that they did not Award modo et forma c. Et hoc paratus c. ill there he should have concluded all pais And on general demurrer ibidem where an Award was That one bound with Sureties assigns breach that he did not become bound modo et forma c.. well though the Award bind as to the Surety 't is good as to him A breach assigned that he did not c. and the modo et forma extends not to the Surety but to himself only though it be made modo et forma as Awarded Cooke versus Whorewood H. 22 23. Car. 2. B. R. rot 116. Assumpsit If he would abate Ten Pounds and forbear the 90 l. till Michaelmas to pay it and declares that he abated the 10 l. but shews not how but held ill on demurrer per tot Cur. Thornton v. Kempe 3 Cro. 477. In Conspiracy the Defendant justifies to carry in the Presentment found in a Leet before the justification and though there is no Conspiracy yet he must plead que est eadem Conspiratio P. 27 H. 8. Pl. 6. Conspiracy the Defendant pleads the Plaintiff has another Writ depending for the same the Plaintiff replyes nul tiel record and so 19 H. 6. 57. a Pleads that he removed the other Pleads nul tiel Record of the removal 9 H. 6. 14. a. Amendment IF an Original Writ be defaced it may be Amended at the discretion of the Justices Hill 25 et 26. Car. 2. B. R. The Clerk in the Kings-Bench may amend the Roll until a Recordatur be thereof made either in Writ of Error or by rule of Court Trin. 26 Car 2. in B. R. A Note was brought to a Clerk to make an Obligation who for milite writ generoso upon which the Process issuing the Plaintiffs Counsel came and prayed that this Misprision of the Clerk might be amended and upon mature deliberation all the Court agreed that it should be amended and the Lord Chief Justice said That at the Common Law no Original might be amended in this Court before the Statute of 8 H. 6. ca. 12. Which Statute enables them to amend only Misprision that is when the Clerk takes one word for another or where he writes a Latin word which is not Latin or false Latin as hos breve for hoc breve 9 H. 7. 16. b. or imaginavit for imaginatus fuit Benlowes Reports fo 19. or in a Writ of Partition to say Ostensurus quare non fuit for fuerit or Henricus deigratia c. when dei gratia should not be in the Writ or if it be matter of Form as Praecipe quod solvat for reddat 22 E. 4. in all which Cases last cited there shall be no amendment And the Lord Chief Justice Coke said That if the Defendaâ—t had been sued to the Utlary he would not have amended it but the Principal not being so it was amended See 11 H. 7. 2. 10 H. 7. 25. 11 H. 7. 1. Co. 8. Blackmores Case 156. Mich. 8 Jacobi Regis in Communi Banco If one makes an Obligation and Seal and deliver it and mistakes the day yet by Coke Lord Chief Justice it is good Mich. 8. Ja. â—bi supra If the Teste and the Retorn of a Venire facias be both upon one and the same day it is no Error although the Teste ought to bear date Fourteen days after but shâ—ll be amended and 7 E. 4. a Venire facias was retornable Mense Michaelis whereas it should have been Octabis Michaelis and the Jurors appeared It was agreed by the whole Court That it should be amended and that Error did not lye thereof Co. 8. Blackmores Cases fo 156. After Verdict in Ejectione firmae these Errors were alledged in Arrest of Judgment That where the Declaration was prout praedictus Willielmus which should have been Johannes 2. praedictus defendens similiter ponit se super patriam which ought to have been querens These are not Errors but Misprisions of the Clerk which by the Judgment of the whole Court shall be amended So 11 H. 7. 2. b. per Brian praedictus defendens c. was amended and 10 H. 7. 23. b. per Townsend a Barr was pleaded by the Tenant which concluded with praedictus Johannes is ready to averre c. where it should have been Rogerus It was amended by the Advice of all the Justices and Coke Lord Chief Justice said That Misprisions were amendable at Common-Law in the same Term for during the Term the Record is in pectore Judicis as 1 H. 6. 29 in Brooks Abridgment Title Amendment 32. if Judgment be entred in the King's-Bench or Common-Pleas otherwise then it is in Truth Or if Tales be awarded and marked on the back of the Writ or of a Scrowl and not entred on the Roll All these things may be amended in the Term and the reason of the Book is because that the Record is in the Justices and under their care the same Term and not esteemed to be on the Roll so absolutely but that they may amend the same at their discretions for they do not account it a Record until the next Term And this Amendment is by the Common-Law and not by the Statutes of Amendment of a Syllable or Letter And per Cheine ibid. The Justices of the Common-Pleas after a Writ of Error cannot at all amend the Roll where a Judgment was given the same Term and is mistaken in the Entry because the Roll is not a Record of that Term. And herewith agreeth 5 E. 3. That this was so at the Common-Law until the Statute of 14 E. 3. came which gives Power to amend process in the other Term and after 46 E. 3. the Case was Et praedictus defendens similiter whereas it ought to have been Querens but it was not amended because it was an old Roll and the Statute gives Authority only for New of the same Term they are Entred and then was made the Statute of 26 H. 8. which gives power to amend a Plea Roll but no Omissions can be thereby amended but Misprisions only Mich. 9 Jacobi in Communi Banco Weeks versus Blacksteed Lessee de Cambden A Venire facias in Ejectment is a warded to the Sheriff wherein the Plaintiff is named I. P. the Jury is retorned and give their Verdict by his true name viz P. P. and so is the Postea The Court said If the Record be true and not the Process it may be amended as a Misprision of the Clerk but contra if the Record be false and the Process true but in the principal point the venire facias was void and therefore they would advise upon it Mich. 10. Jacobi in C. B. Peircy versus Milton In Quare impedit the Writ was by the Misprision of the Clerk Bicaria where it ought to have been Vicaria and it was amended After a Writ of Error brought in the Kings Bench Serjeant Hutton moved that the Warrant of Attorney might be
