. to bring a Formedon against the Plaintiff by Collusion by which he was travell by the Suit and brought a Writ of Warrantia Chartae in defence of that and it lies Where an Action upon the Case lies for a thing pawned and for a thing borrowed and where not ACtion upon the Case doth not lie for riding his Horse which he had hired of the Plaintiff which was weary so that he had no service of him by six Dayes for wearinesse is natural after labor and for that he ought to shew some Fault in the Defendant if he will have that Action Fitzh 86. C. If one borrow certain Money and deliver certain of his Goods in pawn for it and he offers the Money to the party again and prayes Delivery of his Pawn and the other refuse it he shall have an Action upon the Case for the Pawn 40 Ed. 3. f. 6. If I borrow a Horse and he dies suddenly and not by my default I shall not be charged to restore a dead Horse Doct. Student f. 29. If one use the thing borrowed in other manner then to what it was borrowed he shall be charged if they perish in any manner but if he use them as they were lent if they perish not through his default which borrowed them the Owner shall bear the losse Doct. Student fol. 128. If a man borrow a Horse and puts him in a house which fals upon him if it were strong and not feeble to fall he shall be discharged otherwise it is if it were weak 21 Ed. 4. Tit. 42. Detinue of Goods Br. Detinue of a Horse it is a good Plea that at the time of the Delivery the Horse was sick of divers Diseases as Botts Glanders and such like by which he died at D. such a day and year before request made by the Plaintiff to re-deliver him and it is a good Plea contrary if he do not say it was before request for if it were after request that had been the folly of the Defendant Where Action upon the Case lies or Detinue and where Trespass and where not IF the Lessor will not discharge his Farmer of a Tenth or of a Fifteenth or of Quit-rent which are due by the Lessor and the Farmer pay it yet he cannot keep that back in the payment of his Rent but shall have an Action upon the Case 21 H. 7. f. 12. 7 H. 4. fol. 3. If the Testator hath my Goods amongst his Goods and dies Trespasse by force and Arms doth not lie against his Executors for these Goods but Detinue in an Action upon the Case and if one finde my Goods Trespasse doth not lie against him but Detinue or an Action upon the Case 12 Ed. 4. f. 10. If one take my Beasts and another take them from him I shall not have Trespasse against the second but Action upon the Case 21 Ed. 4. fol. 89. the same 13 Ed. 4. fol. 9. If Goods be delivered to one he cannot be a Trespassor of them but a Detinue lies of them 18 Ed. 4. f. 28. VVhere one hath Goods by my Delivery I shall not have Trespasse but Action upon the Case and Count of mis-using of them 46 Ed. 3. fol. 15 Trespasse if the Defendant saith that the Goods were thrown into the Sea by a Tempest for safeguard of the Ship and he took them and Trespasse doth not lie against him for that they were not taken out of the possession of the Plaintiff 21 H. 7. f. 39. By Fineux and Tremail if I deliver Goods to a man and he gives them or sels them to a stranger if the stranger takes them without Delivery I shall have a VVrit of Trespasse but if he makes Delivery to the stranger of them I shall have no Trespasse Littleton fol. 14. If I deliver to one my Sheep to dung his Land or my Oxen to plow his Land and he kils my Beasts I shall have Trespasse that is to be intended Trespasse upon the Case and not Trespasse by force of Armes See 2 Ed. 4. f. 5. in Parco fracto 18 Ed. 4. fol. 23. In Action upon the Case where he counts of mis-using of a thing delivered to the Defendant or converting it to his own use is to recover Damages for the thing and where one will recover the thing it self he shall have Detinue 7 Ed. 4. f. 4. Where one comes to Goods lawfully as by Delivery Trespasse doth not lie against him but Detinue 12 E. 4. f. 8. A man shall not have trespasse general that is by force of Armes against him that mis-uses a License in Deed as to ride a Horse twenty Miles where he borrowed the Horse but for ten Mile but he shall have an Action upon the case contrary if one mis-use a License in Law as to enter into a Tavern there he shall have Trespasse by force of Armes 21 Ed. 4. f. 76. the same 18 Ed. 4. f. 2. If my Bailiff kill my Kine Trespasse by force of Armes doth not lie but an Action upon the Case 21 Ed. 4. fol. 22. Action upon the Case lies against J. S. Officer of the Kings Bench for that that the Plaintiff affirmed a Plaint of Debt against J. D. in London the said J. S. purchased a Supersedeas of Priviledge for J. D. supposing that he was his Servant 2 H. 4. f. 19. Action upon the Case by the Neighbour of a fire lies that according to the Law and custome of the Realm of England c. that every one shall keep his fire least by his fire any losse should come to his Neighbours 42 Ed. 3. fol. 11. Action upon the case lies where throughout the whole Realm of England it was a custome that the Host should keep the Goods that their Guests brought into their House if it be a common Inn and should be charged though they were not delivered and though that the key of his Chamber were delivered to the Guest 22 H. 6. f. 24. 2 H. 4. f. 8. 14 H. 4. f. 43. Fitzh f. 94. B. 11 H. 4. f. 43. 28 H. 6. f. 7. Action upon the case lies for that that the Dog of the Defendant worried the Sheep of the Plaintiff he knowing his Dog to be accustomed to worry Sheep and it is no Plea for the Defendant that he did
not know By Moyl but he ought to answer that he did not worry the Sheep 41 Ed. 3. fol. 24. If a man ought to grinde his Corne at the Mill of the Defendant without paying Tole and the Miller take Tole trespasse by force of Armes lyes and so it is said where he takes more Tole then he ought but if one hinder people to come to my Market Action upon the case lies 13 H. 4. f. 12. Action upon the case lies for that that he hath a Leet in the Mannor Eyer and Court from three weeks c. There hath the Defendant held Court within the same Mannor and hath distrained his Tenants by great and often distresse and hath impoverisht them that they cannot pay their Rent Fitzh 94. E. the same 33 H. 6. f. 16. Action upon the case lies where his Steward comes to hold a Leet and the Defendant disturbs him 11 H. 4. fol. 45. Schoole-Master shall not have an action of the case against another for setting up another School that he cannot have so many Schollars as he had before for the profession is free and is for the Common-wealth the same law of erecting a Mill upon his own land though the Plaintiffs Tole be diminished he shall not have an action upon the case 22 H. 6. f. 14. Mill levied 48 Ed 3. f. 25. Action upon the case lies against Tenant at will which makes wast or burning a House willingly and not an action of waste Lit. 14. 21 H. 6. fol. 43. 7 H. 4. f. 8. Action upon the case lies for that that the Defendant ought to repaire a certaine wall upon the Thames and doth it not by which the land of the Plaintiff is drowned Fitzh 93. E. the same 7. H. 4. fol. 16. Account doth not lye against a Bailiff or Servant for driving his Plow in which default the Beasts perished but an action upon the case lyes for his negligence for default of good keeping 2 H. 7. f. 11. Action upon the case lies for negligent keeping my Sheep and the same Law for negligent carrying my Pots or glasse and where one keeps my Horse and starves him for Meat 7 H. 4. f. 45. Action upon the case lies by the Lord of B. against him which bought and sold in the Market of B. without paying Tole and though the VVrit was Tollenam asportavit yet it was also and he denied to pay it and for that it was awarded good for the first words are void and the last sufficient 11 H. 4. f. 25. If a way belonging c. be stopped Assise of Nusance lies but for stopping of a way ingrosse he shall not have an Assise of Nusance but action upon the case 14 H. 8. f. the last VVhere part of a River or way is stopt which is narrow action upon the case lies and where the whole an Assise of Nusance an action upon the case lies where he hath no other remedy 11. Ed. 4. f. 23. It seems there that a good Pleader may frame actions upon the case for many matters which are in the Chancery 26 Book of Ass 79. Action of the case lies against the Sheriff which quashed an Essoyne erroniously for false Judgment doth not lye unlesse it were Judgement of the Suitors Fitzh 114. D. If one Person of his malice and by his false imagination labour and cause another to be iudicted falsly the party which is so indicted shall not have a Writ of conspiracy but an action upon the case against him which caused him to be so indicted Fitzh 95. D. If one play with others at Dice and hee hath false Dice and wins Money of others with false Dice Action upon the Case lyes for this deceit 13 H. 7. fol. 26. Action upon the Case lyes where one hath a Water-course by Prescription to Brew and water Beasts there hath the Defendant made Lime-pits c. 4 Book of Ass 3. See Nusance for Lever Tozaile to the annoyance of the Free-hold Action upon the Case for mis-using an Officer in his Office ACtion upon the Case lyes against a Sheriffe where the Plaintiffe hath Charter of exception that he shall be impannelled upon no Jury and shews that to the Sheriff and yet he impannels him 18 H. 8. fol. 5. 21 H. 7. fol. 22. by King Where the Sheriffe serves a Fieri facias and levies the sum and doth not returne the Writ the party may have trespasse against him for levying that the same Law if by a Capias the Sheriffe arrest one and doth not returne the Writ false Imprisonment lyes 20 H. 7. fol. 13. 21 H. 6. tit 6. B. 6 H. 6. Tit. 9. Trespasse upon the Case was brought against an Escheator because he found an Office that the party held of J. S. and he returned an Office That the party held the moity of the King in Cheife and by the Court it lyes for he and the Sheriff are Officers of Record but not Justices of Record for there it was agreed that an Action doth not lye against a Justice of Record 9 H. 6. fol. 60. the same 12 H. 6. fol. 3. 47 Ed. 3. fol. 15. Conspiracy in the nature of an Action upon the Case was brought for that that the Defendant procured and caused a false Office to be found by which the Mannor was seised into the Kings hands and he sued that out to the Losse 21 Ed. 4. fol. 43. If the Sheriffe upon a Writ of second deliverance makes deliverance to the Plaintif of the distresse and will not returne the Writ so that the Defendant may constraine the Plaintif to come and count so that he may avow the Defendant shall have remedy against the Sherif and this seems by an Action upon the Case 8 H. 6. fol. 1. Where in Precipe the Sherif returnes a Summons where he was not summoned by which hee looses his Land Action upon the Case lyes against the Sherif See that deceit lyes 19 H. 6. fol. 29. Action upon the Case lyes against the Sherifs Deputy for imbezzeling a Writ of Habeas corpora and it lyes as well against him that stirrs up another to doe it as against a doer 16 H. 6. tit 38. by Paston If the Sherif returne a man sufficient upon a Venire facias by which the next Sherif iâ— charged of the Issues he shall have an Action upon the Case against the Predecessor for he cannot returne nihil against the returne of his Predecessor 1 H. 6. fol. 1. Precipe Where the Tenant looseth his Land by default upon a false returne of the Sherif as he returnes the Tenant summoned where he was not deceit lyes but if the Summoners were dead Action upon the Case lyes 38 Book of Ass 13. Action upon the Case lyes against the Sherif where he made a Precept to one which was no Bailif of the Franchise which returnes a Jury by which this was quasht to the damages c. 41 Book of Ass 12. Deceit in the nature of an Action upon the Case lyes
plead in person afterwards that he is Prior of the Church of St. Peter and Paul for that is parcell of the name which cannot be pleaded after Imparlance for that doth notstand with c. 35 H. 6. fol 37. Trespasse against J.S. of D. after Imparlance he demands Judgment of the Writ for day of the Writ purchased he was dwelling at S. and not at D. and shall not have it for it is contrary to the name which the hath affirmed by the Imparlance 32 H. 6. fol 35. After Imparlance the Defendant cannot plead that he is dwelling in another place then is in the Count 19 H. 6. fol 1. 35 H. 6. fol 43. Debt against J. S. as Executor of J. D. and he imparles he shall not say after that he is Administrator and nor Executor 32 H. 6. fol 32. The same 36 H. 6. fol 17. 37 H. 6. fol 32. If the Defendant in personall action imparle and at the day makes default Judgment shall be given and in a reall action shall be awarded a Pettie Cape 7 H 6. fol 30. The same 11 H 7 fol 5.38 H. 6. fol 36.39 H. 6. fol 17. 4 H. 7. fol 12. If a man in debt upon an Obligation imparle before he demands hearing of the Obligation and Condition and hath that entred he cannot plead the Condition afterward for he shall not have hearing of that if he do not alledge variance 13 H. 7. fol 17. Precipe of Lands in D. the Tenant imparles and at the day he may say no such Town 9 Ed 4. fol 33. the same 7 Ed 4. fol 1. Trespas 16 H. 7. fol 17. Debt by Prior the Defendant imparles and at the day saith that the Plaintiffe is deposed for that goes in Bar. 7 Ed. 4. fol 1. Trespas against J.S. de D. in the County of Middlesex after Imparlance the Defendant cannot say no such Town D. within the said County but he may say there is over D. and nether D and none without addition 22 Ed 4. fol 1. the same 9 Ed. 4. fol 38. Precipe after Imparlance one may plead Non-tenure and Joyntenancie But in Precipe of Lands in D. and S. the Tenant Imparles and at the day saith That D. is an Hamlet of S. without that that there is any Town or place known out of the Town named D. in the same County Judgment of the Writ and hath the Plea by the whole Court 9 Ed. 4. fol. 42. Debt against Executors after Imparlance he cannot say that the Testator dyes intestate and that the Administration was committed to him Judgment of the Writ for he is estopped by the Imparlance but he may plead never Executor nor ever administred as an Executor for that is with the c. 32 H. 6. fol. 32. the same 18 Ed. 4. fol. 19. Writ is abated by death and abateable by Joyntenancie and severall tenancie and where a man is made knight or a woman takes an husband and such like and saith where a Writ is abateable if he Imparle or take continuance he cannot plead in abatement But otherwise it is if it were abated See 7 H. 6. fol. 16. and 20 H. 6. fo 17. And note that it pleaded there that the Plaintiffe is a knight 44 Ed. 3. fol. 4. After Imparlance the Defendant may plead to the Action as to say that the Plaintiffe is a Channon professed c. But he cannot plead to the Writ unlesse he come after the Continuance unlesse it were for that that the Writ is abated as death c. 20 Ed. 4. fol. 9. Debt upon a Lease of a Corodie the Defendant imparles and after that shall not have hearing of the Deed. See 4 H. 7. fol 12. 4 H 7. fol. 17. Replegeare against three which imparle joyntly and one makes default the other cannot plead no such in being as one is which makes default 11 H. 7. fol. 5. Debt for Corn the Defendant imparles and at the day makes default there shall go a Writ to inquire of the value See 37 H. 6. fol. 32. 15 H. 7. fol. 14. Attorney for Corporation after Imparlance he cannot plead that they are corporate by another name 32 H. 6. fol 12. Where a Writ is abated he may plead that though there be a Continuance as to say that the Plaintiffe is dead or hath an Husband day of the Writ but if it be abateable it is otherwise he may say that after the last continuance is made knight Judgment of the Writ c. where it is abateable 34 H. 6. fol 49. Debt upon Obligation by three the Defendant pleads not his Deed yet he may plead that after the last continuance one Plaintiffe is dead 22 Ed 4. fol 36. Trespasse The Defendant after Imparlance may say that the Plaintiffe is his wife Judgment if Action or that the Plaintiffe is a Monk professed And in Mordancester that the Demandant is a Bastard And in Debt against Executors after Imparlance he may say he was never Executor nor ever administred as Executor for these are disabilities which go in Bar. 32 H. 6. fol 32. It seems a man may plead after a Continuance that the Plaintiffe is a stranger born or Monk professed Judgment if Action and not to the person 36 H. 6. fol 7. 7 H. 6. fol. 39. It seems that after Imparlance one cannot plead to the Jurisdiction unlesse it be after speciall Imparlance saving all advantages as well to the Jurisdiction of the Courts as to the Writ and Declaration 19 H. 6. fol. 7. Debt by Executor which shews the Will as it behoveth and after the Defendant imparles there he shall not have reading of the Will again 38 H. 6. fol. 2. But if he plead variance he shall have Reading and so in Debt upon Obligation 16 Ed. 4. fol. 4. Debt upon specialtie the Defendant may plead Out-lawrie in the Plaintiffe though he hath parled for that is a Bar and intitles the King 4 Ed. 4. fol. 15. Debt after Imparlance one space in the Count cannot be amended in another tearm 39 H. 6. fol. 22. Debt upon arrerages of annuitie after Imparlance the Defendant cannot have hearing of the Deed But if the Defendant plead that it was made in another County then where the Writ was brought and then he shall shew 39 H. 6. fol. 17. the same Pleas after day given IF the Defendant imparle and make default he shall be condemned and upon day given shall issue Processe 7 H. 6. fol. 42. 19 H. 8. fol. 6. Note by all the Prothonotaries that day given is ever before the Count and Imparlance is after the Count and therefore where three Capias and Exigent is awarded and the Defendant appear upon the Exigent and hath day given and after makes default Distringas shall go and upon that returned Nihil other 3 Capias and Exigent and upon default in persâ—r all action he shall be condemned See 7 H. 6. fol 42. 20 H. 6. fol 17. Trespas the Defendant at the day which he hath by
