ad distringend ' d'per Ballivum Dni ' Regis The Limitation of this distress to the Kings Bailiff is void and it is good to give a power of distress to I. S. the Grantee and his Bailiffs Bacons Elem. of Law 15. Error IF a Writ of Error be brought and allowed And the Plaintiff in the Writ of Error dyes pendente breve Errore the Plaintiff in the Action may sue out a Scire facias against the Executors or Administrators of the Plaintiff in the writ of Error without mentioning the Writ of Error for that it is no Supersedeas but only to privies and not to Strangers When a Writ of Error is allowed Execution upon the former Judgment ought not to be awarded For by the writ of Error the Record it self is Removed and the Court hath nothing whereupon to award Execution Yet supersedeas the safest way If a man Levy a Fine sur Conusance de droit Come Ceo c. And suffer a Recovery of the same Lands and there is Error in them both He cannot bring Error first upon the Fine because by the Recovery his Title of Error is discharged and released in Law inclusively But he must begin with the Error upon the Recovery which he may do because a Fine executed barreth no titles that accrue de puisne tempus after the Fine levied and so restore himself to his Title of Error upon the Fine If a man levyeth a Fine where he hath nothing in the Land which inureth by way of conclusion only and is executory against all purchases and new titles which shall grow to the Conusor afterwards And he purchaseth the Land and suffer a Recovery to the Conusee and in both Fine and Recovery there is Error this Fine is Janus Bifrons and will look forward and Barr him of his Writ of Error brought of the Recovery And therefore it will come to the reason of the first case of the Attainder That he must reply that he hath a Writ also depending of the same Fine and so demand Judgment Execution IN Escape against the Sheriff The Case was That a Prisoner being in Executition the Gaoler lets him out of Prison about his occasions and after the Prisoner returns to the Goal and another Sheriff comes in and then the Prisoner escapes and comes no more It was held That an Action did not lye against the last Sheriff for the Prisoner was utterly discharged of the Execution by the first permissiom of going at large by the Gaoler The Sheriff may not break open the doors of any man to execute a Fieri facias much less a Landlord to distrain by the same reason Judgment in Debt against three and a Capia's ad satis faciendum against the Principal the Sheriff retorns non est inventus upon which issued a Scire facias against the Sureties and before the retorn the Principal came into Court and prayed his Body might be taken in Execution which was done accordingly Mich. 10 Jacobi in C. B. And with this agrees the Course of the Court of King's-Bench and divers Presidents of this Court A Writ of Error was brought 4 November retornable 10 January whereupon the Court was moved for Execution because it seemed to be but for delay in regard the Retorn is so long and with this agrees 4 H. 6. an Execution was granted by the Court Mich. 16 Jac. in C. B. Of Estoppels and Conclusions HE who claims nothing by him that was estopped shall not be estopped As two jointenants are disseised the disseisor lets to the one now he is stopped to say that he hath another Estate than for Life Afterwards he to whom the Land was so let dyes the other Jointenant shall have the Land and he shall not be by that Deed estopped for he claimed nothing by him who was estopped by the Survivor If I am named W. B. and I bring my Action by the name of I. B. and recover by that name afterwards if I will bring my Action against another person by my right name he shall not estop me by that Recovery of the same name for if I had been estop'd I should not have had my Action against the other person but he that is party may estopp me well enough 26 H. 6. 30 H. 6. et 10 E. 4. contr Where he in Reversion or Remainder claims nothing by Tenant for Life he shall not be estopped AS the Father disseiseth the Son and Levies a Fine thereof to a Stranger where Recovery is had against the Father and afterwards the Father dyes the Son enters or he that recovers or he that was party to the Fine between him and the Son brings an Assise and the other pleads the Fine or Recovery by way of Estoppel this is no Plea because that notwithstanding that the Son is privy to him that was estopped yet he claims nothing by him Where there is Lord and Tenant and the Lord lets his Seigniory to one for Life the Tenant for Life of the Seigniory distrains the Tenant and he bring an Action of Trespass against him and he justifies for that he holds of him by ten shillings of Rent and the other traverses it and it is found against the Lord for Term of Life This shall be no Estoppel to him in the Reversion If a man pleads a Plea in which he confesseth a thing that is not material it shall not be an Estoppel As if a man voucheth one as Son and Heir to such a person and when he comes he is bound to warranty by his own Deed yet may say afterwards in an Assise of Mortdancestor that the same person which I vouched before as Son and Heir is a Bastard for the words Son and Heir in his voucher are not material The same Law in a Writ of Trespass brought by one Executor of Goods taken out of his possession Where a writ of Debt is brought by an Executor who counts of a duty due to himself there the word Executor is not material and he shall not be estopped but he may say afterwards that he never was Executor nor ever administred as Executor If a man will plead a Record to estopp him that was privy he ought to shew what end the Action had AS if I bring an Action against you in which Action you plead that at anotheâ—â—ime viz. such a day c. I brought an Action of Trespass against you and the Defendant pleaded Villenage and the Plaintiff confest it he ought to shew further by force of which he was nonsuited and to shew what end the Plea had and demand Judgment if against that he shall be answered Where a man hath Judgment to recover Land by that Judgment he shall be estopped to claim any other Title than he hath by the Recovery AS if a man recover by Writ of Right Sur disclamer if the Tenant ceaseth afterwards he shall not have a Cessavit to recover the Land though he sues not out Execution for he shall be estopped to claim
Copy-holders ought to alledge Customs ibid. Of alledging Customs in particular places p. 79. In what manner Customs shall be pleaded ib. Of Prescription by Parishoners ib. 80. Custom of England concerning Inn-keepers ib. Of Tithes ibid. No Prescription of Lands makes a Right but of Rents or Profits it doth p. 81. Women may prescribe to be endowed of a moiety of the Lands of her Husband but not of the Rent ibid. Gavelkind Lands shall escheat if the Father abjure or be outlawed for Felony ibid. Every Custom against Common Law shall be taken strickly ibid. Debt SEE variety of Pleading in Debt from 81. to 104. Detinue Inter-pleader in Detinue p. 104. Vpon general Issue in Detinue that which would make a special Barr cannot be given in Evidence or if found by the Jury is it material p. 105. Detinue will lye of Chartres not specially and particularly named what they are ibid. Improper words in Detinue adjudged good enough after Verdict Disclaimers and Discontinuances of Actions Action of Covenant discontinued after Judgment and Writ of Inquiry by Rule of Court p. 106. Action of Tresp in three Towns and mentions but two Towns where it was committed the whole is discontinued ibid. So in Debt for that the Writ was 10. l. 6. s. 8. d. and the Declaration but 10. l. ib. So if the Declaration be of several things and it be discontinued as to one it shall be discontinued as to all ibid. Debt brought against two Joyntly and Severally bound it being discontinued against one did abate against both ibid. In what Cases where two Persons bring their Action the Non-suit of one shall not be the Non-suit of them both è contra p. 107. If after Verdict for the Avowant in Replevin the Plea be discontinued and he sues a Scire Facias the Plaintiff may plead a Release of the Avowant after Verdict of all Actions or other matter to discharge himself ibid. Trespass Defendant pleads two Pleas Plt ' demurrs to one and doth not plead over to the other it is a discontinuance ibid. In Pr. quod reddat if the Tenant disclaims the Judgment shall be that the Demandant nihil capiat per breve p. 108. Writ of Inquiry awarded upon Disclaimer in Replevin ibid. No man can disclaim against a Termor ib. Husband and Wife cannot disclaim in Avowry ibid. In Replevin the Defendant avows upon the Plaintiff and he disclaims to it he shall not be received 109. He that is in of his own Wrong shall not disclaim in a Writ of Entry in le quibus ib. Distress If Houshold Goods be Distrained they ought to be preserved in an House from the Injury of the Weather but if put in an open place where they are spoiled the Distrainor shall not answer for them ibid. If an Horse Distrain'd happen to strangle himself the Distrainor shall be punished in an Action of Trespass ibid. A man shall not milk a Cow he hath distrained without the Owners Consent and if the Cow perish for want of Milking he may distrain again and so be at no Damage ibid. 110 112. Sheriffs Officer cannot justifie breaking open Doors to distrain for the King 's Rent much less a Landlord's ibid. Things distrained shall not be used because but Pledges in Law ibid. Distress not to be driven out of the Hundred or to a Pound above three Miles or to several Pounds or out of the County No Man shall distrain in the High-way nor drive Distress into a Castle or Hold ib. The Tenant shall not disturb the Landlord in taking his Distress or hinder him of the Lawful Means to come by his Rent ib. Distress of a Strangers Goods for the Tenants Rent unlawful ibid. Owner must bring Replevin not break the Pound tho' the Distress be unlawful p. 112. Where Limitation of Distress void ibid. Error WHere the Plaintiff in the Action may sue out a Scire Facias against the Executors or Administrators of the Plaintiff in the Writ of Error p. 113. After Writ of Error allowed Execution upon the former Judgment shall not be awarded and why ibid. Where there is Fine and Recovery of Lands and Error in them both a Writ of Error cannot be brought first upon the Fine but upon the Recovery ibid. In what case a Fine shall barr a Writt of Error brought of a Recovery p. 114. Execution Action lies not against the Sheriff for Escape of a Prisoner in Execution in the time of his Predecessor ibid. Sheriff may not break open Doors to execute Fieri Facias p. 115. Ca. sa against Principal return'd non est invent ' then Sci. Fa. against Sureties before the Return whereof the Principal Surrenders his Body in Execution allowed per Cur ' ibid. Execution granted by the Court upon Motion after a Writ of Error brought because the Retorn was too long ibid. Estoppels and Conclusions He who claims nothing by him that was estopped shall not be estopped by his Act. Where he no Reversion or Remainder p. 115. claims nothing by Tenant for Life he shall not be estopped p. 116. If a Man pleads a Plea in which he confesseth a thing that is not material it shall not be an Estoppel p. 117. If a man plead a Record to Estop him that was privy he ought to shew what end the Action had p. 118. Where a Man hath Judgment to recover Land by that Judgment he shall be Estopped to claim any other Title than he hath by the Recovery ibid. Of some Estoppels none shall have Advantage but Parties or Privies 120. And of some every one shall have advantage ibid. Vser of Action no Estoppel to prejudice another ibid. In what case one shall estop another ibid. Where I am barred of Land the Estoppel shall pass with it but of other Lands it shall be no Estoppel against me ibid. None shall be received to plead an Estoppel against another but may be estopped by the same Plea and both must be Parties to the Record otherwise not p. 122. In what cases a Stranger shall take Advantage by an Estoppel p. 123. Fines and Recoveries SEveral Cases of Fines and Recoveries p. 125 126. Heir The manner of Suing an Heir upon a Bond entred into by his Ancestor p. 159. Outlawries PLeaded in Bar and Disability p. 161 163 165 175 177 181 196 197. Reversed for several causes p. 161 162 163 164 165 168 170 171 172 173 178 179 181. Partition TWo Tenants in Common of a Mannor before Partition one of them is said to have dimidium Manerii but after Partition medietatem Manerii and an Indictment of forceable Entry after Partition it shall be Medietas not Dimidium Manerii p. 183 Priviledge Lost by Chancery Clerk by suing out Supers ' in C. B. Parson Parsonage becomes void by Acceptance of a Bishoprick p. 183. And Acceptance of a second Benefice makes the first void p. 184. Tith of things proceeding from the Earth as Corn Hay c. shall be severed upon the Ground but secus of Sheep