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
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
for that avoid it by Error since the Stat. 26 H. 8. and 5 E. 6. as he might at Common Law 3. Inst 32. By 26 H. 8. 13. Outlawry in Treason against persons beyond Sea shall be as good as if they had been in England at the time of the Outlawry by 5 E. 6. 11. if within a Year after the Outlawry pronounced the party come in to the Chief Justice and traverse the Indictment and be found not guilty he shall be discharged of the Outlawry By the Award of the Exigent in Case of Felony the Goods are forfeited but that may be avoided by matter in Law as if the Indictment c. be sufficient or by Matter indeed or Record he may excuse his Absence as that he was beyond Sea c. 3 Inst 232 233. If one taken by Cap ' utleg ' plead a plea triable per pais for avoiding the Outlawry as that he was commorant in another County he shall be Bail'd 4 Inst 179. No Goods are forfeited by the Judgment of the Court till the Outlawry appear of Record nor is the party disabled by Outlawry till the Exigent be returned also not does any Writ of Error lie of it then 1 Inst 288. a. 4 Inst 266. Dy. 223. a. b. When Outlawry is pleaded in Debt upon a Bond it goes upon a Bond because thereupon the King is to have the Obligation but in Trespass Contract c. not because after the Outlawry pardoned the party may have those Actions and when Outlawry is pleaded in Bar and failer of Record at the day the Judgment is absolute but in the 1. of Cro. in Dawson's and Lee's Case per Barkley the Party might pray only that he should answer over and 2 Cro. Iron against Gray if it be reversed before the day c. a respond ' Ouster and 1 Inst when 't is pleaded in Bar day is given but when in Disability it must be shewed presently sub pede sigilli and such Outlawry to disable the Plaintiff must appear of Record and the Exigent be returned vide 8 E. 4 6. b. Ow. 22. Barnard's Case 1 Cro. Dawson against Lee. 2 Cro. Iron against Gray 1 Inst 128 5. 4 Inst 286. M. 4 H. 7. pl. 3. Outlawry in Chester and Durhanâ— cannot disable the party at Westminster Outlawry not pleadable in Attaint nor in Writ of Error to reverse the same Outlawry 1 Inst 128. Return upon the Exigent that he made Proclamation after Divine Service ill not shewing there was no Sermon For the Stat. appoints it to be done after Sermon and if none after Divine Service Ow. 49. The Sh. made a Lease to one Outlawed and that he was Outlawed again then came the General Pardon resolved he was capable of a Lease and by the Pardon the Term forfeited by the Second Outlawry revived for a person Outlawed and pardoned has property in his Goods Ow. 116. Knowles against Powel All Outlawries are by Judic ' Coron ' naming them excepting Lond ' else they are void but in Lond ' 't is ideo utlegat ' of the principal Judgment ipso facto reverses the Judgment of Outlawry 1 Inst 288. b. Pop. 185. 2 Cro. 358 528 531 521. 4 Inst 247. Dy. 317. a. Exigent against Baron and Feme the Wife comes in and prays a Supersedeas doubted if she shall have it For the Process must continue against the Baron and be stayed as to the Feme till he be Outlawed and then she shall be discharged sans jour and vide divers Proceedings in Outlawry against Baron and Feme Dy. 271. b. 3 Cro. 611. Hutt 86. 1 Cro. 42. Smith against Ash 2 Cro. 445. Per Statute 5 Edw. 3 12. None Outlawed shall be pardoned till the Party at whose Suit be warned yet upon two Nichils or a Scire Facias he shall be discharged but then quid remedium parti Quaere when he is pardoned of an Outlawry before Judgment with an ita quod stet because he is to Answer to the Party but when 't is after Judgment 't is ita quod satisfac ' parti because he is to pay the Condemnation Dyer 172. Trespass by J. S. plea that he was Outlawed by the name of J. S. de D. he pleads that he lives and ever did at S. it seems good for it must be intended another person by Little ' vide M. 41 H. 6. pl. 19. in an Action brought by J. D. plea that he was Bail for one by the name of J. D. Gentleman and Outlawed on it He replies that he is a Yeoman and held no plea for if he entred the plea by that Name he is Estipped but the better Reason seems to be that no Addition needed in the Recogn ' because the Statute speaks of Original Tr. 10 E. 4. pl. 10. An Outlawry in Chester or Durham is not pleadable at Westminster for they have butprivate Jurisdiction perâ—sett ' but an Outlawry in Lanc ' here per les Serjeants Com' lower Jurisdic ' sit per Outlar ' de Parliam ' 12 E. 4. 