so high and not upon bare matter DEbt upon arrearages of Annuity the Defendant saith that he let the Mannour of D. to him in recompence and it is no Plea for it is not so high 19 H. 8. fol. 9. Trespasse upon the Statute of Rich. The Defendant pleads in Barre warranty of the Ancestor of the Plaintiffe and demands Judgement if against the warranty c. and it is no Plea for Damages is onely to berecovered 10 H. 7. fol. 12. Trespasse the Defendant may plead Fine with Proclamation Judgement if Action but not to relie upon the estoppell 27 H. 8. fol. 27. 14 H. 4. fol. 27. Debt upon a Lease by Indenture the Defendant saith that he hath bestowed the Rent upon reparations by commandement of the Plaintiffe and it is not good for it is not so high 10 H. 7. fol 4 Debt upon arrearages of a Lease for years the Defendant pleads agreement and it is not so high 1 H. 7. fol. 14. The Defendant cannot avoid specialty by bare matter as to say the specialty was delivered to him in place of an acquittance for it is not so high 10 Ed. 4. fol. 18 Debt upon an Obligation endorsed with condition that if the Defendant serve him in all his lawfull commands c. the Defendant may plead that he discharged him and it is good without specialty for the condition is matter in deed 18 Ed. 4. fol. 9 If one covenant by Indenture to make me a house before such a day and he plead that I discharged him before the day it is good without specialty for I cannot come upon his Land after discharge 19. Ed. 4. fol. 2 the same 21 H. 6. fol. 36. Trespasse of taking his Apprentice the Defendant saith that the Plaintiffe discharged him before the Trespasse of taking and it seems no Plea for that he is an Apprentice by Indenture and the discharge without specialty and to another person 9 Ed. 4. fol. 57. Annuity the Defendant pleads levied by distresse in another County and so that he owes him nothing and it is good but that he owes him nothing onely is no Plea against specialty 3 H. 6. fol. 41. Scire facias upon recovery of arrerages of annuity Defendant pleads that the Deed of annuity was delivered to him in lieu of an Acquittance and it is no Plea against a recovery 11 H. 4. fol. Debt upon arrerages before Auditors the Defendant pleads that he hath an obligation for the same and it is no Plea for it is not so high 11 H. 7. fol. 13. VVaste Defendant pleads an agreement between him and the Plaintiff and it is no Plea for the Inheritance is to be recovered in this writ and for that it is no Plea Scire facias upon a Recognisance to have one here at a certaine day to appeare it is no Plea to say I have been there without shewing his appearance of Record for it is not so high 7 H. 6. fol. 26. B. Debt upon arrerages of account before Auditors the the Defendant pleads Abitrement and it is no Plea against matter of Record before Auditors 3 H. 6. f. 55. 8 H. 5. f. 3. the same 10 H. 6. tit 44. 4 H. 6. fol. 17. and 3 H. 4. f. 7. H. 4. f. 6. adjudged Debt upon an obligation the Defendant cannot plead payment for it is not so high 1 H. 7. fol. 14. Debt upon an obligation endorced upon condition the Defendant may plead that the Plaintiff hath retained parcell of the smaller summ hanging the VVrit and it is good in abatement without specialty 5 H. 7. f. 4. Action upon the Statute of Rich. If the Defendant plead Act of Parliament by force of which he was seised till the Plaintiff entered upon him upon which he re-entered the which is the same Trespasse c. and concludes Judgement if action it is good 3 Ed. 4. fol. 6. Annnity by grant the Defendant saith in abatement that after the action brought that the Plaintiff hath retained part of the arrerages and it is no Plea without specialty for it is not so high 22 Ed. 4. fol. 51. Debt upon an obligation the Defendant pleads receit of parcell hanging the VVrit Judgment of the writ and it is not good without specialty 7 Ed. 4. fol. 15. 15 H. 7. fol. 10. Debt upon a single obligation of twenty pound the Defendant pleads that the Plaintiff hath received parcell hanging the VVrit and demands Judgment of the VVrit and it is no Plea without shewing Acquittance for it is not so high VVaste the Defendant pleads agreement to make fludgates only and agreement is no Plea in this action for it is not so high for Land is to be recovered 13 H. 7. f. 20. 11 H. 7. f. 13. Covenant upon specialty the Defendant pleads arbitrement and it is not good for it is not so high 3 H. 4. fol. 2. Debt upon obligation the Defendant cannot plead that the Plaintiff delivered this obligation again to him in place of an Acquittance and took it again from him for it is not so high 5 H. 4. fol 2. Debt for Rent upon a Lease by Indenture the Defendant cannot plead payment for it is not so high but payment and so he owes him nothing is good but where a Lease is by word payment in Debt upon that is good 1 H. 5 fol. 6 See 46 E. 3. f. 1. See 10 H. 7.24 b. 11 H 7.4 b. 20 H. 6.20 b. 9 Ed. 4.27 Debt upon obligation upon condition the Defendant may plead payment according to the condition without specialty 5 H 7 fol. 41. 5 Edw. 4 fol 5. the same Debt for Rent upon a Lease payment is no Plea without saying and so he owes him nothing but payment in another County is good without concluding and so he oweth him nothing 33 H 6 fol 4. 10 H 7 fol 4.3 H 7 fol 3. Debt upon a bargaine where the Defendant may wage his Law he cannot plead payment in another County 18. H 6 fol 13. 10 H 7 f 4. 11 H 74 b. Count. Count shall be more certaine then a Barr and yet sometimes it is good by intendment that is if Common reason do not imply contrary to the Count it is good by intendment DEbt upon obligation without date yet the Plaintiff ought to count when it was made But otherwise it is if the Defendant plead an Acquittance without date 3 H. 4. f. 5. 6 Ed. 4. f. 11. Debt or annuity without date the same 5 H. 7.24 B. of annuity Quare impedit If the Plaintiff counts that foure persons were seised of a Mannour to which the Advowson is appendant whose Estate he hath it is not good without counting how he hath it otherwise it is in Barr 2 H 6. fol. 10. Action upon the case of borrowing a Horse to ride to York and counts that he rode him further he ought to count in what County York is 21 Ed 4. fol 79 b Debt and counts that if the Defendant make voluntary wast
Steward and that in a Leet was presented that the Plaintif is a Felon and that he shewed his Rolls to the Justices at the Session which commanded him to shew that to the Jurors which inquired for the King which he did and saith that that is the same for by Englefield when the Defendant pleads a Conspiracy which is iustifiable he ought to shew that it is the same Conspiracy 27 H. 8. fol. 2. Annuity is brought of six and twenty shillings and eight pence the Defendant saith that he held of the Plaintif by six and twenty and eight pence of Rent which is the same Rent and is not good for it cannot be the same 33 H. 6. f. 38. Debt upon Obligation the Defendant saith it was made by threats the Plaintif saith that he let the Land to the Defendant rendering Rent and saith if he would not seal the Obligation to him for the Rent behinde he would sue him at the Common Law which is the same threatning and it is no good Plea for this is lawfull and not a threatning 16 Ed. 4. f. 7. Br. Tit. Duresse 23. Maintenance the Defendant saith that he carried the Money of him which the Plaintif supposed he maintained to his Counsel which is the same Maintenance and this is no plea for this is no Maintenance 34 H. 〈◊〉 fol. 19. Replication Where a faulty Barr is made good by Replication and where not TRespasse the Defendant pleads an Agreement to pay Money and to make Windows and said that he paid the Moneys and nothing of the Windows and the Plaintiff replied and said no such Agreement and yet the Plaintiff in Barr pleaded an Agreement and that not executed is not made good by the Replication for the Barr is not good to no intent and the Replication cannot make that good 6 H. 7. f. 10. But count where a Barr may be made good by a Plea of the other party where the Count or the Barr is uncertain as where the Plaintiff counts of an Obligation in Debt and doth not count where it was made and the Defendant pleads Release and acknowledge it and the Conisee where the place should be in is now outed and need not to have that the same Law in Trespasse where a man pleads Arbitrement and doth not shew the place where the Submission was that is not good but if the Plaintiff reply and saith that he discharged the Arbitrators before the Award now it is good for that which was ill is now confessed 10 H. 7. f. 24. 20 H. 7. f. 12. By Hussey if one plead Joint-tenancy day of the Writ purchased it is not good for that he might be sole Tenant after if the Demandant saith sole Tenant and doth not demurr it is made good by Replication 5 H. 7. f. 14. The same Law if in Debt against Executors they plead nothing in their hands day of the Writ purchased and do not say nor ever after the plea is not good but if the Plaintiff reply and say that they have Assets and that is found he shall have Judgement 3 H. 7. fol. 8. accordingly False Imprisonment the tenth day of May the Defendant saith that the Plaintiff made an affault in the Court before the Steward and for his disturbance of the Peace in the Court he was committed to ward the Plaintiff saith of his own wrong without such cause and now though the Defendant hath not shewed what day the Court was yet by the replication it is made good for now the day is not materiall 21 H. 7. f. 32. If double Plea be pleaded and the Plaintiff replies and rakes Issue of one matter and that is found he cannot after plead in arrest of Judgment for by the Replication it is made good 18 Ed. 4. fol. 17. Debt upon in Obligation the Defendant pleads a defeasance which is that if the Defendant deliver to the Plaintif in London certaine Clothes of Kersey of as good Stuff and of as good making as before these times have been made in the Town of D. in the County of Darby that then the Obligation should be void and saith that he hath delivered to the Plaintif in London the Clothes of as good c. According to the condition and this Plea is not good for that that it cannot be tried for those of London cannot try if they were as good c. But the Plaintif replied and said that the Plaintif did not deliver to us any manner of Cloth in London ready c. and now by the Replication it is good 22 Ed. 4. fol. 2. Debt the Plaintif counts upon a Lease for terme of yeares and doth not shew where it was made and the Defendant traverses the Lease and the Plaintif replies and joynes Issue and after acknowledges the action and after pleads in arrest of Judgment for that the Plaintiff hath not declared in what place the Lease was made and yet he had Judgment for when the Defendant hath in Barr gainsaid the Lease he hath admitted the count good 18 Ed. 4. fol. 17. And in Debt if I Plead the Release of the Plaintif and do not shew where it was made and the Plaintif replies and pleads not his Deed the Plea of the Defendant is made good by his Replication Br. title Repleader 38. Annuity for Counsell given and to be given and counts that he hath given to him Councell in doing his businesses and though he do not shew in what businesses it is good for if the Defendant saith that he doth not give to him Councell against the Plaintif in his replication he may shew in what things he gave Councell and so the replication hath made all good and the Count was good generally 39 H. 6. fol. 33. By Vanisor Replication may make an ill Barr good as I plead in Barr grant of Reversion and omit attornement if the Plaintif reply and confess and avoid the grant by speciall matter then is the Barr good 11 H. 7.24 By Read in Debt against one as Executor which pleads nothing in their hands day of the Writ purchased which is no Plea for that that he may have assets afterwards But if the Plaintif reply that he hath assets and that found by Verdict is good 6 H. 7. fol. 6. The same Law if the Tenant in Precipe plead non-Tenure day of the Writ and the Plaintif replies that he was Tenant And now though by the statute of 32 H. 8. chap. 30. It was enacted that if any Issue be tryed by the Oath of 12. in any of the Kings Courts of Record that Judgment shal he given any mispleading not having colour insufficient pleading or Jeofaile not worrant of Attorney put in any mis-construction or discontinuance misjoyning of Issue or other default or negligence of parties their Councellours or Attorneys had or made to the contrary notwithstanding and that the Judgement shall be in force and shall not be reversed by Writ of Errour And yet at this day one may plead in arrest
Affraies and blood-shed but not if one hath broken my Close or if one hath beaten me but if any Affray were so that the Kings People were disturbed for that is more then particuler 1 R. 3 fol. 1. If one come to make a Boothe and doth it not and yet one maketh a Fray upon him and upon him draw blood with his Sword or Dagger it is punishable by presentment in Leet 11 H. 6. fol. 29. If one assault to beat you and you fly and he inclose you or if you be at Hedge or Ditch and then you beat him and wound him this is not punishable in a Leet 34 H. 6. fol. 8. and 33. H. 6. fol. 20. If J. S. makes an Assault upon a Stranger and J. D. draws his Sword and beats and wounds J. S. in defence of the Stranger this is punishable by a presentment in a Leet But if a Servant beat and wound one which maketh an assault upon his Master in defence of his Master he is not punishable by presentment in Leet 12 H. 8. fol. 3. and 9 Ed. 4. fol. 51. If one lay his hands unlawfully upon any unlesse that he arrest him or part two that fight he is a trespassor but that is not punishable by presentment in Leet 9 Ed 4. fo 3. If one beat one in defence of his Goods this is not punishable in a presentment in Leet Booke of Entries fol. 553. and 19. H. 6. fol 21. Trespss of Assaults and Fraies TRespass by a Chaplain of Grayes Inne the Defendant pleads of his own Assault and it was held if he upon whom the Assault is made can escape with his life it is not lawfull for him to beate the other which made the Assault but it is held that I ought not to stay till the other hath given me a blow for paradventure he commeth too short 2 H. 4. fol. 9.10 Ed. 4. fol. 7. Trespasse of Grassetrod and threatning of life and member a man cannot justifie the menace of death and for that to that he pleads not guilty 21 H. 6. tit 26. the same 33 H. 6. fol. 20. Trespasse of Threatning by Prisot I cannot threaten one of Life and Member but if he upon whom the Assault is made fly and the other followeth him so neere that he cannot escape or hath him under him upon the Ground or hath chased him to a Wall Hedge Water or Ditch there it is lawfull for him to say if you will not depart that he to save his Life will kill him 3 H. 4. fol. 8 Trespasse of Assault Imprisonment and Battery Defendant plead to the Battery not guilty and to the Assault that the Plantiff came to such a River where the Defendant had a Mill and would have stopt the River and the Defendant took him by the Arme without that that he made other Assault and to the Imprisonment the Defendant pleads that the Plantiff Assaulted him and would have beate him by which he prayed the Constable to arrest him and he came in aid of him judgment if action and good 22 H. 6. fol. 48. Trespasse of a Servant beaten and Entry into his House yeare 7 H. 6. Defendant saith that yeare 8 H. 6. he served a Subpena upon the Plaintiff and that the Plaintiff and the Servant took him and carried him to his House and there deteined him half a day which is the same Trespasse and to any Trespasse before not guilty to the Battety of his Servant which was of his Assault at another day and to any Assault before not guilty Bracton saith he is not worthy of Peace which will not keep it Stamford fol. 30 a. 40 Ed. 3. fol. 40. Trespasse of Assault and Battery and found the Assault only and Plaintiff recover but shall not have action of Assault only 42 Ed 3 fol 7 the same and see 22 Assise 60. 9 Ed 4 fol 30 Trespasse of Battery it was held that if a man will take my goods I may lay my hands upon him and rather beate him then suffer him to carry them away 19 H. 6. fol. 33 the same that he may beat one in defence of his Goods 19 Ed 4 fol 189 Trespasse of Battery a man may Justifie the beating of another in his defence but by Catesby a man cannot beat another in defence of his Son but a Servant may beat one in defence of his Master or Mistris 21 H 7 fol 39. the same Mortmaine Mortmaine is inquirable in a Leet for that it is for the benefit of the King and in the Kings Court What is Mortmaine within the Statute and what not WHere one Abbot aliens to another Abbor or Bishop to another Bishop and his Successor it is Mortmaine Fitzh fol 222 D. 16 Assise 1. VVhere Land is divised to one to pay twelve pound to finde two Chaplaines for ever to sing in the Church of Saint Albanes in Wood street for ever if it be behinde that the Chaplaine may distraine that is Mortmaine see 32 Ed 3 10 and 40. Assise 29. J. S. deviseth certaine Land to his Executors that they should provide a fit Chaplaine in the Church of D. to celebrate for ever which Chaplaine shall receive yearly out of the aforesaid Lands six markes that is no Mortmaine for nothing is divised to the Chaplaine 4 Assise 27.43 Assise 27. Foure Acres were devised to one in Fee so that he and his Heires should pay yearly six pound for the maintaining of one Chaplaine to celebrate yearly for ever in the Church of Saint Leonards in Estcheape and that the Rector for the time may levie it for ever that is Mortmaine 43 Assise 33. J. S. deviseth Land and two shillings Rent for the maintaining of a Chaplaine in the Church of D. yearly to celebrate and I will that my Executors should ordaine the aforesaid Chaplaine and the Executors do nothing therefore no Mortmaine 43 Assise 34. If a Villain of a Bishop purchase Lands in Fee and the Bishop enter without license it is Mortmaine 41 of Assises 4 Fitzh 224 B. 41 Ed. 3. fol 16. If a Feoffment be made to the use of a Bishop and his Successors it is within the Statute De religiosis and so it is where he takes profits 8 Ed 4. fol. 18. A Bishop cannot appropriate an Advowson of which he is seised in Fee without the Kings license and if he doth it is Mortmaine Fitzh 223 H. see 21 Ed. 3. fol 5. seemeth contrary If one let to a religious man for a hundred yeares and so from a hundred to a hundred during eight hundred yeares this is Mortmaine but it seemeth that a lease to a Religious man for eighty years or for a hundred yeares is no Mortmaine but in the first case it is by colour of a Tearme and Mortmaine 29 H 8 Mortmaine 39. Lease for eighty years to an Abbot by Martin is Mortmain Quere 4 H. 6. fol. 9. The Tenant lets for life to J. S. the Remainder to a Religious and his Successors the Lord need