Record Foâ— versus Iucks 2 Cro. 13â— In Debt against an Executor he pleads a Judgment in Barr and because he did not plead prout patet per Recordum it was resolved to be ill 2 Cro. 226. Defendant in Debt to perform an Award which was to enfeoff or Release or pay 20 s. pleads performance ill not shewing which for performance of any one is good excuse wherefore he must shew what he hath performed 27 H. 6. I. b. In Debt against an Executor or Administrator he pleads a Judgment and that he hath not Goods preterquam que non c. Co. 9. Rep. 109 110. 'T is held ill on general demurrer not shewing what summ he has but Hob. 133. More versus Andrews 't is held but form and good on general demurrer and Vide Co. Entr. 446. a. 148. Pl. 27. 152. a. 269. a. 617. b. It is oftner pleaded in the general then to plead a particular summ c. here the Court held it but a form and cured by General demurrer Davies versus Davies Tr. 16. Car. 2. B. R. Debt on a Bond conditioned to pay all c. Defendant pleads he paid all without shewing what the Plaintiff replied he received some summs and has not paid the replication good for the knowledg is on the Defendants side what he received therefore to have been set out by him and not by the Plaintiff in the Replication and therefore the Barr ill Woodcock versus Cole Tr. 16. Car. 2. B. R. Debt super Obligation conditioned to deliver such Letters by such a day plea that he delivered them secundum Conditionem ill for being to do a particular thing by a particular day he ought to have pleaded particularly and not generally secundum conditionem Brook versus Deane P. 16 Car. 2. B. R. Rot. 451. Debt upon a Bond at London conditioned that if a ship do not miscarry c. Defendant pleads she miscarryed in Cornwall ill for he cannot plead transitory matter in another County then the Action is laid and so altered the Trial and if he have local matter to plead he must shew it Collings versus Sutton Tr. 16 Car. 2 B. R. rot 1666. 11 H. 4. 50. a. b. Debt and counts that one possessed of a Term granted him a Rent by mean Conveyances is come to the Defendants and shews not how yet ruled good aliter if the Term be pleaded to come to himself or any that he is privy to Note This was after Verdict but no advantage taken of the Verdict Cotes versus Wade m. 18. Card. B. R. Debt for an Escape and begins with the Writ of Execution and Arrest ill not shewing the Judgment quod cum recuperasset c. Jones versus Pope M. 18. Car. 2 B. R. Debt on a Bond conditioned to save against another Bond Defendant pleads that he did save not shewing how the Plaintiff sayes he was sued at Law pro eo quod the money was not paid and pleads not the Writ c. as he ought the Defendant rejoynes he had not notice which is a departure and not material the Plaintiff demurrs Resolved the Barr ill but if not to have it specially assigned for cause Secondly the eo quod affirmative and Traversable as well as if said in facto Thirdly the Replication ill not pleading the Writ c. Fourthly because the rejoyner is a departure and admits it being but ill for incertainty and circumstance has cured it Cather versus Peirce Soutbres and Falker M 18. Card. 2. in Sci. Debt against an Executor who pleas three Judgments in debt had against him and sayes nor pro vero debo and concludes prout patet per seperalia recorda et inde exeeution tato it for both Cases no resolution Palmer verses Lawson M. 18. Car. 2. R. R. Rot. 302. Debt on a Bond to perform an Award Ita quod it be made before 25 March pleads nul Award replication that ante 27 May they made an Award good without saying infra tempus limitat they may traverse nullum c. without traversing the day if not before the day the Jury is to find it Skinner versus Andrews Hill 20. Car. 2. B. R. Rot. 292. Debt against two Executors they plead a Judgment had against one as Administrator who ultra to satisfie hath not Assets et bene Parker versus Amy. Hill 20 21. Car. 2. B. R. Debt on a Bond against an Executor who pleads a Judgment and a Bond the Plaintiff replies the Judgment satisfied and satisfaction given Et hoc paratus est verificare And to the Bond assets ultra Et hoc petit quod inquiratur per Patriam Defendant demurrs and adjudged for the Plaintiff though not said to the first per Recordum for but form and cured by the general demurrer also he has not answered the last issuable Plea Hancock versus Proud M. 21. Card. 2. B. R. Debt on a Bond conditioned to do several things Defendant pleads performed generally and demurr adjudged ill he should have answered to all the particulars expressed in the Action aliter where 't is to perform Covenants Winbleton versus Helderup Trin. 22 Car. B. R. rot 704. Debt on a Bond conditioned to perform Covenants which were within two years to deliver a Mapp of all Land in D. in the possession of A. Lessee of B. and B. pleads performance repl Assigns breach that Lessee did not deliver a Mapp within two years of all the Lands in D. in his Occupation and in the occupation of B. and C. and the replication seems ill first because he does not say Lessee nor his Executors Secondly in his occupation is uncertain what is meant by it Thirdly he ought to shew what Lands were in the possession of B. and C. Q. If the recital not an Estopel to say none were Palmer versus Greenhil Executor of Greenhil Pa. 11 Jac. Rot 688 Bridg. 46. Debt by two Barons and their Femes on an Obligation made to their Femes when sole and say the money was not paid them good and though not said vel licaui eorum for payment to one is payment to both Sparmer versus Stone et ux ' vide Pa. 77 et Latch 49 and Pop. 161 ibm 3. Count jointly and severally in Action against one sufficient to say he paid not but if against all that they nec aliquis eorum Noy 69. Executors sue on a Bond Testat plea non est factum after Verdict for the Plaintiff moved yet he had Judgment Noy 79. A. and B. joyntly and severally bound to stand to an Award betwixt them and I. S. Arbitrators awarded A. to pay B. 3 s. B. to pay 10 s. to I. S. in debt on the Bond in Plea for A. to say he had performed the Award without shewing how and how B. had performed it for he is bound to him also Bendlo 5. Debt on a Contract Defendant pleads payment in a Forraign County and on demurrer adjudged ill he might have pleaded in the County and so
Affidavit that he was sick yet no day but he pleaded al pais 3 Bulstr 316. on default Judgment and no day Ben. 151. Debt for Scavage and declares that the Mayor Aldermen c. time out of mind have so much for Scavage and the defendant brought so many Boards whereby so much was due defendant waged Law and on demurrer adjudged it lyes not on this debt grounded on a Custom Ma. c. of London against Delpester Tr. 26. Ca. 2. b. r. Wast DEvise to one for Life Remainder to A. in Fee Tenant for Life does wast he in Remainder shall have an Action of Wast but the Writ must be special and shew that he was the Reversioner by Devise not generally ex assignatione Hutton 110. Lease excepting wood and underwood Lessee cuts Timber it seems an Action of Wast lyes not because the Wood was devised and so not within the Statute Dyer 19. a. 1 Leon 61. In Wast it seems that the defendant if he never attorned may either say que riens passa and give in Evidence that he never attorned or plead it Dyer 31. a. 231. a. b. In Wast for cutting and selling Trees the selling must be answered as well as the cutting for that is traversable Dyer 75. b. 90. b. Co. 1. Inst 53. Hob. 104. If an house be ruinous at the Lessee's Entry 't is no wast to suffer it to fall but to pull it down 't is and 't is wast in the Lessee to cut Timber to re-edifie such an house per Dyer but I suppose not for if the house fall by Tempest the Lessee may cut Trees to repair by Co. 1. Inst 53. b. 54. a. contrary to Dyer 36. a. Co. 4. Rep. 63. a. 11. 81. a. The general property of Trees remains in the Lessor and the Lessee hath but particular Interest to take them and in Dyer 't is said the Lessor cannot grant them without the Lessee's License But Co. 11. Rep. 't is said 't is good to take effect after the Lease which is yet a doubt upon Waller and Pettit's Case Dyer 36. a. b. Co. 4. Rep. 36. b. 11. Rep. 48. b. 81. 1 Cro. 199. Wast assigned quòd amputavit decapitavit quadragiâ—ta Fraxinus viginti Vlmas and adjudged it well lyes Dyer 55. a. Wast assigned Succidendo quercus the Truth was he did not lop and top them he may plead Nul wast fait and give the special matter in Evidence Dyer 92. a. Upon the Retorn of the Summons 't was said quòd quer ' obtulit se quarto die per Attorn ' without naming him and though he was named in the assigning of the Wast yet 't was Error and so it was that the Estate was not set forth in the Writ though it was in the Action of Wast Also he shewed one Tenant for Life by way of use the Reversion to him and said not spectaâ— ' vel pertinen ' Dyer 93. b. Wast may be assigned in destroying the Planks and Managers in a Stable but then they must be averred fixed to the Free-hold And so of letting a Brick-wal fall but it must be averred that it was covered 1 Inst 53. a. Dyer 108. Wast by a Bishop moved to abate the Writ because 't was ad Exheredationem ipsius Episcopi where it should be ad Exheredationem Ecclesioe but no Resolution given Mich. 10. H. 7. Pl. 8. Ad Exheredationem ipsius A. B. Ecclesioe de S. Mich. 42. E. 3. 22. b. Dyer 129. a. Lessee of an house and Wood covenanted to repair the house at his proper Costs and took Timber to repair it he is not charged with Wast but in Covenant he is The same Law if the Lessor had covenanted to repair it and the Lessee had took Trees on his default Vide 21 H. 6. 47. a. Lessee may plead in Bar of Wast that the Lessor granted the Repair and he took the Trees to do it in his default Dyer 198. b. 314. a. Dr. and Stud 66. b. Perkins § 738. Plow Com. 29. Dyer 32 a. A. makes a Lease to commence in futuro and before the Lease commences infeoffs B. The Lessee does wast B. brings wast supposing quod tenet ad terminum c. ex Assignatione A. de quo idem defend ' tenuit c. and good there being no other forme though he never held of A. for his Term was never commenced in A's time Dyer 206. b. Hutton's Reports fo 110. Lessor grants the Reversion to A. who grants it to B. the Lessee assigns the Term to C. Form of the Writ denyed per Justic ' utriusque Banci Dyer 208. Scire facias of a Fine and Writ of Estrepement sued one that purchased wood long before the Scire facias is hindred to fell it Quoere what Remedy Dyer 110. b. In wast assigned in taking a Furnace fixed to the Soyl the defendant pleaded a Devise of it by the Termor and removal of it by the Executor's Assent It seems no Plea being doubted if the Plaintiff ought not to have Judgment for the wast confessed Dyer 272. b. Owen's Rep. 70. Wentworth's Office of Executors fol. 36. Quid Juris Clamat was brought upon a Fine and after Judgment and before Execution a Writ of Estrepement awarded Dyer 325. b. In wast for cutting Trees the defendant pleaded quòd fuerunt aridoe cavoe putridoe in culminibus non existentes sufficiens Maheremium pro edificiis Two Judges held it ill because not said non portantes fructus nec folia Dyer contra it tantamounts But agreed non existen ' sufficiens maheremium ad edificand alone ill for it may be fit for other uses And to other he justified to make Posts for Inolosures and that ill because not shewed that all those Trees were so employed Dyer 332. More pl. 246. A. and B. Joyntenants for Life Reversion to B. make a Lease they shall joyn in wast And so if Tenant for Life and he in Reversion make a Lease they shall joyn and Tenant for life shall recover Locum vastatum he in Reversion damages 1 Inst 42. a. b. 1 Leon 49 To cut down Timber is Wast to suffer the young Germina to be destroyed is Destruction so if one when he has cut a Sale-wood lets the spring be spoiled or stubs it up Cutting Willows Beech Maple c. that stand in defence of the house and stubbing up a quick set Hedge is destruction for all which an Action of Wast lyes 1 Inst 53. I. K. L. M. To suffer a ruinous house to fall down that was so at one's Entry is not wast ytt he may take Timber and re-edifie it but if he pull it down it is wast To destroy Glass Wainscot Doors Furnaces c. fixed to the Free-hold is wast Cutting Fruit-trees in the Orchard or Garden is wast otherwise not If a house be blown down by Tempest Lightning c. the Tenant must in convenient time repair it Destroying the Stock of Dove-houses Warrens c. is wast Where Timber is scant
