Selected quad for the lemma: judgement_n
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A40473
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The touchstone of precedents, relating to judicial proceedings at common law by G.F. of Grayes-Inn, Esquire.
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G. F., of Gray's-Inn.
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1682
(1682)
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Wing F22; ESTC R14229
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160,878
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378
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THE TOUCHSTONE OF Precedents Relating to JUDICIAL PROCEEDINGS AT Common Law By G. F. of Grayes-Inn Esquire In magnis voluisse sat est Hor. LONDON Printed for Awnsham Churchill at the Black Swan at the lower end of Paternoster-Row near Amen-Corner 1682. TO THE READER NOtwithstanding the present Age hath so plentifully abounded with Books of Pleading in Publick yet certainly there hath been as manifest a Deficiency of some good Directions for the Understanding them tho' perhaps one Reason hath been for that Pleading is esteemed by the Learned the most difficult part of the Study of the Law and therefore Collections of this Kind more liable to the Censure of the Over-critical 'T is true there are two Tracts extant upon this Subject but it happens so unluckily that one is but the particular Observations of a single Person in part of his Time at the Bar and the other as Antique or Obsolete as the Language it is writ in and much wanting the finishing hand of the Designer Such hath been our misfortune as to this Subject and we may well deplore our ill fate that none of the Learned Gentlemen of the Long Robe hath yet given us their Rules and Methods on a Subject so Excellent as the Incomparable Littleton doth Characterize it viz. And know my Son that it is one of the most honourable laudable and profitable things in our Law to have the Science of good Pleading in Actions Real and Personal and therefore I counsel thee especially to employ thy Courage and Care to learn it The Reader will here find most Excellent Directions to guide him in his Practice through the Difficulties of the several Parts of Pleading wherein the Nature of Writs Counts Barrs Pleas Replications Rejoinders Issues as also Disclaimers Discontinuances Estoppels Conclusions Departures Double Pleas c. are Succinctly and Methodically handled from Authorities in the Law both Ancient and Modern far more useful and beneficial than any Collection hitherto Published as will sufficiently appear to any intelligible Person upon a strict and serious perusal of the Book it self Abatement of Writ or Count. IN Debt by two Executors one was summoned and severed and dyed and it was adjudged that it should not abate the Writ Co. 10. Read and Redman's Case If there be two Joynt-Tenants and the one is summoned and severed and dyes the Writ shall abate but in a Stire facias the death of one after Summons and Severance shall not abate the Writ Co. ib. Where note the difference between a Writ Original and a Judicial Writ Two Coparceners one is summoned and severed and hath Issue and dyes there the writ shall abate for that his Issue hath Title to the Moiety Co. ibid. But if one of the Coparceners takes husband the writ shall not abate In all Actions personal or mixt where the intire thing is to be recovered as in Quarâ— Impedit Detinue of writings and the like there after summons and severans the death of one shall not abate the Writ Also the death of one after Judgment in personal Actions shall not abate the writ although there be no severans Co. ib. Where the Writ goes in discharge as an Audita Querela and the one is summoned and severed and dies the Writ shall not abate Co. ib. Note In all personal Actions where no severans lyes there the death of one of the parties shall abate the Writ but not if it be a Judicial Writ after Judgment Co. ubi supra In Formedon against divers some plead Non tenure and others take the Tenancy upon them intirely the writ shall not abate and those who plead Non tenure shall not have Judgment 22 E. 4. 4. 4 E. 4. 33 a. Stat. 25 E. 3. 13. Misnosmer in a Scire facias shall abate the writ 9 E. 4. 35. a. If a Praecipe be brought of a Mannor and 20 s. Rent it is a good Plea to say that the Rent is parcel of the Mannor So in Formedon for Land it is a good plea to say that the Demandant hath brought another Formedon of 20 s. Rent issuing out of the same Land 3 H. 7. 