26 H. 8. f. 10. 12 H. 7. f. 10. If the tenant in Writ of Right joyn with the mise after depart in despight of the Court Judgement final shall be given So if he joyn the Mise by a Champion and makes default Judgement final shall be given but if he make default at the Nisi prius and upon a petty Capias yet he cannot save his default Judgement final shall not be The same Law if he make default after default before the Mise joyned Judgement final shall not be Fitzh fol. 11. If a man loose by default in a Writ of right before the mise ioined yet he shall have a Writ of right against him which recovers But after the mise ioined it is otherwise for then upon default after the mise ioined the iudgement shall be finall as well against the defendant for his non-suit as against the Tenant if he make default afterwards 10 H. 6. fol. 2. Right the Tenant vouches and the vouchee comes in and joins issue and the demandant imparles till the next day and at the day the Tenant was demanded and makes default judgement final shall not be given against the vouchee there 1 H. 6. fol. 7. Where the mise is joined by battell in right and after the champion of the Tenant maketh default judgement finall shall be given Time of Ed. 1 Tit. 44. if the Tenant make default after the mise joined he shall loose the land for ever if he cannot save his default 3 H. 6. fol. 37. If the Tenant in right saith that he hath more right ready to try by battell and the plaintif rejoin and day given and at the day the Tenant makes default And for that that the Justices see a fine by which the Tenant hath but an estate tail they advise of the iudgement and clearly where the Tenant makes default after the mise ioined if it were fee iudgement finall should be Processe in Court Baron is summons attachment and distresse which is processe at the common law 34 H. 6. fol. 53. and 37. H. 6. fol. the same By Martin one cannot have a Capias in Court Baron nor execution there by Capias to satisfie but the naturall excution and processe is attachment of goods as after more at large appears 3 H. 6. fol. 56. Processe upon plaints for Coppy-hold land is the same processe which is at the common law in nature of what Writ the plaint is Amerciament in Court Baron for suit and otherwise and what remedy for that and where it shall be moderate MOderata misericordia lies where a man is amerced in a Court Baron outragiously and upon that also lieth Alias pluries and attachment But if the amerciament be affirmed by equals moderata misericordia doth not lie 10 Ed. 2. Tit. action upon the Stat. 34. And note that this is the cause that in all Court Barons three are sworn to ratifie the amerciaments after that the homage hath presented the offences and Bracton calls them Trustees Amercers and Affirmors also it seems to be by the statute of Magna Charta chap. 14. and by Westminster 1. chap. 6. which is that a man be not amerced but by his equals Fitzh fol. 75. A. Debt lieth by the Lord for amerciament in his Court Baron affirmed and there held that the defendant may wage his law in this action also amerciament may be in Court Baron upon the plaintif if he be non-suited and upon the defendant if it be found against him or if he fail of his law Statham 12 R. 2. fol. 65. A free man shall not be amerced for a small fault but according to the manner of that fault and for a great one according to the greatnesse of the fault saving to him his freehold and to a Merchant saving his Merchandize and to a villain saving his waynage And upon this Statute is Moderata misericordia founded as appeareth by the Register And Glanvile saith there is also mercy because who by the oath of lawfull men is amerced shall loose nothing of his honourable freehold Magna Charta chap. 14. If the Lord of his own head amerce any Tenant or party in the Court Baron without cause the party may have a trespasse if he be distrained for that amerciament Fitzh fol. 75. C. If the Steward or the Bailiff wil assesse any amerciament without confirming by two upon their oaths after that the homage hath presented the offenders there is a special Writ thereupon the Stat. of Magna Charta chap. 14. upon these words that none shall be put upon the aforesaid mercies but by the oath of good and lawfull men so that the Steward cannot confirm the said amerciaments by this Statute but the affirors or affirmors Fitzh fol. 76. D. Amerciament in Court Baron which is the 12. and 13. Article of the Charge for a Trespasse done to the Lord and what remedy for it LOrd of Court Baron may have an action of debt in his own Court for amerciament due to him Jurisdiction 117 Suitors for that that the Suitors are Judges there and not the Lord in his Lordship Time Ed. 1. Tit. 177. and Statham 12. R. 2. fol. 5. Debt lieth by the Lord for amerciament assessed in Court Baron and affirmed there and Bracton saith that the ascestors shall confirm that they shall oppresse none for hate nor ease others for love and that they shall not conceal those things which they heare so that the Lord cannot amerce for trespasse done unto himself unlesse by custome and usage otherwise it is extortion The Lord cannot amerce a man in his own Court for trespasse made to himself by the Law but he may by custome but if he levie the amerciament it is a good barr in trespasse be the custome so or not and if it be not used it is extortion 12 H. 4. fol. 9. It seems that for a small trespasse made to the Lord he may be amerced in the Lords Court and if it be confirmed and paid the Lord shall not have trespasse of that 14 Ed. 4.8 and 7. H. 4. fol. 8. If Tenant be amerced in the Lords Court for trespasse to the Lord it is extortion but if the Lord accept the amerciament it is good satisfaction for the prespasse and good barr in trespasse 48 Ed. 3. fol. 8. In trespasse by the Lord it is a good barr that the trespasse was affirmed by the Suitors 48 Ed. 3. fol. 8. and 47. Ed. 3. fol. 19. Attachment in Court Baron upon debt or trespasse or in any other action it seems that he shall forfeit the thing attached upon default and what thing shall be attached and what not let us see By Billing Wangford and Needham that in Pone in Court Baron the goods attached if he make default shall be forfeit to the Lord tit Court Baron 1. Brook report that 37 H. 6. is contrary but this is not in the long report 34 H. 6. fol. 49. If a Bailif attach a beast in Court Baron and it was
yet the Land shall be ancient Demesne as it was before By Knivet Fine levied in ancient Demesne is nothing worth for it is no Conrt of Record but common recoveries are used there to cut off an intaile 50 Ass 9. No Land may be pleaded there by right close and not else where How Land in ancient demesne is made frank Fee for a time and how for ever DUring the time that Lands in ancient Demesne is in the hands of the King it is Frank Fee but if the King grant that over to hold of the Mannor againe it is ancient Demesne againe 21 Book of Ass 13. If Recovery or Fine be in Common Bench of Land in ancient Demesne the Land is Frank fee till it be defeated by the Lord by Writ of Deceit and when that is defeat it is void to bind the parties 8 Ed. 4. fol. 6. See 3 H. 4. fol. 6. accordingly If the Tenant in ancient Demesne enfeoffe his Lord of the Mannour being common person and not King the Lordship is Frank see for ever 9 H. 6. fol. 24. B. 3 H. 4. fol. 16. the same Where the King gives Land of ancient Demesne to hold in Franke Almaigne that is Franke fee 6 H. 4. fol. 2. Where a Fine is in common Bench of Land in ancient Demesne is Frank fee so that after if a Recovery of that be in ancient Demesne it is void and before not a Judge 7 H. 4. fol. 3. B. 7 H. 4. fol. 29. the same If the King was once seised of Land in ancient Demesne and lett that for life it is Frank fee for the time 11 H. 4 fol. 84. Where Land in ancient Demesne is forfeit to the King by attainder and the King grants that over to another and his heires now they are Frank fee for ever 13 H. 4. fol. 7. Where a Fine is levyed of Land in ancient Demesne in the Common Bench the Lord may defeat that by a Writ of Deceipt and yet if he to whom the Fine was c. hath a Release with confirmation of the party made after the Fine his Estate is good notwithstanding that the Fine be defeated Fitzh 98. a. The Lessor by his confirmation to his Tenant may make the Land in ancient Demesne Frank fee but if he confirme to hold by meaner services it is no Frank fee 30 Ed. 3. fol. 16. Where Land in ancient Demesne Escheats to the Lord for that that the Tenant dyes without heire generall or speciall are Frank fee for ever for he holds them now of the Lord Paramount 18 Ed. 3. fol. 19. If the Tenant in ancient Demesne answer the action in Precipe in the Common Bench yet it is no Frank fee before Judgement given 2 Ed. 4. fol. 26. The Lord by his confirmation may alter the tenure but not the estate of the Land where he confirmes to hold at the Common Law 49 Ed. 3. fol. 7. Fine at the common Law recovery or where he is in by the Kings Charter or by feoffment of the Lord these prove the Land frank Fee and not ancient Demesne Fitzh fol. 13. C. If the King be seised of Land in ancient Demesne this is Frank fee but if the King demise it to another the Land is ancient Demesne again 17 Ed. 3. fol. 52. A man recovers in ancient Demesne Lands which were at the common Law against a man by Verdict of a Jury and he against whom the recovery was brought an Assise upon that and awarded that he should recover Seisin 30 Ed. 1. Tit. Assise 379. Note the tenure and tryall of ancient demesne and who shall plead ancient demesne LAnds which are ancient Demesne are Soccage Fitzh fol. 11. Tenants in ancient Demesne are those which hold of the Mannors which were in the hands of Saint Edward the Confessor at the time that the Book of Doomsday was made but the Lands written in that Book to be in other mens hands are not ancient Demesne Fitz. 16. E. All the Lands which were in the seisin of Saint Edward the Confessor when the Book of Doomsday was made are called ancient Demesne and the Lands in other hands c. Frank fee Natura brevium fol. 14. If the Land be ancient Demesne or not shall be tryed by the Book of Doomsday 49 Ed. 3. fol. 22. In Monstraverunt Assise The Tenant pleads that the Land was ancient Demesne and it was tryed by Assise in the Book of Notting and also North. 8 Ed. 2. Statham fol. 20. Triall of ancient Demesne is by the book of Doomsday and by that it was certified that London was not ancient Demesne 7 H. 6. fol. 34. In Assise of Mortdancester ancient Demesne was tried by the Country 8 Book Ass 35. 9 Book Ass 9. the same In Assise the tenant saith that it was parcell of the Mannor of B. which is ancient Demesne and the other saith that it is not parcell and upon this at issue and that was tryed by Assise 12 Book of Assises 18.22 Book of Assises 45. the same Assise none shall plead ancient Demesne but he which is Tenant and not the Disseiâ—or 21 Book of Ass 2.41 Ed. 3 tit 22. the same If Land be in the book of Doomsday written under the Title Land of the Bishop and not Land of the King yet though it be in the book of Doomsday it is no ancient Demesne 40 Ed. 3. fol. 45. Form of Pleadings that the Land is ancient Demesne and how he shall sue for ancient Demesne and for Copy-hold in ancient Demesne BY Prisot he which pleads ancient Demesne shall say that the Land is held of the Mannor of D. which is ancient Demesne and pleadable by a petty VVrit of Right close from time out of minde and demand judgment if the Court will acknowledge 36 H. 6. fol. 18. 3. H. 6. fol. 48. But see by Thirne and granted that frank Fee may be held of a Mannor of ancient Demesne 11 H. 4. fol. 85. Precipe the Tenant saith that the Land was parcell of the Mannour of D. which is ancient Demesne and pleadable by petty VVrit of right close time out of minde and demand judgment if the Court will acknowledge and it is no Plea for the Demandant to say to that that it is frank fee for that that it doth not gainsay but that the Mannor is ancient Demesne and that this is parcell but he ought to plead specially how it is become frank fee 41 Ed. 3. f. 22.12 Book of Ass 16.22 Book of Ass 45. Right close lieth alwaies between Plow-holders and no Plow-holder may implead another Plow-holder of Lands in ancient Demesne unlesse by this VVrit and shall make in this his protestation to sue in nature of what VVrit he will as his case is Nat. Brevium fol. 11. They call Tenants in ancient Demesne Sokemaines Britton fol. 105. Copy-holder of base Tenure shall not have a Right close but ought to sue by Bill in the Lords Court but copy-holder in ancient Demesne of free-tenure
shall have that Fitzh fol. 11. The King shall have yeare day and wast of Lands in ancient Demesne if it be so that the Tenant have sold them against his Lords will and yet not the Lands past by surrender Stam. fol. 50. Note this is where the copy-holders in ancient Demesne have used time out of minde to sue for them by petty Writ of Right close and so is 14 H. 4. fol. 1. by Hank and 14. H. 4 fol. 34. and see 3 Ed. 3. Br. tit copy-hold 22. And in these surrenders of Lands in ancient Demesne of frank tenure it is not used to say to hold at the will of the Lord in these copies but to hold according to the custome of the Mannor by the Services before due and is not said there at the Will of the Lord. Ancient Demesne is Socage Tenure for they are called Sokemaines Fitzh 14. C. By what Writ Execution shall be in ancient Demesne and by what not and shall be free of Toll c. EXecution of Writs in ancient Demesne cannot be for that Execution is given by Westm 2. chap. 18. and that the Statute is if they be ejected of those Tenements they have to recover by a VVrit of new Disseisin 22 Book of Ass 45. Upon a Statute Merchant execution was awarded of Lands in ancient Demesne Br. Tit. 37. Debt against Heire if he hath Lands in ancient Demesne they shall be charged as Assets 7 H. 4. fol. 15. Those Tenants of ancient Demesne are quit of Toll and passages for Goods sold and bought in Faires and Markets and to be quit of Taxe and Tallage of Parliament unlesse they be taxed by the Parliament and to be quit of expences of Knights of Parliament and shall not be put upon Juries and Inquests out of ancient Demesne for Lands of ancient Demesne Eitzh 14. Court of Pipowders Let us see the nature and authority of Court of Pipowders COurt of Pipowders is a Court of Record and the Steward is Judge for that that there are no Suitors there and for that error lieth there upon erronious judgment given and not a VVrit of false judgment 6 Ed. 4. fol. 3.7 Ed. 4. fol. 23. That errour lieth there It was held that a Court of Pipowders may be by custome in a City without Faire or Market and therefore where it was assigned for error upon a Record given in a Court of Pipowders according to the custome of the City held c. And though it be not in full Market or Faire it was adiudged no errour 13 Ed. 4. f. 8. Trespasse of Goods taken the Defendant iustifies as Bailif of the Town of Rippon by vertue of a command of execution of a iudgment given against the Plaintif in Debt in Court of the said Faire at Rippon and for that that the Plaintif did not make agreement for the Debt recovered against him within ten daies after iudgment given he makes price of the Goods by Merchants of the Town of Rippon and for that makes agreement with the party and this Justification was good 20 Book of Assise 90. It was enacted that no Steward shall hold Plea in this Court unlesse the Plaintif or his Attorney makes Oath that the fact or contract was made within the Faire and if it were the contrary he should forfeit 100 s. 17 Ed. 4. chap. 2. tit Faires the fourth In Court of Pipowders the Plaintif or his Attorney shall be examined by Oath if the matter rose within the Faire and the Defendant also may pleade that this arose in a forrain place 1 R. 3. chap. 6. Debt in the common Bench against Mawd and counts that he had recovered ten Markes against the said Mawd in Court of Pipowders at Everwick and the Plaintif by Certiorare removes the Tenor of the Record in the Chancery and from thence by Mittimus into the common Bench to have execution and attachment was made upon the Originall at the ninth houre and he appears and pleaded and a Venire facias went out returnable at the third houre after the ninth and so in Court of Pipowders the processe is from houre to houre 7 H. 6. fol. 19. The book of Entries fol. 167. See there the form of the Count and Precipe of summoning in this Court and the Processe of Capias and proceeding in Debt in this Court and Debt against a Jaylor for escape in Title Debt The book of Entries fol. 18. See Scire facias to have execution upon iudgment given in a Court of Pipowders in an action of account brought there and removed into the common Bench to have execution of that iudgment And it seems breifly that nothing shall be sued here unlesse the contract or deed were made within the Precinct of the Faire or Market as it appeares above and for that Informations of penall Statutes ought not to be sued in this Court of things and Offences made out of Faires and Markets as insufficient tanned Leather carryed to be sold in Faires against the Statutes also this Court is ordained only for hasty redresse of things there during the Faire Court of Marshalsey FIRST In the booke called the Diversity of Courts fol. 110. It is said that the Court called the Marshelsey is an ancient Court of Record and made to have good government and order within the Kings House for preservation of the King and his Servants and to this Court are certaine bounds limited by 13 R. 2. chap. 3. that in all places where the King in his own person shall come and make stay there within the Verge limited to his Graces Court that it shall not passe the space of twelve Miles to be accounted from his Lodging Fitzh 141. B. And in diversity of Courts it is said that this Court hath power to inquire of Treason Murder and Felony and to take appeales of them and also of Maymes if they be made within the Verge and between persons of the Kings House And said there also that if one of the House of the King sue another which is not of the House he shall plead to the Jurisdiction of the Court and if they will not this exception allow he shall have a VVrit of Errour and that shall be reversed in the Kings Bench Fitzh 242. A. Seek in trespasse And the Judges in this Court are the Steward and Marshall of the Kings House for in these is the order of the Kings House Note that by the Statute Articuli super chartas c. 3. that the Steward and the Marshall shall hold no Plea of Freehold nor of Debt Covenant nor of any bargain made between any of the Kings People but only of trespas made within the Kings House or other trespasse made within the Verge and of Contracts and Covenants which one of the Kings House made with another in the same House and not otherwhere And they shall plead no Plea of trespasse except the parties were arrested by them before the King departed the Verge where the trespasse was committed and
