Plea in Abatement of the Writ before the default saved 40 E. 3. 2. In a Writ of Aiel Besaiel and Cosinage one shall not plead to the points of the Writ after he hath pleaded in Barr but it is otherwise in an Assise of Mortd ' ancestor as it seems 40 E. 3. 19. Where the Writ abates in part by the Act of the Court and where it is abated by the Parties own Confession As if an Executor brings an Action de clauso fracto de bonis asportatis in this case the Writ shall abate for part and as to the rest it shall be effectual But where the Writ is abated by the Plaintiff it is reason although that it be of his own Conusans that if it abate that the whole shall abate In Assise against two the one pleads in Barr as to a moiety the other pleads jointenancy with a third person the Plaintiff may choose him who pleads in Barr for his Tenant and confess that his writ is false for the other part In Assise against two the one is Tenant the other is Disseisor which Disseisor makes default the other accepts his Companion Tenant with him and pleads in Barr the Plaintiff dissables the Tenant and doth not answer to the Barr for in this case he hath accepted a Tenant which is not Tenant As if Praecipe quòd reddat be brought by two where one is a Bastard or by two persons as Heirs where one of them in truth is not Heir in these cases the whole Writ shallabate because that that is meerly false whichis supposed to be true Two Executors bring an Action of Trespass of Goods carried away in the life-time of the Testator and also of Trees cut down here the Writ is good notwithstanding that the Executors cannot have the Writ for the Trees cut down and if they pray to have an other Writ for the Trees cut down then the whole Writ shall abate quod nota A Defendant or Tenant cannot abate a Writ by his Act but the Act of the Plaintiff or Demandant and the Act of God and also the Act of an Estranger may abate the Writ In a writ of Ravishment de gard by the death of the Infant the writ shall not abate Tenant by Statute-Merchant is disseised the disseisor lets for life the Tenant by the Statute brings an Assise the Lessee dyes the writ shall not abate because he shall recover all in damages But it is otherwise where he is to recover the Freehold because in that case he cannot have the effect of his Judgment A Writ of Admesurement of Common is brought by one against three depending the writ the Plaintiff and one of the Defendants exchange their Lands to which the common is appendant if the writ shall abate it seems not because that notwithstanding the exchange the Plaintiff may have the effect of his Suit which is that the Common may be admesured and at all times pending the writ the Plaintiff and the Defendant who made the exchange were Tenants and the Writ of Admesurement granted between them by reason of their Tenure for there was no mean-time between the parting from the Free-hold in one Acre and the taking the Free-hold in the other Acre and that very instant that the Freehold of the one Acre was parted from the other was vested so that there was cause of Admesurement between them as well after the exchange as there was before A Writ of Admesurement is brought against three one hath nothing in the Common so that the Writ ought to abate because that non-tenure is a good Plea in this Action yet if he that hath nothing before any exception be taken to the Writ purchaseth an Acre of Land by which he ought to have Common in the same Land the Writ is made good As in Praecipe quod reddat brought against him that hath nothing and pending the Writ he purchaseth the same Lands the writ is good So it seems the writ is good notwithstanding no time between the exchange ergo à forciori when there is no mean instant But by the better opinion it seems that the writ shall abate notwithstanding that the party may have the effect of his Suit for that ground is not obsolutely general as Praecipe quòd reddat is brought against me and I have nothing in the Land and pending the writ the Land descends the writ shall abate I bring an Action of wast by reason of the reversion or a Quid juris clamat depending the writ I alien the same Reversion and after purchase the Reversion again yet the writ is abated If a writ of Partition or Nuper obiit be brought and