76. a. One taken by Cap ' utlegat ' pleaded that his Name is J. Stokes not J. Stoke as named and prays Scire Facias for the Plaintiff says he is known by the one and the other Name issue of it and he left to Mainprize Tri. 14. E. 4. pl. 6. If there were no Add ' in the first Writ there must be none Exig ' for they must not vary Tr. 16 E. 4. pl. 15. Outlawry in an Indictment of Forestalling reversed because Parties of Outlawry lie not in that Case P. 22 E. 4. pl. 13. One Outlawed of Felony comes in by sepi Corpus and pleads Misnomer and if he shall have it by plea or be put to Writ of Error and sue Scire Facias against the Mesn Lord ' doubtful by some he shall not avoid it by plea for the disadv ' of the Lords alii he may have Scire Facias on this plea and if he should bring a Writ of Error it must be by the same Name in the Record which will be an Estoppel M. 22 E. 4. pl. 22. If a Supersedeas be sued though not delivered to the Sheriff before the 5. Exit ' the Outlawry shall be reversed and so if delivered to the Sheriff who certifies the Coroner so and yet because he appears not for him they Outlaw him shall be reversed for the Supersedeas is of Record 4 E. 4 42. a. b. Mo. pl. 199. The King makes a Lease to a person Outlawed for the Render ' of Rent makes him capable as a Farmer then he is Outlawed again then comes a General Pardon and it seems that restores him by the word Damus in it against the Forfeit on the last Outlawry and ibidem the King makes a Lease to Commence from the Forfeiture End or Determination of a former Term the 1. Lesse is Outlawry yet the 2. Term shall not begin Mo. pl. 378. One recovers in Quare Impedit and before Execution is Outlawed the King shall have
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.
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
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
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
abjure the Realm for Felony or be outlawed of Felony the Land shall escheat and the Son shall not inherit and yet both are Attainders in Law But every Custom that is against the Common-Law shall be taken strictly Debt DEbt super obligationem in London the Defendant Pleads Delivery as an Escroul in Midd super Conditionem c. et Issint non est factum by the Issint c. the special matter is weighed and amounts to the general Issue to be tryed in London per distre in Midd. et issint Rien luy doit is a waver of the special matter and tender of the general Issue P. 27 H. 8. Pl. 34. Debt against two Executors one Pleads plene administravit the other Pleads non est factum Testatoris and if they sever and have those several Pleas in Barr multum altercatur Choke they may Moyle they may not Danby Executors may sever but if they shall have these several Pleas doubted vide I' 37 H. 6. one Pleads Misnomer the other that he is Administrator doubted if Pleadable and ibidem the Authorites they are cited and vide 21 E. 3. 10 11 12. Defendants plead not Executors cannot plead severally in dilatories but in Barr they may P. 7 E 4. Pl 19 Debt upon Obligation to perform Covenants all being in the Affirmative he Pleads Performance general and by Inglefield and Fitz he ought to shew how he performed each specialty Sed vide Co. 1 Jnst 303. a. b. In Debt upon an Obligation conditioned to discharge the Sheriff Plea That he discharged the Sheriff without shewing how M. 5 E. 4. Pl. 21. Debt super Obligationem conditioned to pay to the Chamberlain of London and his Successors he Pleads Payment to A. Chamberlain and his Successors he must Plead how he came out of his Office and how the Successor came in Else A. shall be intended to continue in M. 4. E 4. Pl. 30. Debt against three Executors who Plead several Pleas and each goes to the whole per Danby Moy'e and Clark the Plaintiff may elect which he will have Tryed first Needham contra the most peremptory shall be Tryed first Hill 8 E. 4. Pl. 3. Debt against Executors they Plead a Judgment against the Testator by A. for 200 l. and another by B. for 100 l. And that they have not Assets but to satisfie the 200 l. per Bryan the Plea is double having Pleaded 2 Judgments and rely upon one 9 Eâ— 4. 12. a. Bond to pay 20 l. when A. comes into England from Venice Plea That A. was not at Venice not good for where part is to be done within part without the Tryal must be within Tr. 19. El. et B. Hales Case Ow. 6. One bound to save another harmless Pleads that he had saved him harmless and shewed not how 't is not good but non fuit damnificat generally is good et Pop. 297. dictum per Jones If the first be generally demurred on the advantage of it is lost for which I think it not Law for in Mansels Case Co 2. the Demurrer is general upon such a Plea and Judged ill et 2 Cro. 165. 363. One Action against several Defendants for one Debt c. they may sever in Barrs but not in Dilatories Hatton 26 Hob. 245. In Debt upon a Lease for years the Defendant pleads non habuit nec occupavit adjudged no Plea other then Tenant at Will by Fitz Herbert Dy. 14. In Debt upon an Obligation with Condition payment is a good Plea with Acquittance as appears Dyer 15 b. 1 Cro. 55. 2 Cro. 59. 360. 558. but payment on a single Bill Obligatory is no plea without Acquittance nor it seems upon an Indenture to pay so much for a forfeiture Dy. 6. a. 51. a. Co 5. rep 43. 2 Cro. 86. 377. 3 Cro. 157. 3 Cro. 455. Debt upon a Statute of Usury and misrecites the Statute of Usury and sayes in the Action the Defendant lent money usuriously and received the principle and so much for Usury and that is Traversed and found against the Defendant and moved to be a Jeofail but it seems both Surplus and he need not shew the Cause of Action in the Writ And shewing the Receipt was more then received for the very lending usuriously is against the Statute though he never received it Where one has special matter and pleads it and concludes with the general Issue It waves not the matter precedent as in Debt to plead unlettered issint non est factum or a special Payment issint Riens â—uy doit or for one to Plead that he was Joyntenant with his Feoffee at the time of the Feoffment et issint Riens passe per le fait 10 E. 4. 