c. The same law if an Abbot make a Feoffment in Fee and afterwards is deposed and sometime after is made Abbot now he shall have an Action against his Deed which he himself made when he was Abbot because that now he comes in as Successor and not in the place as he was before The same Law of Warden and Schollars But it would have been otherwise if he had disseised a Parson and made Feoffment in Fee with warranty or without warranty and afterwards is made Parson now if he will use an Action his own Feoffment shall be a Barr against him because that all that he shall recover by this Action is to his own use The same Law if a man disseise a woman and makes a Feoffment in Fee and afterwards he takes the woman to Wife in this case the Husband shall be Barred because that he will have advantage of this Recovery to his own use If a man hath right to have Land where his Entry is tolle and releaseth to the Tenant all manner of Actions and dye his Heir shall have his Action and recover the Land because that by such release no right is extinguished and if the Tenant makes Feoffment in Fee or dyes seised he that made the release shall have his Action against the Heir of the Tenant or his Feoffee against his own release and the cause is because that nothing is released but his Action against the same person and not any right If the Son disseise his Father and make a Feoffment with warranty or without warranty and after his Father dyes he cannot ouste his Feoffee because that it was his own Deed. A man hath good cause of Action sometimes and yet by matter ex post facto and by the Act of a Stranger his Action is destroyed As I am disseisee and he is disseisor and I release to the disseisor Also I bail or lend Goods to one a Stranger takes them the bailor sells them to a Stranger c. Action of Debt upon an obligation brought by an Executor the writ shall be detinet and not debet and for this cause they joyn in the same Action for an Horse delivered by themselves to the same Obligor The same Law if a man recover Lands by default in which I have an Estate for life and he recovers by another writ by default Lands wherein I have an Estate Tail I shall have a Quod ei deforceat because the conclusion of the writ serves me And so a man may joyn two or three things in his Action where the conclusion of his Action is pertinent to the several matters and doth not vary If two or three Acres are given severally in tail and the party discontinue the whole his Heir shall have Formedon for the whole because that the writ is le quel un I. dit S. dona and although the Acres are given severally that is not material forasmuch as the common Writ will serve in this case But if the Acres are given by divers or several men or that the one shall be given to the Heirs Males and the other to the Heirs Females and the third to the Heirs General in this case the Heir shall have several writs and not one writ because that one writ cannot serve for such several Gifts If I deliver Goods to one who is indebted to me and he dyes against his Executors I may have a writ for the Goods and for the Debt because that the writ is against the Executors for the Debt in the Detinet and for the detinue it is in the Detinet and therefore the writ well warrants the count to declare partly for debt and partly for Detinue but such an Action he could not have had against the Testator because that for the debt against him the writ ought to have been in the debet and detinet A Feoffment is made upon condition of payment by the Feoffor he commits Trespass and afterwards enters by force of payment c. yet the Feoffee shall have Trespass because his possession is affirm'd 43 E. 3. Assumpsit If he would relinquish such a debt to pay him 30 l. and sayes he did relinquish it c. and after Verdict for the Plaintiff Judgment stayed because he shews not how he relinquished it and it may be by parol which were void Gregory versus Lovell 3 Cro. 292. Assumpsit in Consideration he would discharge him from an Arrest and sayes that exoneravit ipsum moved in Arrest c. he shews not how he discharged him sed non allocatur for they might be per parol or for a time but in Pleading a discharge of a Rent or bond which must be by Deed and perpetual it must be shewed how King versus Hobs. 2. Cro. 930. 960. Assumpsit the Defendant pleads the discharge of the promise whereof Issue taken and found for the Plaintiff and divers defects in the Declaration moved in Arrest of Judgment but by Wrâ—y all these defects tending to the Assumpsit are cured by the collateral Plea Manwood v. Buston 2. Leond. 203 204. Assumpsit If he would make it appear c. and sayes he made it appear by the Court-Roll Good without saying what the Court Rolls were for the Infinitly So a Bond to save harmless from all Estreates good without shewing what for the same reason Vide 9 E. 4. 15. a. 22 E. 4. 41. a Mo. Pl. 1175. 3 Cro. 149 Pl 3. 919. Pl. 3. 3 Bulst 31. Latch 130. H. 2. H. 7. Pl 22. H. 6. H. 7. Pl. 8. 8. 22 E. 4. 15. ab 28. b. 29. a. Assumed he would assign Goods to pay c. and sayes he assigned and shews not how but per scriptum yet good Note after verdict Forth v. Yates Tr. 30 Car. 2. B R. Assumpsit against an Executor who Pleads solvit to such a one on a Bond of 100 l. and to another 100 l. on a Bond and so to divers others which he was forced to do the Payment being post exhibitionem Bille and Pleads a Recognizance in force not satisfied the Plaintiff Pleads non solvit to such a one 100 l. nor to such a one 100 l. Et si de ceteris hoc petit c. and to the Recognizance that it was satisfied and kept in force of Fraud the Defendant demurred quià replicatio multiplyed and double consisting of two matters where one goes to the whole but Judgment for the Plaintiff for the first objection to one 100 l. to another 100 l. make several Issues though que de hoc And in case of an Executor one may answer to every thing alledged by him H. 21 22. Car. 2. B. R. Jeffreys v. Dod. Assumpsit to permit Land to descend breach laid quod non permisit well being in the negative but in the affirmative it ought to be shewed how disposed though they could not descend H. 9. Jac. B. R. rot 3 Bulstr 18. Assumpsit to perform an Award and sets it forth the Defendant pleads
abjure the Realm for Felony or be outlawed of Felony the Land shall escheat and the Son shall not inherit and yet both are Attainders in Law But every Custom that is against the Common-Law shall be taken strictly Debt DEbt super obligationem in London the Defendant Pleads Delivery as an Escroul in Midd super Conditionem c. et Issint non est factum by the Issint c. the special matter is weighed and amounts to the general Issue to be tryed in London per distre in Midd. et issint Rien luy doit is a waver of the special matter and tender of the general Issue P. 27 H. 8. Pl. 34. Debt against two Executors one Pleads plene administravit the other Pleads non est factum Testatoris and if they sever and have those several Pleas in Barr multum altercatur Choke they may Moyle they may not Danby Executors may sever but if they shall have these several Pleas doubted vide I' 37 H. 6. one Pleads Misnomer the other that he is Administrator doubted if Pleadable and ibidem the Authorites they are cited and vide 21 E. 3. 10 11 12. Defendants plead not Executors cannot plead severally in dilatories but in Barr they may P. 7 E 4. Pl 19 Debt upon Obligation to perform Covenants all being in the Affirmative he Pleads Performance general and by Inglefield and Fitz he ought to shew how he performed each specialty Sed vide Co. 1 Jnst 303. a. b. In Debt upon an Obligation conditioned to discharge the Sheriff Plea That he discharged the Sheriff without shewing how M. 5 E. 4. Pl. 21. Debt super Obligationem conditioned to pay to the Chamberlain of London and his Successors he Pleads Payment to A. Chamberlain and his Successors he must Plead how he came out of his Office and how the Successor came in Else A. shall be intended to continue in M. 4. E 4. Pl. 30. Debt against three Executors who Plead several Pleas and each goes to the whole per Danby Moy'e and Clark the Plaintiff may elect which he will have Tryed first Needham contra the most peremptory shall be Tryed first Hill 8 E. 4. Pl. 3. Debt against Executors they Plead a Judgment against the Testator by A. for 200 l. and another by B. for 100 l. And that they have not Assets but to satisfie the 200 l. per Bryan the Plea is double having Pleaded 2 Judgments and rely upon one 9 Eâ— 4. 12. a. Bond to pay 20 l. when A. comes into England from Venice Plea That A. was not at Venice not good for where part is to be done within part without the Tryal must be within Tr. 19. El. et B. Hales Case Ow. 6. One bound to save another harmless Pleads that he had saved him harmless and shewed not how 't is not good but non fuit damnificat generally is good et Pop. 297. dictum per Jones If the first be generally demurred on the advantage of it is lost for which I think it not Law for in Mansels Case Co 2. the Demurrer is general upon such a Plea and Judged ill et 2 Cro. 165. 363. One Action against several Defendants for one Debt c. they may sever in Barrs but not in Dilatories Hatton 26 Hob. 245. In Debt upon a Lease for years the Defendant pleads non habuit nec occupavit adjudged no Plea other then Tenant at Will by Fitz Herbert Dy. 14. In Debt upon an Obligation with Condition payment is a good Plea with Acquittance as appears Dyer 15 b. 1 Cro. 55. 2 Cro. 59. 360. 558. but payment on a single Bill Obligatory is no plea without Acquittance nor it seems upon an Indenture to pay so much for a forfeiture Dy. 6. a. 51. a. Co 5. rep 43. 2 Cro. 86. 377. 3 Cro. 157. 3 Cro. 455. Debt upon a Statute of Usury and misrecites the Statute of Usury and sayes in the Action the Defendant lent money usuriously and received the principle and so much for Usury and that is Traversed and found against the Defendant and moved to be a Jeofail but it seems both Surplus and he need not shew the Cause of Action in the Writ And shewing the Receipt was more then received for the very lending usuriously is against the Statute though he never received it Where one has special matter and pleads it and concludes with the general Issue It waves not the matter precedent as in Debt to plead unlettered issint non est factum or a special Payment issint Riens â—uy doit or for one to Plead that he was Joyntenant with his Feoffee at the time of the Feoffment et issint Riens passe per le fait 10 E. 4. 3. b. M. 9 E. 4. Pl. 15. et fo 19 b. Debt on a Bond against an Abbot he pleads Predecessors imprisoned the Prior and threatned the Monks to imprison them if they would not seal it double one the Imprisonment of the Prior the other the threatning of the Monks And if both should be traversed and one found for the other against the Plaintiff the Court should not know for whom to give Judgment M. 15. E 4. Pl. 2. In Debt of 100 l. the Administrator pleads Judgment of 200 l. to another So plene administravit and that he had not goods preterquam non attingen ' ad 200 l. the Plaintiff demurrs generally because he shewed no certain summ whereto the goods amounted according to Co 9. Merriel Treshams Case 109 b. Hob. and Winch held performance the substance Hob 133 Moore vers Andrews The King brought an Action of Debt and averdict upon non est factum pleaded and after pardoned the Debt which Debt he at the day in Bank pleaded and was allowed to do it because he could have no Audita Querela or sei facias against the King Co. 3. Jâ—st 135. Debt and shews that he made a Lease for years Rend c. the Lessee was thereby possessed and devised it to the Defendant and he entred and Null possession c. ill first because he shewed not that any was made Executor or that he entred by his Assent nor 2 that virâ—ute legationis he entred and then it might be for another Title Dy 254. b 3. Cro 537. Debt of an Obligation conditioned that he and his Wife should appear he pleads that at the time of the Obligation he was solus and innuptus Rolls held it did not amount to ne unque Loyalment accouple and ruled for Judgment upon Demurrer nisi Causa Yeane vers Skelton H 23 Car. 1. B. R. Sti. 17. Debt to perform an Award made 10 May ready to be delivered the 11 th of May Nul Award pleaded he replyes that the Award was made the 10 th of May to be delivered the same 10 th day of May The Defendant demurred for doubtfulness or departure Resolved not yet being a thing whereof Issue is to be of the Award not of the day of the Award Tyers Case Trin 23. Car.
