or conversation are also Excommunicated Co. Lit. 134. If a Bishop be defendant an Excommunication by the same Bishop shall not disable the plaintiff and if no other matter be shewn it shall be intended for the same cause Co. Lit. ib. The Writ shall not abate for Excommunication in the Plaintiff or Demandant But the Judgment shall be that the Tenant or Defendant shall go quit without day because when the Demandant or Plaintiff hath purchased Letters of Absolution and they are shewed to the Court he may have a Resummons or Reattachment upon his Original according to the nature of his Writ Lit. lib. 2. ca. 11. Sect. 42. If an Alien brings an Action personal or mixt in his own right the Defendant may plead it in Abatement in disability of his person or in bar to the Action with this difference that in Actions personal or Trespass for breaking his house the defendant ought to aver that the plaintiff is an Alien born at such a place under the Allegiance of such a Prince who is Enemy to our Soveraign Lord the King for an Alien Friend as he may Traffick and have a House for a habitation so he may have an Action personal and Trespass for breaking his house as he may have a Writ of Error for necessity And the Opinion of the Lord Coke in his Commentary upon Littleton is That if an Alien Friend brings an Action it ought to be pleaded in disability of his person and not in barr to the Writ or Action but if he be an Alien Enemy the Defendant may conclude to the Action And therefore Mr. Theloal in his Digest of Writs well observeth That an Exception taken to a Writ propter defectum Nationis vel potius defectum subjectionis vel Ligeancie is peremptory and that the Action cannot be revived by Peace or League subsequent and that the King may grant Licence to Aliens to implead and likewise that such Aliens as come into the Realm by the Kings Licence or Safe Conduct may use personal actions by Writ though they be not made Denizens and that Denizens lawfully made by the Kings Grant and such Aliens born as are within the express words of the Statute of 25 E. 3. may use actions real by Original Writ Co. Lit. 129. a. b. 130. b. Co. 7. 1. Theloal Digest de Breifs Lib. 1. ca. 6. 32 H. 6. 23. An Alien may be Administrator and have Leases for years as well as personal Chattels and Debts Cro. Eliz. 683. Cro. Car. 8. 9. One brings an Action as Executor Utlary in the plaintiff is no Plea because he sues in auter droit but it is otherwise of Excommunication 21 E. 4. 49. 34 H. 6. 14. 14 H. 6. 14. If the defendant plead that the plaintiff is an Alien born and conclude to the person yet it seems he may demand the View 3 H. 6. 55. For the Pleading of Matters of Record in Abatement observe That in Formedon for a Mannor another Formedon depending for 20 s. Rent out of that Mannor is a good Plea 3 H. 7. 3. That where in Trespass the defendant pleaded that the plaintiff had brought Replevin against the Mayor and Commonalty of A. for the same cause and that he was one of the Commonalty die Captionis c. Necnon die impetrationis Brevis and it was there agreed That in Trespass a Replevin depending for the same Cause is a good Plea if there be not more Defendants in the Replevin than in the Trespass 8 H. 7. 27. A Quare Impedit is brought against the Bishop and another as Incumbent the Defendants plead that the plaintiff hath brought another Quare Impedit against the said Bishop for the same Presentation which was then depending undetermined and demands Judgment of the Writ and it was adjudged a good Plea But the plaintiff might have brought divers Quare Impedits against divers Defendants Hobart 138. 9. So in an Assise of Darrein Presentment it is a good Plea to say That there is a Quare Impedit depending for the same Presentation Hobart 184. But where an Assise is brought of Lands in one County an Assise for the same Lands in another County and Judgment thereupon cannot be pleaded So of a Recovery in Ancient Demesne because it cannot be intended that the Lands recovered in the Assise or in Ancient Demesne are the same Lands 4 H. 6. 24. Rast Entr. 65. In Formedon in le Diseender it is no Plea to say that the Plaintiff at another time brought a Formedon in the Remainder of the same Lands except both the Counts be of one and the same Gift 40 E. 3. 31. Where the Heir brought two several Formedons upon one and the same Gift although the last did vary from the first Gift yet it is no Plea in Abatement for he might claim by two Ancestors sub dono 4 E. 3 8. If the Defendant in a personal Action pleads another Action depending at the time of the purchasing the last Writ he ought not to say that it is yet depending for the last Writ is abated in Law notwithstanding he is afterwards non-suited in the first Writ Co. 6. Ferrers Case Where Note the diversity when the writ is general as Covenant Detinue Assise c. and the Certainty is in the Declaration for there if the Plaintiff is nonsuited in the first before he counts or declares the last shall not abate and when the writ is special and the thing demanded is specified therein as in Praecipe quod reddat c. What persons shall be admitted to plead in Abatement and what not Note One Defendant may plead the death of the other before the Writ purchased or that there is no such person in rerum natura 20 H. 6. 30. b. But in Replevin if the Defendant avow upon an Estranger the Plaintiff in the Replevin cannot plead in Abatement of the Avowry 22 E. 4. 35. b. If the Cognizee of a Statute sue execution against one Terretenant only without the other he cannot plead in Abatement but is put to his Audita Quaerela against the other because that the Cognizee is not bound to take Notice of all the Terretenants 16 Eliz. Dyer 331. a. Nota That after a Continuance the Defendant shall not be admitted to plead that the Plaintiff was made Bishop or that the Woman Plaintiff took Husband depending the Writ except that he pleads it after the last continuance but it is otherwise of the death or Coverture of the Plaintiff at the time of the Writ purchased because these Pleas do abate the Writ de Facto 32 H. 6. 10. 11. In a Replevin where the Plaintiff admits the Avowry the Priee shall not plead in Abatement but as Amicus Curiae and not then except it be apparantly known per totam Curiam 34 H. 6 8. In a Praecipe against I. S. the Son of W. Edmond at the retorn of the Grand Cape the Defendant said that his Father was named Esmond and by Thorpe it is a good
off and filed as of Hillary Term Else it would be Error to declare in a Joint Action upon Bail for one in Michaelmas and the other in Hillary Term quod concessum fuit per curiam If a Captas be awarded and Returned non est inventus against the Principal and the Bail bring him not in If the Principle dye although there be no Scire facias against the Bail Yet the Bail is chargeable For though the Court will excuse the Bail Yet the Bail if they bring in the Principle before the Return of the Second scire facias yet this is of grace and not of necessity If the Husband and Wife be Arrested for the Debt of the Wife and the Baron find Bail for himself yet he may be detained until â—e find Bail for his Wife but he shall not be detained until find Bail for her Husband or the Husband for himself Judgment was given against one in the Kings-Bench upon which he was in Execution and had another Judgment against him in the Common-Pleas in which Court his Sureties to save their Bail brought him to the Barr by Habeas Corpus to render his Body but before that he had brought a writ of Error in the Kings-Bench to reverse the Judgment in the Common-Pleas but the Record was not removed In this Case the Court said When a man comes in to save his Bail he shall not be committed if the party do not pray it but when Error is brought before that he be in Execution it is a supersedeas so that they cannot commit him at the Prayer of the party And Waller Prothonatory said That the Bail is to render his Body so that the Party may take it in execution but here he cannot in regard a writ of Error is brought and therefore the Sureties shall be discharged Mith. 14 Jacobi in Banco Communi In the Common-Pleas the Bail is bound in a certain summ but it is not so in the Kings-Bench and when a man enters Bail in the Kings-Bench in a cause they shall be charged in all Suits between the same partyes entred the same Term. The Bail shall answer for all Actions brought the same Term against the Party for whom he is Bail but if a man be bail for another and hath Lands in Fee and he declares and afterwards the Bail sells his Lands and an other commenceth a Suit against the party the same Term he shall not be charged with the other Actions Cro. lib 2. fo 449. Term. no Sci ' Hillarii Anno 15 Jacobi Regis One Gabriel Mihil was indebted to A. B. and put in Bail in the Common-Pleas to pay the same and afterwards A. B. Arrested Mihil in London for the same Debt whereupon Judg Forster the other Judges being in the Chancery awarded an Attachment against A. B. for this Contempt and herewith agrees 2 H. 7. Hill 15 Jac. in C. B. Bankrupt IF Creditors after a Commission of Bankrupt is sued forth although at the first they refused yet within three or four months they come and tender their proportion towards the charges of the Commission They shall be received to have their parts as the other Creditors if no distribution hath been made of the Bankrupts estate before The Commissioners of a Bankrupt may sell the Goods of a Bankrupt altho the Bankry had sold them or disposed of them to his Creditors if the sale or disposal thereof were after he became a Bankrupt The Commissioners may sell the Copy-hold Lands of a Bankrupt for and towards the payment of his Debts by Deed indenâ—ed and inrolled declaring how he was found a Bankrupt and expressing to the use of the Creditors and at next Court the vendee shall be admitted and have his Copy I. C. and R. C. brought an Action of Debt jointly upon a joint Debt assigned to them by Commissioners upon the Statute of Bankrupts and it was said by the whole Court that the Commissioners had not pursued their Authority by that joint Assignment for they ought prorata to have assigned to every one but quere if the joint Debt may be divided among the Câ—edâ—tors and the Lord Chief Justice said That a Custom may devide a Debt and then à fortiori an Act of Parliament may Mich. 10 Jacobi in C. B. A Bankrupt cannot make sale of any of his Goods after he becomes Bankrupt but Goods which he hath as Executor or a Legacy before it be invested in him or a Grant of a Reversion before Entry all these shall not be charged within the Statute But if a man sells those Goods which he hath as Executor and afterwards retakes an Estate to himself or converts them to his own use this is within the Statute Per dom Coke et alios justic ' Pasch 9. Jac. in Com Banco A man shall not Forfeit those Goods which he hath as Executor by Outlary ib. Barr. A Man may be Barred pro tempore and yet afterwards he shall have his Action IN Debt against an Executor he Pleads plene administravit and so it is found the Plaintiff shall be Barred and yet if Goods comes to his hands which were the Testators he shall have a Writ of Debt The same law in Debt against an Heir who pleads Riens per discent which is found so and afterwards he hath Lands by discent c. In Formedon the Tenant pleads the warranty of the Ancestor of the Demandant with that that he hath Assets by discent he pleads that he hath nothing and it is found that he hath he is Barred To plead a thing by way of Barr or Estoppel which the Demandant or plaintiff is to defeat or destroy by the Usageof his Action is no good Plea AS in Attaint brought upon a Verdict de nativo habendo Villenage is no Plea Also where Reversion and Rent pleaded for Assets is not Assets there the Heir is to defeat the Assets If a man sues a Prohibition and the Defendant alledgeth Excommunication in the Plaintiff he may say t is for the same cause If a Villein brings a Writ of Error upon Judgment had in nativo habendo Villenage is no Plea Where a man Pleads a Recovery in Barr he ought to add more to it or otherwise the Recovery is no Barr. ANd that is where the Tenant Pleads a Recovery by default against the Demandant he ought to add more to it viz. with that that he will averr that he was Tenant at the time of the Recovery The same Law if Tenant in Precipe quòd reddat will Plead a Recovery in a Writ of Cosinage by default he ought to shew how he was Cosin Also if the Tenant will Plead a Recovery in a Writ of Right against the Demandant by default he ought to shew of what possession his Writ of Right was conceived But otherwise it is if he will Plead a Recovery in Formedon by Action tryed this Recovery is a good Barr without adding any thing more to it where note the Diversity Where a man
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
any other Title or to have any other Action to recover the Land than that by which he hath recovered and by the same reason that he shall not have a Cessavit he shall not have Eschete If a man hath Rent in Fee he may distrain or have a Writ of Annuity and if he brings a Writ of Annuity and hath Judgment to recover although that he sues not out Execution yet he shall never distrain for the Rent afterwards Tenant in Tail discontinues for Life and dyes and the Tenant for Life aliens in Fee and the Heir bring in consimili casu and recovers now by this Judgment he shall never have a Formedon of the same Land c. The disseisor enfeoffs the disseisee by deed indented upon Condition or makes a Lease for Life by Deed indented this is a good Conclusion to the disseisee to demand his Right and the Reason is that by the Deed indented the disseisee hath affirmed the Estate of the Disseisor which is as much as if he had confirmed his Estate before the Feoffment In Debt upon an Obligation the Defendant pleads a Release upon which the Plaintiff is Nonsuit afterwards the Plaintiff brings a new Action of Debt the Defendant shall be estopped to say that he was deins age or that the Obligation was made per minas But it is otherwise if the Plea be discontinued An Essoin is cast for the Tenant in a Writ of Dower yet the Tenant shall be received to say that he hath been allways ready to render Dower and because that an Essoin may be cast for a Stranger this Essoin is no Estoppel for an Estoppel shall be good to every intent but because an Essoin may be cast for a Stranger as well as for the Tenant himself it shall be said an Estoppel I bring an Assise of Mortdancestor and recover when in Truth I have no Right c. yet the Wife of the same Father shall be endowed c. Also in Avowry Tenant for life Aliens in Fee the Wife of Tenant for Life shall be endowed against the Feoffee Also Tenant in Tail is bound by Statute and makes Feoffment Execution against the Feoffee Of some Estoppels none shall have advantage but those who are parties or privies AS if I loose Land by Erroneous Judgment or false Verdict those that are Strangers shall have no advantage But of some Estoppels every one shall have advantage As Bastardy certified by the Bishop User of Action is no Estoppel to prejudice an other viz. Heir c. AS a man grants a Rent Charge in Fee to an Abbot and his Successors or to a Feme-Covert and her Heirs if the Abbot or Husband brings an Action it shall not prejudice the Successor or the Wife In no Case one person shall estopp another but in Dower AS where a Woman demands Dower and she hath Writings touching the Inheritance of the Heir for in debt it is no Plea to say that the Plaintiff is indebted to the Defendant in ten pounds because that it cannot be tryed by the Original 3 H. 6. In every Case where I am Barred of Land as if it be found that I am not next Heir this Estoppel shall pass with the Land and every one that claims the Land by me shall be Estopped but of other Lands it shall be no Estoppel against me 33 H. 6. IF I bring a Praecipe quod reddat by the name of Richard when my name is John and recover by default against the Tenant and afterwards I bring another Writ by my right name against the same Tenant he shall not estopp himself by that Recovery So if I have misnamed the Tenant in the first Record because he shall not be grieved by it Mich. 33 H. 6. contra per Prisot contra per Fortescue 34. By Prisot none shall be received to plead an Estoppel against another but he that pleads may be estopped by the same plea and this is where both parties are parties to the Record otherwise not For if I bring an Action by the name of Robert when my name is John against one that pleads with me if afterwards I sue him by the name of John he shall estopp me by that Record but against a Stranger I shall not be estopped by it by Prisott and by Fortescue 30 H. 6. 