six English men otherwise the Jury shall not be taken and so shall be Tales of that 4 Mar. b. Tit. Jurors 8. Jury tooke a Writing of the Plaintiff which was not delivered to them in Court and passed for the Plaintiff and for that that this matter appeared to the Court by examination therefore the Plaintiff shall have no Judgment 35 H. 8. B. Tit. Replead 54. It was in use in the Kings bench though that the Jury was ready to passe there if there be a Jeofaile apparent in the Record the Jury shall be discharged 26 H. 8. f. 6. Jurors after they are in the House return to heare evidence again upon matter which they were in doubt of and may 14 H. 7. f. 1. The Jury eate and drink before the Evidence finished or after they are agreed depart and drink before Verdict they shall be Fined and the Verdict is good but if he eat and drink after evidence given and before they agree the Verdict is void And it seems that this matter shall be shewed when the Jury comes in to give their Verdict and shall be examined and not after And it seems that the Jurors may depart asunder by cause of great tempest of a House falling or fire where they are Execution For that that execution is used in many Court-Barons by Levari facias let us see what Goods upon that may be taken in Execution and what not and the order of execution GOods pawned shall not be taken in execution for the Debt of him which pawned them during the time they are pawned 34 H. 8 Pledge 28. and 4 Ed. 6. Distresse 75. Where A. lets Oxen for time and after A. is condemned these Oxen during the tearme shall not be taken in execution 22 Ed. 4. f. 10. Debt in Court-Baron the Plaintiff recovers by Judgment and shall have execution and the Beasts of the Defendant were taken and delivered to him in Execution 33 Ed. 3. Tit. Execution 133. In Debt where three are bonnd joyntly and severally and hath of those three severall Judgments and if Execution be against one the other shall have a supersedeas but in trespasse against three Execution against one doth not suffice and the same Law is in a ioynt Debt 4 Ed. 4. fol. 39. By Fieri facias or Levari facias the Officer cannot break the Doore nor Chest to take Goods in Execution for if he do trespasse lies against him for the breaking only 18 Ed. 4. f. 4. 13 Ed. 4. fol. 9. by Choke notwitstanding 8 Ed. 2. Tit. Executors 152. contrary If one recovers in Court-Baron he shall not have execution by Eierifacias nor otherwise but may distrain the Defendant after Judgement and detaine the distresse in their hands in safegard till the Defendant hath satisfied the Plaintiff of the condemnation 22 Ass 72 Statham 11 Ed. fol. 93. Nat. Bre. fol. 165 and 4 H. 6. fol. 17 action Bailiff in Court Baron cannot sell the Goods in execution but shall restraine them as distresse notwithstanding where it is used to make Levari facias it is a good custome and note that it is used in many Mannors that the goods are praised and execution made of them by Levari facias 22 Book of Ass 72. A Writ of Execution Judicii lieth where Judgement is given in a Court-Baron upon a Writ of right patent or in debt or trespasse and the Bailiff will not make execution this Writ lieth as well as it lieth where Judgement is given in a Court of Record and the Sheriff will not make execution and if he will not levy the execution upon the Goods it was in vaine to award this Writ Fitzh f. 20. A. Capias doth not lye in Court-Baron and for that the Capias to satisfie doth not lye to have execution and Elegit doth not lye there c. for this is given by the Statute of Westm 2. chap. 18. 29 H. 8. Tit. Execution B. 132. Two are bound in an obligation joyntly and severally if he sue one and takes his Body by a Capias to satisfie yet he may take the other but if one satisfie him the other may plead that 37 H. 8. Tit. condition B. 16. One taken by a Capias to satisfie is in execution though that be not returned 13. H. 4. Tit. Avowris 237. One avowes for that that J. S. was seised of a place where c. And let that to the Plaintiff for life rendring Rent and after J.S. grants the reversion to B. who was bound in a recognsance to the Avowant and that the Avowant hath that Rent delivered in execution and good 15 Ed. 3. Tit. Execution 93. Rent was delivered in execution upon a Recognisance time of Ed. 1. Title Audita querela 402. If the Father be bound in a Recognisance and dies and his Issue within age the Execution shall not be against him for if it be he shall have an Assise Time of Ed. 1 Tit. 417. If a man takes a Wife and after be bound and dyes the VVife is indowed if she be outed by extent she shall have Assise 29 H. 8. Tit. Stat. Merchant 40. If one sue Execution upon a Statute and he accept part of the Land in name of all he shall not have extent of the residue but it seems upon a Nihil returned upon the Testatum he may have processe into another County 2 R. 3. f. 8. Statute Staple was certified by the Maior of the Staple and the Conisee upon that sues a VVrit to take the Body and to extend his Land in Suff. and Middlesex only and this VVrit was not returned and by Certiorare he caused the Maior to certifie the Statute again and upon that he hath a VVrit of extent in ten Counties but not in Suff. and Middlesex and this VVrit is not returned and he hath the third Certificate and the third VVrit of Extent into six Counties but not in Suff. and Middle and now hath his Extent and hath Land that the Cognifor hath in right of his VVife which died and for threats durst not take the profits of the residue and by all the Justices the Cognisee shall have a Capias into the County where he took his first Writ and not otherwise that is into the County of Suff. and Middlesex only upon the fourth Certificate and upon that the Conisor found suerties to the King and party according to the Statute 11 H. 6. chap. 10. He shall have a Scire facias against the Conisee to prove the matter in his VVrit and to be at the Judgment in the Court and if he faile of any he shall forfeit his Recognisance 2 R. 3. fol. 9. If the Conisee of a Statute dies his Executors or Administrators if he dye Intestate shall have execution upon it without suing Scire facias or that the Conisor cannot have any Plea although he have a deed of Release but if he have a Release he shall have an Audita querela or a Scire facias and so it is where one
which is no Executor sues an Execution the Conisor shall have this VVrit but upon recovery by the Statute of West 2. One may have a fieri facias within the yeare to have Execution and after the yeare may have Scire facias and if a man be bound in two Statutes one after the other and he which hath the last Statute hath first Execution the other shall have a Scire facias and have execution and if the Sheriff upon a VVrit to have execution returns the Conisor dead the Conisee shall have a Scire facias against the Heire of the Coniser and the Land Tenants 25 H. 7. fol. 17. VVhere the Conisee to whom a Statute is made dyes his Executors shall have Execution without suing Scire facias for that it is given by the Statute but where one hath a Judgment and dies it is otherwise West 2. chap. 45. gives Scire facias upon Judgment and upon Fine 15 H. 7. fol. 14. Husband is bound in a Statute and Lands of his VVife were extended and after the VVife dies and the Heire of the VVife enters now may the Conisee have a Capias for the Body of the Conisor though he had not that at the first for that that the Statute gives the Lands Goods and Body and if execution be defeated by lawfull entry he shall not have a Re-extent but if the Conisor himselfe take the profits of the Conisee or that the profit be destroyed by wild-fire or water the Conisee may hold over his Tearm and the Conisor cannot enter during the Tearme of extent but shall have a Scire facias and shall not have that before the Tearme ended without aquittance or that he leave Money in the Court and where the Conisee is satisfied within the tearm by casuall profit the Conisor shall have upon that a Venire facias and upon that a Scire facias And if it be extended too low the Conisor may lay the Money in Court and recover his Land and if it be found too high the Conisee may pray that the Extenders may take the Land c. 11 H. 6. fol. 8. If the Land extended be drowned by water within the Tearm the Conisee may hold over the Tearm and the same Law where he is outed by a Guardian in Knights service 15 Ed. 4. f. 5. 22 H. 8. chap. 5. VVhere Lands delivered by reasonable extent in Execution have been recovered or lawfully diversted from the Conisee of the Satute Merchants Statute Staple or Recognisances before they have been fully satisfied and paid there Debts without fraud or covin remedy given by Scire facias against the Recognisors to levy the residue VVhere a VVoman recovers dammages in Dower in the Bench she cannot have execution there of those dammages recovered by capias ad satisfaciendum for that that the Capias doth not lye in the Originall 11 H. 7. f. 15. 2 H. 4. f. 7. The Statute of Westm 2 chap. 18. gives Elegit that is to say That the Sheriffe shall deliver all the Chattells of the Debtor except the Oxen and Beasts of the Plow and the half of his Land that doth not extend to a Court-Baron but to Courts where Process is directed to the Sherift and the Statute is also when a Debt is recovered in a Court of the Kings and Court-Baron cannot award the halfe of the Land in Execution for it is no Court of the Kings but of the Lords and he cannot meddle with Lands without the Kings Command but in other Courts Execution shall be of Lands which hath a day of Judgement given and of Goods in this Court and Beasts which the party hath day of the Execution awarded and see also execution of Recognisances and of Statutes for your Learning Execution shall be of Land which hath day of recovery 7 Ed. 3. f. 93. and 21. Ass 2. A man shall have Execution of Lands which he had day of the Judgement and not before Abridgment Ass fol. 93. 19. Ed. 2. Fitzh Execution 249. Natura brevium fol. 168. A man shall have execution in Debt of no Land but of of that which the Defendant had day of the Judgement given and of Chattels which he had day of the Execution sued Natura brevium fol. 107. and 2 H. 4. fol. 15. It seems that all the halfe of the Lands which a Recognisor hath which enters into a Recognisance day of that or after are liable in execution by Elegit 24 Ed. 3. fol. 27. tit Execution 90. Fitzh 267. D. 2 H. 4. fol. 9. Note where one is bound in a Statute Execution shall be of all his Lands which he had day of the Statute acknowledged or after in whose hands they come by Feoffment or otherwise but it is not said so of Goods and Chattells And for that they shall not have them in whose hands they come but those only which he had in his hands day of the execution awarded But if the Cognisor after the Statute acknowledged lets his Land for yeares the Cognisee may out the Lessee for the words are in whose hands they come by Feoffment or in other manner Statute of Merchants fol 48. To have execution of a Statute Merchant first you shall have a Writ of Certificate in the Chancery and there upon Certificate shall goe a Capias returnable in the Common Bench or Kings Bench and then within one quarter of a yeare that it shall be taken shall goe an Extent of all his Goods and Lands See the Statute of Merchants 37 H. 6. fol. 6. Fitzh 130. G. Statute Staple shall be certified as the Statute Merchant is and upon that shall goe a Writ of execution to take him and to extend his Lands and this shall be returned in the Chancery and not into the Common Bench or Kings Bench as the VVrit of execution upon a statute Merchant shall be and upon this shall goe a Liberate Fitz. fol. 131. D. 15 H. 7. fol. 14. Upon a statute Staple he shall have the body lands and goods by a VVrit and upon a statute Merchant First a Capias by a quarter of a yeare c. and upon the returne of that Non est inventus shall have a VVrit to have execution of his Goods and Lands Upon a statute Staple after a Certificate shall goe out a VVrit to take his body and to extend his lands in what County he will and if that be returned he cannot have Extent in another County that is to say a Liberate 2 R. 3. fol. 7. Upon a statute Staple shall goe a Capias out of the Chancery returnable in the Chancery to take his body and to seife his lands into the Kings hands and at the day of returne of that Liberate 37 H. 6. fol. 6. Note that the Statute of Merchants fol. 79. is That an execution upon a Recognizance shall not be made as it is upon a Statute Merchant but as it was used by the Law before the making of this Statute and this was to
have a Scire facias and upon that an Elegit or a Fieri facias Upon a Recognizance there shall go no Capias but it is used otherwise at this day that is Scire facias returnable into the Chancery and they use now to award a Capias Fieri facias or Elegit 48 Ed. 3. fol. 14. Statute Merchant hath two Seals and one is the Seale of the paray and for that upon that he may have Debt to have execution but Statute staple onely the Seale of the party 15 H. 7. fol. 15. A man may sue Debt upon the Statute Merchant Staple or Recognizance See Statute Merchant Fitzh 122. D. and fol. 77. the same Note that there are foure manner of Executions and note Covin to defeat them void THere are foure manner of Executions that is of body by Capias of Chattels by Fieri facias of Lands by Elegit and after the yeare after Judgement by action of Debt 11 H. 4. fol. 42. Debt upon Recovery shall not be within the yeare after Judgement but after the yeare 5 Ed. 4. fol. 1. If after Judgement one gives his Goods to one to defraud me of execution and notwithstanding takes the profit of them I shall have Execution of these Goods 22 Booke of Assises 72. 3 R. 2. the same and 50 Ed. 3. the same All Conveyances of Lands and Hereditaments Goods and Chattels Leases Rent Common or Profit or charge out of Land Judgment Execution Deeds by fraud or Covin to the intent to defraud Creditors and others of their just and lawfull Actions Suits Debts Accounts Damages Forfeitures Harriors and Releifs are voyd onely against the persons their Heires Successors Executors Administrators and Assignes and every of them whose Actions Suits Debts Accounts Damages Forfeitures Harriots and Releifs by such fraud shall be or may be hindred delayed or defrauded notwithstanding fained consideration expressing of use or any other matter or thing to the contrary 13 Elizabeth chap. 5. Debt against Executors they plead gift of all the goods of their Testator by Deed without that that they administred other Goods and the Plaintiffe averrs that the gift was made to defraud the Creditors 13 H. 4. fol. 9. See 16 Ed. 4. fol. 9. Issue was taken if the Goods were made away to defraud Execution or not 43 Ed. 3. fol. 3. Where Debtors make Gifts and Feoffments fained of their Goods and Lands to their Freinds and others and take Priviledges Rastall Debt 5. and take profits of their Lands and Goods so given by fraud shall be a Capias and Proclamation and after Execution of his Lands and Goods 2 R. 2. Stat. 2. chap. 3. Where Debtors make Gifts and Feoffments Rastall execution 5. as it is sayd in the Statute of 2 R. 2. and flye to places priviledged and take profits that the Creditors shall have Execution of the sayd Goods and Chattells as if no such Gift had been made 50 E. 3. chap. 6. 26 H. 8. fol. 2. If a man takes a Wife which hath Goods and aliens them by Covin supposing a Divorce to follow and after they are divorced the VVife may averr the Covin and have her Goods againe 33 H. 6. fol. 5. One buyes in Market open Goods taken by wrong if the buyer have knowledge of the wrong the property is not altered 14 H. 8. fol. 9. by Brook If I by fraud and Covin cause one to take your Goods and to sell them to me in an open Market yet that shall not change the property for that I am party to the Covin At Northampton before the Lord Dyer there was a Deed of gift of Goods shewed and in that it was exprest by words to the use of the Donee and yet it was averred that it was by Covin 44 Ed. 3. fol. ult A VVoman hath good cause to be endowed and shee procured J.S. to out the Tenant and then shee brought a Writ of Dower against J. S. and recovered and had Execution the Tenant may have an Assise against her and recover 22 Book of Ass 1. Assise The Tenant hanging the Assise enfeoffs another or suffers another to enter end recover by Formedon by elder gift this Covin shall not hurt the Plaintiffe but that he may recover 38 Book of Assises VVhere one was outlawed of Felony alleadges Imprisonment at the time of the Outlawry and it was replyd that he was in Prison by his owne Covin and issue upon that 41 Book of Assises 2. A man hath right of Action and makes one by Covin to enter upon him which is in by discent and recovers he shall be adjudged to be in as an Abator and not by Title Evidence AND for that that you have not many times Councell in your Court Barons and for that that it is many times pleaded to the generall Issue where it ought not It is now expedient to shew what matter may be given in evidence upon generall Issue and what not And first where the Defendant pleads the generall Issue and shews in evidence that the Plaintiffe hath no such cause of Action as is brought nor no cause of Action this is good evidence upon generall Issue Action upon the Statute of Parco fracto not guilty and evidence that hee hath no Park is good 19 H. 6. fol. 7. Trespasse in VVarren not guilty and evidonce that he hath no VVarren is good 10 H. 6. fol. 17. and 34 H. 6. fol. 7. Trespasse by VVarden of the Fleet not guilty and evidence that he is not VVarden is good 4. Ed. 4. fol. 7. and 12 E. 4. fol. 7. Trespasse of a House broken not guilty and evidence that the Plaintiffe hath no House there is good 22 H. 6. fol. 7. Trespasse not guilty and evidence that the place where the Trespasse was done is the free-hold of another and not of the Plaintiffe is good 4 E. 4. fol. 5. Debt against a Vicar for holding Farmes He hath not against the forme of the Statute and evidence that hee had for maintenance of his House it is good 27 H. 8. fol. 25. Action upon the Case of finding his Goods and converting them to the use of the Defendant not guilty and evidence that they were not the Goods of the Plaintiffe is good 3 Mar. and 33 H. 8. Action upon the Case 109. Otherwise it is in Trespasse 27 H. 8. fol. 25. Debt upon arrearages of account hee oweth him nothing in manner and forme and evidence that there was no such account is good 2 H. 6. fol. 26. Debt upon arrearages of Rent upon a Lease for yeares he owes him nothing and evidence that hee did not demise is good 7 H. 7. fol. 3. Debt upon sale of a Horse for forty shillings the Defendant may plead he oweth him nothing in manner and form and evidence that the sale was of two Horses for forty shillings or that it was of an Oxe for forty shillings is good 21 E. 4. fol. 26. and 9 E. 4. fol. 1. by Moyle VVaste no waste made and