1. B. R. Sti 4. Debt upon an Obligation he pleads that he pay'd at such a day the Jury find he did not pay at that day the Truth was theâ—e were two dayes of payment and he payd one part the one day and the other at the other day the Court seemed he is condemned by the Verdict and his own Plea P 24. Car 1. B. R. Sti. 93 94. Debt upon Obligation to perform Articles the Defendant pleads Covenants performed Issue and Verdict for the Plaintiff who moved for a new Tryal to prevent Error because no Issue joyned but the Court said it was a good issue but ill plea whereon he might have demurred and ruled the Defendant shews Cause why a Replication should not be Weights Case M 24. Car 1. B. R. Sti. 139 140. In Debt upon a single Bill the Defendant pleads he had paid and the other accepted part since the Action brought ruled a good Plea in Abatement of the Writ not in Barr of the Action as here 't is Hillingworth versus Whetstone P. 1649. B. R. Sti. 112 163 Co. 9 Jnst 303. 2 Cro. 304. 959. H. 10. H. 7. Pl 3. M. 21. E. 4. Pl. 38. Debt for 40. l. against an Executor he pleads that he received but 10 l. and 40 l. was due to him the Plaintiff replies that he is Executor de tort and has more goods Et hoc parat c. where it should be Et hoc petit c. ill and that discontinues the whole Plea Alexander versus Lane In Debt for Rent Lessee pleads that Lessor nil habet c. he replyes quod habet 't is ill not shewing what estate but cured by Verdict if Issue be joyned and found quod habet Hill versus Glassey Yel 227. 2 Cro. 312. Debt upon two Bonds whereof one is not due the Defendant pleads a Release of that and another Plea to the other both found against him and this shewed in Arrest of Judgment yet shall not be stayed for by his pretending a false Release he passed over that Advantage So in Debt by an Executor the Defendant pleads he has a Co-Executor who has released to him and found against him the Plaintiff has Judgment Friths Case 3 Cro. 68 69. 4041. 110. 111. In Debt on an Obligation the Defendant pleads al jour and issue of it puis darr contin he pleads that the money was attached in his hands in London Pel versus Pel 2. Cro. 101. Debt upon two Bonds the Defendant demands Oyer of the Condition one of which was to pay c. after performance of a Will the other was to pay c. within two years after the Devisor's death and performance c. and pleads that the Will was that he should make a Release and alledges the death to be at such a day which is within two years and that he required the Defendant to make a Release and he refused Issue of the death and all found for the Plaintiff moved in Arrest c. one day is not come and damages intire so no Judgment to be but per Cur. 't is only the Allegation of the Defendant that he dyed at such a day which if true the Defendant would have rested on it and not have pleaded a false Plea whereon the Issue is taken and found against him Thurbettle versus Reeve and Tye 3 Cro. 110. 111. 40. 41. 68 69. Debt upon an Obligation the Defendant pleads non est factum 't is found that he Sealed c. and the Seal was torn off after the Plea pleaded but on atthe time of the Plea 't is against the Plaintiff Mirral versus Scebrith 3 Cro. 120 Co. 5 Rep 119. b. Debt for Rent against an Executor he pleads Levy per distress and sans Detinet void find no Levy by distress but that an assignment was made by the Testator and the Rent paid by the Assignee and adjudged for the Defendant for the substance is on the new Detinet and the rest but circumstance S. Tho. Cecil versus Harriot 3 Cro. 140. Debt on a Bond conditioned to save harmless against another Bond of Fifty two pounds And so he saved him harmless but because that he shews not that he was not damnified before ill Denis versus Thomas 3 Cro. 156. In Debt on a Bond by A. and B. the Defendant pleads the Obligation was made to them and B. And that all three have an Action depending against him Judgment is got but because the Bond to three cannot be intended And that the Plea goes in Abatement and he has concluded in Barr ill Isumet Priscot versus Hitchcot 3 Cro. 102. Debt on Obligation conditioned If such Lands be four miles distant c. the Defendant pleads that 't is four thousand paces distant the plea Ruled good for a thousand paces is a mile So it tantamounts the Condition but how a mile or the spaces shall be reckoned per communem viam or strait as a Bird could Fly qu. Mirige versus Eat 3 Cro. 212. 267. Debt super Obligation conditioned to pay 35 l. at Michaelmas and 33 at Lady-day he pleads payment of the 70 l. secundum formam Conditionis good though objected he should have pleaded several payments for the several Conditions do implye it Lox versus Lee 3. Cro 256. In Debt a good plea in Barr replication ill Judgment by nil dicit because the Defendant never rejoyned shall not be reversed for that ill till all be made up herewith agrees Co 5. Rep. 55. a Princ. Boyer versus Jennings 3 Cro. 284. Debt against an Executor the Defendant pleads that pending the Action another brought an Action for a true Debt of the Testator which he confessed and that he has nothing wherewith to satisfie the Judgment the Plaintiff protestando that was a true Debt pro placito replyes that the Recovery was by Covin to deceive him Defendant demurrs and adjudged against him for the Covin is not Issuable but reversed in Error nor could the Recovery be by Covin if the Debt true Greene versus Wilcox 3. Cro 462 463. Obligation conditioned to appear in the Kings-Bench the Defendant pleads that the Court was adjourned to Hartford and that he appeared there ill not saying prout â—atet per Recordum Corbet versus Cooke 3 Cro 466. Debt super Obligation covenanted to appear in the Kings-Bench such a day and there elect two Arbitrators who with two more to be elected by the Plaintiff shall Award c. the Defendant pleads that he appeared there at the day and there elected two the Plaintiff was not there time enough for the Award to be made nor that he had his Arbitrators there Edwards versus Marks 3 Cro 549. Debt upon Obligation conditioned that if he upon request deliver the Plaintiff all the Tallow that shall be made before Michaelmas of all Beasts killed by him or his servants then c. the Defendant pleads generally prout in Condition the plaintiff demurred supposing he ought to set out particularly
Scire Facias it shall be tryed in one Case by the Natives in the other by the Certificate of the Captain M. 11. H. 7. pl. 17. P. 21 E. 4. pl. 4. The Sheriff returns the Exigent thus Ad Comitat ' tent ' apud C. in Comitat ' Somerset 5. Exactus non comperuit because 't is not said ad Comitat ' Somerset nor Somerset set in the Margin 'T is held to be ill because it might be the County Court was not held in the County of Somerset but in another County sed adjornatur M. 11. H. 7. pl. 33. H. 6. H. 7. pl. 7. One taken upon a Capias utlegat ' by the Name of J. S. Gentleman says he is a Yeoman and was c. Scire Facias against the Plaintiff and issue that he is and was a Gentleman and the party was bailed the King dies before the Issue tried the party comes in Court temps the next King and is committed for the Bail was determined and the Cap ' utlegat ' also and a new utlegat ' awarded and returned and then he pleaded the same plea again and issue for before he could not all being determined M 1. E. 4. pl. 7. Original against W. B. Cap ' against J. B. and Outlawry shall be reversed by Moyle Danby contra Et sic per Moyle if all the three Cap ' had been against J. B. for then no Cap ' had been against W. B. quod Danby denied M. 15. E. 4. pl. 17. Trespass and Judgment for the Party and Fine for the King and Exigent at the Suit of the King and after two or three Courtiers of the King send a Supersed ' under the Privy Seal they proceed to Outlawry but shall not prevail for though the King have this Fine by reason of the parties Suit and if the party be taken he shall be Imprisoned and not discharged at the Parties Suit if he will yet till he be taken 't is only the King's Suit and the Parties have no Interest in it and if the Defendant be Outlawed after the Supersedeas 't is Error and shall be reversed P. 4. E. 4. pl. 24 36. Tr. 4. E. 4. pl. 4. M. 4. E. 4. pl. 14. H. 4. E. 4. pl. 3. vid. Co. 5. rep 88 89. The Sheriff returns the Copy of the Exigent and not the Writ it self with Proclamation c. he shall be Amerced for the Imbezlement of the Writ and if the Party render himself to the Chief Justice in Vacation time and get a Supersedeas whether he shewed it to the Sheriff or not it shall be entered in the Term and the utlegat ' discharg'd 1 Inst 128. and idem ibid. 43. b. If Error be brought of an Outlawry and it appear doubtful a Special Supersedeas shall go to the Sheriff quod capiat securitatem que les biens ne serront illoine vide 9 H. 6 44. a. b. utlegat ' after Supersedeas void and 7 H. 4. 1. a. if void and the party shall be restored to his Goods 7 H. 4 5 b. Supersedeas and Exigent rules at the day and a new Exigent and a Supersedeas the Outlawry after void H. 4. E. 4. pl. 3. Tr. 5. E. 4. pl. 13. le Amerciamt ' 37 H. 6 17. vide 3 H. 4 5. a. 8 H. 4. Cas Prin. 8 H. 4 7. a. 11 H. 4 34. a. Audita Quarela by one in Execution and he offered in Mainprize the other ut amicus Curiae surmised that the Plaintiff is Outlawed wherefore he ought to stay in Prison for the King 's Fine wherefore he was put to reverse the Outlawry or sue a Pardon H. 6. E. 4. pl. 1. The Plaintiff had sued three several Executions against the Defendant and brought Supersedeas for every one but there was granted aâ— Exigent with Precept that if any Supersedeas come to the Sheriff he should not allow it P. 7. E. 4. pl. 20. Error of an Outlawry in Debt after Judgment because no Proclamation went into the County where the party inhabited but being after Judgment resolved it need not but only in Outlawry and Process before App ' but because in all the Proceedings she was named A de B. and in the Exigent she is named nuper de B. and because it was recuperavit versus eum for eam it was reversed Lady Gargrave against Markham 2 Cro. 516. Exigent in London and 't is returned quod ad Husting ' c. and recites a Form which was ad Husting ' de Com' plit ' and that assigned for Error 2. The Exigent is that he non comperuit and 't is returned the same day it bears Teste and that was held Error Archer against Dalby 2 Cro. 660. Outlawry reversed because the Exigent supposes that Robert the Plaintiff did sue the said Robert whereas the Plaintiff's name was Thomas and Defendant being ready in Court it was reversed immediately Jonson against Kite One enters a Judgment and then is Outlawed in a personal Action then makes a Feoffment of the Lands and he that has the Judgment extends the Lands in the Hands of the Feoffee and well For by this Outlawry the King has but a pernancy of the Profits of which he is prevented by the Feoffment before Seisure not if after Seisure and if by Feoffment after Inquisition found before it be returned ibidem Opinio if the Seisure be Virtute Officii Tenant after puts the King out not if seized Virtute Windsor against Savel Outlawry against two reversed because it 's entred ideo Vtlegat ' sunt and not uterque eorum Vtlegat ' P. 15 Caroli Secundi B. R. One Outlawed after Judgment comes and pleads Misnomer and has Fieri Facias against the party and he returned Mortâ— Another Scire Facias is awarded after against the Executors and Tryal of Misnomer in this Case shall not be by Averment taken for the King but the Executors shall be made parties because it Trenches to the whole Duty but upon mort ' ret ' no Scire Facias goes against the Executors but the Misnomer is tried between the King and the Defendant 21 H. 6 21. a. 22 H. 6 7. a. In detinue of Charters and other Writings As to the other Writings the King waged Law and then as to the Charters he pleaded in Bar by Att ' nolens volens the pl. For of them concerning the Freehold no Process of Outlawry lies but Distress infinite and 8 H. 6. 23 30. Vtlegat ' lies not in Detinue for Charters and other Goods for the Charters draw the other Goods to them 21 H. 6. 42. a. 30 H. 4. b. Upon a Cap ' utlegat ' before Judgment the Sheriff may break open an House but the Plaintiff sending a Process in another Man's Name feigned an Outlawry where his Writ was but a Latitat 't is an abuse of Process and he Fined 50 l. Hob. 263. Waterhouse against Saltmarsh If one that is Outlawed for Treason Peer or Peasant be out of the Realm at the time of the Outlawry yet he cannot