3. b. M. 9 E. 4. Pl. 15. et fo 19 b. Debt on a Bond against an Abbot he pleads Predecessors imprisoned the Prior and threatned the Monks to imprison them if they would not seal it double one the Imprisonment of the Prior the other the threatning of the Monks And if both should be traversed and one found for the other against the Plaintiff the Court should not know for whom to give Judgment M. 15. E 4. Pl. 2. In Debt of 100 l. the Administrator pleads Judgment of 200 l. to another So plene administravit and that he had not goods preterquam non attingen ' ad 200 l. the Plaintiff demurrs generally because he shewed no certain summ whereto the goods amounted according to Co 9. Merriel Treshams Case 109 b. Hob. and Winch held performance the substance Hob 133 Moore vers Andrews The King brought an Action of Debt and averdict upon non est factum pleaded and after pardoned the Debt which Debt he at the day in Bank pleaded and was allowed to do it because he could have no Audita Querela or sei facias against the King Co. 3. Jâ—st 135. Debt and shews that he made a Lease for years Rend c. the Lessee was thereby possessed and devised it to the Defendant and he entred and Null possession c. ill first because he shewed not that any was made Executor or that he entred by his Assent nor 2 that virâ—ute legationis he entred and then it might be for another Title Dy 254. b 3. Cro 537. Debt of an Obligation conditioned that he and his Wife should appear he pleads that at the time of the Obligation he was solus and innuptus Rolls held it did not amount to ne unque Loyalment accouple and ruled for Judgment upon Demurrer nisi Causa Yeane vers Skelton H 23 Car. 1. B. R. Sti. 17. Debt to perform an Award made 10 May ready to be delivered the 11 th of May Nul Award pleaded he replyes that the Award was made the 10 th of May to be delivered the same 10 th day of May The Defendant demurred for doubtfulness or departure Resolved not yet being a thing whereof Issue is to be of the Award not of the day of the Award Tyers Case Trin 23. Car.
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
because he cannot have the next Avoidance and so is the second part of Croke 691. Shelley's Case and that if one grants a third Avoidance and the Woman recovers that in Dower the Grantee shall have the fourth Co. 1. Inst agrees with three Cro. grantee of proximam Advocationem cannot have the second where one is granted before Dy. 35. a. b. 1 Inst 378. b. 379. a. 3. Cro. 790. 791. One had the Nomination of a Church to an Abbot and the Abbot to present the Church being in the King's hands he presented without nominating the Party may have a Quare Impedit against the Incumbent without naming the King for it lies not against the King and he that had the Nomination had the Patronage Vide Mo. pl. 147. Vide 14. H. 4. 11. He that has the Nomination brings the Writ Quod permittat nominari the Writ abated for it should have been nominare 1 H. 5. 1. b. Dy. 48. a. 1 Cro. Daviston against Yates F. N. B. 33. b. 14 H. 4. 11. Two Parceners the younger in Ward the Guardian marries the eldest and presents in both their Names the Church voids again and whether the elder Sister shall present as in her Turn for the younger quaere Dy. 55. a. The Jury finds the Church full of a Stranger presented by one not party to the Writ and that ex officio yet good Dy. 77. a. Co. 6. rep 52. a. In Quare Impedit one made Title to a fourth part of the Church in Grosle and that he presented and shewed that others were seised of the other three parts as appendant to certain Mannors and they presented and their Clerk dyed and so it belongs to him to present Dy. 78. b. Quare Impedit by the King the Bishop makes Title to a Stranger and he permitted a Lapse then the ordinary presented the Clerk pleads that he is Parson Imparsonee of the Presentment in causa forma preallegata It seems that the Plea by the Bishop that he presented c. is good enough though indeed he collated but the Clerk's Plea is per totam Curiam uncertain and void for in causa preallegata cannot refer to any thing in his own Plea because nothing alledged and to the Ordinary in cannot because to the Ordinary he is a Stranger not a Servant p. 14. H. 7. Pl. 4. Tr. 15. H. 7. Pl. 12. Quare Impedit by a Corporation the Defendant pleads that they are incorporated by another name and demands Judgment so where the Plaintiff goes but to the Right by Fitzherbert 't is ill sans doubt p. 26. H. 8. Pl. 3. a. In Quare Impedit he counts of an Avoidance by Deprivation and shews not how it became void or for what cause and that assigned for Error for it might be for Simmony or some such Cause that gives a Title to the King sed non alloc ' and Judgment was affirmed Episcopus Glouc ' against Veake 3 Cro. 678. Quare Impedit the Bishop claims nothing but as Ordinary the Writ good if a Writ against him immediate quaere the Plaintiff says he presented A. whom he refused he says he presented to the Church because litig ' if a Departure semble 't is for he intended to have pleaded it at first Tr. 5. H. 7. Pl. 3. In a Quare Impedit the Plaintiff claims by a grant of a next Avoidance by A. the Defendant says that A. was Tenant in Tail held of D. by Knights Service and describes the manner whereto c. and then usurped upon the Description and dyed his Heir within Age and the Lord granted the Ward to him adjudged the Plea not double tho the Usurper had Writ Remitter which was one thing and though the Grantee of the Ward should have the first present against the Grantor of the next Avoidance which is no more than a Lease for years which the Guardian shall avoid for his time and he have it after the Ward comes of Age for with pleading both he could not shew his Title Tr. 5. H. 7. pl. 3. Quare impedit and makes Title as appendant and that A. as Ancestor presents B. c. the Defendant protests 't is not appendant says that he presented D. c. The Plaintiff says that at the time he presented D. it was in Lease to E. the Defendant rejoyns that before the Lease his Ancestor presented I. 