If Sommons in Precipe be not served fifteen days before the first day of the return of the Writ the Tenant may wage his Law of not sommoned 42 Ed. 3. fol. 7. Precipe at the great Cape returned the Tenant tenders his Law of not sommoned and at the day comes to wage his Law And the Demandant offers to waive the default and prays that the Tenant may plead in cheif But cannot if the Tenant will not assent by which he made his Law and the Demandant takes nothing by his Writ But at the first day that the Tenant offered his Law the Demandant might have released the default 27 H. 8. fol. 17. the same 2 H. 5. fol 1. Formedon at the great Cape returned the Demandant is essoined and for that the Tenant need not wage his Law for the default is saved 18 H. 6. fol 6.3 H. 6. fol. 50. the same 8 Ed 4. fol 2 Precipe If the Demandant be essoined the day that the Tenant tenders his Law the default is saved he need not wage his Law of not summoned But if it be at the day that he hath waged his Law it is otherwise for he cannot release the default 33 H. 6. fol. 49. the same 7 Ed. 3. tit 51. Saving default Fitzh at the Petty Cape returned the Demandant was essoined and had day over at which day he took him to the default and the Tenant was put to answer at the default notwithstanding the said Essoine 5 Book of Ass 11. the same 4 Ed. 3. tit 62. F. At the great Cape returned the Demandant was essoined and day given over at which day the Demandant took him at default by which it was awarded that he take nothing by his Writ 3 H. 6. fol. 48. Precipe at the great Cape returned the Defendant saith that he was imprisoned by J. S. upon a Statute Merchant by vertue of a Statute acknowledged to him that he could not come and notwithstanding that this was his own act that is to say the acknowledging the Statute and not paying it yet the Imprisonment was by the act of the Law and his default and by that Plea his default was saved The same Law of encrease of water 12 Ed. 4. fol. 44. Saving default F. 42 Ed 3. fol 7. Precipe at the Petty Cape retâ—â—â—ed the Tenant saith that he was in Prison at the time of the default made ready c. And the Demandant to the contrary that he was at large and the Enquest taken sound that he was in prison by which the Demandant took nothing by his Writ 13 Ed. 3. Tit. 49. F. 18 Ed. 3. tit 35. F. At the great Cape returned the Tenant saith that he was in prison c. The demandant saith that he was in prison by his own consent and by fraud to save his default And the Tenant was driven to aver that he was in prison against his will and upon this Issue taken 14 Ed 3 tit 39. F. 13 Ed 3. tit 49. At the petty Cape returned the Tenant saith that he was in prison upon a Statute c. and the demandant saith that that was by covin and so Issue taken that he was in prison against his will taken and others to the contrary 39 H. 6. fol 17. The Attorney may save the default where his Master came and for that both may save the default by encrease of water and by Imprisonment and not by weakness neither of the one nor of the other for that cannot be tryed if he may come without unavoidable perill of death or not 38 H 6. fol 12. Weaknesse of an Attorney is not sufficient to save a default but encrease of water and Imprisonment is a cause See 50 Ed. 3. fol. 9. And the Tenant plead in abatement matter for mischeif of war and death which proves the Writ abated without saving his default 40 Ed 3. fol. 2. Precipe against H. son of W. Osmond the Tenant at the great Cape comes without saving his default and saith that his Father is named Edmond and not Osmond and for mischeif of the war he shall have that plea before default saved by waging of Law 40 Ed. 3. fol. 42. Formedon at the day of the Petty Cape the Tenant cometh and saith that the Demandant hath entred hanging the Writ and cannot have that Plea in abatement before the default saved 40 Ed. 3. fol. 18. Precipe against the Husband and Isabel his wife they come before the default saved that the wife is named Elizabeth and had for the mischeif of the war 14 H 4. tit 15. Precipe the Tenant saith that the Demandant is out-lawed and shall not have this before default saved 38 Ed. 3. tit 17. At the great Cape against three they alledge severall Teâ—ancie and the Writ abate if he do not maintain And they shall not wage the Law of not summoned for then they admit the Writ and that they are Tenants as the Writ supposeth 12 Ed. 4. fol. 1. 14 H. 6. f. 4. Precipe at the great Cape the Tenant would plead Joyntenancy and could not before his default saved for this comes upon the view 42 Ed. 3. fol. 11. the same 21 Ed. 4. fol. 19. Precipe against two at the great Cape one Tenant pleads that the other is dead after the day of the default and for that this Plea proves the Writ abated he shall have this Plea before his default saved 20 H. 6. fol. 2. the same 42 Ed 3. fol 3. Precipe against two one Tenant may plead that in the conclusion of the Writ the one is left out and the Writ for that is abated before the default saved Pleas after Continuance and Imparlance and what not ASsise where they are adjourned upon Plea in Bar it seems that he shall not have but one Plea after the last continuance for otherwise he may delay the party Infinitely 28 H. 6. fol 1.9 H. 7. fol 9.9 H. 6. fol 22. Quare impedit cleerly agreed that a man shall have but one Plea after the last continuance upon matter in Deed And by some the same Law is where it is by matter of Record 1 Ed 4. fol 3. Ass It seems that one cannot have divers Pleas after the last Continuance 2 H. 6. fol 13. Entrie in the Post If the Demandant enter and after there is a Continuance yet he may plead that for that that it is abated And it is folly of the Demandant to abate his own Writ 7 H. 6. fol 15. The same 7 H. 6. f 16. Quare Impedit It was pleaded in abatement Plaintiffe was made knight after the last continuance Judgment of the Writ and he had it 20 H. 6. fol 17. Trespasse after Imparlance the Defendant saith that the Plaintiffe was made knight day of the Writ not named knight Judgement of the Writ and had that Plea 35 H. 6. fol 5. Where a man is sued by the name of J. Prior of the Church of St. Peter of D. and imparles by an Attorney he shall not
Imparlance saith that the Plaintiffe was knight day of the Writ purchased not named knight Judgment of the Writ and had plea by Judgment Otherwise it is said after continuance by day given 42 Ed 3. fol 1. Debt the Defendant came at the Exigent by Reddidit se and was bayled and the Plaintiffe came and prayed day by Prece partium and had it notwithstanding that the Defendant was by Bayl for that is by agreement of the parties 8 H. 5. fol 8. After day given and after speciall Imparlance the Defendant may plead in abatement and not after generall Imparlance 14 H. 4. fol 14. If the parties be at Issue and the Demandant releases to the Tenant and he takes continuance by request of the parties he shall not plead the release 22 Ed 3. fol 8. The Tenant after the request of the parties was received to plead Joyntenancie by Fine Pleas after Issue and at the Nisi prius day in Bench and after Verdict DOwer by Thorpe the day of the Nisi prius and the day in Bench is not all one to all respects for a Writ purchased mean between the Nisi prius and day in Bench shall abate for the first Writ is hanging till Judgment be given notwithstanding the Plaintiffe was non-suited at the Nisi prius But when to plead any Pleas which come mean between them there shall be one same day 40 Ed 3. fol 38. 28 H. 6. fol 1. A man may plead a Plea after last continuance at the Nisi prius Inquire what Pleas. 34 H. 6. fol 45. At the day of the Nisi prius the Defennant pleads to the Writ that one of the Plaintiffes was dead after the last continuance at D. in the County of Darby Judgment of the Writ and had it 47 Ed 3. fol 2. If it be found against the Plaintiffe at the Nisi prius and the Plaintiffe makes default at the day in Bench yet Judgment shall be upon the Verdict for that is all one day and the day of the Nisi prius 10 H. 7. fol 21. Debt upon a Lease for yeers and the Issue was levyed by distresse or not And now at the Nisi prius he could not plead a Release made after the last continuance 19 H. 6. fol 36. Forging of false Deeds against many they were at Issue Processe continued against the Enquest till the Jury appeared at which day the Defendant pleads arbitrement after the last continuance and upon this the Jury was discharged 21 H. 6. fol. 10. Nisi prius was returned Octa Mich that is the day in Bench and one Plaintiffe dyed after Octa Mich and before Judgment given upon the Verdict And the Defendant may plead that for Judgment shall have relation to Octa Mich and then the Defendant cannot have remedie by Writ of Error Audita querela nor otherwise therefore he shall have the Plea again But it seems that the Defendant cannot plead Release made to him by the Plaintiffe after Verdict for he shall have an Audita querela contrary of his death the day of Nisi prius and the day in Bench were all one self same day and no mean time and therefore Release made mean between these two cannot be pleaded at the day in Bench notwithstanding it seems at the day of Nisi prius before the Jury taken The Release which is made mean between the Award of the Writ of Nisi prius and the day of the Nisi prius may be pleaded at the Nisi prius See 10 H. 6. tit 53 and tit 55. Br. 22 H. 6. fol 1. Dower It seems if the Plaintiffe release to the Defendant mean between the award of the Nisi prius and the day of the Nisi prius there if the Jury remain for default of Jurors the Defendant may plead this Release at the day in Bench after the last continuance though he did not offer it at the day of Nisi prius and contrary it seems if the Jury had been ready at the Nisi prius 36 H. 6. fol 24. At the Nisi prius the Enquest past for the Plaintiffe and he released before the day in Bench the Defendant shall have an Audita querela and of this it follows that the Defendant cannot plead that at the day in Bench after the last Continuance 34 H. 6. fol 3. 21 H. 7. fol 33. After the Enquest taken by default the Defendant cometh before Judgment and pleads that he and the Plaintiffe have put themselves to Arbitrement after the last Continuance c. And by the opinion of the Court he hath no day in Court to plead that Plea And it was said that he shall plead no plea in such case but as a freind to the Court But of matter apparent he shall be received but in the Kings case he shall have that by plea for he hath no other remedie But in the case between common persons he shall have Audita querela contrary against the King 11 H. 7. fol 10. tit B. 61. 38 H. 6. fol 33. Debt by Moyle the Defendant after that he was at Issue might once plead plea after the last Continuance as release or such like notwithstanding no oftner then once 41 Book of Ass 19. If Verdict passe for the Plaintiffe and the Defendant get a release before Judgment yet he cannot plead that 21 Ed 4. fol 52. Adjudge that the Defendant cannot plead Release made mean between the Nisi prius and the day in Bench. 16 Ed 4. fol 5. A man may plead a Plea after the last Continuance after Issue joyned and in another Tearm And therfore it seems that the parties have day in Court as well after Issue joyned till Verdict as before 50 Ed 3. fol 4. Imparlance at a day in the same Tearm and at a day and Tearm between and Imparlance of the Plaintiffe COntinuance by Capias ought to be made from Tearm to Tearm and cannot have other Tearm between for that that the party shall not stay so long in prison but continuance by distresse may be made by a Tearm between as from Michaelmasse Tearm to Easter 8 Ed 4. fol. 13. 12 H. 7. fol Common recoveries for assurance the Tenant tenders Issue the Demandant may Imparle to a day in the same Tearm 44 Ed 3. fol 16. If a man Imparle to another day in the same Tearm or till the next day yet that is a new day at which the parties are demandable 37 H. 6. fol 27. Debt Defendant pleads misnaming of himself and the Plaintiffe Imparles and had it 22 Ed. 4. fol. 19. Where the Defendant in appeal of Robbery by which he put his life in jeopardie the Plaintiffe shall not Imparle to that and therefore ruled that he should answer the Court sitting What Pleas he shall have after the last Continuance WHere the parties and Jury appear at the fourth day in the Common Bench and are adjourned at another day a man may plead a Plea after the last Continuance 28 H. 6. fol. 1. 8 Ed. 4. fol. 9. Where
came with him to the Assise staid with him pray'd the Sheriff to make an indifferent pannell which is the same maintenance and it is a good Plea 11 H. 6. f. 39. Generall Attorney which sues and is not skilled in the Law may well meddle but he cannot proffer Money to a Jury but may pray them to appeare 34 H. 6. fol. 27. By Choke Maintenance he cannot justifie for that that he was an Attorney retained with him and that by commandement of his Master he retained Councell and gave to them forty pence of his Masters Money and good Inquire if an Attorney cannot retaine Councell without the commandement of his Clyent and if he may not disburse of his proper Moneys for the time But Attorney cannot give of his proper Money nor of his Masters money to Jurors 36 H. 6. fol. 29.11 H. 6. fol. 13. the same Maintenance the Defendant saith that he was an Attorney in the action Judgment if action and good But he cannot give any thing to the Jury but as an Attorney and give Evidence to the Jury for his Clyent he may 13 H. 4. f. 19. If a man maintaine a quarrell by his Attorney action of maintenance lies against the Master 22 H. 6. f. 24. And by Newton If a man of great power in the Countrey will say in the presence of the people that he will spend twenty pound for one party or will give twenty pound to labour for the party though he give nothing is maintenance see before 9 H. 7. fol. 18. Maintenance against a Servant of one by Fortescue if he meance Jurors to out them of their Tenures if they do not paâ—e with his Master this is special Maintenance in the Servant 19 H. 6. f. 30. A man skilled in Law may do his endeavour for his Client and it is no maintenance if the Plaintiff cannot alleadge other special matter forbidden by the Law 8 H. 4. f. 6. B. Embraceor is he which comes to the Barr with the party and speaks in the matter or is there to overlook the Jury or to put them in feare but men skilled in Law may speak in the Cause for their Money but they cannot labour the Jury and if they take money to do that they are Embraceors Fitzh f. 71. A. Tenures and Services It is expedient to know the Services and Tenures which your Tenants shall do and first of the Tenure in cheif and other Tenures of the King and then of other Lords FIrst Tenure in cheif is called where one holds of the King meerly as of his Crown which is a Signiory ingrosse for that it is held of him which is alwayes King and not of the King as of his Mannour of D. c. Fuzh. 3. D. If any Land be held of the King as of the Honour Castle or Mannour such Lands are not held of the King in cheif and this is proved by the Writ of Right which shall be directed in such a Case to the Bailiffs of the Honour Castle or Mannour Also the Statute of Magna Charta chap. 31. is if any hold of any Escheat as of his Honour of Wallingford Nottingham Bullo gne Lancaâ—â—er and of other Escheats which are in Our hand and are of Baronies and dies his Heir shall not give other releif nor make to us other Service then the Barons should make if that Barony were in the hands of the Baron and we in the same manner will hold it as the Baron held it 1 Ed. 6. chap. 4. also is that where a King hath or after shall have any Dukedomes Baronies Castles Mannours Land Tenements Fees or Signiories by Attainder Conviction Outlary or by Dissolution of Monasteries which Lands held of them by Knights Service Socage or otherwise shall not be construed to hold in chief nor as Tenure in cheif See in Br. Tit. Tenures 100. Littleton fol. 31. Tenure of the King in Burgage is where an ancient Town is of which the King is Lord and those which have Tenements within the Borough hold of the King their Tenements that every Tenant by his Tenure ought to pay to the King a certain Rent by the year and such Tenure is but Tenure in Socage Fitzh 6. D. Lands and Tenements within Cities and Townes are held of the King in Burgage Tenure and it behoveth that a Writ of Right Patent of them shall be directed to Mayors Sheriffs and Bailiffs as Bailiffs and Officers of the King as if Lands were held of the King as of any Honour Castle or Mannour by which it appears Tenure in Burgage is Socage Tenure and not Socage in cheif Fitzh fol. 1. J. the same Stamford 13. If one hold of the King in Burgage the King shall not have first Seisin but otherwise it is where he holds of the King by Knights Service in cheif or by Socage in cheif for the Statute of the Kings Prerogative chap. 3. is the King shall have the first Seisin after the Death of them which of him held in cheif of all Lands and Tenements of which they were seised in their Demesn as of Fee whatsoever age their Heirs were of and that is taken as well of Socage in cheif as otherwise in cheif 7 H. 6. fol. 3. The King shall have first Seisin where his Tenant dies seised in his Demesne as of Reversion 47 Ed. 3. fol. 21. If the King purchase Lands which is held of others by this all the Services are extinguished and if he infcoff others to hold of him he shall hold of his Crown in cheif by Finchden and also when an Honour is seised into the Kings hands and a Mannour is held of that Honour which escheats unto him as of common Escheat if he alien to hold of him he shall hold as he held before of the Honour and by the same Services but if he come in as by Forfeiture by Warr or Escheat which is because of his own person and he seise and infeoff others they shall hold in cheif if the King do not expresse other Tenure 33 H. 6 fol 7. By Prisot if the King seise Land by Forfeiture of Treason and grant that over to hold of the cheif Lord by the Service due c. that in this case he shall hold of the cheif Lord as it hath been adjudged 44 Ed. 3. f. 45. The King gives Lands to one to hold to him and his Heirs by the Services due c. and by all the Justices that is Tenure by Knights Service 11 H. 4. fol. 71. It was recorded in the Exchequer that such a one holdeth so much Land of our Lord the King by Serjeanty to finde one Man for the Warr wheresoever within the four Seas and by Hank it is great Serieanty to be made by the Body of a Man 13 H. 7. fol. 16. If one hold of the Dutchy of Cornwall it is in cheif for it was ancient Lands of the Crown Fitzh 165. A. To hold Land to pay certain Rent to the Keeper of the Castle of