a Scire Facias to present for he cannot present but is to prosecute the Execution of the Judgment sed he is not privy to it Beverleys Case Mo. pl. 378. If one forfeit a Presentation fallen by Outlawry and the King presents and he reverses the Outlawry he shall have a Scire Facias and outs the King's Clerk For by the Reversal he is restored to all that he lost as Principal not Accessaries therefore if the Advowson were appendant and it becomes void whilst the Mannor is in the King's Hand for Outlawry and the King presents he shall not avoid it tho' he reverse by Error nor Rent-Copy-holders put in by the King and if it were an Advowson in Gross and becomes void whilst in the King's Hands and the King presents it seems he shall avoid it after Reversal because the Advowson is the Principal thing and the Presentment but the usage of it Beverly against Cornwall Mo. pl. 421. 3 Cro. 44. The Sheriff ret ' ad Com' Lanc ' tent ' ibidem c. where it should be ad Com' Lanc ' tent ' apud Lanc ' or other place cert ' and for that the Outlawry was reversed though dict' many Presidents that passed subsilenter ' Co. 4. rep 95. a. My Lord Co. says the better Opinion of Books is and so is his that Debts by simple Contract or for which one may wave Law are forfeited by Outlawry and with him his Heirs agree the Judges Pop. And. and others 1 Inst 128. b. he says Debts c. which are cetain are forfeited not Damage c. uncert ' but so 10 22. t is said in Debt on a Contract Outlawry in Plaintiff Abatement because the Defendant not forfeited but on a Bond 't is pleaded in Bar because the Defendant forfeited Co. 4. rep 93. a. 95. a. My Lord Cook says that at Common Law if the Party was Outlawed he was at an end of his Suit and put to his New Original yet he granted no Capias lay in Debt at Common Law so it seems Outlawry lay where no Cap ' lay at Common Law Garner's Case Co. 5. rep 58. a. One Outlawed in Debt after Judgment dies after the General Pardon wherein 't is provided none take Advant ' of the Party that is Outlawed after Judgment without satisfying the Plaintiff and having the Pardon allowed in Scire Facias yet resolved First here the Outlawry was pardoned quoad the King and may make Executors and take Advantage of the Pardon Secondly Here being no Capias ad satisfac ' which he against the Executors nor no Scire Facias therefore the Executors satisfying the Party may plead it without Scire facias Sir Edward Fetton's Case Co. 6. rep 79 80. Outlawry reversed because the Exigent required the Sheriff to Arrest ita quod habeat Corpus in Cro. Trin. and St. is of no signification Dr. Drurie's Case Co. 8. rep 141. a. One Arrested that had Priviledge sues a Supersedeas and after is Outlawed there is a Nullity in all Proceedings and the Outlawry declared void without suing any Writ of Error Co. 8. rep 143. b. Outlawry by Asst ' being avoided by Plea 't is held by Cro. that it s no Determination of the Original but he might have proceeded in the Original suing another but the first Original should have excused within the Statute of Limitations Sir Thomas Finch against Lamb. Citer Just sembl con 1 Cro. 214 215. Exigent against three Men and two Women ret ' non comperuer ' ideo per Judic ' Com' utlegat ' existant ill and reversed because not said nec eorum aliquis comperuit 2. The Women ought to have been waviati Middleton's Case 2 Cro. 358. It seems one cannot assign for Error that he was beyond Sea at the time of the Outlawry pronounced but time of the Exigent For if after Exigent one fly he cannot assign for Error that he was beyond Sea and if he do the Attorney General may reply that he departed after the Exigit Carter's Case 2 Cro. 464. Partition IF two have one Mannor in Common before Partition the one is said to have dimidium Manerii but after Partition he is said to have medietatem Manerii And so after Partition if one of them be ousted by Force the Indictment shall say medietatem not dimidium Manerii Priviledge ONe of the Clerks of the Chancery lost his Priviledge by suing out a Supersedeas in the Common Pleas For by that Writ he submitted to the Court there and then his Priviledge shall not be allowed there Parsâ—n IF a Parson that hath a Benefice be made Bishop of the same Diocese and he acccepts of the Bishoprick the Parsonage thereby becomes void for that he cannot Visit himself So that a Man cannot have two Benefices with Cure of Souls Simul Semel but the first is void by Acceptation of the Second Tith The Tith of those things which proceed from the Earth as Hay Corn Apples and such like ought to be severed upon the Ground or place where they grow but not so of Sheep Pigs c. because they are of another Nature And if a Man have Sheep in two Parishes the Parsons of both Parishes shall have Tith of them Willows Horn-bane and Sallows are Titheable but Timber-Trees as Oak Ash Elme c. are not nor the Loppings of them contra if they be fell'd or lopp'd before the Growth of Twenty Years per totam Curiam Hill 8. Jacobi in Communi Banco Plea If a Parson makes a Parol Agreement of his Tithes for his Life and afterwards grants the same to another who sues for the Tithes Concord is no Plea in this Case but by Warberton Justice a Parson may grant his Glebe Corn before it be Sowed and good for a Year Trin. 10. Jacobi in C. B. If a Parson gives 10 l. to the Patron to present him to the next Avoidance the Church being full it is Simony So if the other give it to such intent Mich. 14 Jacobi in Communi Banco But if the Parson who is in by Simony dies if the King shall present quaere et vide ibid ' in Quare impedit inter Winscomb et Episcopum Winton ' et alios Of Pleas and Pleading A Bond was made and delivered as the Act and Deed of A. to B. for the use of C. which Bond B. offered to C. but C. refused to accept the same from B. yet B. left the same with C. to take and the Bond being sued A. pleads the whole Matter and so not his Deed And upon a Demurrer Judgment and Quaer ' If the Condition of an Obligation be to pay 20 l. 7. Maii and the Obligor pleads solvit ad diem although he paid the said 20 l. to the Obligee the 8th of April before it 's a good Plea to say he paid it the 7th of May For if it be paid before it 's paid at the day in the Condition mentioned and the Intent and Substance of the Condition is observed
adtunc Vicecomites suffered him to This is noo good Plea because there be three Years specified in the Declaration and it shall be hardest taken that it was 2 or 3 H. 8. when they were out of Office and yet it is nearly induced by the adtunc Vicecomites which should leave the Intendment to be of that Year in which the Declaration supposeth them to be Sheriffs but that sufficeth not but the Year must be alleadged in Fait For it may be mislaid by the Plaintiff And therefore the Defendants Meaning to discharge themselves by a former Escape which was not in their time must alleadge it precisely Dyer fo 66. Reg. 5. For uncertainty of Intendment if a Warranty Collateral be pleaded in Bar and the Plaintiff by Replication to avoid the Warranty saith he entred upon the Possession of the Defendant non Constat whether this Entry was in the Life time of the Ancestor or after the Warranty descended and therefore it shall be taken in the strictest Sence that it was after the Warranty descended if it be not otherwise averred 3 H. 7. 2 3 Plo. 46. a. For Improperty of Words If a man plead that his Ancestor died by Protestation serzed and that J. S. abated c. this is no Plea for there cannot be an Abatement unless there be a Dying seized alleadged in Fait and an Abatement shall not be improperly taken for Disseisin in pleading For Words make Pleas 38 H. 6. a. b. 39 H. 6. 5 6. Reg. 6. For Repugnancy in pleading if a Man in Avowry declare that he was seized in his Demesne as of Fee of 10 Acres and being so seized did demise the said 10 Acres to J. S. habend ' the Moiety for twenty one years from the Date of the Deed the other Moiety from the Surrender Expiration or other Determination of the Estate of J. D. qui tenet predict ' medietat ' ad terminum vitae suae Reddend 40 s. Rent This Declaration is insufficient because that the Seisin that he hath alledged in himself in his Demesme as of Fee in the whole and the Estate for Life of the Moyety is repugnant and it shall not be Cured by taking the last which is expressed to controul the former which is but general and formal but the plea is naught and yet the matter in Law had been good to have Intituled him to distrain for the whole Rent Reg. 7. A Bar may be good to a Common Intent tho' not to every Intent As if Debt be brought against Five Executors and Three of them make Default and two appear and plead in Barâ— a Recovery had against them two of 300 l. and nothing in their hands over and above that Summ If this Barr should be taken strongest against them it should be intended that they might have abated the first Suit because the other three were not named and so the Recovery not â—uly had against them but according to the Rule the Barr is good For that by Common Intendment it will be supposed that the two did only administer And so the Action well considered rather than to imagine that they would have lost the Benefit and Advantage of abating the first Writ Reg. 8. In pleading a Man shall not disclose that which is against himself and therefore if it be matter that is to be set forth on th' other side Then the plea shall not be taken in the hardest Sence but in the most Beneficial and to be left unto the contrary part to be alledged And therefore if a Man be bound in an Obligation that if the Wife of the Obligee does Decease before the Feast of St. John the Baptist which shall be in the Year of our Lord God 1598 without Issue of her Body by her Husband lawfully begotten then living that then the Bond shall be void And in Debt brought upon this Obligation the Defendant pleads that the Woman died before the said Feast without Issue of her Body then living If this Plea should be taken strongest against the Defendant then should it be taken that the Feme had Issue at the time of her Death but this Issue died before the Feast But this shall not be so understood because it makes against the Defendant and it is to be brought in on the Plaintiff's side and that without Traverse Dyer 16 17. Non dimisit to an Action of Debt upon a Lease in Writing was adjudged an ill Plea and a Repleader awarded thereupon by the Court Mich. 44 and 45 Eliz. Rot. 158. in Banco Reginae If J. S. Covenant to make me an Assurance I paying the Costs and Charges for making thereof he shall not barr my Action of Covenant by saying he was ready to do it unless he bring the Writings Ingrossed and ready to Seal and I refuse to pay the Charges accordingly Debt against an Executor who pleads three Judgments of an 100 l. a piece and that he had paid 40 l. in Satisfaction of two of the Judgments and that he hath not nor had c. praeterquam c. the said 40 l. and 20 l. more which is not sufficient to satisfie the other Judgment upon which the Plaintiff demurred and adjudged for the Defendant for it s but in effect a plene administravit specially Administrator durante minore etate if he wasts the Goods of the Infant he shall be punished as an Executor in his own wrong If an Administrator brings an Action of Debt and averrs in his Declaration how that Administration was granted to him at London and the Letters of Administration bear Date in another place and County the Plaint shall abate Upon a Scire Facias against two Executors the Sheriff returns nulla bona against both and Devastavit to the Value of the Debt against one of them whereupon another Scire Facias issued forth and Judgment was obtained only against him thereupon by Default and after that a Fieri Facias de bonis propriis against him alone If there be two Executors and the one of them confess the Action and the other lets it go by Default or pleads non est factum or plene administravit Judgment shall be against both de bonis Testatoris Divers Executors are but in the Nature of one Person For they all represent the Person of their Testator And if the Action had been brought against him in his Life he should have made but one Answer If Debt and Damages be recovered against one and before Execution he dies upon a Scire Facias against his Executor or Administrator you shall recover only de bonis testatoris and not de bonis propriis because the Prayer of the Scire Facias is only de bonis Testatoris and the Court will not exceed the Prayer of your own Writ Reg. 9. The Defendant may plead an Outlawry in disability of the Plaintiff before Imparlance but after Imparlance he cannot plead in disability of the Person but he may plead it in Barr of the Action 32 H. 6 33.