't is a Departure for he might at first have laid the Presentment in I. p. 10. H. 7. pl. 6. Tr. 11. H. 7. pl. 15. p. 27. H. 8. pl. 11. Quare Impedit for the King the Defendant pleads the Statute 25 E. 3. 1. That the King shall not present to any living in Auter droit but such as fall in his own time and if he do the Court is not to hold plea Judgment Si Curia cognoscere vult per Thurning This is a plea to the Action not merely to the Jurisdiction For pleas for the Jurisdiction of one Court give Jurisdiction to another which this does not 11 H. 4. 8. a. Quare Impedit and Counts of an Advowson appendant and makes Title to a Gift in Tayl the Defendant pleads the Donee in Tayl was seized of it in Gross and granted per Curiam illam admit it once Appendant and not shew how it after came to be in Gross 44 E. 3. 15. b. Quare Impedit to present to a Church in Somersetshire the Defendant pleads that the Land whereto the Plaintiff supposed it to be reputed parcel of the Mannor of S. in Devonshire Issue of both Counties tryed it Bend ' 26. Release IF Money be due upon Recognizance and the Counsor pay part and the Counsee give him a Release if the Release mentions not the Recognizance it shall release so much as paid only For the Recognizance is entire and being destroyed in part is destroyed in the whole If a man be bound to pay an 100 l. to another on such a day and he tender the same at the day he is not bound to pay the same on any other day unless the Obligee will give him an Acquittance or Release Replevin IN a Replevin the Defendant avoyed to distrein for Rent Charge granted in Tayl the Plaintiff says that an Ancestor of the Defendant whose Heir he is was seized of the Lands discharged of the Rent and gave to him with Warranty No Assetts descended adjudged an illlegal plea First because he pleads Warranty from an Ancestor and shewed not what whether lineal or collateral Nor Secondly because he pleads that he was seized of the Lands discharged of c. and shewed not how viz. by Union or otherwise H. 21 H. 7. pl. 11. Replevin avows Damage feasant barr that the place where his Acre called A. whereof he is seized of 100 l. and has Common in the Residue after Verdict moved the Blank in the Declaration makes all uncertain quid resid ' est sed non alloc ' 't is found there is a Residue and be it what it will he
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
House c. he cannot but on a Lease of Goods or Chattels he may No Ley gager in Debt for dyet of a Pentioner P. 9. E. 4. Pl. 1. H. 15. E. 4. Pl. 2. Co. 9 R. 87. 6. 19 H. 6. 10. a. Debt on a Contract the Defendant pleads the Contract was made with him and Br. and abates the Writ yet in another Action he may wage Law though herein he confessed the Contract for he may have pleaded it after per Littleton and not denyed ibidem by him In Debt against Baron and Feme on a contract by the Feme dum sola both shall wage though he a Stranger to the Contract for by the Marriage he hath made himself lyable to it And to this last agrees M. 15. E. 4. Pl. 4 Sed vide 33 H. 6. 43. b. If she make default at the day 't is the Default of both and binds the Husband 9 E. 4. 2. 4. b. Debt and Counts of a Retainer to shape and make such Cloaths In this case the Defendant may wage his Law and in similiter not against a Labourer compel to wage by the Statute 1 H. 6. 23. b. Not wage in debt by a Servant for his Wages H. 16. E. 4. Pl. 3. Mo. Pl. 971. Co. 9. R. 88. a. b. Detinue of a chain of Gold of four ounces weight of the value of twenty pounds though the Defendant have and detain them yet if it be but two ounces weight he may wage Law as if it were a black Horse and the Suit for a white one but if the Count were of a thing certain in the quant or qual as six yards of cloath tho he mistake the Price as ten Shillings for eighteen Shillings yet the Defendant cannot safely wage law Count of a Contract for 500 l. It was for 500 l. to be paid in Jewels Defendant waged law 39 H. 6. 34 35. 3 H. 6. 49. b. Count of a Contract for 40. l. plead that it was for 20 l. and wage law for the rest P. 22. E. 4. Pl. 8. 9. Mo. Pl. 1. 48. Vide 39 H. 6. 34. 35. Debt by a Keeper of the Tower for Manger and Boyer for one committed there for Treason Defendant cannot wage law Et dict for debt by a Priest for his Salary Defendant may wage law 28 H. 6. 4. b. In Account of Receipt per auter maines no Wager lyes because the Receipt is the cause of the Action and that 's notorious al pais being per auter mains but in Detinue on a Delivery per auter mains Wager lyes because not the Livery but the Deteiner which is in a manner the cause of Action but in next Case 't is the Usage which makes the law of Wager therefore in debt it lyes in Trespass it lyes not 33 H. 6. 