26 H. 6. 14 E. 4. contra Bastardy certified against me or found against me every Stranger shall estopp me because that every Stranger is estopped to say that I am mulier But if I am certified mulier a Stranger shall not be estopped by it to plead special Bastardy because that it may be that I am a Bastard in our Law and a mulier in the spiritual Law but not è contra No Stranger shall take advantage by an Estoppel but where the Estoppel extinguisheth the Right AS if a Man makes a Lease to me for Term of years of my own Land and the Term passeth and he enters and grants a Rent Charge in Fee and afterwards I recover against the Grantor the Land by default the Grantee shall not falsify the Recovery by Estoppel A Stranger shall not take advantage of an Estoppel in fait if it be in the Realty but by matter of Record it is otherwise A Man takes a Lease of Lands for years or for Life of which Lands he himself â—s seâ—sed in Fee or in Tail at the time of the Lease made if it be by Deed indented he is estopped to say that he had any Estate or Right in those Lands at the time of the Lease The same Law if a man be disseised and takes a Lease of the disseisor for a term of years of the same Lands by Deed indented But if a man takes a Lease for term of life of his disseisor he shall not be thereby estopped notwithstanding it be by Deed indented because that by the Livery he is remitted and the Lease is void ut dicitur quaere tamen for the Indenture is strong against him but if it be indented it is cleer Law but if it be by Fine it shall be an Estoppel because that the Estoppel takes effect before his Entry Or if Livery be made out of the Lands within View c. If a man makes a Lease by Deed indented to one of his own Lands now he is concluded after the Lease determines the Lessor enters by force of the conclusion and a stranger comes in aid of him the Lessee shall punish the stranger for this Trespass and he shall not conclude him by force of the Lease because he is wholly a stranger to the Judgment per totam Curiam 14 H. 6. But quaere if he justify as servant if he shall conclude himself Fines and Recoveries A Fine was Levied of Lands in two Counties and but one County mentioned in the Fine yet because it was for the uses declared in an Indenture which did mention the Lands in the other County all the Lands mentioned in the Indenture did pass If
after Judgment where the Plaintiff hath not over-stayed his Time viz. the Year but many have Habeas Corpus or Fieri Facias without Scire Facias If the Prisoner be taken by Capias utlegatum he shall be in Execution for the Party without the Prayer of the Party or Accord of the Court if he will but if it be after the Year not without Prayer 't is the Course upon Outlawry after Judgment if Error be brought to award a Capias utlegatum if he does not assign Error but if it be before Judgment and the Defendant brought in the Plaintiff must declare against him de Novo and if one Outlawed after Judgment bring Error and comes to assign Error he shall be committed to the Marshalsey and find Security to reverse the Outlawry and answer the party Lishton against Garpores 3 Cro. 706 707 850. Co. 5. rep 88. 89. vid. 1 Leon. 51. 263. stat 1 H. 7. pl. 6. Moâ— pl. 772. 817. One recovers in Quare impedit against the Kings Presentee and is Outlawed the King shall have a Scire Facias to have the Presentment for the Church was immediately revested in him before any Writ to the Bishop and though the King be not Party to the Judgment he shall maintain the Scire Facias being Intitled by Act in Law but the Scire Facias must mention the whole Record of the Outlawry And so in Debt on a Bond and Judgment to recover the King shall have a Scire Facias Beverley against Cornwall 1 Leo. 63 64. In Debt on a Bond the Defendant pleads that the Plaintiff was Outlawed by the name of J. S. of D. the Plaintiff replied that at that time he dwelt at S. absque hoc that he dwelt at D. he avoids the Plea of Outlawry for he shall be intended another Person 1 Leo. 87. Upon an Exigent to Lond. it was return'd that he had proclaimed the party de Com' in Com' and for that the Outlawry on Felony was reversed For it should have been de Hustingo in Hustingum Marshes Case 1 Leo. 326. Outlawry of Murder the King seizes Lands and because the Outlawry was ill for the quinto Exact ' and was ad comitat ' omitting meum Wherefore to affirm the King's Title the Attorney General prayed a Certiorari to the Coroner to certifie what County and on such a President shewed granted Fumes Case Latch 210. Where one is Outlawed before the Justices of Assize or Justices of Peace on an Indictment of Felony the same Justice may award a Capias utlegatum For they that have Process of Outlawry have power also to award a Capias utlegat ' per omnes Justic ' Co. 1â— rep 103. Appeal of the Death of her Husband and because some of the Defendants lived in another County a Capias with a Proclamation issued to that County The King dies and Reattachment sued If it be General then a new Capias and Proclamation must go into the Foreign County if Special not for the Statute has been once satisfied Vid. Co. 7. rep 30. a. b. 1 E. 5. 43. a. In Appeal of Robbery the Defendant was Outlawed and Sued a Pardon and Scire Facias thereupon Dicitur he ought to shew a Release of the Appeal before the Scire Facias be granted then the Pardon to he Special not General but the Appellor not appearing at the day of the Scire Facias returned the Pardon was allowed but at another day came the Appellor and prayed Execution but his Default being Recorded could not have it Note sometimes the Pardon is General sometimes Ita quod stet rectus c. M. 2. R. 3. fol. 8. pl. 17. M. 9 H. 7. pl. 1. One Outlawed of Felony ductus ad Barram to say why Execution c. pleaded that he was in Oxford Castle all the time and because he did not say in what County Oxford is nor did not say he was in any Bodies Custody there the Plea adjudged ill H. 11. H. 7. fo 13. pl. 27. Baron and Feme Outlawed in Debt he brought Error and after a special Pardon Ita quod stet rectus a Scire Facias and prays it may be allowed but the Court would not till his Wife came in also that the Plaintiff may declare against both and then it seems he may declare against them in the Kings Bench within the Equity of the Statute of 5 Ed. 3. tho' it say rendre al Court donec le Exigent fiat sher ' it went out of the Co. B. but now 't is in the Kings Bench by Writ of Error P. 1 H. 7. pl. 7. H. 1. H. 7. pl. 19. One taken by Cap ' utleg ' an Appellee of Felony came in and pleaded that it was against J. S. Gentleman and he is but a Yeoman and the plea allowed and a Scire Facias against the Appellor who not coming in he was discharged so 21 H. 7. pl. 16. Outlawry against J. S. de D. he pleaded that he lived at S. good without Error Vide 21 H. 6. 20 and 23 H. 6. 4. a. Outlawry when reversed by plea when by Writ of Error 37 H. 6. 16. vide M. 21. E. 4. pl. 61. 21 E. 4. 37. H. 5. H. 7. pl. 7. M. 6 H. 7. pl. 2. M. 21 H. 7. pl. 27. Co. Ent. 689. 4 E. 4. pl. 15. A. takes the Goods of B. who was Outlawed if the King may seize the Goods of B. vide M 6 H. 7. pl. 4. vers finem and pl. 5. One that reversed an Outlawry had a Writ de bonis restituend ' to the Bayliff of Westminster who returned that he was not Bayliff not good he must answer to the having the Goods and must deliver them tho' gone out of his Possession or shew Cause M. 6 H. 7. pl. 5. b. H. 4. E. 4. pl. 3. An Outlawry was reversed because the Sheriff said ad Comitat ' tent ' such a day in Comitat ' Midd ' and said not Comitat ' meum seems Error of Outlawry because the Exigent was in R. 3. Time and two Proclamations then and the other three in H. 7. So the Exigent abated but being in Felony he must have Scire Facias against all the Lands tho' dicitur he had no Lands For that must appear Judicially and upon Scire Facias though the Outlawry were reversed for the Default of the Exigent he must answer for the Felony otherwise if at Suit of the party he were discharged against him H. 6. H. 7. pl. 7. M. 11. H. 7. pl. 33. M. 7. H. 7. pl. 7. Writ of Error delivered before the Exigent awarded and the Plaintiff Outlawed yet it is not void but voidable by Error and Issue shall be joyned to try Delivery before the Exigent but not by Jury P. 10. H. 7. pl. 25 31. One may avoid an Outlawry as well by saying he was beyond Sea by the King's Command as that he was a Souldier at Calais under such a Captain and shall not shew the Patent if the party appear upon
14 H. 7. pl. 1. If the Ordinary refuse a Clerk for disability he is to give Notice to the Patron if he be a Lay-man but not if he be a Spiritual Man P. 14 H. 7. pl. 3. In a Quare Impedit by the King the Ordinary pleads that such a one presented his Clerk to him and he came to him as he was taking Horse and bid him come again in three days and he never came and so permitted a Lapse Resolved the Ordinary not bound immediately to examine the Clerk but may take convenient time to do it in for it may be at the present time he is busied in aliis agend ' and though he pleads that he presented whereas his Collation yet it seems well enough P. 14 H. 7. pl. 4. Tr. 15 H. 7. pl. 2. That the Clerk has one or two Benefices already is no cause of Refusal For 't is a Priviledge to the Clerk and the Bishop is not to meddle in it but Villein is a cause of Refusal whereof Notice must be given be the Clerk Lay or Spiritual Tr. 14 H. 7. pl. 2. Grantee of the next Avoidance brought a Quare Impedit against the Patron and Ordinary and recovers but pendente lite the Parson resigned and another is admitted This the Bishop returns on the Writ unto him Scire Fac ' Issue against the new Incumbent objected it lies not for he was to have only the next not the second Avoidance but resolved that the Church quoad him remains always void Note Co. 6. rep 52. that the Bishop ought to admit the Clerk on the Writ and then the Tryal of Right shall be between him and the Clerk admitted pendente lite and no Scire Fac ' to be sued but 2 Cro. 93. is contrary to that vide Dyer 260. Hob. 201 320. H. 2 H. 7. pl. 7. He that pleads presentation by a Corporation needs not to plead it by Deed because it may be without Deed For a presentation is but as a Letter Commendatory In Quare Impedit 't is enough to say his Clerk was Instituted and Admitted without Induction but in a Writ of right Induction is necessary because he must lay the Esplees in taking the Tythes Tr. 26 H. 8. pl. 7. Two Joynt-tenants brought a Quare Impedit one will not prosecute he shall be summoned and severed but if he come and make another Title all is gone for they must joyn in the Title Trin. 26 H. 8. pl. 22. Quare Impedit by three Joyn-tenants and make Title by a Grant to them and J. S. And J. S. presented and the Church is void so it belongs to their Presentment so they make Title of the presentment of one Joynt-tenant quod nota vide Co. 1 Inst 186. b. Accord M. â—1 E. 4. pl. 28. Mo. pl. 14. P. 27 H. 8. pl. 28. Quare Impedit and counts that A. was seized and presented and gave in Tayl to the Ancestors of the Plaintiff who presented c. And the Declaration adjudged not double laying one presentment in the Donor another in the Donee 18 E. 3. 15. a. ad idem no more than if the Heir counts in a Quare Impedit of a presentment by the Ancestors and another by his Guardian Quaere if one lays a Presentment in the Feoffer and another in the Feoffee P. 4 E. 4. pl. 3. M. 7 E. 4. pl. 21. 11 E. 4. 10. b. Co. 5. rep 98. a. 14 H. 6. 15. b. 1 H. 5. 16. 40. E. 30. 10. b. Quare Impedit and counts that he presented the Defendant and he deprived c. the Defendant pleads that the Church was full of him by 6 Months before No plea without traversing the Resignation but what a Traverse 't is see 5 E. 4. 3. b. and 12 H. 4. 11. He needs not say 't was full by 6 Months before for if he had his presentment before or pending the Writ it shall abate and he shall not have an Action for his Presentment where he has had the Fruit of it before P. 4 E. 4. pl. 37. If two present severally the Ordinary is not bound to award his Jure Patronatus without Prayer of the party H. 8 E. 4. pl. 6. In Annuity the Defendant pleads that he was presented by the King and prays in Aid of him and the Ordinary Oyer demanded of the presentment Resp ' It belongs to the Ordinary Danby There is a difference between the Bishop's Collatee and the King 's Presentee Trin. 9 E. 4. pl. 14. Composition that if the Patron of a sine Cura present not within a Month the Ordinary shall if the Patron be disturbed so as the Month past he shall recover Damages for the two Years For afterwards he hath lost his presentment though the Ordinary has not presented and so 't is not like a Lapse at six Months at the Common Law M. 13 E. 4. pl. 5. One to name the other to present he that names the Nomination shall have the Quare Impedit but if it be to name two whereof the other is to present one the Presentor is Patron because of his Election Quaere if he that has the Nomination name one and revoke can afterwards name another And it seems he may H. 14 E. 4. pl. 2. Mo. pl. 147. Quare Impedit the Incumbent pleads that the Church is full and has been 6 Months before the Writ Judgment del ' brev ' if no plea Nor to the Action by an Incumbent nor no other but him against whom a Writ of Right of Advowson lies H. 16 E. 4. pl. 6. vide 48 E. 3. 19. b. 22 H. 6. 14. The Plaintiff hath Judgment in Quare Impedit and a Writ to the Bishop and before the Clerk is admitted a Stranger brought a Quare Impedit against the Plaintiff and has a ne Admittas to the Bishop doubted which Writ he is to obey and by Littleton and Vavasor the first because it is an Execution of a Judgment Fairfax contra the last is a Supersedeas P. 18 E. 4. pl. 36. Quare Impedit the Plaintiff is Non Suit after appearance the Defendant makes Title and has a Writ to the Bishop H. 19 E. 4. pl. 12. One may in some cases maintain a Quare Impedit without alleading any presentment As one erects a New Church and presents to it and is disturbed yet the Quare Impedit lies per Billing ' per omnes Justic ' he that recovers in a Writ of Right of Advowson shall maintain a Quare Impedit without alleadging any presentment so if enacted by Parliament that one shall have such an Advowson For if a Church lapse the Ordinary shall collate and maintain Quare Impedit without alleadging presentment 21 E. 4. 3. a. b. and 17 E. 3. 13. b. 14. b. Quare Impedit by the King counts that A. was seized of a Mannor and Advowson Appendant and Attainted of Treason and Office found that the King presented c. the Defendant makes Title to himself in Gross absque hoc that