pending the writ the demandant aliens and retakes the Estate to him yet the writ shall abate And yet in all these cases the Plaintiff may have the effect of his Suit But that which causeth the writ to abate is the Act of the Plaintiff for the writ depending he hath aliened that which gives him his cause of Action and therefore the writ shall abate as in the cases aforesaid for as to the Plaintaiff's part his own Act shall abate the writ and not the Act of God nor of the Law except in some cases and as for the Defendants or the Tenants part his own Act shall not abate the writ but the Act of God or of the Law may for if the Tenant aliens depending the writ yet the writ shall not abate but the Demandant shall recover and he that comes in by the Tenant shall be bound by that Recovery And if an exchange had been made by the Plaintiff with a stranger who had nothing in the Common the writ should have been abated without question So for that Acr◠which he had when the writ was brought he cannot maintain his writ for put the case that the day the writ was purchas'd the Plaintiff had not any Land by which he ought to have common and afterwards pending the writ he purchas'd an Acre of Land to which the Common is appendant this shall not make the writ good which was nought from the beginning When the writ is made abatable by the Act of the Plaintiff or Demandant Videlicet by his aliening of that thing which gives to him the cause of Action if he pending the writ doth purchase the same again it shall not revive the writ nor make it good WHere the Grant shall be good ab initio although it was incertainat the commencement Note If a Parson will Grant to me all the Wooll which he shall have for Tithe the next year to come this Grant is good and yet the quantity of the Wool is incertain at the time of the Grant But because it may be reduced to a certainty after the Grant it was held good enough 21 H. 6. 43. And so if a man will Grant to me the Perquisits of his Court this incertain Grant is good causâ quâ suprà 21 H. 6. 43. The same Law is where a Feoffment is
the King presented and by some held that the party may traverse the Kings Title in this Action not traverse in Chancery and the Presentment not the Appendancy traversable unless where they claim from the same person but at last almost all were of Opinion that the Traverse of the Kings Title here and not in Chancery is void but vide Co. 9. rep 95. b. 96. a. the presentment is traversable here M. 20 E. 4. pl. 11 17. P. 21 E. 4. pl. 15. Quare Impedit the Defendant pleads ne disturba pas The Plaintiff presently prays a Writ to the Bishop and has it and so is the 5 H. 7. 22. a. M. 21 E. 4. pl. 42. A. B. and C. Joynt-tenants of an Advowson they present C. by a strange name to the Church and he is admitted c. by the Bishop and is held a good presentment sed vide 10 H. 8. 14 a. Corporation present their Head and 't is held a void presentation see Mo. 45. accord ' al principal case and P. 17 H. 8. pl. 28. M. 21 E. 4. pl. 48. Three Patrons of an Advowson agree to present by Turns if one usurps one the other presents in her Turn yet it puts her not out of Possession but if one be in Ward to the King and he usurps in Right of one of the Parceners it puts the other out of possession because he not privy to the Partition per Choke and Bryan sed Catesby contra because in Right of the Parcener P. 22 E. 4. pl. 3. Void or not Void is tryable at Common Law but Full or not Full by Certificate of the Bishop and so is 40 E. 3. 20. b. 11 H. 7. 18. a. M. 22 E. 4. pl. 3. Quare Impedit against A. as Patron and B. as Incumbent the Defendant pleads that C. presented him not named no plea For here the Plaintiff has named one Disturber and he shall not force him to name another and vide 9 H. 6. 