9. a. Debt on a Judgment in Court-Baron the Defendant pleads Nul tiel Judgment 't is no Record therefore tryable per Pais Defendant not wage Law 34 H. 6. 49. No Wager lyes in debt or Arrearages of Account before Auditors but that was not at the Common Law but is given by the Statute of Westminster 2 Ca. 11. But though the Statute gives it only in Case where the Lord sues for the Arrearages against the Receiver yet it seems by Needham and Prisot the Wager lyes not where the Bailiff or Receiver sues the Lord for Surplus on the Account 38 H. 6. 5. 6. Debt for Wages and on a Reteyner to serve in all Occupations the Master wages law because it may extend to other things besides Husbandry which the Reporter holds to be otherwise for the Service and Wages being entire and no Wager for part he thinks there should be none for the rest for Magis dignum trahit ad se minus 38 H. 6. 13. 14. Party wages Law and day given to make it either of the Parties at that day may be excused by Essoin but if either make default it is adjudged against him or if the Defendant do not bring twelve sufficient men 't is a default as if any of them prove Execution Attachment c. Et ibidem if in Replevin the Plaintiff say that the Defendant kept himself out of the way that he could not tender Amends and bring his Suit of it Defendant may wage law of it but if he bring no Suit he need not wage for against one single Voice he need not wage whereby since moy semble he means Proof and so Selden upon Fortescue expounds it vid. Brit. 60. a. Debt and Counts upon a Lease for three years of certain Sheep the Defendant wages law per Cur ' he may though not in a Lease of Land Vid. 9. E. 4. 1. b. 1. H. 6. 1. a. b. No Wager in Law lyes in debt by a Servant for his Wages sed quaere for that seems such a Servant only as is retained according to the Statute 3 H. 6. 33 B. 34. a. Debt and Counts of Reteyner to scald his Hogs and foul by the Year taking 100 s. The Defendant may wage his Law and so he may upon a Retainer to serve him at Plough a year and to find Ploughs c. for these not Reteyners according to the Statute and so of a Reteyner to be his Counsel for a year c. 3 H. 6. 42. One waged law and brought twelve with him one whereof was challenged for that he was under Age and he was tryed by Inspection of Court to be of full Age whereupon the Party made his Law and went quit 8 H. 6. 15. b. Debt of a Box of Writings and Charters and Counts of one Charter in Special To which the Defendant pleaded non detinet and to the rest wages Law bon for if one Count of a box of Charters and shew not in Special he may wage Law as to all for unless one Charter be certainly set out the Box and all counted Chattels Vid. 14. H. 6. 1. a. Detinue of Goods and Chattels defendant wages Law quoad the Goods and pleads to the Charters 44 or 4 E. 3. 41 b. and 19 H. 6. 9. b. Debt Defendant having answered in Court that he bought c. to the use of the King waged Law and was admitted for notwithstanding he acknowledged the debt it being a Contract and he might have paid or pleaded it in pais the Wager allowed simile 11 H. 4. 28 and 3 H. 4. 40. 7 H. 4. 7. a. Account by the Husband or an Abbot and counts of Receipt per manus de Son feme or de Son Comoine good and needs not count of a Receipt by his own hand yet 't is as a Receipt by his own hand and the Defendant may wage Law And so vice versa in Account against Baron or Abbot Count of Receipt per manus del Feme oâ— Cemoine le Defendant and so is 2 H. 5. 2. b. vid. 47 E. 3. 16. 13 E. 4. 8. a. Debt against two one makes default the other wages law and at the day makes it The whole Writ is
a Chest By which he lost his Marriage with A. D. c. I. S. shall have an Action for these words 2 Cro. 323. Mathews Case Mich. 12. Jac. B. R. Sell against Fairee per Cur. To say to a Woman Thou art a Whore I will marr thy Marriage by which she loseth her Marriage an Action lyes Trin. 22 Jac. B. R. Tonson against Spring adjudged upon Arrest of Judgment In Action upon the Case if the Plaintiff declare that she hath many Wooers to marry her and that the Defendant said of her She is with Child and hath taken Physick for it whereby she came into Disgrace Et perdidit consortium vicinorum suorum c. Although that it be not alledged that she lost any Marriage thereby yet the Action lyes Mich. 21. Jac. B. R. Medhurst against Balam adjudged in Arrest of Judgment If a man saith to an other Thou wast found in Bed with J. S. his Wife by reason of the speaking of which words he lost his Marriage with A. S. c. Although that he might be in Bed with her without any ill done yet because that it sounds in Disgrace and he hath lost his Marriage by it the Action lyes Mich. 8. Car. B. R. Southal against Dawson adjudg'd in Arrest of Judgment If the Plaintiff in an Action of the Case for words declare that the Defendant said of him He had the use of my Wife's Body by Force by reason of which words he was brought before certain Justices c. and examined by them for a Rape committed by him upon the said Woman whereupon to purge himself thereof he expended divers Sums of Money an Action lyes upon this Deelaration for the temporal Dimage he had thereby Mich. 9. Car. B. R. Harris against Smith adjudged upon Writ of Error In Action upon the Case if the plaintiff declares that in London by the Custom a Common Whore ought to be carted and a Bason rung before her And that the Defendant spoke these words of the Plaintiff Thou art a Whore and a common Whore and art a Bawd to thy Mistress and I will have a Bason tinged before thee