or Joynt-tenant dies Hall vers ' Epm ' Bath and Martin Co. 7. rep 25 26 27. Quare Impedit the Defendant pleads that he had been in 6 Months and traverses the Avoidance Issue of it Jury find for the Plaintiff and enquire of the three points First That the Church was full of J. S. a Stranger Secondly That 't is of Eighty pounds value Thirdly That the Action was brought within six Months after the Avoidance and Judgment quaer ' and Writ to the Bishop to admit his Clerk nominated The Plaintiff by J. S. pending the Writ and resolved in Error on it first at Common Law if an Usurper presented and had his Clerk admitted and instituted the plenarty shall be tried by Certificate because no Induction the Patron had lost his presentation pro hac vice for the Clerk could not be removed and was put to his Writ of Right for the Advowson but at Common Law the King might remove the Incumbent of an Usurper by a Quare Impedit for nullum tempus occurrit Regi but could not present No removing him without Quare Impedit if inducted Then comes the Statute and excuses the Infant and Feme Covert that they should not be bound by an Usurper but after the Disability removed they may have the same Action the last Ancestor might have had Eadem Lex if Tenant in Tail in Dower by Courtesie or for Life suffer an Usurpation he in Reversion claiming by Descent has the same remedy So in case of Usurpation in time of Vacancy of a Bishop c. But the Statute revests not the Right but gives a possessory Action to recover the presentation thereof Where one usurped on an Infant who at Age Aliened the Mannor his Alienee could have no Action for the next Avoidance because the Advowson passed not nor had himself any Remedy after but where Tenant for years brought Quare Impedit and was barred yet it barred not the Right of him that had the Freehold Secondly it makes plenarty no Barr in Quare Impedit or Assise de darrein Presentment if brought within half a year after the Avoidance though not so soon ended Thirdly It gives Damages Infants c. by purchase are not within the first and the Issue of Tayl is within the Equity of the first Branch because Tayl made the same Parl. which divided the Estate and takes away his Writ of Right at Common Law the three points were not enquirable but now they are ex officio at the Common Law No Plaintiff recovers Damage nor the King now because not within the Statute which was made to help them that lost the presentment Si tempus semestr ' transivit which the King did not yet the Declaration for the King ever counts for Damages at the Common Law if the Defendant present pend ' the Writ his Estate was to be removed So if a Stranger usurp pend ' the Writ and in all cases he that came in pending the Writ if not by good Title though by presentment from the King and since the Statute no Incumbent made before the Writ shall be removed by it unless named in it and in the case at Bar resolved the Incumbent that came in pendente lite is to be removed viz. the Writ is to be to the Bishop to admit the Plaintiffs Clerk and he cannot return plenarty and then the parties shall try it between themselves viz. if he that came in pend ' lite had good title he shall stay else be removed but in Cro. rep of this case 2 part 33. 't is held the Bishop ought to return plenarty and thereon Sci ' Fa ' go against the Incumbent and therein to shew his Right Boswell's Case but 1 Cro. 423. Writ to the Bishop for the Plaintiff and to remove the Incumbent inducted Co. 6. Rep. 49 50 51 52. If the Plaintiff be Nonsuit or discontinue 't is Peremptory and a Barr in another Quare Impedit First because the Defendant on Title is to have a Writ to the Bishop but if it be abated for false Latine or Insufficiency found by the Clark's Fault within six Months he shall have a Note so if the Plaintiff or Defendant be misnamed and the Plaintiff confess it for it may be the Clerk's Fault but if he take on him the Order of Knighthood 't is peremptory Sir Hugh Portman's Case Co. 7. rep 27. b. Quare impedit ad Medietat ' Ecclesiae good When there are two Patrons and two Parsons in one and the same Church yet it seems he may have it also ad Ecclesiam but when there is but one Parson though the Patronage be in two several hands it must be ad Ecclesiam and in a Writ of Right of Advowson When the Church is divided amongst Parceners the Writ of Right shall be ad Medietatem Advocationis but where two several Persons are to present two several Parsons to one Church each whereof is to have the half the Writ must be Advocationem Medietatis for the Advowson is entire but the possession several which make the Difference between the Quare impedit and the Writ of Right of Advowson Richard Smith's Case Co. 12. rep 136. vide Co. 5. rep 102. 1 Inst 17. b. 18. a. vide 33 H. 6. 11. 6. Quare Impedit The Defendant pleads that he is Persona Impersonata good without saying that he was so the day of the Writ purchas'd for it shall be intended to relate to the Writ and if he was not so at the time of the Plea 't is good and has made the Writ good Lady Chichesley against Thompson 1 Cro. 75. Assise de Darrein presentment in Wales The Jury fine the Church 80. l. value and Tempus semestre modo praeterit but say not how long since yet good and forty pounds Damages given the Court of Grand-sessions Writ to the Arch-bishop to admit c. and Quia Episcopus est pars doubted if they may but it seems now they may since the Court of Grand Sâ—ssions is one of the King's Courts but when they were in the Marches they could not Vrse against Epm ' St. David c. 1 Cro. 249. Quare Impedit The Defendant pleads that he was admitted instituted and inducted c. and the Plaintiff traverseth the Admission and Institution and for that was forced to reply and traverse the Induction alledged for that must be where 't is alledged because it alters the Tryal and makes it be per pais then it was moved after Verdict the Bishop was dead and that the Plaintiff might have his Judgment against the rest and so he had it Stevens against Facon 1 Cro. 276. Quare Impedit and counts that A. was seized and presented D. who died and he presented the Plaintiff the Defendant pleads that long before A. was seized Qu. Elizabeth was seized and presented him and he was admitted and instituted Plaintiff traversed that the Plaintiff was admitted c. upon the Queen's Presentment and Good without traversing the Queen's Seisin
Sir John Dryden c. against Yates c. 1 Cro. 423. The way to stop Strangers from Presentment Pendente brevi is to sue a Ne Admittas and then the Plaintiff may remove him by a Quare incumbravit else he is put to his Scir ' Fac ' and if the person present Pendente brevi he shall barr the Plaintiff in a Scir ' Fac ' per Popham and not denyed 2 Cro. 93. The King grants the Mannor the Church Appendant being then void the presentation passes not except by special Words Phane's Case 2 Cro. 198. One sued in the Deligates to avoid an Induction supposing the Institution void was prohibited for Induction being a temporal Act and tryable at Common Law is not avoided but by Quare Impedit but this Prohibition not to be granted having Hutton's Quare Impedit because of his own shewing it should abate it but he must make his Surmise in the Deligates without mentioning that Quare Impedit Hob. 15. Hutton's Case Prohibition to the Incumbent that pending the Quare Impedit felled Timber upon the Gleeb Hob. 36. Kent against Drury Where one brings a Quare Impedit and his Title arises merely by Usurpation he must not declare generally that he was seised in Fee for that was false and so he might be tryed by the Defendant's traverse of the Seisin but he must lay his Case as 't is that A. was seised and the Church voided and he presented and now the Church being void he presents again Hob. 103. Digby against Fitzherbert Quare Impedit against the Bishop of Exeter and A. and B. they plead that he has another Quare Impedit depending against the Bishop and A. and aver it to be the same Plaintiff the same Avoidance and Disturbance c. and demand Judgment The Plaintiff says that after the first Writ he presented C. to the Bishop and he refused which is the Disturbance whereupon he new declared the Defendant demurrs whereupon the Writ abates for he shall not have two Suits at once and here was a Disturbance laid in the first Action so the new Disturbance mends not the Plaintiff's Case so if he had new brought an Assise of Darein Presentment the Quare Impedit depending had been a Barr. St. Andrew against Epm ' Ebor. Hob. 184. Noy 18. 9 H. 6. 68. 73. 22. E. 3. 4. Hob. 137. E. Bedford against E. Exeter c. Dy. 93. a Hut 3. 4. Before the Stat. 25. E. 3. Stat. 3. Cap. 7. No Incumbent could counter-plead the Title of the Plaintiff because that was Title to the Patronage and with that he had nothing to do but to avoid the Patron 's Confession of the Action Counter-plea was given by that Stat. but as Amicus Cur ' he may shew false Latine in the Writ c. for that is no pleading and the general Issue every one might plead for thereupon the Plaintiff may pray a Writ to the Bishop p. 3. H. 7. pl. 1. ad ult ' Hob. 61. 62. Co. 7. Rep. 26. 2. If he that has one Benefice in Cure take another if it be not inducted the Patron may at his pleasure take the Church to be void or not void for 't is not within the Stat. 21. H. 8. till Induction Hob. 166. Winchcomb's Case Mo. pl. 45. In Quare Impedit where one of the Defendants pleads himself inducted at the King's presentment and after surmised that he was not Inducted and prayed a Writ from the King to the Bishop and because without Induction the Defendant could not plead and the King could not be made a Defendant therefore a Writ was made for the King with a special Entry in the Judgment that the Defendant was not inducted Hob. 193. Winchcomb against Dobson Presentment pend ' the Quare Impedit does not abate the Writ F. N. B. 35. b. but if the Church be full the day of the Writ brought it abates because 't is false which says quae vacat ' c. Hob. 194. Winchcomb against Pulliston Quare Impedit the Defendant and Ordinary agree in a plea of presentment by lapse the Plaintiff replies that he presented his Clerk and the Ordinary refused him and collated the other Defendant the Plaintiff demurrs for doubleness of the plea because he says he did not present which is an Affirmative against the Ordinary's Negative He says farther that the Ordinary refused and collated but the plea held good For he must lay a Refusal to make good the Disturbance and shewing the Collation is but Aggravation and Surplussage and the only material part of his Replication was that he had presented a Clerk Hob. 197 c. Brickhead against Archbishop of York Quare Impedit laying distress General the Ordinary and Defendant make Title by Collation for Lapse The Plaintiff replies shewing that he presented and the Ordinary refused 29 May whereas his Writ bore date the ninth of May Judgment must be against him for though the count was General yet the Replication applies it to a more particular Disturbance since his Writ brought So of his own shewing he had then no cause of Action and the Court must judge upon the whole Record Ibidem Quare Impedit the Ordinary pleads nothing but his ordinary plea as Ordinary he shall not be amercied making no Disturbance but the Plaintiff shall have Judgment against him pro falso Clamore but if the Ordinary cast an Essoin 't is a Disturbance Ibid. If the Patron bring a Quare Impedit before any Disturbance and after surcease his time per Hob. the Ordinary shall not be debarred of his Lapse Ibid. A. brought a Quare Impedit against B. pend ' the Writ a Stranger gets in C. his Clerk and then A. has a Writ and his Clerk admitted thereupon yet if C. have better Right he shall retain the Benefice Hob. 320. Dy. 364. ibid. 201. 2 Cro. 93. b. 6 rep 52. a. vide H. 21 H. 7. pl. 7. The Church is void A. and B. severally pretend Right present their Clerk the Ordinary refuses both A. brought Quare Impedit against the Ordinary and B. and his Clerk the six Months Incur The Ordinary collates by Lapse A. recovers he shall remove the Ordinary's Clerk Hob. 214. No Infants nor Woman's Release by the Statute Westm ' 2. 5. against Usurpations made against them during Infancy or Coverture but for such Advowsons as they have as Heirs and not as Purchasers or Successors of single Corporations are relievable within the Equity of this Statute an Heir out of the Ward as well as within and an Heir in Soccage upon a double Usurpation before he comes to the Age of 21 Years not if the Guardian surrender to him or Institute in ventre sa mere and the Purchaser may be within the Statute as if the King grant the Advowson and one usurps For he is in loco Haered ' and per Hob. an Heir of him in Remainder as well of him in Reversion vide 2 Inst 359. and so it is of Tenant in Tayl but
is to have Common And here no Land is to be recovered so certain enough Sir Anthony Cope agaiust Temple Yel 146 147. Replevin the Defendant avows Forty shillings Rent for two Acres held of him the Plaintiff replies that he holds them and twenty more of him by 12 s. absque hoc that he holds the two last by Twenty shillings and though objected the plea double traversing that the quantity of the Rent And also that he holds the two Acres only adjudged good because otherwise he could not avoid the false Avowry M. 8. H. 7. pl. 1. Replevin and Avowry for that A. was seized in Jure Ecclesiae and leased good without saying that he was Parson supplied by in Jure Ecclesiae but not in Quare Impedit the Plaintiff that so he is a Parson Imparson ' because till then in that cause he cannot plead in Bar. Rolls against Walters Noy 70. If Cattel or Goods be distrained for Rent or otherwise for Damages then the party whose Goods are fo distrained may make Replevin and must prosecute his Replevin as Plaintiff and the Defendant must avow the taking but if by chance the Plaintiff in Replevin become Non-suit or Judgment against him then shall the Defendant have a Retorn ' hend ' averiorum upon which the Plaintiff in Replevin may bring his Writ of Second Deliverance but if he become Non-suit again or Judgment against him then the Defendant shall have Retorn ' hend ' irrepledgeable and keep the Goods for ever If Live Cattel and Dead Things be Replevied by one Writ as they may the Live Beasts or Cattel must be named before the Dead as thus Quendam Equum suum Catella sua quae B. cepit If a Man distrain Beasts or Goods for his Rent and the Tenants tenders Amends before the Distress is taken The taking the Distress is tortious Mesme le Ley pur Damage fesant But tender after the Distress be taken and before the Impounding the Detainer and not the taking is tortious But tender after the impounding neither the taking nor detaining are tortious for the Tender comes too late In Replevin the Plaintiff is Non-suited and the Defendant had a Writ of Retorn ' hahend ' and enquiry de dampnis the Plaintiff brings Second Deliverance This is a Supersedeas to the Retorn ' hend ' but not to the Enquiry By the Common Law when the Goods or Chattels of any person are taken he may have a Writ out of the Chancery commanding the Sheriff to make Replevin of them and this Writ is Viscontiel and in the nature of a Justicies in which the Sheriff may hold plea to any Value and in all Cases but when the Defendant claims Property and when more than one Live Beast is taken then the Form of the Writ is quod replegiari faceret J. S. averia sua and when only one Beast is taken then the Form is quod replegiari faceret J. S. quendam Juvencum suum vel bovem suum c. And when many Dead Chattels are taken then the Writ shall be quod replegiari faceret Bona Catella sua and the Plaintiff must ascertain them in the Declaration But if but one Dead Chattel be taken then the Writ shall be quod replegiari facias J. S. quoddam Plaustrum cum furnitura c. By the Statute of Marlbridge cap. 21. the Sheriff upon Plaint made to him in Court or out of Court ought to make Replevin of the Goods or Chattels taken In Replevin the Sheriff ought to take two sorts of Pledges by the Common Law Pledges de prosequendo and by the Statute Pledges de Retorn ' habend ' Co. Com' 145. b. A Man who hath but only a special Property may bring a Replevin as when Goods are pledg'd to him or Beasts are taken by him to compost his Land and the Writ may be General or Special 41 E. 3. 