30 31. a Disturber must be named but contrary of an Incumbent For that is at the Plaintiffs pleasure H. 22 E. 4. pl. 7. In Quare Impedit Title was made by Acceptance of a second Benefice contrary to the 21 H. 8. and Issue taken of the Jurisdiction And so it seems Admission and Institution makes not the Avoidance till Induction Mo. pl. 45. Hob. 166. Owner of an Advowson grants that whenever the Church is void J. S. shall nominate and he will present each shall maintain a Quare Impedit and if he that has the Nomination presents he that should present shall have a Quare Impedit and è contra and a Rent Charge granted must be confirmed by both but Aid shall be prayed only of him that has the Nomination for 't is in the Right Mo. pl. 147. vide H. 14 E. 4. pl. 2. Mo. pl. 1258. vide Mo. pl. 11 78. Quare Impedit against Parson Patron and Ordinary who make default the Plaintiff is forced to make Title and then has a Writ to the Bishop and another to enquire of the four points and recover Damages against them all because by the Default all supposed Disturbers Mo. pl. 214. Barroness retains Chaplains her Marriage after is no discharge of their Detainer unless the Husband actually discharge them but Attainder either in Man or Woman is a Discharge Rex vers ' Epm ' Peterborough Mo. pl. 924. Resolved the Advowson of the Viccaridge is properly appendant to the Rectory but may be to the Mannor as if the Mannor and Rectory were both in a Hand before Appropriation and at the Appropriation the Lord reserved the Advowson of the Viccaridge but that must be shewed either by the Appropriation or usual Continuance which is an Evidence of it Sir George Shirley against Vnderhil Mo. pl. 1258 Quare Impedit against the Bishop and another who demurred Judgment for the Plaintiff et Epus ' in Mia and Writ to enquire 7 E 3. 30. a. Writ to enquire of Damages on Demurrer and Judgment et Epus ' in Mia ' And that assigned for Error because he is twice amercied Resolved none for First The last is but a Recital of the first Secondly The first however is good at Common Law and the Plaintiff may take it at Common Law without Damages if he will wherefore 't is affirmed Specot's Case Co. 5. rep 58. b. 59. a. Quare Impedit and the Writ was Ad Ecclesiam and the Count was de Advocatione duarum partium and well For the Writ must be General but the Count must be according to his Title Windsor's Case vide Co. Ent. 489. a. 3 Cro. 687 688. Co. 10. rep 13. b. 1 Inst 17. b. 18. a. vide 2 Anderson pl. 16. Writ quod permittat presentare ad duas partes Ecclesiae and Counts of the Advowson that duae partes bene aliter if the Count had been de duabus partibus Co. 5. rep 102. A Tenant for Life Remainder to B. presents his Clerk c. and after sues him to Deprivation for not reading the Articles A. dies and two years after the King presents by Lapse and then the Clerk of A. dies and B. presents Resolved first That the Patron is not bound to take notice of the Deprivation though at his Suit but 't is to be given by the Ordinary to the Patron and not only a General but publick Notice Secondly Though the Church be so void for not Reading as a Parishoner may plead it against the Parson in Debt for the Tithes yet the Patron is not to take Notice before it be given Thirdly The King mistakes his Title his presentation is void Fourthly The Institution and Induction c. thereon had are void and the Church remains so void to that Hob. 203. Dr. Griffith's Case B. R. 14 Car. 1. Fifthly If a Common Parson usurp upon the King and his Clerk be inducted the King is put to his Quare Impedit but a double or treble Usurpation gives only the possession not the Right from them Sixthly Without presentation the Patron cannot be put out of Possession For Collation may put one that has Right to collate out of possession but not one that has Right to present And so 't is agreed after fo 50. in Boswell's Case And note if the Presentation be in the time of War though the Admission Institution and Induction be in Time of Peace all is void Green's Case 2 Cro 385. Quare Impedit against the Bishop and Clerk omitting the Patron Resolved it shall abate For the Patron only at Common Law could plead and must be named in every case unless where the King presents who cannot be sued and unless it be in such a case as the Patrons Right is not concluded but only the presentment recovered and if it be brought against the Clerk and Patron and the Patron does plead to the Writ it shall not abate nor shall it if brought by Baron and Feme or two Parceners or Joynt-tenants and the Feme and one Parcener