the Action well lyes upon this Declaration for these Words Trin. 15. Car. B. R. Hassell against Capcot adjudged in Arrest of Judgment In Action upon the Case if the Plaintiff declare that in London there is a Custom that a Bawd ought to be carted and the Defendant said these words of the Plaintiff She is a Bawd and I will have her carted Hill 15 Car. B. R. Riley against Lewes adjudged in Arrest of Judgment If the Plaintiff declares in an Action upon the Case that whereas he was a Parishoner of S. the Defendant being Vicar there to the intent to scandalize the plaintiff and to create an evil opinion of the plaintiff among his Neighbours so that they Abstraherent seipsos à consortio of the plaintiff tanquam ab homine excommunicato nulla fide aut credentia digno and to exclude the Plaintiff injustly from the Church and for a long time to deprive him of the benefit of hearing divine Service in the said Church the Defendant in time of divine Service in the Church in the hearing of the parishioners maliciously pronounced the plaintiff excommunicated Praetextu cujusdam Instrumenti by him received from the Ordinary whereas he never had any such Instrument of Excommunication nor was he excommunicated And also at another time to the same Intent aforesaid in time of Divine Service in the hearing of the parishoners maliciously pronounced the plaintiff excommunicated and refused farther to celebrate divine Service until the plaintiff departed out of the Church whereupon the plaintiff was compelled to go out of the Church whereas the plaintiff was not excommunicated whereby the plaintiff was scandalized and hindred from hearing Divine Service for a long time and for the clearing of this Scandal and of his Innocency therein Diversos corporis sui grandes labores capere diversas ingentes denariorum summas errogare exponere coactus fuit in extremam depauperationem ignominium maximum of the plaintiff This Action lyes notwithstanding he doth not shew that any person did avoid his Company or refused to trade or deal with him and notwithstanding he doth not set forth any temporal or spiritual loss for it is a great Scandal and malicious tho to his Soul and spiritual Mich. Car. B. R. Barnabas against Traunter Adjudged in Arrest of Judgment If a man saith of another who hath lands by discent That he is a Bastard an Action upon the Case lyes for it tends to his Disinheritance and disturbance by Suit Mich. 3. Jac. B. R. per Curiam In an Action upon the Case if the plaintiff declare that he was Heir apparent to his Father and B. his Brother and that either of them hath Lands in Fee to the value of 40 l. per annum and that they did intend to suffer the said Lands to descend to him or to convey the same to him yet the defendant intending to disinherit the plaintiff said to the plaintiff Thou art a Bastard whereby his Father and Brother intended to disinherit him and to convey their Lands to another The Action lyes upon this Declaration for the temporal damage which might come to him thereby Pasch 13. Car. B. R. Humfries against Stutfield Adjudged in Arrest of Judgment Where there was Grand-father Father and Son and the Son brought an Action upon the Case and declared that the Grand-father whose heir he is entailed certain Lands upon him and the Heirs males of his Body and the Defendant intending to scandalize his possibility that he hath to inherit this Land as Heir of the body of his Grand-father said that he was a Bastard notwithstanding that the Grand-father and Father were alive yet the Action brought as above by the Son did lye Humfries Case ubi supra In an Action upon the Case if the Plaintiff declare that he exhibited Articles in the Kings Bench against the defendant for the good abearing and swear the Articles to be true before Justice W. Innuendo the said Oath taken upon the said Articles although it be not averr'd that the Oath was taken of Record yet the Action lyes for it shall be intended the Articles exhibited in Court and sworn before a Justice of the Court Mich. 10. Car. B. R. Yolden against Wannel Adjudged in Arrest of Judgment If a man saith of an other He hath written a forged Will wherein I will prove him salse forsworn and perjur'd in a Will that he made of John Hunt an Action lyes for these words for it shall be intended that he was perjur'd in his Oath taken touching the said Will. Hil. 12. Car. in B. R. Cowley against Clough In an Action upon the Case if the plaintiff declare that there was a Writ to inquire of Damages between A. and B. in a Court of C. at the Sessions-house where he was sworn to give Evidence according to his Knowledge
and afterwards the Defendant said of him He is a forsworn Rogue in taking an Oath at the Sessions House an Action lyes for these words although it was objected in Arrest of Judgment that if he swore falsely before an Inquest of Office it is not within the Statute of 5 Eliz. for admit it were not yet they all agreed that for such forswearing at the common Law he may be indicted and therefore if it be out of the Statute yet an Action lyes for this Slander Mich. 13. Car. Pruer against Moadman If a man saith of an other He is a Perjurer he swore once for me and the second time hath perjur'd himself with J. S. a Stranger Action lyes Mich. 9. Car. in Camera Scaccarii Adjudg'd in Writ of Error If a man saith of J. S. I will prove J. S. forsworn and that ten men can justifie and I could prove him perjur'd if I would The Action lyes not for the first words but it lyes for the latter for it is a great Slander to be reputed that it is in the power of any man to prove him perjur'd Pasch 5. Jac. B. R. Whitacre against Loverden per Cur. If a man saith to another I did not know that Mr. W. was your Brother he hath forfworn himself and I will prove him perjur'd or else I will bear his Charges Action lyes for these words although they are spoken conditionally to beaâ— his Charges if he did not prove him perjur'd Mich. 37. 