18. b. 22 H. 7. 14 b. 11 H. 4. 17. If this Plea be before the Sheriff by Writ then it may be removed into the Kings Bench or Common Pleas by pone by the Plaintiff without Cause and by the Defendant with Cause mentioned in the Writ But if it be before the Sheriff by plaint then it may be removed by Recordare issuing out of Chancery by the Plaintiff without shewing cause and by the Defendant if he do shew cause in the said Writ A Replevin lies of such things whereof a man hath but a qualified Property as of things that are ferae naturae and are made tame so long as they have Animum revertendi le Case de Swans in Co. 7. rep So Replevin lies of a Leveret or of a Ferret 2 E 2. Fitz. tit Avowry 182. Also Quare cepit quoddam examen Apium c. Register Original fol. 81. In many cases this Action or Trespass lies at the Election of the Plaintiff but against the Lord Trespass lies not 7 H. 4. 28. b. 6 H. 7. 9. A Replevin lies against one de Averiis capt ' per ipsum simul cum alio Co. Ent. 600. 2 Inst 533. So it lies de averiis capt ' detent ' quousque c. de aliis averiis capt ' adhuc detent ' Rast-Entr 567. 572. And in this Case when the Plaintiff declares that the Defendant yet detains the Cattel and the Defendant appears and makes Default the Plaintiff shall recover all in Damages F. N. B. 69. b. Co. Ent. 610. When the Beasts are chased into another County after they are taken the party may have a Replevin in which of the Counties he pleaseth or in both Idem 65. 6. When the Cattel of several men are taken they shall not joyn in Replevin nor is it a Plea to say that the property is to the Plaintiff and another Co. Com. 145 b. In Replevin the Plaintiff ought to alledge a place certain where the Cattel c. were taken When the Plaintiff is Non-suited before Declaration and he sues Second Deliverance and is Non-suited also again before Declararation the Defendant shall have the Cattel irreplegiable without any Avowry c. Dyer 280. Scire Facias SCire Facias by the King to repeal a Patent the Defendant pleads a Plea whereon the Attorney General demurrs the Defendant joyns in Demurrer and pleads over part of a Statute and Informand ' Curiam Co. 8. rep 12. b. Scire Facias against an Administrator who pleads a special Plene administravit Replic ' quod devastavit and says not who devastavit issue quod praedictus J. S. non devastavit found for the Defendant the Plaintiff moved in Arrest c. 't is not said who devastavit so might be the Executor at Age but per nonnullos the Plaintiff shall not after Issue find a Fault in his own Replication Oxford against Rivet and 1 Cro. 135. Plaintiff after Verdict when no Advantage of his own ill Declaration 1 Cro. 56. 66. vide Co. 7. Rep. 4. 6. 5. rep 39. b. 8. rep 59. a. 1 Cr. 39. Scire Facias
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
Bustard against Collyer 3 Cro. 899. Trespass the Defendant prescribes for Estovers at all times except fawning times the Plaintiff made an ill Replication the Defendant demurrs though the Bar was ill the Defendant not shewing that at the time that he cut c. was not fawning time yet he having demurred on the Plaintiff's Replication the Court would not to the Bar but no Judgment of the Plaintiff's ill Replication Russel against Booker 2 Leon. 209. 210. Trespass for Battery the Defendant justifies Molliter manus imponendo in defence of the Possession of his House the Plaintiff replyes de Injuria sua absque c. Verdict for the Plaintiff and Judgment Replication good for the principal is the Battery Hall against Gerrard Latch 128. 3 Cr. 225. Laâ—ch 221. 273. Trespass the Defendant pleads the Plaintiff is a Recusant convict whom the Statute 3 Jac. 5. makes excom ' Judgment de billa because it wants Et hoc paratus c. per Recordum also the Conclusion is unapt for the Plea for the Plea is in Disability the Conclusion is barr but it seems the Conclusion is but form and used by general Demurrer And vide the form of several Conclusions Inde si Cur ' vult cognoscere 2. Al' person ' sit serra respond ' 3. Al' briefe Judgment ate ' Br. 4. Al' accon ' del briefe 5. In barr ' Com' apprest Bracton de excepc ' and differ Quando le ple al' br ' of perempt ' quando neme If the pleading to the Writ be tryable and tryed per pais is peremptory to the Defendant other if Demurrer upon respond ' but if the Plea be tryable by Certificate of the Ordinary 't is never peremptory and if the Plea to the Writ be to the Action of the Writ it seems peremptory so Plea to the Action of the Writ and Conclusion to the Writ peremptory if demurred one pleaded to the Action of Avowry he shall not resort to plead in Abatement after Imparlance one pleads Outlawry in the Plaintiff allowed Dr. Cudman against Grendon Vide 40 E. 3. 9 pl. Abatement Avowry and Conclusion the barr Latch 177 178 179. Co. 11. rep 52 a. and 1 Cro. 117. Trespass the Defendant justifies as Executor the Plaintiff says that the Defendant was annulled upon Appeal to the Court of Rome and so not Executor if the Conclusion good diverse of opinion semble as well as where one pleads a Divorse in the Spiritual Court and so not his Wife M. 2. R. 3. fo 22. pl. 51. In Trespass for Misprision the Defendant pleads that Robery had been done and that he being a Watch-man and the Plaintiff coming through the Town in the Night he stopped him to see what he was doubted if not double for he might stop him generally either under Suspition or particularly as a Night-Walker being a Watchman H. 4. H. 7. pl. 2. Trespass against two Defendants they Justifie Et hoc paratus ut Justific ' exceptionis taken because it should have been Et hoc parat ' sunt 1 Cro. 413. 414. Trespass for taking his Apprentice Plea that the Plaintiff discharged him not good for he cannot be Apprentice but by Indenture and then he cannot be discharged but by Deed no more than one Covenant to build me an House in Covenant to plead a Discharge of the Building unless he plead it by Deed 21 H. 6. 31 32. Trespass Defendant pleads a Lease at Will made to him by Vertue whereof he entred and was possessed and held good without shewing of what Estate he was possessed Idem in pleading a Feoffment c. For it may be doubtful in Law as if made by an Infant c. Therefore more safe to plead the Matter and to omit the Conclusion how he was seized and leave it to the Court 35 H. 6 63. b. Trespass the Defendant pleads that the Plaintiff had nothing but in Common with J. S. c. per Cur ' he ought to shew how Tenant in Common viz. the Feoffment c. if of a Joynt Tenancy personar c. but not after the Plaintiff stands not on it but says he was sole seized and some thinks the Law is he pleaded a Tenancy in Common of the adverse side but if he had pleaded on his own side then I agree I must shew how 3 H. 6 56. Trespass for Fishing in his several Fishings the Defendant pleads 't is not Freehold and by some the plea is good till the Plaintiff make a particular Title to the Fishing Idem in Case of Warren but per Yel and not denied but not so for Common because when one demands Common it must be intended in alieno solo But when one demands Fishing or Warren it may be intended in his own Soyl And so for the Defendant to plead un ' Fr ' Tent ' a good plea prima Facie till the other makes a Title but per Fortescue with a Traverse of Fishing c. 't is good else not no Resolution vide Title Forrest per tout And Title Fishing per tout plus de cest ' matter and vide 21 H. 6. 21 b. and the Plaintiff makes Title 18 H. 6. 29 30. Trespass Quare lib ' Warr ' fregit et Cuniculos cepit the Defendant pleads that the Plaintiff was seized and let to A. he by Command of A. took the Conyes Judgment le sans Title Mre ' and after waves that and pleads ut auter Judgment si Acco ' per Danby on plea because the Warren passed not by the Lease of the Land and one may have Warren in his own Freehold Note he may plead Title under the Plaintiff himself and Note the General Issue and Note after he pleads the Freehold in a Stranger who let ut supra and that he by Command of A. c. absque hoc pt ' the Plaintiff has any Warren there Jenny that is doubt the Freehold in a Stranger and traverse of the Warren and thereon he Demurrs L. 5 E. 4 54. Trespass for cutting Trees Defendant makes Title to the Lord in Right of his Ward and that he cut prout sibi bene licuit Danby Chief Justice and the Conclusion ill For it appears waste and unlawful Marle mal Opinion ut mihi videtur 't is Lawful quoad the Plaintiff and good For before the Statute of Waste Lessor or Ward had no Remedy against the Lessee or Guardian by Trespass and now 't is punishable only by Waste not in Trespass but it may be an Estoppel in Waste therefore better to plead he cut them for a Repair prout sibi bene licuit L. 5 E. 4 64 89. b. Trespass for taking beating and impounding his Cow Defendant quoad ven ' vi armis and pleads Not Guilty and quoad the taking and impounding justifies for a Distress ill not answering the Beating Copeley against Piercy Trin. 19 Car. 6. B. R. Trespass for taking Cattel Defendant justifies Plaintiff replies and avoided it hoc c. unde petit Judicium si
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
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
423. per Curiam It being moved in Arrest of Judgment and the plaintiff never had Judgment in it Mich. 1650 inter Winter and Barnard â—djudged In Action upon the Case for words the plaintiff Thomas Bâ—owne declares that one A. G. had a Bastard Son begotten of her Body then living the Defendant knowing it of his Malice to defame him and to bring him in danger of the Statute of 18 Eliz. having Speech of the said Bastard and of the plaintiff said of the Plaintiff that Brown is the reputed Father of that Child whereby he was greatly prejudicâ—d in bargaining and selling and put to great Expences for the clearing of himself in hac parte the Action lyes not for these words upon this Declaration because it is not said by the plaintiff that he was to be punished by the said Statute for he was not to have corporal punishment or to be imprisoned unless the Bastard be some charge to the Parish Hill 11. Car. B. R. inter Salter and Brown Adjudged in Writ of Error In an Action upon the Case for scandalous words if the plaintiff declare that the Defendant said these words of the plaintiff being a Feme sole viz. This is that Whore that my man A. got a Bastard by and withal spent all my money And being asked by an other person standing by whether he were not mistaken for the Maid hath been but little above a year in Town the defendant replyed The Quean hath been too long to my Cost No Action lyes for these words for to say that a Woman had a Bastard is no cause of Action Trin. 1651. Inter Owen and Jevan Adjudged in Arrest of Judgment If a man saith of another He was the true Patron of the Advowsâ—n of S. but he hath lost that Patronage and Presentation by being a Symonist and a Recusant both which I will prove him to be yet no Action lyes for by the Symony only comes the loss of the Presentation pro hac vice by the Temporal Law and the Recusancy only toucheth him in Religion sor it doth not appear that he intends him to be a Recusant according to the Statute Trin. 16. Jac. B. R. Sir John Tasborough's Case adjudged in Arrest of Judgment Iâ— a man saith of an other He hath forsworn himself no Action lyes for these words Pasch 40. Eliz. B. R. To say to a man Thou hast forsworn thy self Leak Court no Action lyes without shewing what manner of Court it is because that it cannot be intended nor known whether it be such a Court as may compel one to swear or not Mich 8. Jac. B. R. Inter Law and Bennet per Curiam If a man saith of an other He did forswear me ineuendo the plaintiff 46 s. worth of Tithes in Canterbury Court no Action lyes for these words for there are divers Courts in Canterbury and it is not shewn in what Court nor before what Judge nor that the Judge had Authority to hold Plea of Tithes Pasch 43. Eliz. B. R. Inter Bray and Partridge adjudged If a man say of J. S. I had not been cast in that Action if it had not been for the Oath of J. S. and he was forsworn and I marvel that B. would marry his Daughter to such a forsworn man In an Action upon the case for these words if the Plaintiff aver that there was an Issue between him and A. and that Ad Curiam Baronis de Geton Soca Domini Regis tenta apud S. in Comitatu praedicto He himself was produced as a Witness and sworn about the matter of the Issue and afterwards the defendant having Communication of this Issue spoke the words aforesaid No Action lyes upon this Declaration because that it is not alledged that S. is within the Soke of Geton and so peradventure the Court was held out of their Jurisdiction and also because that it is not alledged that he was sworn about a matter pertinent to the Issue Miâ—h 11. Jac. B. R. Inter Crawford and Brice adjudged If a man saith of an other he is a forsworn Knave for he swore that the wood was worth 40 s. where it was dear of 13 s. 4 d. No Action lyes for those words though he aver that there was Communication between them of the matter at the Assises where the Plaintiff was sworn as a Witness because that he did not say directly that the Wood was not worth 40 s. but that it was dear of 13 s. 4 d. Also it doth not appear that the Defendant intended it sworn at the Assises Hill 13. Jac. B. R. Inter Stephen Apthorpe and Cockerel adjudged If a man saith to an other Thou wert forsworn in B Court which is but a Court-Baron no Action lyes because it is no Court of Record Pasch 8. Jac. in Scaccario Inter Perie and Rock agreed per Curiam If a man saith to another Thou art forsworn and didst take a false Oath at the Assises at Hereford against J. S. No Action lyes for these words without an Averment that it was at a Tryal or before the Court or Jury for it might be at the Assises in a private house or other place Pasch 15. Car. B. R. Inter Prichard and Smith Adjudged per Curiam If a man saith to an other Thou deservest to be hanged no Action lyes for these Words because it only expresseth his Opinion and Judgment of him Trin. 4. Jac. Inter Hake and Molton adjudged If a man saith to J. S. Thou art a scurvey bad Fellow and hast done that thou deservest to be hanged No Action lyes Mich. 11. Car. B. R. inter Fisher and Atkinson adjudged per Cur. in arrest of Judgment after Verdict for the plaintiff If a man saith to another You are no true Subject to the King no Action lyes for these words because they are too general for it might be he had not paid his Taxes Mich. 5. Jac. B. R. inter Smith and Turner adjudged If a man saith to another Thou art a Rogue and an arrant Rogue and I will prove thee to be a Rogue no Action lyes Mich. 41. 42. Eliz. B. R. adjudged FINIS THE TABLE Abatement WHERE the Death of one of the Parties after Summons and Severans shall abate the Writ and where not page 1 2. What shall be a good Plea to a Writ what not p. 2 3. In what Cases the Writ shall abate de facto p. 4. What Pleas shall abate the Writ in the whole and what in part p. 5 6 7 8 9 What Pleas in Abatement go only to the person and what to the Writ or Aâ—tion p. 9 10. How matters of Record shall be pleaded in Abatement p. 12. 13. Who shall be admitted to plead in Abatement who not p. 14. Where the Writ abates in part by the Act of the Court and where by the Parties Confession p. 15 16. That a Defendant or Tenant cannot abate a Writ by his own Act but the Act of the Plaintiff or Demandant Act