3. A Writ was brought against A. Rector of B. de placito debiti 100 s. The Defendant pleaded That die impetrationis predicti brevis he was commorant at C. in another County but the Court would not allow the Plea because a Rector is always supposed to be resident upon his Benefice quod nota So a man that hath two Benefices shall be intended to dwell upon them both although he doth not deny that he is Parson 10 H. 6. 8. Co. 11. Magdel Colledg Case In a Writ of Right of Advowson against A. B. Dean of C. he pleaded That by Authority of Parliament the Corporation was defeated and avoided and it was held by Brian to be a good Plea 4 H. 7. 7. Rast Entr. 101 182. In Assise it is a good plea to the Writ to say that the Plaintiff was seised of the Freehold of the Lands in the Plaint but in a Forcible Entry it is no plea to say that he was seised the day that the Writ was purchased 5 H. 7. 41. Death or Coverture at the time of purchasing the writ shall abate the writ de facto but Coverture afterwards makes it but abateable 32 H. 6. 11. 3. Br. 138. Co. Entr. 173. Rast Entr. 107 108 126 161. It is no Plea to the Writ to say that the Summons were of other Lands for the Defendant may wage his Law de non Sum. 37 H. 6. 26. A Quare Impedit was brought and the Plaintiff made his Title to the Advowson as appendant The Defendant said that a Moiety was in Gross and it was doubted whether this Plea should go to the Writ or to the Action 32 H. 6. 10 11 12. A Quare Impedit is brought against the Incumbent without naming the Patron he being alive this makes the Writ only abateable and is not good upon a Writ of Error In a Writ of Quare Impedit or other Original Writs the death of the King before Judgment shall abate the Writ de facto but it is otherwise where the Defendant dies But in an Information for the King or for the King and the Informer upon the death of the King before Judgment the whole Proceedings are discontinued but the Information it self shall stand good and Process shall be awarded against the party de novo So of Indictments that are not for Felony or Treason for after Trial they are within the Statute of 1 E. 6. ca. 7. When the Original bears Teste before the cause of Action accrues the Writ shall abate de facto propter defectum Anderson 1. 241. a. 96. Rast Entr. 459. Co. Entr. 624. Brown's Entries 1. Part Tit. Abatement The death of the Plaintiff of Plaintiffs or of one or more of the Plaintiffs where there be many shall abate the writ Rast Entr. 416. Fitz. N. Br. 35. B. Where it appears by the plaintiffs own shewing that he had
Dy. negat Tenant for Life Remainder for Life Wast is done he in Remainder surrenders Wast lyes Co. 5. Rep. 76. b. Mo. pl. 64. Co. 5. Rep. 76. b. 2 Cro. 68. b. Tenants in Common cannot joyn in Wast in the Tenet but Joynt-tenants or Parceners may and also Tenants in Common in the Tenuit being only to recover Damages Ibid. Mo. f. 383. Mo. pl. 110. 127. He in Reversion by way of use brings wast against the Feme Tenant for Life of the same use she pleads that the place was left so ruinous at the death of her Husband Quod reparare non potuit and adjudged a good Plea Mo. Pl. 158. Wast assigned in permitting Sea-walls to be ruined whereby c. if not done by sudden violence as if a small breach were and he permits it grow greater it seems wast Et per omnes the permitting Decay in the Banks of the River is wast Mo. 173. 187. 200. Dower Tenant pleads ne unque seisie que Dower and Issue of it Demandant prayed a Writ of Etrepement because great part of his Coppice wood and the Husband dyed not seized so she cannot have damages yet it seems Etrepement lyes not because Damage lyes in the Action Mo. Pl. 186. Wast and the Writ was quod fecit vastum in terr' In the Count assigns wast in cutting Trees and adjudged it maintained not the VVrit but if it had been assigned of digging Clay c. it had Mo. Pl. 200. VVast and Count of VVast done contra prohibitionem after the Estrepement sued upon a Formedon Defendant pleads Quod non fuit vastum contra prohibitionem Issue Verdict and Judgment pro querente Mo. Pl. 1. or 245. 