is to have Common And here no Land is to be recovered so certain enough Sir Anthony Cope agaiust Temple Yel 146 147. Replevin the Defendant avows Forty shillings Rent for two Acres held of him the Plaintiff replies that he holds them and twenty more of him by 12 s. absque hoc that he holds the two last by Twenty shillings and though objected the plea double traversing that the quantity of the Rent And also that he holds the two Acres only adjudged good because otherwise he could not avoid the false Avowry M. 8. H. 7. pl. 1. Replevin and Avowry for that A. was seized in Jure Ecclesiae and leased good without saying that he was Parson supplied by in Jure Ecclesiae but not in Quare Impedit the Plaintiff that so he is a Parson Imparson ' because till then in that cause he cannot plead in Bar. Rolls against Walters Noy 70. If Cattel or Goods be distrained for Rent or otherwise for Damages then the party whose Goods are fo distrained may make Replevin and must prosecute his Replevin as Plaintiff and the Defendant must avow the taking but if by chance the Plaintiff in Replevin become Non-suit or Judgment against him then shall the Defendant have a Retorn ' hend ' averiorum upon which the Plaintiff in Replevin may bring his Writ of Second Deliverance but if he become Non-suit again or Judgment against him then the Defendant shall have Retorn ' hend ' irrepledgeable and keep the Goods for ever If Live Cattel and Dead Things be Replevied by one Writ as they may the Live Beasts or Cattel must be named before the Dead as thus Quendam Equum suum Catella sua quae B. cepit If a Man distrain Beasts or Goods for his Rent and the Tenants tenders Amends before the Distress is taken The taking the Distress is tortious Mesme le Ley pur Damage fesant But tender after the Distress be taken and before the Impounding the Detainer and not the taking is tortious But tender after the impounding neither the taking nor detaining are tortious for the Tender comes too late In Replevin the Plaintiff is Non-suited and the Defendant had a Writ of Retorn ' hahend ' and enquiry de dampnis the Plaintiff brings Second Deliverance This is a Supersedeas to the Retorn ' hend ' but not to the Enquiry By the Common Law when the Goods or Chattels of any person are taken he may have a Writ out of the Chancery commanding the Sheriff to make Replevin of them and this Writ is Viscontiel and in the nature of a Justicies in which the Sheriff may hold plea to any Value and in all Cases but when the Defendant claims Property and when more than one Live Beast is taken then the Form of the Writ is quod replegiari faceret J. S. averia sua and when only one Beast is taken then the Form is quod replegiari faceret J. S. quendam Juvencum suum vel bovem suum c. And when many Dead Chattels are taken then the Writ shall be quod replegiari faceret Bona Catella sua and the Plaintiff must ascertain them in the Declaration But if but one Dead Chattel be taken then the Writ shall be quod replegiari facias J. S. quoddam Plaustrum cum furnitura c. By the Statute of Marlbridge cap. 21. the Sheriff upon Plaint made to him in Court or out of Court ought to make Replevin of the Goods or Chattels taken In Replevin the Sheriff ought to take two sorts of Pledges by the Common Law Pledges de prosequendo and by the Statute Pledges de Retorn ' habend ' Co. Com' 145. b. A Man who hath but only a special Property may bring a Replevin as when Goods are pledg'd to him or Beasts are taken by him to compost his Land and the Writ may be General or Special 41 E. 3. 18. b. 22 H. 7. 14 b. 11 H. 4. 17. If this Plea be before the Sheriff by Writ then it may be removed into the Kings Bench or Common Pleas by pone by the Plaintiff without Cause and by the Defendant with Cause mentioned in the Writ But if it be before the Sheriff by plaint then it may be removed by Recordare issuing out of Chancery by the Plaintiff without shewing cause and by the Defendant if he do shew cause in the said Writ A Replevin lies of such things whereof a man hath but a qualified Property as of things that are ferae naturae and are made tame so long as they have Animum revertendi le Case de Swans in Co. 7. rep So Replevin lies of a Leveret or of a Ferret 2 E 2. Fitz. tit Avowry 182. Also Quare cepit quoddam examen Apium c. Register Original fol. 81. In many cases this Action or Trespass lies at the Election of the Plaintiff but against the Lord Trespass lies not 7 H. 4. 28. b. 6 H. 7. 