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
Plea in Abatement of the Writ before the default saved 40 E. 3. 2. In a Writ of Aiel Besaiel and Cosinage one shall not plead to the points of the Writ after he hath pleaded in Barr but it is otherwise in an Assise of Mortd ' ancestor as it seems 40 E. 3. 19. Where the Writ abates in part by the Act of the Court and where it is abated by the Parties own Confession As if an Executor brings an Action de clauso fracto de bonis asportatis in this case the Writ shall abate for part and as to the rest it shall be effectual But where the Writ is abated by the Plaintiff it is reason although that it be of his own Conusans that if it abate that the whole shall abate In Assise against two the one pleads in Barr as to a moiety the other pleads jointenancy with a third person the Plaintiff may choose him who pleads in Barr for his Tenant and confess that his writ is false for the other part In Assise against two the one is Tenant the other is Disseisor which Disseisor makes default the other accepts his Companion Tenant with him and pleads in Barr the Plaintiff dissables the Tenant and doth not answer to the Barr for in this case he hath accepted a Tenant which is not Tenant As if Praecipe quòd reddat be brought by two where one is a Bastard or by two persons as Heirs where one of them in truth is not Heir in these cases the whole Writ shallabate because that that is meerly false whichis supposed to be true Two Executors bring an Action of Trespass of Goods carried away in the life-time of the Testator and also of Trees cut down here the Writ is good notwithstanding that the Executors cannot have the Writ for the Trees cut down and if they pray to have an other Writ for the Trees cut down then the whole Writ shall abate quod nota A Defendant or Tenant cannot abate a Writ by his Act but the Act of the Plaintiff or Demandant and the Act of God and also the Act of an Estranger may abate the Writ In a writ of Ravishment de gard by the death of the Infant the writ shall not abate Tenant by Statute-Merchant is disseised the disseisor lets for life the Tenant by the Statute brings an Assise the Lessee dyes the writ shall not abate because he shall recover all in damages But it is otherwise where he is to recover the Freehold because in that case he cannot have the effect of his Judgment A Writ of Admesurement of Common is brought by one against three depending the writ the Plaintiff and one of the Defendants exchange their Lands to which the common is appendant if the writ shall abate it seems not because that notwithstanding the exchange the Plaintiff may have the effect of his Suit which is that the Common may be admesured and at all times pending the writ the Plaintiff and the Defendant who made the exchange were Tenants and the Writ of Admesurement granted between them by reason of their Tenure for there was no mean-time between the parting from the Free-hold in one Acre and the taking the Free-hold in the other Acre and that very instant that the Freehold of the one Acre was parted from the other was vested so that there was cause of Admesurement between them as well after the exchange as there was before A Writ of Admesurement is brought against three one hath nothing in the Common so that the Writ ought to abate because that non-tenure is a good Plea in this Action yet if he that hath nothing before any exception be taken to the Writ purchaseth an Acre of Land by which he ought to have Common in the same Land the Writ is made good As in Praecipe quod reddat brought against him that hath nothing and pending the Writ he purchaseth the same Lands the writ is good So it seems the writ is good notwithstanding no time between the exchange ergo à forciori when there is no mean instant But by the better opinion it seems that the writ shall abate notwithstanding that the party may have the effect of his Suit for that ground is not obsolutely general as Praecipe quòd reddat is brought against me and I have nothing in the Land and pending the writ the Land descends the writ shall abate I bring an Action of wast by reason of the reversion or a Quid juris clamat depending the writ I alien the same Reversion and after purchase the Reversion again yet the writ is abated If a writ of Partition or Nuper obiit be brought and pending the writ the demandant aliens and retakes the Estate to him yet the writ shall abate And yet in all these cases the Plaintiff may have the effect of his Suit But that which causeth the writ to abate is the Act of the Plaintiff for the writ depending he hath aliened that which gives him his cause of Action and therefore the writ shall abate as in the cases aforesaid for as to the Plaintaiff's part his own Act shall abate the writ and not the Act of God nor of the Law except in some cases and as for the Defendants or the Tenants part his own Act shall not abate the writ but the Act of God or of the Law may for if the Tenant aliens depending the writ yet the writ shall not abate but the Demandant shall recover and he that comes in by the Tenant shall be bound by that Recovery And if an exchange had been made by the Plaintiff with a stranger who had nothing in the Common the writ should have been abated without question So for that Acr◠which he had when the writ was brought he cannot maintain his writ for put the case that the day the writ was purchas'd the Plaintiff had not any Land by which he ought to have common and afterwards pending the writ he purchas'd an Acre of Land to which the Common is appendant this shall not make the writ good which was nought from the beginning When the writ is made abatable by the Act of the Plaintiff or Demandant Videlicet by his aliening of that thing which gives to him the cause of Action if he pending the writ doth purchase the same again it shall not revive the writ nor make it good WHere the Grant shall be good ab initio although it was incertainat the commencement Note If a Parson will Grant to me all the Wooll which he shall have for Tithe the next year to come this Grant is good and yet the quantity of the Wool is incertain at the time of the Grant But because it may be reduced to a certainty after the Grant it was held good enough 21 H. 6. 43. And so if a man will Grant to me the Perquisits of his Court this incertain Grant is good causâ quâ suprà 21 H. 6. 43. The same Law is where a Feoffment is
So it is of a Lease for years made by a Feme sole reserving Rent and She takes Husband So of an Obligation made to a Feme sole and she takes Husband for otherwise the words of the writ are false But if a Feme sole make a Bailiff of her Mannor of Dale and takes Husband of all the Rent received by the Bailiff after Coverture the Husband shall have an Action of Account in his own name for there the words of the writ are true And when an Action personal is given to the Husband and also to his Wife during the Coverture it is at the Liberty of the Husband to bring the Action in both their names or in his own name if it be so that the Wife may have advantage of it When a thing is given to Husband and Wife by matter of Record then he ought to joyn with her But there is a Diversity when it is of the part of the Plaintiff and when it is on the Defendants part as a Feme sole disseiseth me and takes Husband the Assise lyes against both supposing that they both disseised me So it is of Trespass Note It is at the Election of the Plaintiff to bring his Action of Debt against the Heir or against the Executors A Man marrieth a Wife That hath a Rent Charge out of the Lands of another Rent is arrear before and after marriage The Plaintiff shall recover by Action of Debt against the Grantor or his Heirs Action of Covenant shall not go to the Heir but to the Executors As Action of Debt upon a Bond or a Lease for years the Term goes to the Executors and not the Heir or any thing where damages shall be only recovered for that every Heir may not have Chattels descend and so not this Action A man seized of a House and Goods makes a Lease thereof and after enters and enfeoffs I. S. the Lessee reenters Rent is in arrear I. S. brings his Action of Debt and hath Judgment because the Rent issues out of the House and not out of the goods A man was bound in a Bill Me teneri firmiter obligari in viginti libris solvendum in watches It was questioned whether the Action should be brought for the Watches or the Money But Resolved for the Money Otherwise if the number of Watches had been in the Bill For then it had been for so many Watches to the Value of 20 l. If a man had been indebted to me in a single contract and dyed I could have had no remedy at the Common-Law against his Executors For he might have waged his Law in his Life-time but his Executors could not But now I may have an Action upon the Case against his Executors Assault and Battery and Ejectment will lye both in one Declaration Where two Men are beaten together yet they ought to have several Actions because the Trespass is personal but otherwise it is in real trespasses If you bring your Action for live Cattle it must be Cepit abduxit But if it be dead Goods or Chattels then you must say cepit et asportavit so likewise you say for live Cattle pretii for dead things ad valentiam Divers persons may have an Action of Trespass joyntly for Goods taken or the like But of Battery or such personal Trespass the Action ought to be single unless it be a man and wife And if the man and wife bring an Action of Battery or for Goods taken The writ shall say the Goods of the Husband only For the Wife cannot have property in the Goods during the Coverture An Action lyes against an Executor upon a promise of the Testators upon consideration of forbearing to prosecute but altered since by the late Act to prevent Frauds and Perjuries If there be Three Executors named in the Testament and Two of them refuse the Third may prove the Will alone And yet the other Two may meddle with the Goods when they will and either of them when they will And if an Action be brought it ought to be in all their names notwithstanding such refusal Executors of Executors shall not have an Action of Debt or other Action for any thing due to the first Testator For that they are not Executors to the first Testator or privies to his Will but were Strangers by the Course of the Common-Law But by the Statute of 25 E. 3. Cap. 5. they may Sue and be Sued and shall answer for whatsoever comes to their hands of the first Testator Sr. O. C. seized of an House in Fee and possessed of an other House as Administrator for years Le ts them both for 10 years to the Lady S. who Covenants to keep them in Repair and so Leave them at the end of the Term. Afterwards Sr. O. grants the Reversion of both Houses by several Indentures to I. P. The Lease made to the Lady S. expires and the Houses are left Ruinous Whereupon I. P. brings his Action Nicholls for the Defendant said that the Plaintiff ought to have brought two Writs of Covenant for that the Houses are several and if the Case had been that the Lessor had Covenanted to repair them and had dyed yet the Lessee should have had one Writ against the Heir aad an other Writ against the Executor and when an Action is once severed it can never be joyned again and when Sr. O. hath granted the House of which he was seised in Fee by Deed to P. now the Action is severed and Sr. O. shall have an Action of Covenant for one House and P. for the other And for these Reasons he held the Action not to be well brought Doderidge è contra And first he agreed with the other that two Actions upon this Covenant are maintainable and that if Sr. O. had lett his House the Lessee shall have one Action upon this Covenant and the Lessor another But yet he said this Action will well lye for the Law is excellent in this Point for when the Ground upon which the Action is founded in one notwithstanding the things are several yet all shall be comprised in one Action for frustra fiunt per plura quae fieri possunt per pauciora and with this agrees 14 E. 3. If a man grant a Rent out of his Land to one and sells the same Land and afterwards the vendee grants another Rent-charge out of the same Land to the same person and he is disseised He shall have one Assise for both the Rents So if one distreyn for two Rents and the Tenant rescuos them He shall have but one Writ of Rescous 3 H. 6. 17. 13 H. 7. 12. b. There exception was taken because it supposed a Chasing in two Parks the which ought to have several Punishments Viz. for either Park Imprisonment for 3 years as it is given by the Statute W. 1. and because he joyns the chasing in two Parks together it is not good For a man cannot have a Writ of Ravishment de
where not Further if the Award be that he shall go to Pauls with an Estranger this is void and vet it is possible but peradventure the Stranger will not go with him Note if the Award be that one of the parties shall deliver to the other the Goods that is in the house of I. S. this is void and yet it is not impossible but because that he might do wrong to I. S. to enter into his house and to convey his Goods from thence But if the Property of the Goods be in the party that is to perform the Arbitrement peradventure it may be otherwise forasmuch as his Entry is lawful Audita Quaerela A Statute is Acknowledged before the Major of Westminster and Recordor of London according to the Statute The Cognizor being within the age of one and twenty viz. 20 years and upwards And after his full age to the 23 d he brings his Audita Quaerela upon this matter and Judgment that he take nothing by the Writ because it could not then be tryed by inspection whether he were within age or not And the form of the Writ in the Registors is to alleadge that he still is within age Audita Quaerela lyes upon Nihil facias but not upon Scâ—re facias 21 E. 3. For vigilantibus et don dormientibus subvenient Leges per Hutton Mich. 11 Jacobi in C. B. The Executor of the Conusee releaseth to the Conusor in a Statute Merchant and afterwards dyes and one takes Administration of the Goods of the Conusee not Administred and hath Execution of the Statute and against him the Conusor brings an Audita Quaerela Trin. 28 Eliz. rotulo 2136 in C. B. Avowry vide Replevin AVowry for an Amerciament in a Court Baron quia presentatum fuit that he was Summoned and came not and alleadges in fact that he was resident c. as he must c. for when t is only presentatum c. and not alledged in fact 't is ill Mo. Pl. 221. In Avowry it was set forth that a Dean and Chapter were seised in Jure Ecclesie and not said seized in Fee and held ill for they might be seized per auter vie and their Title ought to be certainly set forth and this is but that they made a Lease for 99 years per dodrige if it had been that they made a Lease for 200 years it had implyed a Feoffment in Fee Pop. 163. Latch 121. Avowry Avowry for damage feasant and shews a Lease from I. S. seized in Fee the Plaintiff says I. S. was seized in Tayl and conceives the Estate to himself as Heir the Avowal seizes the Land rendring Rent and that he had accepted it Qu. If it be not a departure 1 Jnst 304. It seems a fortifying of the Avowry and so not Sti. 41. Taylors Case Yelv. 134. Wood versus Haukshind i. Cro. 156. 2 Cro. 121. 3 Cro. 404 Dy. 956. 1 Jnst 304 Hob. 271 Dy. 103. 253 b. Yelv. 96 Leon. 32. 156. Avowry on a New Grant of a new Rent-Charge in Fee the Plaintiff pleads that nothing passes by the Deed 't is an ill Plea he should have said that he did not grant by the Deed for a thing not in Esse could not pass though it was raised by the Deed Stewards Case 2 Leond. 