not good without concluding and so not Parson 7 E. 4. fol. 16. Assise and Trespass Diversity between pleadings in Assise and Trespass for in Trespass need not make Title under Possession otherwise in Assise TRespasse the Defendant ought to convey to him an Estate immediate and for that to say that J. S. was seised till by J. D. disseised which infeoffed the Plaintiff upon whom J. S. entered whose Estate he hath it is not good but if the Defendant saith that he was seised till by the Plaintiff disseised upon whom he entered it is good but not in Assise 5 H. 7. f. 11. Trespasse the Defendant saith that he was seised till by the Plaintiff disseised and he entered and it is good and he need not to convey to him a Title and the Plaintiff saith that he was seised till by the Defendant disseised without that that he disseised the Defendant for if the Defendant had first Possession it is good in Trespasse 26 H. 8. f. 6. Trepasse the Defendant may plead Fine with Proclamation Judgement if Action but not relie upon Estoppell 17 H. 8. f. 27. Trespasse the Defendant pleads his Free-hold the Plaintiff saith that he was seised in Fee till disseised by the Defendant and he re-entered and the Trespasse in the mean time the Defendant maintains his Barr without that that he disseised the Plaintiff 1 Ed. 4. f. 3. Trespasse the Defendant pleads Gift in Tail to his Ancestor and conveys to him by divers Discents the Plaintiff saith that he was seised in Fee and traversed the Gift and it is good and need not make Title beyond his Possession otherwise of Assise 3 Ed. 4. f. 19. Trespasse to plead a Feoffment of the Plaintiff it seems to be good or he may say that he himself was seised but in Assise Feoffment of the Plaintiff is no Plea for that amounts to no wrong no Disseisin 15 Ed. 4. f. 31. 29. Book of Ass 24. Trespasse if the Defendant plead that he was infeoffed the Plaintiff may traverse the Feoffment without making to him Title otherwise it is in an Assise 18 Ed. 4. f. 10.10 Ed. 4. f. 3.27 H. 6. f. 1. 40 Ed. 3. f. 5. Trespasse the Defendant saith that H. his Tenant at will infeoffed the Plaintiff and he entered the Plaintiff saith that J. S. infeoffed H. and he died seised and his Issue infeoffed me the Defendant cannot traverse the Feoffment but the Discent otherwise it is in Assise 10 H. 4. f. 1. Assise by Littleton the Tenant may plead let to him for years or for life the Reversion to the Plaintiff and it is good and so is it of a Feoffment with Warranty of the Plaintiff and relie upon Warranty 18 Ed. 4. fol. 10. 8 Ed. 2. Tit. Ass 391. 18 Ed. 3 f. 13. the same Assise the Tenant pleads that the Plaintiff let to him for life and is good but a Feoffment of the Plaintiff is not good in Assise but in Trespasse it is good 6 H. 7. f. 14.27 Book of Ass 31. the same 29. Book of Ass 24. Trespasse at Compton over C. and neither C. it is no Plea in Trespasse but it is good in Assise 8 H. 6. f. 18. Trespasse at D. there are two Dd. within the County and none without addition it is no Plea for the Visne shall be of the Body of the County 3 Ed. 4. f. 26. and 9 H. 6. Tit. 5. the same Assise of Lands in Osgodby the Tenant saith there are two Osgodbyes within the County none without addition and it is no Plea for the Plaintiff shall recover by view of the Jurors 5 Book of Assises 9 and 27 Ed. 3. f. 2 Trespasse in Otterton and H. which H. is a Hamlet of Otterton it is a good Plea in Precipe and not in Trespasse where Damages onely are recovered 7 E. 4. f. 18 4 E. 4 Tit Breif 155 179. Trespasse may be in a Hamlet but not in a place onely known 11 H. 7 fol. 24 2 R. 3. fol. 1 43 E. 3. fol. 30 the same Precipe in D. is a good Plea in Abatement that D. is a Hamlet and not a Town but otherwise it is in Assise 8 E. 4. f. 6 Pleas in Barr. Barr is good at the first shew or by common reason and intent such intent is a Plea which hath not more vehement presumption then to intend contrary but if the intent be indifferent it is not good at the first shew by Intendment FOrmedon in Discender that he gave not is good and yet it may be that he did recover in value but the most pressing Intendment is to the contrary but if in Debt I plead Release bearing Date after the Obligation it is not good at the first face unlesse he saith that it was delivered after the Obligation Plowd Com. f 32 Forging of Deeds the Defendant saith that he himself was seised at the time of the Forgery and it might be by Disseisin but it shall not be intended and for that it is good at the first shew 8 H. 6. f. 34 Trespasse that he entered into a Warren the Defendant pleads his Free-hold and it is good and yet one may have the Warren and another the Free-hold 44 E. 3. f. 12 17 E. 4. f. 6 10 H. 7. f. 24 34 H. 6. f. 28 Trespasse in a severall fishing the Defendant pleads that the place is his Free-hold and is good as above at the first face 18 H. 6. f. 29 10 H. 7. f. 24 20 H. 6. f. 4 17 E. 4. f. 6 18 E. 4. f. 4 Assise of Mortdancester because his Mother took the habit of Religion the Defendant saith that your Mother had a Husband alive when she entered into Religion and it is not good for it is indifferent whether he be alive or not and for that he ought to aver that the Husband is yet alive 5 E. 4. f. 3 Trespasse of Goods c. the Defendant justifies that the property was to J. S. which gave them to him at D. and though he do not say where the property was in him it shall be intended at D. and good 1 E. 5. f. 3 It is said there though the Barr be good to common intent yet it shall not be good where parcell of the substance is left out but where such things are left out which by special intendment and not by general intendment are omitted the Law shall keep such a barr Plowd Com fol 27. Accounts the Defendant saith that he hath accounted before the Plaintiffe himself and it is good yet he doth not say that he was before Auditors before him c. 4 Ed. 4. fol. 6. Trespasse the Defendant pleads that he to whose use enfeoffed him and doth not say if he were out of Prison and of full age according to the Statute and yet being in Barre it was said that it shall be so intended 6. H. 7. fol. 6. Where Count is upon matter of Reords or of Specialty the Barre shall be
iustifie by command of him to whose use he ought to say that at the time of the commandement they were seised to the use c. the same Law if one plead a Lease and Release he ought to say that he was possessed at the time of the Release made 10 H. 7. f. 26. 7 H. 7 f. 3. the same That which is Issuable ought to be pleaded certainly ONe avows for that that the Plaintiffe held of him by a Knights Fee and this is not good for that he doth not shew by what Knights Fee 12 H. 8. fol. 13. 3 H. 7. f. 2. One traverses the Office found after the death of the Lord Greystock the Kings Tenant which was found that he died seised and he said that the Dean of York recovered against the Lord G. in a Writ of Right long before the finding of the Office and it may be he recovered against him long before the finding the office and it might be after the death of the Lord Greystock and for that it is not good for it is uncertain So if one plead that he entred for that that his Tenant aliened in Mortmain he ought to shew that he entered within the year otherwise it is not good 26 H. 8. fol. 2. Debt upon Obligation indorsed with condition if he make an Estate as it shall be devised by the Plaintiffe Defendant saith that he hath made an Estate and it is not good without shewing what Estate 1 H. 7. fol. 13. One comes to reverse an Outlawry of Felonie and pleads that he was in the Castle of Oxford at the time of the Outlawry published and for that he doth not shew in what County the Castle is nor under whose custody it is uncertain and not good for these are Issuable 2 H. 7. f. 6. Dower against the Heire he saith that he was ready to render Dower if she would deliver to him the Writings concerning his Land and for that he doth not shew what Writings incertain it is nor good for it is Issuable Affirmative and Negative Issue shall be upon the Affirmative and Negative and it shall not be answered by Argument DEbt against the Administrators of J.S. Defendant saith that J. S. made him Executor Judgement of the VVrit he shall say without that that he died intestate for this is alledged by the Plaintiffe 9 H. 6. fol. 7. 11 H. 4. fol. 88 Trespasse of taking six beasts the Defendant iustifies the taking of them by agreement the Plaintiffe saith they were other six and ought to traverse without that that he took those six in the Negative 11 H. 6. f. 1. VVrit upon the Statute of Labourers and counts that the Defendant was a Vagrant and he required him to serve and he refused Defendant saith that he was in the Service of J. S. and shall say without that that he was a Vagrant 1 H. 6. f. 15. Formedon in Reverter and counts of a gift in Tail the Defendant saith that the Donor gave in Fee and it is not good but he shall say without that that he gave in Tail 10 H. 6. f. 7. Account for the Heire against a VVoman Guardian in Socage Defendant saith that the father of the Insant held of her in Knights Service and died and Defendant seised him and he ought to say without that that he held by Knights Service 14 H. 8. fol. 4. The Avowant saith that W. the tenth day of February year twenty five granted his Interest to him and avowed doing damage Plaintiffe saith that W. the first day of Feb. year twenty five granted his Interest to him and he put in his beasts without that that he granted that to the Avowant before he granted that to him and good 38 H. 6. f. 17. Action upon the Case of that that he hath Leet and Fines and Amerciaments of the same Defendant saith true it is that the Plaintiffe hath Leet but that he the Defendant hath Fines and Amerciaments he ought to say without that that the Plaintiffe hath the Fâ—nes and Amerciaments 18 H. 6. f. 8. Debt upon an Obligation dated the twentieth of Aprill and first delivered the second of May the Defendant pleads Release the last day of April and that the Obligation was delivered when it bore date and for that that he hath not traversed in the Negative that is to say without that that it was first delivered the second day of May it is not good 32 H. 6. f. 4. Debt and Counts of a Lease of a House rendering twenty shillings Defendant saith that he let the House and four Acres rendering twenty shillings and ought to traverse otherwise it is but an Answer by Argument 32 H. 8. f. 8. Debt against Executors Defendant saith that the Testator died intestate that the Administration was granted to him he ought to say without that that he is Executor or administred as Executor 1 H. 7. f. 13. Debt upon a simple Contract Defendant saith it was upon Condition and shall say without that that he sold in manner and form 4 H. 7. f. 9. Partition Defendant saith that he was onely seised and shall say without that that he held as undivided 6 H. 7. f. 5. 4 H. 6. fol. 4. Debt against J. S. of D. Defendant saith that he is dwelling at S. and shall say and not at D. 19 H. 6. f. 1. the same 7 Ed. 4. f. 16. Scire facias against a Parson for Arrerages of an Annuity Defendant saith that before the Writ purchased he resigned to the Bishop of L. and so that remaines in his hands Judgement of the Writ and it is no Plea for it is but an Answer by Argument and for that he shall say without that that he was Parson day of the Writ purchased or afterwards 11 Ed. 4. fol. 4. Action upon the Statute of Rich. by J. Freestone Defendant saith that the Master of the Colledge of Maidstone and his fellow-brethren let c. Plaintiff saith at the time of the making of the Lease there were not any fellow-brethren of the said Colledge and this is but an Argument and for that he shall say without that that the Master and his fellow-brethren let 14 H. 8. f. 29. Issue shall be upon Affirmative and Negative 9 H. 7. fol. 13. Trespasse Defendant justifies for Fealty not made the Plaintiff saith it was not unmade and good in the Negative Material Let us see what things are material in pleading Evidence and Verdict and otherwise and what not ACtion upon the Case in London and counts that he was possessed of Wine and Stuff and shews that certain in such a Ship and the Defendant at London assumed for ten pounds that if the Ship and Goods did not come safe to London and are put upon the Land there that then he shall satisfie one hundred pounds to the Plaintiff and counts that aftewards the Ship was â—obbed upon the Trade in the Sea and for not satisfying Action did accrue and though that the Plaintiff doth not shew where
he grants where he was never in the Warrs it is a good grant for the recitall is matter in deed not materiall 9 H. 7. fol. 7. If the King make a Denizen and recite that where he was borne in France where indeed he was borne in Spain this grant and making him Denizen is a good grant and the recitall is not materiall 3 H. 6. fol. 9. Where processe is miscontinued and Judgment given by default this Judgment upon miscontinuance is errour and may be assigned for errour but where it is miscontinuance of processe and the party appear and pleads and Judgment upon Verdict is given this cannot be assigned for errour See 3 H. 7. f. 8. 1 H. 7. f. 12. Errour was assigned for that it was contained in the Record that in base Court the Entry was that the Court was held upon Tuesday that is the third day of March where Munday was the third day of March and this was adjudged errour and the Videlicet c. materiall 4 H. 7. f. 6. Where one is named Executor where that name Executor is not materiall the Writ shall not abate 17 Ed. 4. f. 2. Where the Defendant in trespasse pleads that the plaintiff bargained and sold to him ten acres of Corn though he do not say ten Acres sowne with corn it is not materiall for it is usually so called and a good Plea 1 H. 7. f. 21. A certaine Memorandum was entred that is to say Memorandum that Simon Wiseman came this 31 day of November this Tearme of S. Michaell 2 H. 7. f. 11. If processe be miscontinued and the party appear and pleads to the Issue and Judgment is given there the miscontinuance is not materiall and is no Errour 9 Ed. 4. f. 42. Trespasse of a Bagg taken with Money the Defendant saith that the Plaintif was indebted to him in a certain summ and delivered that unto him for discharge and is good though he do not shew for what cause he was indebted for this is not traversable and for that is not materiall Manner and Form Manner and Form where it is materiall and where not MAaintenance The Defendant iustifies for that that he is his Neighbour and informed him of a man learned in the Law The Plaintiffe saith that he gave money the Defendant saith that he did not maintain in manner and Form and it is no Plea without answering to the speciall matter 13 Ed. 4.14 Trespasse The Defendant saith that the Plaintiffe is Villain regardant to the Mannour of D. the Plaintiffe saith he is free and not Villain in Manner and Form and Manner and Form is not material but if he be a Villain or not 13 Ed. 4. f. 4. Debt of the sale of a Horse for sorry Shillings where the Bargain was for two Horses the Defendant pleads that he oweth him nothing in Manner and Form the Jury ought to find for the Defendant for that that the Bargain was for two Horses 40. s. and Manner and Form there is materiall and parcell of their Charge and so it is in every Case where the Action varies from the Bargain 21. Ed. 4. f. 22. Debt upon sale simply the Defendant saith that the Sale was upon condition without that that the Plaintiffe sold that in Manner and Form and is good 1 H. 7. f. 13. Trespasse the Defendant justifies for that the Plaintiffe held of him by Homage Fealty Suit of Court and ten Shillings four pence the Plaintiffe saith that he held by Fealty and ten shillings without that that he held in Manner and Form and found by Verdict that he held by ten Shillings four pence and not by Homage and the Plaintiffe had Judgement for that that part is found against the Defendant and Manner and Form is not materiall 31 H. 6. f. 12. 9 H. 7. fol. 12. Entrie in Casupro viso and Counts of alienation in Fee the Defendant saith that he did not alien in Manner and Form as the Plaintiffe hath counted and found that he aliened in Tail the Demandant shall recover for Manner and Form are but words of Form here but whether he aliened or not is the substance Littleton fol. 113. Lord and Tenant and the Tenant brings Trespasse against his Lord and Justifies for that that he held of him by Fealty and Rent and for the Rent behind that he took his beasts and demands Judgement of the Wriâ— by force of Arms against him the Plaintiffe saith that he doth not hold of him in Manner and Form and though it be found that he holds by Fealty onely yet the Writ shall abate for Manner and Form is not materiall Littleton f. 113. Trespasse of Batterie or of goods taken the Defendant pleads not guilty in Manner and Form as the Plaintiffe supposeth and is found guilty in another â—own or at another day yet the Plaintiffe shall recover Littleton fol. 114. Action upon the Case by a Husband alone upon an Assâ—â—â—â—t to him by Tatam the Defendant saith he did not allume in Manner and Form and the Plaintiffe gives in evidence of an Assampsit made to his Wife and his agreement afterwards and it is good and Manner and Form is not materiall 27 H. 8. f. 29. Cessavit That the Defendant held divers Lands by intire Service he may plead that he held not in Manner and Form and give in evidence that he held by severall Service and it is good 10 H. 7. f. 24. An Array of a Pannell was challenged for that it was made by the Sheriffe Cozen to the Plaintiffe and shews how he is Cozen the other saith he is not Cozen in Manner and Form as c. and he is found Cozen but this is found to be in another Manner and yet good for Manner and Form is not materiall 19 H. 8. fol. 7. Assise the Tenant pleads a Feofment of J.S. by Deed the Plaintif intitles him without that that J.S. enfeofed him in Manner and Form and could not give in evidence a Feofment without Deed and traverse that with Manner and Form is good to avoid a Negative pregnant and in Sine assensu Cantuli the Defendant shall not say that he did not alien without the consent of the Chapter but that he did not alien in Manner and Form to avoid a pregnant Negative 22 Ed. 4. f. 4. Negative Pregnant Where a Negative pregnant may be and where not WAste The Defendant saith that he did not let to him for years it is no Plea for it is a pregnant Negative but he shall say that he did not let at all 43 Ed. 3. f. 13. Action upon the Statute of Rich. he did not enter against the Form of the Statute is good though it be a pregnant Negative for that that it traverseth the point of the Writ 31 H. 6. f. 12. Consimili Casu Issue was if he aliened in Fee or not aliened in Fee which is a pregnant Negative and allowed the reason is plain 38 H. 6 f. 3. Lord and Tenant the Tenant pleads a Feoffement