'T is VVast to take away a Partition c. fixed by the Lessee to the Free-hold sic of Benches or Glass-windows to take away Doors of the Houses if they be outer doors for defence of the houses not in ward for Separation of Chambers Mo. Pl. 315. One that had power to make a Joynture of third part makes her Joynture of a third part undivided And this held by Popham not according to the Power which was to be sans impeachment of wast and against the Tenant in common wast lyes not so it should have been done in Severalty by Popham fo 374. But that is denyed by Mo. fo 387. 388. And that wast lyes against the Tenant in Common of a third part also by Popham the Proviso being to do it Sans Impeachment c. And he makes an Estate for Life with Remainder 't is disjunctive by reason of the Remainder whereto More answers that 't is but the effect of the Law not the word of the Party and then Remainder were created before so he must make it by operation of Law Sans Impeachment c. or make none Also 't is not eadem sans Impeachment c. but the Remainder does at present hinder the Action and it is not like Cases upon 32 H. 8. there Tenant in Tail shall not make a Lease for three Lives in Possession So another way to satisfie the Statute Perrot's Case Mo. Pl. 506. Tenant for Life Remainder for Life tho Wast in the Tenant for Life be dispunishable yet the Chancery will by Injunction bind him to do no wast and such a President cited temps R. 2. Mo. Pl. 748. Error to reverse a Recovery in Lancaster and pendant it a Writ of Estrepement granted and so resolved 't is grantable in a Scire Facias Holland c. against Jackson and Ogden sic vid. 2 H. 6. 13. Estrepement granted in Scire facias on a Judgment in a Formedon Mo. Pl. 850. Resolved that great Birch is used in the Country as Timber and esteemed in Law as Timber and 't is wast in the particular Tenant to cut them and so in Cro. are black Thorns in some Countrys Countess of Cumberland's Case Mo. Pl. 1099. 1 Cro. 283. 2 Cro. 126. Writ of Wast in two Towns Count of Wast in three Towns ill but è contra if less be in the Count than is in the Writ 't is good pro tanto Earl of Cumberland against Countess Dowager Cumberland Mo. Pl. 1185. To convert a Horse Mill to a Hand Mill or a Corn Mill to a Fulling Mill is though it be better for the Reversion and the reason seems because it alters the Evidence City of London against Groyme Mo. Pl. 1230. 2 Cro. 182. Lessee covenants to repair at his own Cost and the house being out of Reparation put Timber on the Land to do it and held a bar for the Covenant takes not from him the Liberty the Law gave him but it seems the Court was of another opion Mo. Pl. 80. vid. Dy. 196. b. 314. a. Lease except Trees Lessor grants and sells the Trees to Lessee he cuts them resolved first Lessee has but special Property in Trees till severed and then Lessor may take them be it by Wind or wilfully unless Doatards Secondly Sans Impeachment of wast gives no interest but that is contra to Co. 11. Rep. 82. 83. Popham 195. Dyer 184. b. Thirdly such Interest has Lessee in Timber of Houses if blown down to take to rebuild but if he pulls them down Lessor may take it Fourthly by the sale of Trees to the Lessee they are not so re-united but the Lessee is absolute Owner of them for he has not an equal Interest in them and the Land to extinguish as if Feoffor sells the Trees to Feoffee Fifthly Wast may be in Glass tho in the Lessee's own setting up fixed by Nails or otherwise and so in Wainscot set up by the Lessor or Lessee and fastned either by Nails or otherwise to remove it if nailed Harlakenden's Case Co. 4. Rep. 62. 63. 64. Lessee deviseth the Term Executors do wast and then assent to the Legacy Wast lyes against them in the Tenuit and so if the Grantee on Condition do wast and then the Grantor enters for the Condition yet wast in the Tenuit lyes against the Assignee on Condition And if the Lessee unlawfully open a Mine and not that Term except Mines if after the Assignee dig in it 't is wast in him though the first began it for the Exception is void And resolved first Lessee may dig in Mines opened before not open new Secondly if it be of the Land and all Mines he may open new Mines Sanders Case Co. 5. R. 12. b. Wast lyes against an Occupant for he is within the words of the Statute for he holds Pur Terme de auter vie and it is against all Tenants for Life But it lyes not against Tenant by Elegit Statute Merchant for they hold not but come in by Act in Law Co. 6. R. 37. b. Lessee for years Sans Impeachment of Wast accepts a Confirmation for Life the Priviledge is gone because the Estate whereto it was annexed is removed Co. 8. R. 76. b. If the Sheriff go and see the place wasted and cause the Jury to have the View he may