38 Eliz. Woodroffs Case adjudged If a man saith of an other That he was perjur'd and he would prove him so by two Witnesses Action lyes for these words although he doth not say in what Court he was perjur'd or how Trin. 39. Eliz. B. R. Rayners case adjudged If a man saith to an other Thou wast perjur'd in a Court of Tottenham Action lyes for it shall be intended a sufficient Court to hold Plea Pasch 40. El. B. R. If a man saith to another Thou art a forsworn Knave and wast indicted by twelve men and hast compounded for it Action lyes for all being laid together it appears that he intended a Perjury in a Court of Record Mich. 1. Car. Gilbertin against Row adjudged in Arrest of Judgment If a man saith to another Thou art a forsworn Knave and I will prove thee forsworn in the Ecclesiastical Court Action lyes for these words for the Ecclesiastical Court is a Court known Pasch 40. Eliz. B. R. Shaw's Case adjudged To say to a man Thou art a Whore master or to a Woman Thou art a Whore no Action lyes because that it is merely spiritual without any temporal loss Trin. 11. Jac. B. R. Matthew against Croze per Curium 2 Cro. 323. To say of marryed man He hath had two Bastards thirty six years agone and he should pay for keeping of them no Action lyes altho he aver that by force of those words there was Contention between him and his Wife and he was in danger to be divorc'd for there is not any temporal Loss and the Offence was pardon'd by many general Pardons it being 36 years before Pasch 16. Jac. B. R. Randal against Beal adjudged in Arrest of Judgment He had a Bastard-child by Jennings his Wife of Northampton by speaking of which words the Plaintiff saith in his Declaration that he refused to marry with A. S. whereas it ought to be that A. S. refused to marry with him The Action lyes not Mich. 11. Car. B. R. Carters Case per Cur ' If a man saith to a Feme Covert Thou bold Cullobine-bastard-bearing Whore thou didst throw thy Bastard into the Dock at White Chappel no Action lyes for these words altho it may be intended that she had a Bastard by the said Cullobine who in truth was her husband before Marriage inasmuch as there appears not to be any temporal damage by it by loss of any Marriage but only a Punishment by the Statute for having a Bastard which is not sufficient cause to maintain the Action Hill 10. Car. B. R. Cullobine ux ' against Vinor adjudged in Arrest of Judgment In an Action upon the Case if the plaintiff declare that whereas divers persons conabantur desiderabant to marry their Cosins and Friends to him the defendant being a woman on purpose to scandalize the Plaintiff and to hinder him from marrying with any Woman preferr'd a scandalous Libel against the Plaintiff in the Spiritual Court thereby charging him that he under colour of being a Suitor to her in the way of Marriage resorted often to her in the Night and lay with her and begot a Child of her body and after published and affirmed the same matter before divedrs persons falsly and maliciously whereby the plaintiff was so much scandalized that all honest persons having the fear of God before them aliquem mulierem de filiaâ—us aut consanguineis suis in legitimo Matrimonio cum quaerente copulari jungi semper postea hucusque omnino recusaverunt adhuc recusant And upon Not guilty pleaded the Jury found a special Verdict scil that the defendant preferred the said Famosum Scandalosum Libellum c. and that she afterwards at the Sessions of the Peace being examined who was the Father of the said Child begotten of her body said and affirmed that the Plaintiff was and that she did affirm it falso injuriose of the Plaintiff and that by reason thereof the Plaintiff was much scandaliz'd in his name and Fame and that all honest persons having the Fear of God before them Aliquam mulierem de filiabus consa guineis suis in legitimo matrimonio cum quaerente copulari jungi semper postea hucusque rccusaverunt adhuc recusant The Action in this case lyes not upon this special Verdict because here doth not appear any malicious Prosecution and here there is not alledged or found any loss of any particular Marriage or that he had any Communication of any particular Marriage and this general matter That all honest persons refuse by reason thereof to marry their Daughters or Cosins to him is too general Mich. 11. Car. B. R. intâ—r Norman and Simons per Cur. Adjudged in the Exchequer Chamber and the Judgment given è contra in B. R. reversed accordingly If a man saith of another that hath Land by Discent that he is base born no Action lyes for these words taken in mitiori sensu are not actionable Mich. 3. Jac. in B. R. per Curiam If a man saith of the Son and Heir apparent of J. S. that he is a Bastard no Action lyes because he hath no prejudice by it yet Mich. 3. Jac. in B. R. per Curiam If a man saith to a woman Thou hadst a Bastard no Action lyes because it doth not appear thereby that he intended that the Bastard was chargeable to the Parish in which Case a corporal punishment is to be inflicted by the Statute Hill 5. Câ—r B. R. Lightfoot against Pâ—got Rot.
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