of a Jury and say that you ought not to take this Inquest notwithstanding this Statute Conspiracy against two one in the year 42 Edw. 3. hath pleaded to the Jury and the other 43 Edw. 3. pleads in Abatement and now in 48 Ed. 3. the first takes Nisiprius and cannot have it before the Court be advised if the Writ be good for though that the other hath accepted the Writ good yet if the Writ doth not lye in the case the Writ shall abate against one and the other by 43 Ed. 3. f. 10. The same Law notwithstanding the Statute of 32 H. 8. aforesaid Debt against two Fxecutors one comes at the Pluries and pleads fully administred and after comes the other by Exigent and pleads to the Writ that 3. others are Executors which have administred not named Judgment of the Writ and for that that the Plaintif hath replyed that the two alone are Executors the Defendant for that may plead this matter in arrest of taking of the first inquest upon the first Issue for by the replication to the second Plea he hath waived the advantage of the first plea where it was sufficient for all by reason of the Statute which wil that he that first shall come by distresse shall answer 7 H. 4. f. 12. Brook Executors 46. and this is good at this day notwithstanding the Statute aforesaid of Jeofailes Severall Tenancy SCire facias of a Fine of Rent Service against many Tenants one saith that The came to a House parcell of the Tenements whereout the Rent in Demand is supposed to be Issuing by it self without that that the other have any thing Judgment of the Writ and that another holds four Acres parcell of the Land whereout the Rent in demand is supposed to be issuing by it self and it is good 5 H. 5. f. 4. otherwise it is of a Rent-charge Scire facias against J. S. J. D. and three others J. S. saith that he and one of the three held parcell joyntly and that the Ancestor was dead day of the writ purchased Judgement of the VVrit and J. D. saith he held another parcell in Fealty Judgement of the VVrit and the VVrit brought against them in common was abated 38 Ed. 3. f. 20. And note also severall Tenancy of parcell shall abate all the VVrit 19 Ed. 3. tit 18. 27 H. 8. f. the last 20 Ed. 4. f. 8. Precipe against two of sixteen Acres of Land one takes the Tenancy of twelve Acres without that that the other hath c. and vouches and the other takes the Tenancy of the residue without that that the Plaintiff ought to maintain his VVrit 41 Ed. 3. f. 20 the other severall Tenancy shall abate the Writ 28 Book of Ass 25. That he which pleads several Tenancy may vouch or plead over in Barr and not conclude to the Writ See Br. title Breife 141 and 13 H 6. f. 26. Assise severall Tenancy is no plea and the same Law in other actions where no land is demanded in cercaine 24 H. 8. tit 18. But see 21 H. 6. f. 57. and 30 B. of Ass 24. Dower severall Tenancy shall abate the Writ â—9 Ed. 3. Brook 30. otherwise it is in Assise 15 Ed. 2. tit 1. 14 Ed. 3. tit Breif 276. It seems that non-Tenure and severall Tenancy in Nuper obiit against 3 is no Plea 7 H. 6.8 See 13 Ed. 1. tit 3. Fitzh fol. 197. D. F. Quid Juris clamat against three which plead severall Tenancy and it was said that it behooveth that the Plaintif should maintain his writ so he he did 12 Ed. 3. tit 9. Mortdancester against 3. which say that they are Tenants in severalty Judgment of the VVrit And for that that the Assise found that one of them was Tenant in severalty the Writ abated 8 Ed. 2. tit 2. In Per quae servitia Severall Tenancy is no plea 12 Ed. 3. tit 15. 32 Ed. 3. tit 7. Scire facias against two one makes default and the other pleads severall Tenancy in abatement and cannot for that Seisin is to be awarded of half 42 Ed. 3. fol. 8. See â— Book of Assises the 16. Precipe against two one takes the Tenancy upon him without that that the other hath anything and the other saith nothing the Plaintiff need not to maintain his Writ 37 H. 6. f. 16. 18. Entry in the quibus against two one pleads severall Tenancy and also over in Barr and the other pleads in the same manner and the Plaintiff need not to answer to the Barr be it good or not but he ought to maintain his Writ for one ought not to recover upon an ill Writ 12 H. 6. f. 4. He which pleads severall Tenancy without that that the other named with him hath any thing he need not conclude to the VVrit but vouch or plead in Barr but the Demandant shall not answer to the Barr nor to the Voucher but ought to maintain his VVrit that they are Tenants as the VVrit supposes 19 H. 6. f. 14. Traverse Where he ought not to traverse and where he ought then what thing in the Plea shall be traversed BY Hussey in Precipe if the Tenant plead that the Land is ancient Demesne and pleadable by a small VVrit of Right close and he need not take Traverse that it is not frank fee for that that the VVrit is but a Supposall 5 H. 7. fol. 13. And in Mortdancester Tenant pleads Joynt-tenancy with the Father of the Demandant and it is good without Traverse that he is sole Tenant for that that this is but a Supposall and by Tremail fol. 14. of his Horse taken the Defendant saith that J. S. sold the Horse to him in an open Market or that the Horse was waived or VVreck or such like there he need not traverse for that that this is matter in Law and if he takes Traverse he waives that matter in Law 5 H 7. f. 6. accordingly 2 Ed. 4. f. 9. Plowd 23. A. By Hussey Fairfax where a matter indeed is alleadged by way of Bar or in Covenant then this ought to be traversed in every Case unless it be for the mischeif of Trial as special Bastardy is alleadged without Traverse it is goood for mischief of Triall 6 H. 7. f. 5. otherwise it is of matter of Supposall and in Assise the Tenant pleads a Feoffment of J. S. the Plaintiff saith that this was upon Condition and that J. S. entered for the Condition broken and infeoffed him and so he confesseth and avoids and for that he ought not to traverse and in Precipe quod reddat against J. S. he shall say that he held ioyntly with J. D. not named in the VVrit and take no Traverse for that that it is but a Supposall and in Trespasse of Goods taken the Defendant saith they were the Goods of J. S. which made him and the Plaintif his Executors the Plaintif saith that the Testator devised that after his Debts and Legacies
paid that he should have all the remainder and saith that such and such are paid which are all the Defendant saith that such a Legacy was not paid without that that the Plaintif alleadgeth were all and he ought to traverse for that that it is a matter in deed Trespasse of Trees cut the Defendant pleads that J. S. was seised of an Acre whereof the Trespasse is parcell in Fee and let to him at will and that he by his commandement cut the said Trees and demands Judgement if Action and this is no Plea without Traverse that is without that that it is the Soil of the Plaintif 5 H. 5. fol. 8. Trespasse the Defendant conveys that his Father was seised in Fee and that descended to him the Plaintif pleads that J. D. infeoffed him and ought to traverse without that that the Father of the Defendant was seised in Fee 27 H. 8. f. 9. Trespasse the Defendant pleads that the place where c. was his Free-hold the Plaintif saith that J. S. was seised in Fee and let to him at will and that the Defendant outed him and disseised J. S. and that the Plaintif at the command of J. S. re-entered and the Trespasse mean between the re-entry and the disseisin and the Defendant maintains his Barr and he ought to traverse the Lease for that is most material 11 Ed. 4. f. 3. Trespasse the most material matter shall be traversed and for that if a Gift in Tail and dying seised be pleaded in Barr in Trespasse the Gift is traversable and not the dying seised so in Trespasse if the Defendant saith that a stranger was seised and infeoffed the Father of the Defendant and that his father died seised and that the Defendant entered as Sonne and Heire nothing is traversable but the last dying seised for that is the effect of his Barr by Neale 15 Ed. 4. f. 2. Trespasse The Defendant saith that I was seised and protesting died seised and conveyed the discent to the Defendant the Plaintiffe saith that M. enfeoffed him by force of which he was seised till the Defendant made a Trespasse and the Defendant saith as above without that that the Plaintiffe was seised at the time of the Trespasse but it is not good for he ought to traverse and to say without that that M. enfeoffed him for that is the effect of the Replication 19 H. 8. f. 7. Trespasse the Defendant pleads his Freehold the Plaintiffe saith that the Defendant let to A. for years which granted his estate to B. which granted to him the Defendant maintained his Barr without that that B. granted to the Plaintiffe and is not good for he conveys from the Defendant himself and that is traversable and saith without that that the Defendant let to A. But where an estate is conveyed all by strangers he may traverse one conveyance or other 10 H. 7. f. 8. Assise the Defendant pleads Barr and the Plaintiffe makes Title by a gift in Tail to his father and dying seised of his father the gift is traversable but if it be by Feoffement of J. S. to his father and dying seised of his Father the dying seised is traversable 9 H. 6.22 and 10 H. 4.1 accordingly Mesne and counts that he held a hundred Acres by Fealty of the Defendant and he over c. the Defendant saith that the Plaintiffe held of him by Homage and Fealty and ought to traverse the acquittal not the Tenure 2 H. 5. f. 2. Trespasse of close broken the Defendant faith that J. S. and J. D. were seised in Fee that J. S. enfeoffed the Ancestor of the Plaintiffe and J. D. enfeoffed the Defendant and so they hold as undivided and the Plaintiffe saith that his Ancestor died sole seised of all and this descended to him without that he held as undivided and it is no Plea but he ought to traverse the Feoffement made by J.D. to the Defendant for the Plea is as good without So and for that in this Case that which comes after the So is not materiall but whre it is materiall it is traversable and for that by Choke Debt upon an Obligation the Defendant saith that he was a lay man and not learned and this Writing was read to him in place of an Acquittance and so this Obligation is not his Deed now this which cometh after the So is materiall 32 H. 6. f. 16. Tit. Issue 9. Debt upon a Lease of four Acres for four pounds of Rent the Defendant demands Judgement of the Count for that that the Plaintiffe let the four Acres and a Rectorie for the four pounds and ought to traverse without that that he let the four Acres onely c. 35 H. 6. f. 38. and 18 Ed. 4. fol. 17. One avowes for that that the Plaintiffe held an Acre of him by twelve pence the Plaintif saith that he held the same Acre and another by six pence without that that he held of him by the same Services onely and it is not good but he shall say without that that he held the said Acres in Manner and Form 13 H. 7.25 One avows for that that he held two acres by twenty shillings of him the Plaintif saith that he held the two Acres and two others in the same Town by the Services of twelve shillings without that that he held the two Acres onely by the Services of twenty shillings in Manner and Form as c. this seems good 8 H. 7. f. 5. Where one justifies at another day then the Plaintiffe alledges and ought to traverse onely before the day of his iustification and where before and after where onely after TRespasse against the Sherif of a Cow taken the Desendant justifies at the day after by a Precept he attached the Cow and took her with him without that that he is guilty before that Precept to him directed and this seems good 9 H. 7. f. 6. Trespasse of imprisonment second day of May the fourth year the Defendant iustifies the fourth day of August Anno fourth aforesaid by force of a Warrant of the Peace c. which is the same Imprisonment without that that he is guilty before that day and it is doubted if he ought to traverse before and after and there it seems if one plead his Freehold such a day after without that that he was guilty before it seems good 5 Ed. 4. fol 12. Trespas in Wood 1. day of August the Defendant justifies by prescription to have yeerly twenty cart load there betwixt Michaelmasse and Christmas and that such a day in November he took them without that that he is guilty before Michaelmasse and after Christmasse and good And the Plaintiffe saith that he knowledgeth the day that he counted and traverseth the prescription and good notwithstanding he doth not maintain the day that he traverseth for it is in the election of the Plaintiffe to maintain the traverse of the time or to traverse the speciall matter as in trespas Anno 7. The Defendant
shall be entred 34 H. 6. fol. 5. Trespas of a bagge with money taken at C. the Defendant saith that the Plaintife delivered that to him at L. and it is not good but that he delivered that to him at L. to deliver to J.S. which he did without that that he is guilty at C is good 34 H. 6.9 and 19 H. 6. fol. 43. Trespas of an Horse taken at D. in the County of M. the Defendant justifies the taking for a Waife at S. in another County without that that he is guilty at D. and it seems nothing shall be entred but not guilty Inquier 19 H. 7.27 and 22 Ed. 4.38 this was entred and not the generall Issue Action upon the Case for that that the Defendant sold Woad to him at J. and there shewed to him a peice which is marchâ—ntable and warranted the rest to be as good as the example where it is defective The Defendant saith that he sold to him Woad at B. and warranted that c. without that that he sold at I. and is good 14 H. 6. fol 24. Action upon the Case upon Assumpsit at London to cure his Horse the Defendant saith at Oxford he assumed to cure c. without that that he assumed at London and it is good 19 H. 6. fol 49. Trespas of beating at D. in the County of D. If the Defendant justifies at S. in the County of N. he ought to traverse the County 9 H. 6.62 and 11 H. 6.20 the same Trespas of goods taken at E. the Defendant pleads that they were delivered to him at S. in the County of M. to deliver to the Plaintiffe which he did without that that he was guilty at E. 19 H. 6.48 In Trespas transitorie where the Defendant justifies in another County he onght to take traverse 29 H. 6.72 and 5 H. 4. fol 3. the same 22 Ed. 4. fol 38.7 H. 6. fol. 37.10 H. 7. fol 27. Yet ready Where he shall say Yet ready and where not DEtinue of a Chest with Writings against Executors it is no plea for them to say that the Writings came to them sealed and that they were readie to deliver them and yet are readie unlesse that they offer them to the Court or to say that the thing is of so great weight that they cannot bring them hither 9 H. 6.65 and 22 Ed. 3. Bâ—ook Alwayes ready 6 Ed. 4. fol. 11. 44 Ed. 3. tit 40. Dower the Tenant saith that he hath been alwayes ready to render Dower and yet is The Demandant avers the contrary upon which the Demandant shall recover her Dower But she shall not have a Writ to inquire of her dammages now for that is the Issue which shall be tryed 14 H. 8. fol 28. Dower if the Tenant come in at the first day and will aver that he was alwayes readie and yet is if the Demandant will not aver the contrary that the Demandant shall not recover dammages 5 Ed. 4. Dower 2. Where the Tenant imparles to another Tearm he shall not say yet readie to render Dower 21 Ed. 3. tit 24. Dower the Tenant alledges that the Demandant deteins a Hamper of Evidences of that Land and it c. the Demandant saith That she is and alwayes hath been readie to deliver the Hamper c. and for that she shall have judgement for thwith 8 H. 6. fol. 15. Trespas the Defendant pleads an Arbitrement which was to pay 10 li. if the day be past he shall say that he hath been alwayes readie and yet is and bring the money into the Court. 22 H. 6. fol 45. Debt upon an Obligation endorsed upon Condition to perform an award to pay 20 s. before Christmas last past if he tendered before the day and the other refused he shall not say yet ready afterwards Injuire Dower where the Tenant casts an Essoyn he is not estopped to say yet readie to render Dower 14 H. 6. 4. See in Debt by Hank 11 H. 4.60 and 7 H. 4. fol 16. Debt where the Defendant comes inupon the distresse he may say yet readie 7 H. 4.11 and 8 Ed. 4. fol 11. the same Debt after Imparlance the Defendant cannot plead yet readie 36 H. 6. 14. Annuitie where the Defendant comes in at the distresse he cannot say yet readie 2 H. 4. fol 4. Debt Processe continued till the distresse return Nihil and proceeds to the Capias pluries and the Defendant cometh in and saith that he was alwayes ready and yet is 11 H. 4. fol 6. Debt upon an Obligation to stand to the award and the award was to pay at such a place the Defendant may say that he was alwayes readie at the place without saying yet readie and without tendring the money in Court 11 H. 6.27 See 22 H. 6. fol 39. the reason in this case Debt upon an Obligation to pay a lesser summe at such a day for the Defendant to say that he was ready at the place and offered and the Plaintiffe refused it is no plea but shall say that he hath been alwayes readie and yet is and tender the money in Court for otherwise the Plaintiffe shall not have remedie 7 Ed 4.3 But see 7 H. 4.19 and 2 Ed 4.3 by Choke Detinue of Deeds against Executors they ought to say that they were readie and yet are for otherwise they shal pay dammages 22 Ed 3. tit 37. Alwayes ready Debt upon an Obligation condition to pay 10 li. such a day and place and the Defendant tenders that at the day and place and the Plaintiffe receives there part and respits the rest untill an agreement be made between them and after the Plaintiffe requires it and the Defendant refuseth to pay it yet he shall not forfeit the penalty for this is saved by the first tender But now by the Court he ought to tender it in Court And where one is bound in 10 l. upon condition to pay five pound at such a day and place and though that he were ready at the day and place and none comes to receive it yet by the Court he shall have the money in Court ready 7 Ed 4. fol 3. See 5. H. 4. Debt upon an obligation the condition to pay so much money as B. shall appoint for the taking of the beasts of the Plaintiffe and the Defendant saith that B. appointed 10 l. which he tendered and the Plaintiffe refused it judgment if action and it is a good plea without saying yet ready for the condition is to do a collatterall act and this 10 l. is collatteral and for that he shal not say yet ready But if one be bound in 20 l. and the condition to pay 10 l. there if he say that he offered the 10 l. at the day and the Plaintiffe refused it yet he shall say yet ready for the 10 l. are parcell of 20 l. and for the 10 l. he cannot have action 19 H. 8. fol 12. and 22 H 6. fol 45. Debt upon an obligation the condition that J. S. should