13. Avowry by an Executor for Rent reserved by her and her Husband upon a Lease for years derived out of a Lease Exception taken because not shewed when the Husband dyed so it appeared not due in his time but because all belongs to her one way or other Wellwood in Newman Latch 121 Pop. 163. Costs to the Avowant upon 7 H. 8. c. 4 vide Common et Commoners Sect 4. Costs given to the Avowant for Damage-Fesant by 21 H. 8. c. 19. Cro. 1. James vers Tutneg 532. Replevin against 3 the one Avowes and the other 2 makes Conusance and Judgment against the Plaintiff but reversed because that those two did not make Conusance as Bailiffs to another Yelv. Owen vers Williams 108. The Lord hath still his choice to avow as at the Common-Law but if he will take the Benefit of the Statute then the Privity on both sides is removed and the Tenant shall Plead any discharge though he be a meer Stranger for the Charge of the Land is only in question though in that Statute 21 H. 8. there be no literal Provision so to be Hob. Brown vers Goldsmith 108. Avowry for 5 l. and 80 l. nomine poenae no demand of the Rent was alledged which made it unsufficient for the penalty but Retorne adjudged to him for they appeared to the Court to be several Hob. 133 Howel vers Samback If the Donee Alien the Donor cannot Avow upon the Alienee Keilway 130. b. Prescription that if one be chosen Constable at the Leet he must serve himself or find a sufficient man to do it and the Avowant saies that the Plaintiff was chosen and did not find a sufficient man to serve upon which it was demurred and Adjudged That the Avowry was ill Escot vers Stokes 14 Car 2. in B. One who is a Stranger to the Avowry shall not Plead any Plea but hors de son Fee or some other which is Tantamount As Lord and Tenant the Tenant makes a Lease the Termor shall plead no Plea but hors de son Fee because that he is a Stranger to the Avowry and he cannot have a Writ of Mesne because it is a Maxime Where a man cannot be helped by way of Action he shall be aided by way of Reversion He that is a Stranger to the Avowry cannot disclaim for a man cannot disclaim in auter droit An Abbot cannot disclaim nor Tenant in Tail Mich. 9 E. 4. fo 34. Hill 8 H. 5. Disclaimer 11. 26. If a man hath common by Especialty as in Land held of me the Rent is not arrear if I take the Beasts of the Commoner I do him wrong and he shall recover damages for he may Plead rien arrere although that he be a Stranger to the Avowry If the Tenant be in arrearages with his Lord and the Tenant makes a Feoffment in Fee which was notice to the Lord in this case the Lord may choose whether he will take him for his Tenant or not if he will not tender him his arrearages and the reason is if he will accept him for his Tenant generally he shall never be received to avow for the arrearages afterwards But if the Tenant dye so that the Tenancy discends to his Son or that the Tenancy is recover'd or that the Tenant hath forjudg'd the Mesne so that he is become Tenant to the Lord Paramount in all these Cases he shall accept them for his Tenants and make Avowry upon them for all the arrearages and the reason is because they are become Tenants to him against his Will As to Avowries 5 things are to be known 1. AVowry upon my very Tenant where the Lord hath the Rent in Fee simple and the
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
was the Opinion of Twisden in the King's-Bench H. 22 23. Car. 2. That if a Forraign plea which is not local be pleaded the Plaintiff may demurr upon it but if it be local he cannot demurr upon it but then the plea must be sworn Debt on a Bond to account he pleads he accounted Plaintiff Assigns breach in 30 l. received not accounted for Defendant rejoynes and saies Robbed of it and gave notice Et hoc paratus c. good and not Et hoc pet it c. for now he leaves the other to traverse the Robbery though it makes a negative and affirmative Vere versus Smith P. 23. Car. 2 B. R. Cook versus Whorewood Debt on a Bond to perform Covenants to enjoy such Land against A. and B. Defendant pleads Covenants performed Plaintiff replyes and sayes A. and B. habentes jus virtute tituli eis inde fect ' ante Burg. predicta ' entred the Defendant demurrs because the breach Assigned too general but per Hall good enough he being a Stranger Twisden doubted Proctor versus Newton Trin. 23. Car. 2. B. R. Rot. 826 Debt on a Bond to save harmless from payment of Legacies and Assigns breach that A. sued in Chacery for a Legacy first not shewing were the Chancery was Secondly saying he sued for a Legacy and saies not in fact a Legacy was given Dainty versus Faire Mich. 10. Jac. B. R. Debt upon an Obligation dated at Hamburgh was brought in London and good for Hamburgh in that sence shall be taken for a place as Antwerp Tavern in London not for the Town of Hamburgh in Germany and it was brought in the Detinet only and yet good because of Forraign Coyne But naught if for English money A man may bring an Action of Debt upon a Statute-Merchant but not on a Statute-Staple Debt against a Prisoner for Debt or for an Attorney for Fees no Wager of Law lyes But a Prisoner for Lodging and Dyet may wage his Law It lyes not for Rent it lyes upon a simple contract if it be brought in Debt But if it brought in Case the Defendant cannot wage his Law A man brings an Action of Debt against two and hath Judgment and two Precipe's against them and Arrests one by Fieri facias and the other by Capias ad satisfaciendum it is vicious per totam Curiam But he may Arrest one by one Capias and the other by another Capias and if one of them satisfies the Judgment the others Body is free and with this agrees 36 H. 6. Hillary's Case and 4 E. 4 it is said that the Plaintiff shall have but unicam executionem i. e. unicam satisfactionem Mich 11 Jacobi in Communi Banco An Action of Debt ought to be brought in the Debet et Detinet against an Heir but against Executors only in the Detinet per Coke Lord Chief Justice ib. A man brings a Writ of Debt upon a Deed and declares de octinginta Libra the Defendant prays oyer of the Deed and hath it and it was octogesima Libra and good per totam Curiam and with this agrees 9 H. 6. et Pasch 12 Jacobi where yginta for viginti was adjudged good Mich. 13 Jacobi in C. B. Detinue IN Detinue of a Box of Writings the Defendant pleads that A. B. and C. have each of them severally brought their Writ of Detinue against him and brought the Writings into Court ready to deliver to whom the Court shall award they shall interplead and the interpleader shall be on the eldest Original viz. A. shall interplead with the Plaintiff to Barr his Title and B. shall plead against them all But vide if there be variance of the Writings c. in the Declaration when no interpleader shall be P. 4. E. 4. Pl. 11. 11. E 4. 11. a. 3 H. 6. 20. a. 32 H. 6. 25. b. 25 H. 6. 20. a. Trin. E. 4. Pl. 2. Detinue and counts of a purchase of an Annuity and the deed the Defendant pleads non Detinet Jury find the sale c. but it is not agreed that the Defendant should detayne the Deed till the money payd which is not before the plea but on the general Issue he ought not to have given that in Evidence but should have pleaded it for upon the general Issue that which would make a special Barr cannot be given in Evidence or if found by the Jury is it material vide Cest Case title Averment 22 H. 6. 37. Detinue of Charters and Counts of a writing Cont ' that I. S. infeoffed c. And though he said but in facto a Deed whereby I. S. infeoffed c. but Cont ' that c. And so for ought appears no Livery might be yet per curiam well for 't is a deed though nothing passed and the Action lyed But Princ. it may work by Confirmation 39 H. 6. 37. b. In Detinue after Verdict 't was moved in Arrest of Judgment that Sattago was not good but Sartago and igneum ferrum anglice a firegrate improper yet the Court adjudged the Declaration good enough Smith versus Warder 13 Car. 2. in B. R. Of Disclaimers and Discontinuances of Actions ONe brought an Action of Covenant and had Judgment and a Writ of Enquiry of damages and afterwards it was discontinued by Rule of Court Trin. 10 Jac. in communi Banco If a man brings an Action of Trespass in 3 Towns and mentions but 2 Towns where the Trespass was committed the whole is discontinued 16 E. 4. 11. So 9 E. 4. 51. A man brought an Action of Debt and demanded by his Writ 10 l. 6 s. 8 d. and his Declaration was but of 10 l. and his Writ did abate An Action of Trespass was brought in the Court of Common-Pleas oâ— several things one of which was discontinued and by Warberton Justice the whole Action was thereby discontinued adjudged in Sir Fran Pawmes Case If two are bound jointly and severally and an Action of Debt is brought against them both and it was discontinued against one of them it shall abate against both 7 H. 4. Fitzh Tit. Breif 279. 5 E. 4. 107. But by Hobart Chief Justice a man may put more in the Writ than in the Declaration but not more in the Declaration than in the Writ Hill 12. Ja. Pl. 4 in C. B. In Audita quaerela scire facias or Attaint by 2 the Nonsuit of one shall not be Nonsuit of both and his Release shall only Barr himself and the reason is because they are compell'd by the Law to joyn in the Action and the cause of Action accrues not by their deed but by Act in Law and for that the Law is favourable to them So that if one will not sue the other may sue by himself But if a debt be due to two by reason of Contract or by Obligation or two Jointenants have cause to have an Action of Trespass in this case the Nonsuit of the one or the Release of one shall Barr the other because it
two persons having several Interests in Lands acknowledg the note of a Fine before a Judg and then one of them dyes The Conusee may for all that proceed with his Fine against the other alone for the death of the other is no impediment for the Conusans of every one is against himself and shall work for so much as he can pass A man and his Wife acknowledged a note of a Fine before Commissioners the 26 th of March by Dedimus potestatem and the wife dyed 27 th of the same month and the next day being the 28 th Composition was made in the Alâ—enation-Office upon a Writ of Covenant Retornable in Hillary Term before and the Kings Silver was entred as of the same Hillary Term and so the Fine was past and ingrossed And in Easter Term the Heir of the Wife moves against the Fine But upon debate it was agreed the Fine should stand Tenant in Tail Levies a Fine with Proclamations and 5 years pass in his Life-time Yet this shall not Barr his Issue A man of full age and his Wife being but 19 Levy a the Fine of Inheritance of the Wife whereby an Estate is conveyed to the Husband and Wife in Tail and the Remainder to the right Heirs of the wife and many exceptions taken against the proceedings by the Heir to the Wifes inheritance viz. I. S. as that the said Feme was not of full age at the time of the Fine Levied and other undue means committed in getting out the Son Yet by the whole Court the Fine was held good Law for Facta valent multa que fieri prohibentur If there be Tenant for Life the Remander in Fee to an Infant and they both Levy a Fine and afterwards as to the Infant the Fine is Reversed yet the Conusee shall have the Land for the Life of the Tenant for each may pass and give what he lawfully may If there be two Jointenants and one of them suffer a Recovery declaring the uses of the whole this shall bind but only a Moiety unless the consent of the other Jointenant can be proved Heir IF an Heir be sued upon a Bond and Lands are proved to descend unto him from his Ancestor you must have a special Writ to enquire what those lands are worth to be delivered to the Plaintiff at a reasonable extent and price and if the Heir confess the Action and shew what Lands come to him by descent Then his Body and all other his Lands and Goods and Chattels are free from that Execution but if he deny the Action and plead Riens per descent or it go by default against him then Execution shall be against Body Goods or other Lands And the Declaration shall be in the Debet and Detinet as though it were his proper Debt Outlawries and Outlaws OVtlawry was pleaded in Barr and day given before when the Defendant reversed it the Defendant shall not be condemned for Failer of Record but Respondouster Green against Gascogne vide Title failer of Record Yel 36. Outlawry in the Kings Bench reversed by Error in the same Court but that is for Error in Fact not in Law as if no Outlawry lay in the Case and if Process of Outlawry lie in an Action upon the Case for turning a Water-Course vide P. 10. H. 7. pl. 15. Dy. 195. b. 196. Original in Debt called the Defendant Nuper de Lond. Exig called him de Lond. is erroneous for it must pursue the Original without Variance and the Original was against Lancelot the Exigent was against Lancelot ill 3 Cro. 49. vid. 50 95. 104. 116. 172. Error of a Judgment in Debt and Outlaw'd 2. on it against 2. where the Sheriff return'd quod non habent bona out catalla quod summon ' potuer it should have been per quod c. 2. it should be nec eorum aliquis het ' 3. the Original is against Lancelot A. and the Exigent is against Lancelot A. 4. 't is said in Hastings and it should be in Hustingis de Com. plac revocetur Lancelot vers ' Jones 3. Cro. 50. An Outlawry was reversed because it was against Lewellin with a single l and now the mean Process against Llewellin with a double Ll and it was against two and returned quod non sunt inventi and not nec eorum aliquis Llewellin against Watkins vide M. 2. R. 3 4 13. pl. 16. 3 Cro. 85. 104. 49. 50. 116. 198. 240. 248. 205. M. 21. H. 7. pl. 37. Exigent names no place where the Sheriff is to have the Body and that adjudged Error to reverse the Outlawry For the Sheriff cannot tell in what County to carry him Cesar against Stone 3 Cro. 104. Outlawry reversed because the Party was Indicted in Com. Somerset and supposed to be of London and the Capias awarded to the Sheriff of Somerset where it ought to go to the County where he lives Rorset's Case 3 Cro. 179. vid. Dy. 295. b. vid. M. 1 E. 4. pl. 2. One Outlawed of Felony assigned his Term and then reversed the Outlawry the Grantee shall maintain Trespass for the Profits taken in the mean time between the Assignment and the Reversal of the Outlawry For though it was then the King 's yet it is now as if no Outlawry had been at all Ognell's Case 3 Cro. 270. vide 218. Accord Outlawry is not reversed but by pleading without Writ of Error per tot Cur. though there be apparent Faults in it 3 Cro. 274. vide Co. 1. Inst 259. b. One is Outlawed and has his Term sold and then reversed the Outlawry he shall be restored to the Term it self not the Money Otherwise if sold on a Fieri Facias c. quod vide plus Title Exec. Eyre against Woodfare 3 Cro. 778. Co. 5. Rep. 90. b. 1. Acc. pl. 285. In Debt against an Executor the Defendant pleads that the Testator was Outlawed and doubted if a good Plea because the Testator may have some Goods not forfeited by Outlawry as simple Contract c. but on the other side such special Ass shall not be intended to Com. next he has nothing Wooley against Brade 3 Cro. 575. 851. Outlawry reversed because the Writ was Teste Edmund Anderson so wanting a Title had no Teste which is the Warrant of it Growdy and Juham 3 Cro. 592. Judgment against two in Debt C. and B and Capias only against one and he Outlawed whereupon was brought Error and reversed it because the Capins should have gone against both Also 't was not per Judiâ— ' Coron ' Beverly against Beverly 3 Cro. 648. Debt against the Sheriff on an Escape where the Case was that the Party was Outlawed after Judgment reversed it by Error within the Year and because he assigned not any Error the Plaintiff took out a Capias utlegatum and the Sheriff took him and let him go and resolved for the Plaintiff and in Co. 1. Report of this Case the difference is taken of an Outlawry
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