pleaded it at first Also if the Plaintiff plead a Feoffment upon Condition to J. S. and that the Condition is broken and that thereupon he entred the Defendant may say that he released to J. S. after the Condition broken and then he enfeoffed him A Man pleads a Feoffment in Barr in Assize of the Plaintiff and the Plaintiff saith that he Let to him for Life and afterwards he made a Feoffment by which he entered the Tenant may well say that after the Lease and before the Feoffment the Plaintiff releas'd to him This is no Departure because that it is pursuant and yet it might have been said at first 1 E. 4. Quare Impedit against a Bishop he pleads that he claims nothing but as Ordinary and demands Judgment c. The Plaintiff replies that such a day he presented to him such a person whom he refused to which the Bishop rejoyns that the Church was void and shews how and that thereupon he collated by Laps Judgment c. This is no Departure 35 H. 6. In Assize the Defendant pleads a Lease of the Plaintiff for Years which is yet in being the Plaintiff shews the Alienation of the Tenant the Tenant saith that the Plaintiff released to him after the Lease This is a Departure by Marten 3 H. 6. Precipe quod reddat the Tenant pleads that J. S. was seized of the same Lands and that they were devised to him in Fee by Force whereof he entred and gives Colour c. The Plaintiff saith that J. S. was seized and that he died seized and that the Lands descended to him as Son and Heir and that he entred cum hoc that he will averr that the said J. S. was within the Age of 21 Years at the time of the Devise The Tenant rejoyns that the Custom is that every Infant of the Age of 15 Years may Devise and that he was of the Age of 15 Years at the time of the Devise The Court was of Opinion that it was a Departure 37 H. 6. In Assize the Tenant pleaded the Dying seized by Protestation of his Father The Plaintiff said that J. S. was seized and enfeoffed him and so seized c. To which the Tenant replied that his Father by Protestation died seized and that J. S. did abate and enfeoff the Plaintiff and that the Tenant as Heir to his Father entered and was seized by Fortescue This is no Departure because the Tenant hath maintained his Barr and hath only added new Matter to maintain it 37 H. 6. If a Man plead a Gift in Tayl in Barr and the Demandant reply ne dona pas if he shew a Recovery in Value it is no Departure In Assise the Tenant pleaded hors de son Fee the Plaintiff shewed that the Tenant held of him issint de son fee and the Defendant shewed a Release of all Right This is a Departure because this plea was a Barr 5 H. 7. In Formedon the Tenant pleaded ne dona pas the Demandant shewed a Recovery in Value issint dona The Tenant shall not plead a new Barr because that that would be a Departure quod nota 21 H. 6. Reg. 12. In all Pleadings where you claim as Legatee you must surmise the Consent of the Executor as cui quidem dimissioni idem J. S. consentivit After Verdict the Plaintiff dies viz. before the day in Bank in Error brought this is assigned for Error and the Plaintiff per Attornatum suum pleads that he was alive 't was tried and found that he was dead Argued by Mr. Allen That there was no Tryal proper for the Cause for that the Issue was joyned by a Stranger and that there ought to be a Scire Facias against the Executors or Administrators of the Plaintiff and that the Writ of Error is discontinued But per totam Curiam the Tryal is good and the Judgment revers'd for that Error in fait Mich 14 Car. 2. in B. R. Dove vers ' Dinkey Quare Impedit IN Quare Impedit to present by Turns to an Advowson in Gross Three Judges were of Opinion that the Commencement how it came presentable by turns must be shewed But two Judges were of a contrary Opinion Leek against Coventry 3 Cro. 111. A Viccarage and none presented to it for one hundred and sixty Years Resolved that all Viccarages are taken out of the Parsonage and are not remitted to them by Non-usage without some Act. Robinson against Beadle 3 Cro. 873. Quare Impedit by the King against A. he pleads that the King made a Lease for Years to J. S. and during the Term J. S. presented him c. And it was moved that he being Incumbent could not traverse the King's Title without making one for himself but shew that he came in by Usurpation during the Lease but in the Writ it was excepted that the Patron and Ordinary are not named but only the Incumbent which they ought to be in all Cases but that of Collation but because the Defendant shews that he came in during the Term in which Term the King could have no Right it was adjudged for the Defendant Regina versus Middleton vide Co. 7. rep 26 27. 25 H. 6. 62. a. 3 H. 4. 2 3 11. Writ against the Incumbent only adjudged ill and abated by 46 E. 3. vide 7 E. 3 11. 7 H. 4 26. Writ against the Incumbent only good 1 Leon. 44 45 46. vide 47. E. 3. 10 11. Quare Impedtt and Counts of an Advowson appendant that 't is become void and he presented J. S. The Defendant pleads that 't is in Gross and Let to him and that he presented J. S. absque hoc that 't is appendant the Traverse is good but where the Count is of an Advowson in gross c. and the Defendant pleads that 't is appendant there the Presentment is traversable not that it appendant For the Presentment makes it in gross Seignior Buckhurst against Epm. Winton 1 Leon. 154. In a Quare Impedit by Tenant for Life Exception was taken because he counted of a Presentment only in himself and laid not any in his Lessor but adjudged good For the Lessor may lay a Presentment on his Lessee therefore 't is good for the Lessee Palmes versus Epm. Peterborough 1 Leon. 230. Co. 5. rep 57. b. 3 Cro. 518. vid. M. 7 E. 4. pl. 22. con 8 H. 5. 4 Accord Quare Impedit against the Bishop and J. S. and Judgment they joyn in a Writ of Deceit and avoid the Judgment for Non Summons and of that a Writ of Error brought and assigned that they could not joyn and Adjourned Guilliams against Blower sed vide 3 Cro. 65. They joyn in a Writ of Error on a Judgment in a Quare Impedit 1 Leon. 293. One that had a Benefice was presented to another and then purchased a Dispensation it came too late and so the first was void and if that be such as that it avoids the last quaere Vnderhill against Savage 1
of a Recognizance entred by A. and B. returned Terre-tenants come in and plead that C. hath three Acres of A. Land not summoned c. whereof he was seized in Fee Issue that A. was not seized of three Acres Verdict find that he and E. were joyntly seized and infeoffed C. per Popham and Gaudy 't is against the Defendant for now though the moyety of these Lands are subject to the Extent yet upon the special Plea which is false for A. was not seized alone of them in Fee as the Plea alledges he cannot abate the Writ Fenner con ' Dame Needam against Buning Vide 3 Cro. 524. 52. Scire facias against two for Damages recovered in Assize by three one Defendant pleads that one of the Plaintiffs supposed by the Plaintiff to be dead at the time of the Scire Facias was alive and the other pleaded that one of the Plaintiffs now supposed alive is dead ill for they must joyn in Dilatories though objected they might have severed in their Pleas to the first Vide p. 26 H. 8. pl. 7. One imparls the other demands the view in a Precipe quod reddat quaere of that M. 7. H. 7. pl. 8. m. 10. H. 7. pl. 6. m. 12. H. 7. fo 3. Scire Facias to have Restitution of Money or Reversal of Judgment the Defendant pleads Payment not good against a Record without matter of Record or specialty and 't was long before it was agreed that levyed by the Sheriff in a Scire Facias was a good Plea but at last agreed because grounded on the Scire Facias which he cannot withstand Vrse against Harrison sed vide 2 Cro. 29. Ognel against Randal Per Popham bare payment without Writing is no Plea to barr an Execution by Fieri Facias of Scire Facias vide H. 4. 58. 59. In Debt on a Judgment leavyed Fieri Facias and paid to the Plaintiff no Plea because the Sheriff is to bring the Money into Court not to deliver it to the Plaintiff other if the Lands were extended by Elegit 1 Cro. 239. Scire Facias as Cousin and Heir to D. viz. Fitz A. c. Plea that I had no such Son good and he needs not shew who was the Plaintiff's Mother as if it had been pleaded the Plaintiff was not the Son of A. for then the Birth of A was confessed he must when he takes one Mother from him give him another but here the Birth of the Plaintiff is not at all mentioned admitted or granted Vide talem 11 H. 456. b. 74 75. H. 4. 38. 9. E. 3. 30. 31. Plea that he had no such Son not admitted but he for to plead whose Son he was 8 H. 4. 21. a. 9 E. 3. 30 31. Scire Facias on a Recovery against the Heir and Terre-tenants the Sheriff an Heir and four more Terre-tenants the Heir Nil dicit the other four plead that two of them are Joynt-Tenants of part with J. S. not named and resolved that the Joynt-tenancy is a good Plea in this Action but not for all but for that part wherein the Joynt-tenancy is but because all joyned where but two were Joynt-tennants the Plea was ill for all four Holland against Donitree c. 3 Cro. 739. Scire Facias on a Recognizance Defendant pleads an Acquittance Plantiff replies 't is razed in such and such material places and demands Judgment of the Writ per Curiam this being but a matter tryable by the Court is but a Plea in Abatement whereon a respond ' Ouster shall be and lies not peremptory sic de Margine dict in all In all our Books Matters tryable by the Court go only in Abatement and are not peremptory which seems must be intended either of matters of Fact or with some restraint for every Plea in Law is tryable by the Court 5 E. 3. 32 b. Scire Facias on a Judgment against an Executor he pleads a Judgment to J. S. of 100 l. another to himself of 100 l. and that he has but 100 l. to satisfie J. S. and says not ultra to satisfie himself ill for he may pay himself if he have not ultra to pay J. S. and himself he is not bound to pay the Plaintiff Feltham against Executors of Tourston Tr. 8. Car. 2. in Scaccario In Scire Facias on a Recognizance for the Plaintiff 't is sufficient to assign breach that he beat one contra Pacem without saying vi armis aliter in Battery Hutchins against Perryman M. 14. Jac. B. R. 3. Bulstr ' 220. In Scire Facias of a Judgment against an Executor he pleads Plene administravit Jour de brief ill for he might have paid Bonds before so should he have pleaded Riens tempore mortis nec unquam postea but the Plaintiff taking Issue waved the benefit of the ill Plea Harcourt against Wrenham Mo. pl. 11. 78. Sheriff Bailiff c. ALattitat was delivered to the Under-Sheriff to be executed the Defendant being in Company with the Under-Sheriff and the Under-Sheriff lets the Defendant go and returns non est invent ' Whereupon the Plaintiff brings his Action of the Case against the Under-Sheriff setting forth the whole Frand and Falseness of the Under-Sheriff and Judgment by default But upon Motion in Court in Arrest of Judgment the Action did not lye for the Sheriff is the person alone to answer in Court for all Misdemeanors of the Under-Sheriff and Bailiffs Upon a Fieri Facias if the Sheriff return that he hath levyed the Money and do not pay it to the Plaintiff at the Return of the Writ the Plaintiff may have a Scire Facias against the Sheriff to shew cause wherefore the Sum levyed should not be levied of the Goods of the Sheriff The Sheriff cannot break open any man's House or Close upon a Fieri Facias executing and much less the Landlord shall not break open doors to distrein for Rent but where the King is concern'd as upon an Utlary there the Sheriff may justifie the breaking open the doors if he be resited but he must acquaint them in the House with the Cause of his coming before he force them open If a man be in the hands of the Under-Sheriff in Execution for Debt and the Debtee tell the Sheriff that the Prisoner hath satisfied him if the Sheriff release not the Prisoner it is false Imprisonment A Bailiff having a Warrant to attach the Goods of a Person to answer at the Couâ—ty Court doth attach the Goods accâ—rdingly and after delivers them to the Defendant and takes Bond of him to appear at the day or redeliver the Goods to the Bailiff this is not within the Statute of 23 H. 6. A Bailiff of a Liberty cannot execute a Capias Vtlegatum and if the party be in the hands of the Bailiff the Sheriff may take him for it is a Non Omittas in it self Per Curiam Hill 13. Ja. in C. B. Observations upon the Statute of 29 Car. 2. Regis for prevention of