you that you make A. B. lately of C. in the County of C. Gent. to be required from husting to husting untill according to the Law and custome of England he be out-lawed if he shall not appear And if he shall appear then you take and cause him safely to be kept so that you may have his Body before us in the Upper Bench in the fifth week after Easter wheresoever we shall then be in England to answer C. D. in a Plea that whereas the said C. D. and A. B. at London had accounted together of divers sums of money being before that time due to the said C. D. from the said A. B. and being then behind and unpaid And upon that account the said A. B. was then and there found in arrerages to the said C. D. in a hundred pounds of lawfull English money the said A. B. in consideration thereof did assume and to the said C D. there faithfully promised that he the said A. B. would pay that men 〈…〉 the said C. D. yet tâ—â— said A. B. hath not yet paid the said money to the said C. D. although he hath been therunto required to pay the same to the damage of the said C. D. one hundred and twenty pounds as he saith and whereupon you your selves have sent to us that the said A. B. is not found in your Bayliwick and you have here this Writ Witnes c. Proclamation sur ' Exigent THe Keepers of the Liberty c. To the Sheriffe of Cornwell Greeting Whereas by our Writ we have lately commanded the Sheriffe of London that he should cause A.B. of C. in your County Gent. to be required from husting to husting untill he be out-lawed according to the Law and custome of England if he should not appear and if he should appear then they should cause him safely to be kept so that they should have his body before us in the fifth week after Easter wheresoever we should then be in England to answer C. D. in a Plea that whereas the said C. D. c. And so recite as is in the exegent till you are past these words as he saith then write on we command you according to the statute made provided in the one and thirtieth year of the Lady Eâ—izabeth lately Queen you cause to be proclaimed the said A. B. at three several dayes according to the form of that statute whereof one Proclamation thereof shall be made at or neer the most usuall door of the Church of C. in your County so that he may render himself to the Sheriffes of London to answer the said C. D. of the said Plea And you have here this Writ Witnes c. Câ—â—ias utlegat ' THe Keeper c. To the Sheriffes of C. Greeting We command you that you do not omit from any liberty within your County but take A. B. of c. And him safely keep so that you have his body before uâ— in the Upper Bench in c. Reciting the return wheresoever we shall then be in England to stand right in Court before us in the Upper Bench upon a certain Outlawry against him the said A. B. at the suit of C. D. in a Plea of debt at the hustings of the Common Pleas holden in London on Munday c. In the year of our Lord one thousand six hundred and fifty in the Court of London pronounced And you have there this Writ Witnes c. Capias ad satisfaciendum in a Plea of Debt THe Keepers of the Liberty c. Greeting We command you that you take A. B. if he be found in your Bayliwick And him safely to keep so that you have his body before us in the Upper Bench at Westm on Wednesday next after the five weeks of Easter to satisfie C. D. of 100 li. of Debt and also 21 s. for his dammages which he sustained as well by occasion of detaining of that Debt as for his Costs and charges by him about his Suit in that behalf disbursed whereof he is convicted as it doth appear to Us upon Record And then you have here this Writ Witnes H. Roll at Westm the 17th day of April in the yeer of our Lord 1651. Wightwicke Testat Inde THe Keepers of the Liberty c. to the Sheriffe of H. Greeting Whereas we have lately commanded the Sheriffs of London that they should take A. B. if he might be found in their Bayliwick And him safely keep so that they should have his body before Us in the Upper Bench at Westminster at a certain day now past to satisfie C. D. of a hundred pounds of Debt and also one twenty shillings for his damages which he sustained as well by occasion of detaining of that Debt as for his Costs and charges by him about his Suit in that behalf disbursed whereof he is convicted as it doth appear to us upon Record And the said Sheriffs of London at that day returned to Us that the said A B. is not found in their Bayliwick Wherupon on the behalf of the said C. D. in the Court before Us is sufficiently testified that the said A. B. doth lurk and sculk in your County therefore we command you that you take him if he be found in your Bayliwick and him safely keep so that you may have his body before Us in the Upper Bench at Westminster on Wednesday next after the three weeks of Easter to satisfie the said C. D. of the Debt and damages aforesaid And then you have here this Writ Witnes c. Capias ad satisfaciendum after judgement affirmed in a Writ of Error and for damages for the Plaintiffe being the Defendant did thereby delay Execution THe Keeper c. as above in the Capias ad satisfaciend till these words to satisfie C. D. of a hundred pounds of Debt also 40 s. which were adjudged to the said C.D. in the Court of the Common Pleas at Westminster before Oliver St. John and the other Justices his Associates for his damages which he had by reason of detaining of that Debt whereof he is convicted as by the inspection of the Record and Processe thereupon which we lately for certain causes have caused to come in the Court before Us in the Upper Bench at Westminster And which in the same Court now remaining doth appear to us upon Record And also five pounds which in the same Court before us in the Upper Bench at Westminster according to the form of the Statute in such case thereupon lately made and provided were adjudged to the said C. D for his damages costs and expences which he had by reason of the delay of execution of the Judgment aforesaid by reason of prosecutâ—â—â— of a certain Writ of Error by him the said A. B. in the same Court before us in the Upper Bench at Westminster prosecuted in and upon the Premises as it doth also appear to us upon Record And you have there this Writ Witnes c. Capias ad satisfaciendum
goods and chattels aforesaid formerly taken and you cause them to be delivered to the said A. B. to be detained untill you may cause the goods and chattells formerly taken to be restored to the said A.B. and you put the said C.D. by Sureties and safe pledges that he be before us in the moneth of Easter whersoever we then shall be in England to answer as well as of the contempt and as also the said A.B. of his dammages and iniuries in that behalf illated and that you have there this Writ witnesse c. A Scire facias for an Executor to renew a Judgement after a year and a day THe Keepers c. greeting whereas A.B. Executor of the last Will and Testament of C. D. lately deceased lately in the Court before us in the upper Bench at Westminster by Bill without our Writ and by the iudgement of the same Court recovered against E.F. thirteen pounds of Debt and also one and twenty shillings for his damages which he sustained as well by occasion of detention of that Debt as for his costs and charges by him about his suit in that behalf disbursed whereof he is convicted as it doth appear to us of Record and that the said C. D. after Judgement aforesaid in Form aforesaid rendred at London made his last VVill and Testament and thereby did appoint and ordain the said A.B. his Executor and afterwards there died and now on the behalf of the said A. B. in the Court before us in the upper Bench at Westminster have accepted that although the Judgement be thereof rendred yet the Execution of the Debt and dammages aforesaid doth yet remain to be made whereupon the said A.B. hath supplicated us accordingly to provide remedy for him in that behalf and we being willing in that behalf to do that which is iust we command you that by honest and lawfull men of your Bailywick you make known to the said E.F. that he be before us in the upper Bench at Westminster on Fryday next after c. to shew if he hath or knoweth any thing to say for himself wherefore the said A. B. ought not to have the Execution of the Debt and Dammages aforesaid according to the force form and effect of the recovery aforesaid if he think good to try and further to do and receive that which the same Court before us in the upper Bench at Westminster shall consider of in that behalf and then you have here the names of them by whom you made known to him and this Writ witnesse c. The same in an Action of Eiectment the Plaintiffe a woman after Judgement being married THe Keeper c. Greeting whereas A.B. lately before us in the upper Bench at Westminster recovered against C.D. her Term then and yet to come of and in one Messuage with the Appurtenances in E. in the Parish of F. in your County that is to say from the last day of March in the year of our Lord one thousand six hundred and fifty untill the end and Term of five years to be fully compleat and ended and afterwards the said A.B. at E. aforesaid took to her Husband one C.G. and now on the behalf of the said G. H. and A. B. in the Court before us in the upper Bench at Westminster as we have accepted that although the Judgement aforesaid be rendred yet the Execution of that Judgement doth yet remain to be made whereupon the said G. H. and A.B. have supplicated us accordingly to provide remedy for them in that behalf and we being willing in that behalf to do that which is lust we command you that by honest and lawfull men of your Bailiwick you make known to the said C.D. that he be before us in the upper Bench at Westminster on c. reciting the Return to shew if that he hath or knoweth any thing to say for himself wherefore the said G.H. and A.B. his Wife ought not to have Execution of the Iudgement aforesaid if he think good to try and further to do and receive that which the Court shall consider of in that behalf and then you have here the names of them by whom you made known to him and this Writ witnesse c. The same for an Administrator in Debt The Keepers c. Greeting whereas A. B. lately in the Court before us in the upper Bench at Westminster recovered against C.D. twenty pounds Debt and also one and twenty shillings for his dammages which he sustained as well by occasion of detention of that Debt as also for his costs and charges by him about his suit in that behalf disbursed whereof he is convicted as it doth aprear to us upon Record and afterwards the said A.B. at London aforesaid died intestate as it is said and the Admistration of all and every the Goods and Chattels Rights and credits which were of the said A.B. at the time of his death at London were committed to one E.F. as by the insinuation of the said E.F. in the Court before us in the upper Bench at Westminster we have accepted yet the Execution of the Debt and dammages aforesaid doth yet remain to be made whereupon the said E. F. hath supplicated us accordingly to provide remedy for him in that behalf and we being willing to do that which is iust in that behalf we command you that by honest and lawfull men of your Bailiwick you make known to the said C.D. that he be before us in the upper Bench at Westminster on c. reciting the Return to shew if he c. as above in the former Writ untill the end The same against an Executor of a Sheriff where the Sheriff returned that he had caused the Goods of the Defendant to be levied but hath not paid the Money coming thereof THe Keepers c. to the Sheriffe of Middlesex greeting whereas A.B. lately in the Court before us in the upper Bench at Westminster recovered against C.D. one hundred pounds of Debt and also five pounds for his dammages which he sustained as well by occasion of detaining of that Debt as for his Costs and Charges by him about his Suit in that behalfe expended whereof the said C.D. is convicted as it doth appeare to us of Record And whereas also E.F. Esq Sheriff of the County of E. hath returned to us upon a certain Writ issuing forth of the same Court before us upon the judgment aforesaid that he had caused to be taken the Goods and Chattells of the said C.D. to the value of the Debt and damages aforesaid that is to say the one hundred and five pounds and the Mony coming thereof that is to say the said one hundred and five pounds before us at the day and place in the said Writ mentioned He had prepared to deliver to the said A. B. according to the Exigent of the Writ aforesaid as by the return of that Writ in the same Court before us remaining of Record doth manifestly appeare And
Guardians of Churches Shall have Account against the old VVardens and Trespass of Goods taken 382. Shall have Indictment Appeal of Robbery and are a Corporation for Chattels 383. Church-yard and Church Free-hold of them seems are in the Parson 383. Church-yard and Church not inclosed shall be for that Complaint to the Ordinary 383 Grant of the King See mis-recitall false consideration and false svrmise 60. VVhat is good and what not where the King is deceived 61 General Issue In what Actions he shall have it and what it is 446 Hares TRacing of hares 309 Hawkers and Hunters VVhat is lawfull and what not 115 Hariot Custome is of every Estate aliened and Death 262. Service is properly by reason of Tenure and of every Discent 262. Custome esloigned the Lord shall have Detinue and distrain for hariot service 263. Lord where he may seise and where not and always for hariot custome seise 263. Of Copy-holder Surrender in extremes or aver 265. Hats and Caps 35. High-wayes 34. Hemp. 35. Homage 259. It shall be made to him that hath Inheritance and who shall make it 259. Horses 37 Hue and cry 33 Inmates WHo are and who not and who shall not have Common 90 Incidents VVhat they are and what Incidents may be severed and what not 70 Justice Justice should be made to every one 5. Justice should be ministred 5. And Letters to Justices 5. Judge Steward in Leet and Iustices of Peace are Iudges of Record 81. Iudge in Leet and Court Baron and how there 82 Imparlance Imparlance and day given 394. Imparlance generall and speciall 394. Pleas after Imparlance and last continuance 395. Hee shall have Plea which proves a writ abated or Barr 398. Pleas after the last continuance and day in Bench 399 After Issue matter for last continuance 399 Leet THE precept to warne that and the order to hold that 11. 12. It is ordained to be held twice in the yeare Scilicet within c. 14 The anthority of that inlarged by 18 Ed. 2. c. 13. The charge here begins in that 15. The Breviate of the Change begins 40. Cases argued and agreed to be inquirable there 42. Presentment there which toucheth free-hold traversable and otherwise not 24. Things there not presented shall be presented in Torne and if not in Eyre and if not in the Kings bench 84. It shall be held within a moneth unlesse by prescription and place 88. Form of entring the presentment there 88. The Steward there is Judge of Record 83. Record and his authority there Liberties VVhat the Lord shall have by Charter and what he shall have by prescription 59. Not using and misusing of that is a cause of seisure 58 Livery and Seisin 267 Delivering the Deed within the view in name of Seisin 268. Where give and grant is confirmed and good without Livery 269. Two infeoffed and Livery to one 270. Lex Law Law is ordained to the King for Government 4 The necessity of that and of charity 4 Mannor How that began 7 Materiall What in pleading and what not 456 Maintenance Not by Letters nor otherwise 460 To imbrace Iurors and suborn VVitnesses is 400. To say he will maeintain and doth not is no maintenance but to say that he will spend 20. l. c. is 400. To give money before Suit and covenant to have part of an Obligation for travelling with a stranger born is not 401. VVhere he hath an Obligation delivered for his Debt or Interest as Reversion or Remainder may 401. Servant arrested Master may give of his wages and lend him money 402. It is said that one learned may be of Counsel without Fee and give Evidence for his Fee but not labour the Iury. 404 406. VVho may pray a learned man to be of Counsel with one and who not 404. The Father may his Son Cozen and Kindred in action real and poor but not promise to a Iuror 402. For Burials in Church-yard all Inhabitants may 405 Manucaptor cannot retain Counsel and do nothing but see him appear 402 VVhat an Attorney may do and maintain 404 Modo forma VVhere it is material and where not 460 Mortmain VVhat is Mortmain and what not 36 75 273 Mortdancester Issue upon one point shall not inquire of more 271 Resummons and Process upon that 272. VVhere that lieth and where not and where it is devisable 273. Musters Non-tenure IN what action it shall be pleaded and non-tenure of parcell is not abatement for all 276 Nuper obiit VVhere it lieth between Sisters of halfe blood 277 Negativa preignans VVhere Issue shall be of that and where ntt 462 Obligations How the Conditions of them shall be pleaded 464 Office Grant to one which doth not know to execute void and where to two 282. Assignee and Deputy and where mis-using is Forfeiture 282 Officer How he ought to demean himself in executing Process 278. Executing erroneous Process he excuses and where it is out of their Jurisdiction and where not 279. Arrest in a Church and Bailiff errant without warrant 279 Plaints IN Assise 137 Of Mortdancester and Barr Of entry in the per and cui and Precipe of Summons In Formedon Precipe of Summons and the Count. 8 Pleadings Issue shall not be if he abated or not 422 Issue shall not be upon Affirmative and Negative 423 Diversity between pleading in Trespass and Assise 424 Barr good to common intent and First Face good 426 Barr shall be as high as the matter which is counted 427 Where the Defendants confess and avoids he need not traverse and where he ought 431 Detinue or Trespass the Defendant saith that they were delivered in pawn or by Replegiare and good without Traverse 431 VVhere the Defendant justifies in special manner he ought to traverse 432 Count and Barr good by intendment 445 VVhere the place shall be shewed certain and where not 447 Plea incertain for the year and day and what not 449 A thing issuable ought to be shewed certain 449 What is material pleading and what not 456 Pleading by name and grant and Evidence by name 457 In pleadings where he shall say that is the same 418 Where the Defendant shall say that it is the same Trespass or the same Imprisonment or the same maintenance 471 Conclude in pleading Where the Defendant shall say Judgement if the Plaintiff shall be answered and where Iudgement of the Writ and where to the Iurisdiction and were which so c 433 Order and form how one ought to conclude 433. Where to the Bar there shall be Replication the Defendant ought to conclude and this he is ready c. 433 Where the Defendant pleads to the Issue he ought to conclude and of this he puts himself c. 444 Where the Defendant pleads to the Issue and of this he desireth that c. 434 Where the Defendant pleads general Issue he ought not to conclude and this he is ready c. 434 Pleadings of his own wrong without such cause Where