and discharged Three are bound in one Bond and every of them joyntly in the whole the Obligee afterwards gets Judgment against one of them and brings his Action against the other This Recovery is no Barr for it is no Satisfaction of the Debt but an Execution is a good plea in this Matter Obligation dated 8th of December 78. and doth not say the Year of our Lord God nor the Year of the King's Reign the Date is void and the Obligation good without Date and the Plaintiff may count how the Bond was delivered to him any day when he pleases Reg. 1. Acts and Statutes in pleading need not be recited wholly only the particular Branch that concerns the Matter in Hand because every Branch is an Act of it self Secus of a Record for that is grounded upon an Original and Judgment and ought therefore to be entirely recited when pleaded in Bar. If Tenant in Tail of a Manor whereunto a Villain is Reguardant discontinue and die and the Right of the Intail descend to the Villain himself who brings Formedon and the Discontinuee pleadeth Villanage This is no Plea because the Devesting of the Manor which is the Intention of the Suit doth include this plea because it determineth the Villanage Reg. 2. Pleadings must be certain that the Adverse Party may know whereunto to answer or else he were at a Mischief which Mischief is remedied by Demurrer If tenant in Ancient Demeasne be disseized by the Lord whereby the Seigniory is suspended and the Disseizee bringeth his Assize in the Court of the Lord. Frank Fee is no plea because the Suit is brought to undo the Disseison and so to revive the Seigniory in Ancient Demesne If a Man be Attainted and Executed and the Heir bring a Writ of Error upon the Attainder and the Corruption of Blood by the same Attainder be pleaded to interupt the conveying in of the same Writ This is nâ— plea for then he were without Remedy ever to reverse the Attainder If Tenant in Tayl discontinue for Life rendring a Rent and the Issue brings a Formedon and the Warranty of his Ancestor with Assets be pleaded against him and the Assetts is laid to be no other but his Reversion with the Rent This is no plea because the Formedon which is brought to undo the Discontinuance doth inclusively undo this new Reversion in Fee with the Rent thereunto annexed If a Man be attainted of two several Attainders and there is Error in them both there is no reason but that there should be a Remedy open for the Heir to reverse those Attainders being Erroneous as well if there were twenty as one And therefore if in a Writ of Error brought by the Heir of one of them the Attainder should be a plea peremptorily And so again if in a Writ of Error brought of the other the former should be a plea these were to exclude him utterly of his Right and therefore it should be a good Replication to say That he hath a Writ of Error depending of that also And so the Court shall proceed but no Judgment shall be given until both Pleas be dismissed and if either Plea be found without Error there shall be no Reversal either of the one or the other and if he discontinue either Writ then shall it be no longer a plea And so of several Outlawries in a Personal Action If Tenant in Tayl of two Acres make two several Discontinuances to several persons for Life rendring Rent and bringeth a Formedon of both and in the Formedon brought of W. Acre the Reversion and Rent reserved upon B. Acre and so contrary it seems to be a good Replication that he hath a Formedon also upon that depending whereunto the Tenant hath pleaded the Descent of the Reversion of W. Acre and so neither shall be a Barr And yet there is no doubt but if in a Formedon the Warranty of Tenant in Tayl with Assetts be pleaded it is no Replication for the Issue to say that a Precipe dependeth by J. S. to evict the Assetts An Attorney may plead not informed to an Action if his Client doth not give him order to plead otherwise For this will save the Attorney Damages in a Writ of Deceit if it should be brought against him In an Action of the Case if the Defendant plead to issue upon one part and Demurrer to the other part the Demurrer ought to be argued first because the Jury at the Tryal may give Intire Damages for the whole Scire Facias against Manucaptor ' they plead that after Judgment against the Principal viz. 6th die anno the Principal brought a Writ of Error whereby the Record was removed into the Exchequer and that pendente br ' de Errore the Principal rendred himself to the Marshal and there died and this he is ready to prove c. This Plea is nought because the Rendition ought to be tried by the Record Secondly The plea is double and imports two Issues the one the Rendring and the other the Death 3. The bringing the Writ of Error is a Supersedeas to the Execution and the Execution being suspended during the Error undetermined and depending the Bail was not sufficient Authority to bring them in So that his Rendition is in vain and nothing worth and the Death is only answerable which if true is a Discharge of the Bail Reg. 3. In all Imperfections of Pleading whether it be in Ambiguity of Words and double Intendments or want of Certainty and Averments the plea shall be strictly and strongly taken against him that pleads it For Ambiguity of Words If in a Writ of Entry upon Disseisin the Tenant pleads Joynt-Tenancy with J. S. of the Guift and Feoffment of J. D. Judgment del brief the Demandant says That long before J. D. any thing had the Defendant himself was seized in Fee Quousque predict ' id super possessionem ejus intravit and made a joynt Feoffment whereupon he the Demandant re-enter'd and was seized until by the Defendant alone he was disseized This is no Plea because the word intravit may be understood either of a Lawful Entry or of a tortious and the hardest against him shall be taken which is that it was a lawful Entry therefore he should have alleadged precisely that J. D. disseisivit Reg. 4. So upon Ambiguities that grow by References if an Action of Debt be brought against J. F. and J. B. Sheriffs of London upon an Escape and the Plaintiff doth declare upon an Execution by Force of a Recovery in the Prison of Ludgate sub Custodia J. S. and J. D. then Sheriffs in 1 H. 8. and that he so continued sub Custodia J. B. and J. G. in 2 H. 8. and so continued in Custodia J. F. and J. P. in 3 H. 8. and then was suffered to escape J. F. and J. P. plead that before the Escape at such a day Anno superius in narratione specificat ' the said J. S. and J. D.
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.
35 H. 6 36. In a Writ brought by one as Son and Heir to J. S. after Imparlance the Tenant cannot plead to the Writ that he is a Bastard or that he is not Heir but he may well plead it in Barr of the Action 22 E. 4 35. An Outlawry is a good Plea in Barr of an Action of Debt For by the Outlawry of the Plaintiff the Debt if it grow due by Specialty is vested in the King but secus of an Action of Debt upon Contract For in that Case the Debtor might wage his Law against the Debtee who is Outlawed 16 E. 4 4. By 10 H. 7. it seemeth that an Outlawry goeth rather in Barr of the Action than to the Writ for there it is said that where a Man cannot plead to the Writ but by shewing of a matter in Bar there he may shew it and conclude to the Writ For in an Action of Debt a Man may plead Outlawry in the Plaintiff and conclude to the person and yet the matter goeth in Bar and he may plead it also in Bar and conclude to the Action 10 H. 7 11. After a Voucher is counter-pleaded and the Tenant put to another Answer he may notwithstanding plead that the Demandant is Outlawed but after Voucher the Tenant cannot plead to the Form of the Writ 21 E. 4 64. 5 E. 3 223. If a Man pleadeth that the Plaintiff is an Alien born or a Villain or an Outlawed Person it is left to his Choice whether he will conclude these special Matters to the Writ or to the Action 32 H. 6 27. If the Husband and Wife bring an Assize and a Feoffment or Release of the Husband or the Wife or of some Ancestor of one of them be pleaded in Bar both of them shall be barred 21 R. 2. Judgment 263. An Exception taken to a Writ propter defectum Nationis vel potiùs defectum Subjectionis ligeantiae is peremptory and the Action cannot be revived by Peace or League subsequent Theloal Digest ' de Briefs Lib. 1. Ca. 6. The King may grant Licence to Aliens to implead and that such Aliens as come into the Realm by the King's License and safe Conduct may use Personal Actions by Writ though they be not made Denizens And Denizens lawfully made by the King's Grant and such Aliens born which are within the express words of the Statute of 25 E. 3. may use Actions Real by Original Writ Theoloal ubi supra If a Man be Excommunicated and he sueth an Action Real or Personal the Tenant or Defendant may plead that the Plaintiff is Excommunicated And thereupon he ought to shew the Bishop's Letters under his Seal testifying the Excommunication and then he may demand Judgment whether he ought to be answered But if the Demandant or Plaintiff cannot deny this the Writ shall not abate but the Judgment shall be that the Tenant or Defendant eat inde sine die because when the Demandant or Plaintiff hath purchased Letters of Absolution and they are shewed to the Court he may have a Re-summons or Re-attachment upon his Original according to the Nature of his Writ Lit. Lib. 2. Ca. 11. Sect. 42. An Action upon the Case was brought and the Plaintiff set forth that a Jury was Impannelled and Sworn and that one of the Jurors was challenged for that there were not 12 Jurors Talis de Circumstantibus was awarded and another Juror Impannelled and so legitimo modo acquietatus fuit but this was held Erroneous per totam Curiam For it doth not appear that he was legitimo modo acquietatus because he doth not say that this other Juror was sworn Mich. 8. Ja. in C. B. Reg. 10. If a Man plead a General Act of Parliament and mis-recite the same yet it shall not prejudice him because the Judges ought to take notice of it per totam Curiam and nul tiel Record ' cannot be pleaded against a General Act of Parliament although it cannot be found per Coke Chief Justice ubi supra Reg. 11. Note by all the Justices for a general Rule where a thing alleadged doth confess and avoid my Plea I may Traverse it 7 H. 6. 13 Eliz. Dyer A Copy-holder pleaded that per Licentiam Dominorum Manerii adtunc existentium he made a Lease for Years to J. S. and rul'd to be an ill plea because he hath not shewn what Estate the Lords have in the Mannor For they may be only Tenants at Will and so cannot give License to make a Lease for Years although they have Power to grant Estates by Copy A Man brought an Action of Trespass for his Horse taken The Defendant said that the Plaintiff gave him License to take his Horse and farther said that he was within Age at the time of the License c. Afterwards the Defendant said that he was not seised long time before that the Infant any thing had c. and so possessed until J. S. took and gave to the Infant This is a good Departure because that he doth not maintain his Barr sc his License 5 H. 7. Assise the Tenant pleads that his Tenant died without Heir he shall not be received to say that he committed Felony for which he was attainted because that it is new Matter and not pursuant An Obligation did bear Date the first day of May and was delivered the. 20 th day afterwards the Obligee releaseth the Second day of May which Release was delivered the same day This Release is no Barr quod nota If the Obligee brings an Action and declares upon a Bond bearing Date the first day c. and doth not say that it was afterwards delivered the 20 th day the Defendant shall barr him by the Release which was made after the first day and the Plaintiff shall not reply and shew the first Delivery of the Bond the 20 th day for that is a Departure and because that he might have alleadged it it at the Commencement By Keeble where the Defendant in Trespass fortifies his Bar and there is no other Matter but pursuant to the Barr and goes before the Barr in Conveyance of his Title This is no Departure but where the Barr is before the Matter shewn in his Rejoynder this is a Departure As in Assise the Defendant pleads the Dying seised of his Father and gives Color c. The Plaintiff pleads the Feoffment of the Defendant after that Descent the Defendant rejoyns and saith that Feoffment was upon Condition which Condition was broken and so he did re-enter Now this is a Departure for the Barr was before the Feoffment But if the Tenant in Assisse saith that J. S. was seised and enfeoffed him and gives Colour c. and the Plaintiff saith that J. S. disseised him and enfeoffed the Defendant upon whom he re-enter'd and was seized until c. if the Tenant rejoyn that after the Disseisin he releas'd to the said J. S. and then he enfeoffed him This is no Departure and yet he might have
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
prout ei bene licuit but not to say per infortunium contra voluntatem suam or casualiter or such like is no good pleading to excuse a Trespass or Wrong done One Train-Band Souldier in Skirmishing hurteth another in Discharging his Musquet who brings Trespass and the Defendant justifies and excuses himself as being a Souldier upon his Duty and upon a Demurrer Judgment for the Plaintiff for tho' the Law be that if two men Tilt or Turney in the presence of the King or two Masters of Defence in playing a Prise the one Kills the other this shall be no Felony So if a Lunatick Kill a Man it 's no Felony because Felony must be done Animo Felonice But yet in Trespass where Damages are to be recovered according to Loss or Hurt it 's not so And therefore if a Lunatick hurt a Man he shall be answerable in Trespass wherein no man shall be excused except it may be adjudged utterly without his Fault If there be a Lease of a House for Years and the Lessor Enters to see if Waste be committed or want of Repairs and then he takes away some of the Lessee's Goods against the Will of the Lessee he shall be punished as a Trespasser ab initio So of one that comes into a Tavern and carries away a Cup for though the Entry were lawful in both Cases at the First yet if they do an evil Act after the Entry it makes the Entry and all the rest unlawful And the reason is for that the Law gives liberty to enter for one intent and he useth the same for another ill Intent The same Law is where Goods are seized for Rent or Damage feasantâ— and the Goods are abused A Man may Distrain in an House if the Doors be open otherwise not but a man may distrain per Ostia senestras so that a Distress taken out of a Window is good You cannot present in a Court Leet any thing that is particular Trespass to particular persons but only such things which are a Common Nusance to all neither is such Offence punishable there As if a Freeholder erect a Dove-house it is only Trespass to those whose Corn they eat and not punishable in the Leet Also every Man's Land is supposed to be Inclosed though it lie in the open Field and if Trespass be done the writ is quare Clausum fregit If a Man doth a Lawful Act which proves unlawful it is Dampnum sine injuria As if in Plowing my own Land the Cattel are so unruly that they carry the Plow upon another's Land against my Will this is a good Justification In all Trespasses there must be a voluntary Act of the Trespasser and a Damage to the other party else the Trespass lies not In Trespass for Beating and Assaulting the Wife the Husband shall have the Action aone without mentioning the Wife because whatever Damages are Recovered shall go to the Baron only In all Actions of Trespass vi armis c. there ought to be an express Averment of the Force in the Declaration and ought not to be expressed with a whereas there was such a Force In an Action of Trespass against one with a Simul cum against others if nothing be proved against the other they may be examined as Witnesses in the Cause And if recovery be had against the Defendant named in the Declaration those in the Simul cum can never be sued afterwards for the same Trespass Trespass against three they plead that they had Common and each put in his Cattel to use it and the plea adjudged single and good enough But in Trespass against one and he pleads that A. had Common and to B. and S. C. and he as their Servant acct ' in c. 