Frauds and Perjuries 1. BY this Act it appears That if a Feoffment be made and Livery and Seisin duly executed although it were before many credible Witness as formerly the Law was yet unless it be put into Writing nothing shall pass thereby but an Estate at Will and in like manner all leases made by word for any longer time than three years or other Estates made or created without Writing are subject to the same Rule that is shall be only Estate at Will that are so made by Words without Writing after the 24 th of June 1677. 2. After the said 24 th of June 1677. No Executor or Administrator shall be charged with any special Promise to answer Damages out of their own Estates but only in Relation to the Testator having Assetts in their hands and that no other person shall be charged with any special promise to pay the Debt of another man or answer for the Default of any other or upon any Agreement of Marriage or for any Agreement for Lands or for any other commodity or thing not to be performed within one Year after the making of any such Agreement unless the same Promise Bargain or Agreement be set down in Writing and signed by the party to be charged therewith or by some other person lawfully authorised by him so to do 3. All Wills and Bequests of Lands Tenements c. after the said 24 th day of June 1677. shall be put into writing and subscribed by the Testator or some person else in his Presence and by his express Directions and attested and subscribed in the presence of three or four Witnesses other wise all such Gifts to be void all such Devises so made and subscribed by the Testatoror his Directions as aforesaid shall be good and stand effâ—ctual in the Law unless the Testator shall at any time cancell the Will or alter it by a subsequent Will 4. All Trusts shall be in Writing and signed by the Party declaring the Trust else to be void except such Trusts as arise by Implication of Law and Lands in Trust for the use of others shall be chargeable with the Judgment and lyable to the Execution sued out against Cestuque use 5. Aman seized of one Estate pur autre vie may devise the same by Will in manner afoâ—esaid and no such devise shall descend to the Heir that so died seized as Lands in Fee-simple should do and such Heir shall be chargeable therewith as a special Occupant and in case of no such special Occupancy then shall the Land descend to the Executors and Administrators 6. From and after the said day every Judgment shall be signed with the day of the Month and the Year in which such Judgment was Signed and the day of the Month and Year are to be entred on the Margin of the Plea-Role and they shall be accounted Judgments but from that day wherein they were so signed and not from the first day of the Term as formerly was used the like Rule for Recognizances 7. No Writ of Fieri facias or Writ of Execution shall after the property of Goods but from the day the Writ was delivered to the Sheriss to execute which day and year the Sheriff is to endoâ—se on the back-side of the Writ 8. No Bargain of Goods above the value of ten pounds shall stand good unless the Buyer take part of the Goods so sold into his Possession or give something in Earnest or that some Note or Memorandum be made thereof in Writing 9. No nuncupative Will whereby an Estate is bequeathed above the value of thirty pounds shall be good unless it shall be proved by three Witnesses at the least nor unless the Testator did bid the parties present bear witness that so was his Will or to such like effect nor unless such a Will was made in the time of the Testator's last Sickness and in his place of Habitation and unless he was surprised and taken sick from Home and that no Testimony shall be received to prove such Will after six Months unless the Testamentory Words were committed to Writing within six Days after the making of such Will 10. No words unless they are committed to Writing and read to the Testator and allowed by him and proved by three Witnesses to be his Will shall alter any Will in Writing concerning any Goods or Chattels or any Device or Bequest therein Trespass IF my Servant without my knowledge puts Beasts into another mans Ground the Servant is Trespasser and not the Master If a man beat my Servant I may have Trespass and my Servant another Action of Trespass diversis respectibus It is good to lay the Action some day after the Trespass committed yet it is not material or traversable if be laid before For it 's but a Circumstance As Trespass done the Fourth of May the Plaintiff alledgeth the First of May it 's sufficient if upon Evidence it be proved that the Trespass was done before the Action brought A Master is punishable for his Servant if he be about his Masters Business An Abbot for his Monk a Captain for his Souldier an Host for his Guess So a Sheriff for his Under-Sheriff and Bayliffs But a Master shall not be Punnished for Trespass of Battery or Entry into Lands or Felony or Murder or such like done by the Servant unless done by his Command If a Servant keeps his Master's Fire so negligent that it burns his Master's and the Neigbours House the Master is chargeable therewith A man is chargable with the Faults of his Family or of his Beasts If a Ship is perishing and the Marriners cast the Goods to save them on the Land next adjoyning yet this is Trespass and punishable by him that holds the Land A Servant may justifie the beating of another in Defence of his Master A Man shall not have his Action of Trespass for Threatning and recover Damage as well as in Assault and Battery The Law does not allow any man to strike in Revenge of Ill words and the reason is because there is no proportion between Words and Blows but he that is struck may strike again In Trespass he that consents and gives aid to the committing of Trespass is a Principal and no Accessary to the same Trespass If Tenant at Will commits voluntarily Waste Trespass lies against him notwithstanding his Possession so that if I deliver my Sheep to another to Fold or Dung his Land or a Horse to Ride or Oxen to Plow his Land If the Bailiff spoil or kill them I have an Action of Trespass against him notwithstanding the Delivery of them or Trover at his Election If a Man desseize me of my Land or dispossess me of my Goods yet I may enter upon the Land or take my Goods although I release to the party Disseizer or Trespasser all Actions yet this Release shall not Bar my Right No Trespass can be excused by Law but it may be justified as upon son assault demesne or
point of the Action as in Debt upon a Lease he may plead non dimisit In Debt for Arrearages of Account he may plead non computavit but in Debt for Money or Wares sold to him he may plead non debet and traverse that he sold them Dyer 121. b. In Account the Defendant pleads ne unque Receiver and waged Law thereon and had day and at the day would have waved his Law for part and confessed the Action for it and waged Law for the Residue per Curiam he cannot without the Plaintiffs assent Dy. 261. a. 'T is held that at the Common Law he that waged Law in a Court of Record was to bring with him Fideles Testes wherewith Glanvil agrees Lib. 1. C. 9. But in inferiour Courts one might wage Law without Witnesses to prevent which was Magn. Ch. 28. made Nullus Ballivus ponat aliquem ad legem c. sine testibus fidelibus ad hoc inductis Others hold that Ballivus there extends to all Judges Co. 1. Inst 168. b. An Infant cannot wage his Law but the Husband and Wife for the Debt of the Wife may 18. E. 3. 53. a. A Mute wages Law by Signs Co. 1. Inst 172. Wager of Law is not allowed in any case where a Contempt Trespass Deceit or Injury is offered but 't is allowed in some Cases in Debt Detinue and Account 't is not allowed when there is a Specialty Co. 1. Inst 295. a. One Infamous cannot wage Law nor an Infant but a Femâ— Covert with her Husband may No Wager lyes where the Suit is for the King or his Benefit by Quo minus no Wager against an Infant An Alien must wage Law in his own Language No Wager against Receipt Pâ—r auter maines on Account unless his Wives or his Companion Bailiff of a Mannor cannot wage Law in Account in Debt for Rent or nue for a Lease no Wager because sounding in the Realty It lyes in Debt for a Fine in a Leet because a Court of Record otherwise for an Amercement No Wager in Debt upon Account before Auditors otherwise if but one Auditor No Wager in Debt by a Goaler for Victuals nor against an Attorney in Debt for his Fees nor against a Servant retained according to the Statute in Debt for his Wages One charged as Executor c. shall not wage no Wager in Debt for a Penalty given by a Statute Co. Ent. 118. Pl. 1. Error of a Judgment against an Executor in Bristol upon a Concessit solvere per Custom there to pay a Debt of the Testator by simple Contract because it takes from the Wager of Law Cur ' advise c. Wigg against Roberts H. 22. C. 1. b. r. Rot. 956. Pascal against Spurning p. 1649. b. r. Rot. 75. Sti. 145. 198. 199. 228. In Debt against Baron and Feme for Beer sold to the Feme dum sola they waged Law So note he waged Law for the Defendant Hucks against Holmes 3 Cro. 161. Debt against an Executor for Money awarded to be paid by the Testator it lyes not for the Testator might have waged his Law which the Executor cannot Hampton against Bower Sed vide Latch 213. Symonds Case no Wager of Law against an award P. 1. H. 7. Pl. 18. 