't were confused and ill but if he pleads that as a Servant to A. he put in such and to B. such c. 't is good enough vide Title Joyntly and Severally Tr. 15. H. 7. pl. 18. In Trespâ—ss the Defendant pleads that the Plaintiff delivered Goods to the Defendant to carry to such a place The Plaintiff replied de Injuria sua c. per nonnull ' no plea For where the Defendant claims under a Gift or Delivery of the Plaintiff the Plaintiff must answer to the Gift or Delivery by himself and not the mean Conveyance which Bryan granted but held that de Injuria c. was a good Traverse that he delivered them M. 16. H. 7. pl. 2. M. 10. H. 7. pl. 15. H. 15. H. 7. pl. 6. Tr. 15. H. 7. pl. 19. Trespass the Defendant justifies for taking a Distress for an Amerciament as Bay liff of a Court Baron good though he shewed no Warrant in Writing for the Precept may be per parol but because he pleaded not that he returned the Precept 't is ill as if the Sheriff returned not the Cap ' he is a Trespasser Trin. 16 H. 7 El. 9. 15. Trespass and Battery against a Constable he pleads that the Plaintiff was beating another and he came to keep the Peace and laid Hands on the Plaintiff and he beat him and so justifies per Ryder Just 't is double For he justifies as Constable and also in his own Defence Kingsmil contra the Beating had not been Lawful but that he first beat the Constable P. 2 H. 7. pl. 5. Trans ' de domo fracto muris â—jusdem domi the Defendant pleads Not Guilty to the breaking of the House and as to the Wall justified ill For the Wall is part of the House so he cannot be Not Guilty of all and justifie for part for that is repugnant pl. 21 H. 7. pl. 7. Trespass of a thing done at D. and after in plea they alleadge another thing in pursuance of the former to be done at D. and though they say not at D. yet intended so and ruled well M. 21. H. 7. pl. 10. Trespass for Digging c. the Defendant justifies as Commoner to dig a Trench to let out Water wherewith it was usually surrounded in the Winter as well for the saving the Lands as the Commons and by some this seems double for either of them was a sufficient Justification of Issue And where one pleads two things either of which is a plea of it self 't is double Tr. 17. H. 8. pl. 1. He that pleads a Fine in Barr in Trespass or in Warranty must conclude Judgment Si Acco ' and not râ—ly on the Estoppel for that goes to the Realty which is not in question in Trespass Tr. 27. H. 8. pl. 19. Trespass against A. for Imprisonment c. he pleads that the Plaintiff had committed Felony and he prays the Constable c. and thereupon they went and arrested him ill because he answers nothing for himself that he by Command of the Constable c. P. 2. E. 4. pl. 20. Trespass the Defendant pleads that his Father was seized and let to A. for Life to enfeoffee c. And A. died and his
706. Pl. 9. 700. Pl. 7. Feoffment to the use of A. for Life without Impeachment of wast and power to cut and sell Trees and make Leases Remainder for Life to B. with the same power Latch 163. 268. Poph. 193. 706. Pl. 9. A. makes a Lease and dyes quaere whether B. may cut the Trees not agreed but ' t is agreed that the Clause Sans Impeachment gave an Interest and A. might have done what he would with the Trees but not his Executor after his Death because it was an Interest annexed to his Estate and determined with it the doubt of the Remainder chiefly seems to be because the Lease ariseth partly out of the first Feoffment and partly of the Lessors Estate for Life Note the Lease was excepted the Trees and the Exception good because Tenant for Life had an Interest by the Sans Impeachment Secherval versus Dale Latch 163. 268. c. as before Lessor brings wast against Lessee for Trees of the Plaintiff the Lessor himself cut them 't is a good Bar and therefore in Trespass by the Lessee against Lessor for the cutting he shall recover only for the Fruit and Shade because not charged over as if a Stranger had cut them he should Co. 13. r. 96. 70. M. 10. H. 7. Pl. 3. 2 E. 4. 2. or 7. b. In wast for digging Gravel Defendant justifies by Command of the Lessor no plea for 't is the Lessee's Land pur temps not the Lessors so he could not command him also 't is per parol and without Deed and against the Tenant for Life yet dict such a Command to cut Trees good because not the Lessee's but Lessor's and that is agreed in Co. 11. R. 48. b. H. 2. H. 7. Pl. 20. M. 10. H. 7. Pl. 3. Feoffee to use Cestuy que use makes a lease for years according to the Statute R. 3. The Reversion remains in the Feoffee for the Statute does but give Authority to Cestuy que use to dispose as where one wills that his Executor shall sell if Lessee commits wast the Feoffee shall bring the Action tho no Privity because they could not have any so shall the Lord in Escheate maintain Wast yet he had not Privity Mi. 5. H. 7. Pl. 11. H. 8. H. 7. Pl. 1. Tr. 26. H. 8. Pl. 131. or 31. 'T is wast to pull down or suffer a wall to go to Ruine be it made of Wood Mud or Stone or be it within the house for Separation or without for Inclosure so to destroy wood of hasle or willow not to cut them Husbandly To cut Fruit Trees in an Orchard and destroy them is wast not if they grow in Hedges and Closures and if a house be ruinous at the Entry 't is no wast to suffer it to decay otherwise if not ruinous at the Entry but where 't is held ploughing Meadows is no wast 't is no Law Hob. 234. Ow. 66. M. 10. H. 7. Pl. 3. 4. In an Action of Wast in the Tenuit an Accord is a good Plea because only damages to be recovered not in the Tenuit because locum vastatum is to be recovered also Co. Entr. 706. 707. Pl. 9. H. 11. H. 7. Pl. 7. P. 13. H. 7. Pl. 3. Co. 6. R. 44. a. Upon Scire facias of a Judgment in wast one may have a Writ of Estrepement or in any Suit where no Damages are to be recovered but not Scire facias of wast committed after the first Scire facias because he might have had Estrepement at first But for wast after Estrepement a Scire facias lyes to shew Cause why he committed the wast and a Scire facias lyes in Assise for wast done after Judgment not before Judgment because he cannot recover Damages for its after verdict but in a Formedon not because he might have had Estrepement and Pl. 20. Error of a Judgment in Assise and the Piaintiff in the Error prayed an Estrepement and could not have it because he may it seems have Scire facias for damages done after the Judgment c. But questioned per Fennel because by the Statute he finds Security in the Writ specified to answer for all the Damages Mich. 14. H. 7. Pl. 20. but vid. 32 or 33 H. 6. b. a. In Scire facias of a Fine Estrepement lyes Lessee does wast in a corner of a Wood only the part not the whole shall be recovered but if he do in the whole Wood and there be plots of ground within the Wood that shall be recovered with the Wood. Tsin 15. H. 7. Pl. 21. Furnaces Fatts Posts Rails c. fixed to the Free-hold by Lessee for years 't is hâ—ld by some that if he remove them during the Term 't is no Wast quod qu. But agreed that if he leave them there till the Term ended he cannot remove them Vid. 42 E. 3. 6. a. 6. M. 20. H. 7. Pl. 24. Trin. 21. H. 7. Pl. 4. Owen 70. Lease Absque impetitionc vasti in Wast he shall plead that in Excuse but if the Lease at first were given and then a grant after that he shall not be punished in Wast it is not pleadable in Bar but to bind as a Covenant Vide divers such Cases 21 H. 7. 30. Tenant for life grants his Estate to one Parcener in Reversion and her Husband 't is no Surrender and if the Baron and Feme do wast the other Sister shall bring a Writ in all their names and the Baron and Feme shall be summoned and severed M. 2. H. 7. Pl. 60. In wast by Lessor the Lessee pleads not guilty and gives in Evidence a grant to cut c. to repair c. And per Brook Pollard and Elliot it was no wast but ought to have been pleaded and not given in Evidence for thereby the Advantage thereof is lost Ad quod Bradnet concessit but held it wast but not punishable Wast and he held that if a Lessor covenant to repair and do not Lessee may do it and deduct it out of the Rent And if one covenant to repair a ruinous house if he do not 't is wast but he may take Trees else it had not yet in that case he might have repaired it and taken Trees to do it though not bound to do it And at Common law Lessee might take Boots but if excessive it is Wast Lessee suffers Posts Pales c. to decay it is wast Trin. 12. H. 8. Pl. 1. or 4. Wills WIl ls and Testaments were originally proved at the Common Law as Perkins confesses and Leonard says they are by the Curtesie of England proved in the Spiritual Court not de communi jure nor in other Nations and in divers Mannors the Lords have the Probate at this day Co. 5. Rep. 73. b. 16. a. 9. Rep. 38. a. 5. Rep. 30. b. Issue at Common Law for Lands devised by Will and the question whether a Will or not and now they moved at the Spiritual Court to it which will blemish the Evidence at the
Common Law wherefore prohibition prayed but granted only quoad the lands and that it be proved quoad bona Hill against Thornton 1 Cro. 118. Debt on a Bond conditioned he permit his Wife to make a Will to the value of 50 l. and 't is found on Issue Nullum fecit voluntatem c. that she did make a Will of 50 l. but was covert 't is for the Plaintiff for though properly a Feme-Covert can make no Will in Law yet 't is a Will within the Intent of the Condition and the Husband is bound to perform it Marriot vers Kinsman 1 Cro. 159. And so Tilly and Parryes Case 273 274. Bond to pay 300 l. to such Persons and Uâ—es as the Wife should appoint she appoints in form of a Will he is bound to pay it And 433 Bond to permit her to make a Will and pay c. Plea that he permitted c. without pleading payment not good Action upon the Case lyes not for Non-payment of a Legacy for no Duty in our Law so it cannot take notice of the wrong in Non payment Mich. 18. Car. 2. Nicholson against Sherman in Banco Regis Bond conditioned that the Wife shall make a Will of 300 l. in presence of the Husband if he will be present if not in his Absence she makes it and it appears not that he was requested to be or that he was present of 250 l. to several persons and not an entire Legacy yet after Verdict the Plaintiff had Judgment for the Intent was that she should make a Will whether he would or not and she needed not devise all to one nor devise the whole 300 l. for Cui licet quod majus c. Mich. 14. Car. 2. Harris against Bury in Banco Regis Debt by A. as Executor the Defendant prays Oyer of the Will which was thus Memorandum Quòd A. B. fecit Testamentum Nuncupativum in hunc modum viz. Constituit C. D. fore Executorem suum And this was under Seal of the Ordinary and resolved a good Will and he Executor and well able to sue and so was it decided upon Appeal to the Delegates Mich. 16. Car. 2. Lewis against Shaw in B. R. Witnesses HE that is attainted of a false Verdict Conspiracy or convicted of Perjury Premunire or Forgery upon 5 Eliz. or Felony or that has stood in the Pillory lost his Ears been stigmatiz'd c. whereby he becomes infamous or Recreant in a Writ of Right or an Infidel under Age of Discretion or interessed ought not to be a Witness nor a man's Wife for or against her Husband But one outlawed in personal Actions may be a witness Co. 1. Inst 6. b. 25. J. K. Witnesses are not to prove a Negative ibid. Where Tryal is by Witnesses there ought to be two at the least ibid. A Juror may give Evidence as a Witness to his Companions but it must be publickly by Examination in Court not privately to his Fellows Stiles Rep. 233. Bail for the Defendant being a Witness for him upon motion was taken off the File and new Bail filed Idem 385. A Felon that has been burned in the hand may be a Witness for he may purchase and his Punishment has satisfied his Offence Idem 385. In Ejectment he that had the Inheritance of the Land was admitted as a Witness where note the Plaintiff and Defendant both claimed under one person Idem 482. A Counsellor at Bar being examined as a Witness for his Clyent was denyed to be examined on the other side for he shall not be put to discover the Secrets of his Clyents Cause Idem 449. Debt on 5 Eliz. 9. because the Wife did not appear whereas he served her and tendred to her her Charges c. to his Damage And though not laid what Damage yet being for the 10 l. upon the Statute not for his damages for her not appearing and a Feme Covert being within the Statute 't was held good enough 3 Cro. 130. 1 Leon. 122. Note she being the person who was to appear the Charges are to be tendred to her or her Husband Iidem ibid. Debt for 10 l. against a Witness that being Subpenaâ—d appeared not moved first 't is not shewed that the Subpena was left resolved it needs not for it might be for more Witnâ—sses 2. There was but 12 d delivered but resolved since he promised to pay the rest and the Witness accepted the 2 d. 't is good else the Witness had not been bâ—â—nd 'till the whole Charges had been tendred But thirdly because he avâ—rred not that he was damnified by the Non-Appearance of the Witness though the Action be but for the ten pound Pâ—nalty and not for the Damages over Râ—â—olved it lyes not 1 Cro. 376. 388. Judgment staid because the Verdict was had upon the Testimony of one Witness and he since convict of Pâ—rjury in the very same thing Pasch 17. Car. 2. Banco Regis In Deceipt for forging a Will one that took a Legacy by the same Will was allowed and sworn as a Witness in a Tryal for the Forgery for this makes nothing to the Probate of the Will or Recovery of the Legacy in the Spiritual Court nor do they take notice of it Moved to examine a material Witness that lay dying and it was said by the Court that if the adverse party did consent it might be done else they could not compell him Mich. 13. Car. 2. B. R. A Councellor may be examined as a Witness against his Clyent so far as it is of his own Knowledge not what he knows by the revealing of his Clyent Pasc 15. Car. 2. B. R. One shall not justifie what he heard an other say ibid. In an Indictment for beating one of the King's Messengers the Witnesses for the Defendant were sworn because though against the King and criminal yet not Capital Pasch 17. Car. 2. B. R. One that was a Witness indorsed to the Livery upon a Feoffment having part of the Lands as Tenant at Will was allowed as a Witness in the Tryal on the Feoffment afterwards in a Tryal at Bar. Bulstrodes Rep. 202. A Person attainted of Felony though afterwards pardoned by the King is uncapable after of being a Witness and therefore a Suggestion being proved only by two such a Consultation was granted 2 Bulstr 154. Words TO say of a Woman that J. S. did beget her with Child and she had a Child by him by speaking whereof she lost a Marriage with I. D. Although these words are a Spiritual Slander yet the loss of Marriage is Temporal and therefore the Action lyes for them Co. 4. 16. b. Ann Davis against Gardner adjudged So if a Man saith of a Woman that J. S. had the use of her Body by which she loseth her Marriage an Action lyes Pasch 5. Jac. B. R. Dame Morison against Case adjudged If a man says to J. S. Thou art a Whore-Master for thou hast lain with B's Wife and hadst to do with her against
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