13. H. 3. Noy 96. No Wager against an Award because the third Person cannot 3 Cro. 557. 600. 11. H. 4. 56. b. Wager in Debt for the Son award In Account against A. as Bailiff of his Mannor of D. the Defendant waged Law and had day to make it but at the day 't was ruled that Ley gager lyes not in this Case being a matter tryable per Pais Archees Case 3 Cro. 579. Debt on a Contract against two one pleads Nil debet per Patriam the other waged Law he cannot but must plead per Patriam being joyntly concerned in one Contract 3 Cro. 645. Debt sued by one in Chancery a Servant to the Lord Keeper Defendant as to part waged Law and to the Residue pleaded Nil debet per Patriam And being sent into the King's Bench 't is doubted if he may make his Law good but de bene esse it was done Audley against Franke. 3 Cro. 648. In Debt for Money on sale of Land doubt if the Defendant could wage Law being on a real Contract and resolved he may and he did make his Law Miller against Eastcrowe and so 't is held by Newton 22 H. 6. 11. a. and not denyed 3 Cro. 750. In Account against one as Bailiff he cannot wage his Law but as Receiver he may Sheffeild against Barnefield Note it was Account against him as a Bailiff of Towngoods as Merchandize not a Bailiff of a Mannor 7 Cro. 790. Debt against a Defendant for his Dyet he would wage his Law but could not and pleaded ad Pais Bish against Walford vid. 39. H. 6. The Court divided in this point H. or E. 19 H. 6. 10. a. Per totam Curiam he may wage in Debt for Dyet 3 Cro. 818. In Account upon a Receipt by the hands of the Plaintiff's Wife the Defendant was to wage his Law because that is not a Receipt per auter maines upon a Receipt by the hands of the Plaintiff's Wife they being one Person Goodrick's Case 3 Cro. 919. In Debt against the Abbot of D. on a Contract by the Predecessor for Goods that came to the use of that House the Defendant would to wage Law Et per opinionem Curiae he may and vide there divers Cases where one may wage Law on anothers Contract Prior de Dunstable's Case P. 1. H. 7. Pl. 18. M. 13. H. 7. Pl. 2. H. 22. E. 4. Pl. 39. H. 6. 22. a. In Detinue of a Bailment per auter mains the Defendant may wage Law so in Debt on a Contract per auter mains otherwise on Account on a Receipt per auter mains for there the Receipt is traversable but in the first Bailment 't is not but the Detinue M. 18. H. 8. Pl. 15. In a Writ of Right of Advowson Grand Cape issued for default the Defendants came and offered to wage Law of Non-Summons and because some said the Writ was peremptory so as he could not have another the Ley gager was respited Tr. 27. H. 8. Pl. 2. In Account upon a Receipt at the Plaintiff's hands though by Writ the Defendant shall wage his Law and by Detinue upon a Bailment by deed for he might take them again and 't is that Detinet is the cause of Action not the Bailment Er. 27. H. 8. Pl. 14. Debt against J. S. he waged Law and at the day appeared to make it the Plaintiff said there is J. S. Senior and J. S. Junior and the Action brought against the elder and this is the younger and in tant ' the elder makes default prays Judgment Er. 5. E. 4. Pl. 22. In Debt for dyet the Defendant may wage Law whether the dyet were for himself or another 22. H. 6. 13. b. But on a Lease of a
c. ibid. What Trees are Tithable what not see ibid. Parson makes parol Agreement of Tithes for his Life afterwards grants to another who sues for them Concord is no Plea ibid. Simony to give 10. l. to Patron to present Parson to next Avoidance the Church being full ibid. If Parson in by Simony dyes shall the King present ibid. Pleas and Pleadings Special non est factum to Debt upon Bond delivered as an Esâ—râ—ul whole matter pleaded Judgment on Demurer for Plaintiff p. 185. Solvit ad diem pleaded specially ibid. Recovery pleaded in Barr ill instead of Execution ibid. Bond ill dated how to declare upon it ibid. Acts of Parliament and Records how to be recited in pleading p. 186. Where Villenage no good Plea ibid. Pleading must be certain and why ibid. Where Frankfâ—e no good Plea ibid. Where Corruption of Blood by Attainder no good Plea ibid. In what case Warranty of Ancestor with Assets no good Plea in Formedon ibid. Of reversing Attainders ibid. 188. Of pleading in Formedon ibid. Attorney may plead not informed if no Order to the contrary ibid. If Defendant in case pleads to issue for part and demurrs to other part Demurrer shall be argued first p. 189. Plea by Manucaptors to Sci. Fa. ill double c. ibid. Plea shall be taken most strictly against him that pleads it ibid. Pleas ill for Ambiguity p. 191. For Incertainty of Intendment ib. Impropriety of words ibid. Repugnancy in pleading p. 192. Barrs may be good to common Intent though not to every Intent ibid. In pleading a man shall not disclose that which is against himself p. 193. Repleader awarded upon non dimisit p. 194. Covenant to make Assurance at my Charge 't is no Plea to say he was ready to do it unless he tender the Writings ready to seal and I refuse to pay the Charges ibid. Pleading of Judgments by Executor adjudged upon Demurrer to amount but to Plene Administravit specially ibid. Administrator durante minoritate c. Wasting Goods shall be punished as Executor in his own Wrong ibid. Administration brings Debt and avers Administration granted at L. when it bears date in another place the Plaintiff shall abate p. 195. Sci. Fa. against two Executors nulla bona retorn'd to both and Devastavit to the value of the Debt against one and another Sci. Fa. and Judgment against him only by default and Fi. Fa. de bonis propriis against him alone ibid. Two Executors one confesseth the Action the other lets it go by default c. or pleads Non est factum or Plene administravit Judgment shall be against both de bonis Testatoris for diverse Executors but as one representing the Person of the Testator who if living should have made but one Answer to the Action ibid. After Imparlance the Tenant cannot plead to the Writ that the Demandant is a Bastard but he may plead it in Barr of the Action p. 196. If Husband and Wife bring Assise and Feoffment or Release of either of them or the Ancestor of one of them be pleaded in Barr both shall be barred p. 197. Excommunication pleaded in disability of the Plaintiff or Demandant p. 198. Action of the Case wherein Legitimo modo acquietatus is set forth makes the Declaration erroneous p. 198. If a man pleads a general Act of Parliament and mis-recite the same yet it shall not prejudice him and why p. 199. Where a thing alledged doth confess and avoid my Plea I may traverse it ibid Departure in pleading what Several Cases of Departures ibid. 200 201 202 203 204. Quare Impedit TO present by Turns in an Advowson in gross the Commencement how it came presentable by Turns ought to be shewed per 3 Justic 2 contra p. 205. Descent of three Mannors to three Sisters Advowson is Appendant to one Partition is made of all except the Advowson the Advowson seems to be in gross pro toto but if not excepted it had been clear p. 209. A Church may be appendant and in gross alterternis vicibus ibid. See the Method of bringing Writs of Quare Impedit of counting thereon and variety of Pleading therein p. 205 to 248. Release OF part of the Money due upon Recognizance if not mentions the Recognizance shall be for so much as is paid only and not destroy the Recognizance p. 248. A man bound to pay 100. l. tenders the same at the day he is not bound to pay the same at another day without Acquittance or Release ibid. Replevin see Avowry Variety of pleading in Replevin p. 248. to 254. Scire Facias HOw to be brought and pleading thereto 254. to 261. Statute Observations on the Statute of 29 Car. 2. for prevention of Frauds and Perjuries p. 266. Trespass WHere it lyes how to declare therein and plead thereto p. 261. Wager of Law IN what Cases Wager of Law doth lye and in what not what persons shall wage Law and the manner of performing it p. 294. to 316. Wast Where an Action of Wast doth properly lye how it is to be brought and the manner of pleading to the same p. 317. to 357. Wills Wills and Testaments originally proved at Common Law 358. They are proved in the Spiritual Court not de Communi Jure but by Courtesie ibid. Prohibition granted to the Spiritual Court to hinder the Probate of a Will quoad Lands and allowing that it may be proved quoad bona ibid. Bond conditioned he permit his Wife to make a Will he is bound to perform it ib. 350. Action upon the Case lyes not for Non-payment of a Legacy 359. Bond conditioned that the Wife shall make a Will of so much in the presence of her Husband if he will be present if not in his Absence she makes it not requesting him to be neither doth it appear that he was present yet good ibid. Memorandum quod A. B. fecit Testamentum suum nuncupativum in hunc modum viz. constituit C. D. fore Executorem Resolved a good Will and he Executor and well able to sue ib. 360. Witnesses Of the Crimes which render Persons incapable of being Witnesses p. 360. One under the Age of Discretion or interessed or a mans Wife for or against her Husband cannot be Witnesses ibid. One out-lawed in personal Actions may be â— Witness ibid. Witnesses are not to prove a Negative ib. Where Tryal is by Witnesses there ought to be two at the least ibid. A Juror may give Evidence publickly not privately to his Fellows p. 361. Bail cannot be Witness for the Defendant ib. A Felon burned in the hand may be a Witness ibid. In Ejectment he that had the Inheritance of the Land was admitted as a Witness ibid. A Councellor at Bar being examined as a Witness for his Clyent was denyed to be examined on the other side and why ibid. Debt for 10 l. brought on 5 Eliz. ca. 9. against the Wife for not appearing being served and Charges tendred held good ibid. Debt for 10. l. against a Witness that being subpened appeared not does not lye without averring that he was damnified by the Noâ—appearance of the Witness p. 362. Judgment staid because the Verdict was had upon the single Testimony of one convict of Perjury in the very same thing ibid. In Deceipt for forging a Will a Legatee allowed as a Witness in a Tryal for the Forgery ibid. A material Witness that lyes dying may be examined by consent of both Parties not otherwise p. 363. A Councellor may be examined as a Witness against his Clyent so far as it is of his own Knowledge not what his Clyent bath reveal'd to him ibid. One shall not justifie what he heard an other say ibid. Witnesses may be sworn against the King in Indictments Battery c. because though Criminal not Capital ibid. Tenant at Will of Lands in Question allowed a Witness in Tryal at Bar. ibid. Person attainted of Felony and afterwards pardoned by the King is uncapable after of being a Witness ibid. Words VVHat Words are actionable and what not see fol. 265. to the end FINIS