9. A Replevin lies against one de Averiis capt ' per ipsum simul cum alio Co. Ent. 600. 2 Inst 533. So it lies de averiis capt ' detent ' quousque c. de aliis averiis capt ' adhuc detent ' Rast-Entr 567. 572. And in this Case when the Plaintiff declares that the Defendant yet detains the Cattel and the Defendant appears and makes Default the Plaintiff shall recover all in Damages F. N. B. 69. b. Co. Ent. 610. When the Beasts are chased into another County after they are taken the party may have a Replevin in which of the Counties he pleaseth or in both Idem 65. 6. When the Cattel of several men are taken they shall not joyn in Replevin nor is it a Plea to say that the property is to the Plaintiff and another Co. Com. 145 b. In Replevin the Plaintiff ought to alledge a place certain where the Cattel c. were taken When the Plaintiff is Non-suited before Declaration and he sues Second Deliverance and is Non-suited also again before Declararation the Defendant shall have the Cattel irreplegiable without any Avowry c. Dyer 280. Scire Facias SCire Facias by the King to repeal a Patent the Defendant pleads a Plea whereon the Attorney General demurrs the Defendant joyns in Demurrer and pleads over part of a Statute and Informand ' Curiam Co. 8. rep 12. b. Scire Facias against an Administrator who pleads a special Plene administravit Replic ' quod devastavit and says not who devastavit issue quod praedictus J. S. non devastavit found for the Defendant the Plaintiff moved in Arrest c. 't is not said who devastavit so might be the Executor at Age but per nonnullos the Plaintiff shall not after Issue find a Fault in his own Replication Oxford against Rivet and 1 Cro. 135. Plaintiff after Verdict when no Advantage of his own ill Declaration 1 Cro. 56. 66. vide Co. 7. Rep. 4. 6. 5. rep 39. b. 8. rep 59. a. 1 Cr. 39. Scire Facias
not an Action for the whole or for part the Writ shall abate de facto as in Quare Impedit if it appears by the plaintiff's shewing that the Church is full by his own Presentation the Writ shall abate de facto Some Pleas abate the Writ in the whole and some but in part As In Trespass against two one appears and pleads that the other was dead die impetrationis brevis or that there was no such person in rerum natura there the whole Writ shall abate But it is otherwise where one of the Defendants dyes after purchasing the Writ 18 E. 4. 1. 2 H. 7. 16. Rast Entr. 126. Trespass against husband and wife after Verdict and before the day in Bank the husband dyes in Cro. Caroli 509. it is doubted if the writ shall abate but it is agreed there That if the wife dyes it shall not abate against the husband But in case for Slander by the wife the writ shall abate after Verdict Heb. 129. Account against two one dyes after the first Judgment the Writ shall abate only against him In Right of Advowson the Defendant pleads that the Plaintiff was seised of the sixth part die impetrationis brevis this shall abate the whole Writ 5 H. 7. 7. In Debt upon an Obligation the defendant pleads That after the writ purchased the plaintiff had received parcel and shews an Acquittance the whole writ shall abate and yet it is a good plea in barr for that part 5 H. 7. 41. a. Rast Entr. 160. 7 E. 4. 19. 15 H. 7. 10. 3 H. 7. 3. Quere if in Debt upon simple Contract the plaintiff receives part pendente brevi if it shall abate the writ In Debt upon an Obligation with Condition to deliver 20 Quarters of Barley the defendant pleads in Abatement that pendente billa the plaintiff had accepted 15 parcel of the said 20 and adjudged to be an ill Plea because it is collateral and not parcel of the Sum contained in the Obligation 3 Cro. 253. Where the defendant pleads matter that entitles the plaintiff or demandant to a better writ it shall abate the other as in a Writ of Ayel Seisin of the Father So in Mortd ' ancestor his own Seisin c. But in Formedon or Writ of Right darrein Seisin is no Plea for in Formedon the Gift and not the Seisin is the Title and it is not within the Statute of 32 H 8. of Limitations to be brought within 50 years 12 Eliz. Dyer 290. 4 E. 4. 32. b. If the Tenant brings a Writ of Mesne of two Acres and depending the writ he alieneth one of them the writ shall abate The same Law in an Action of Wast brought of two acres if the plaintiff aliens the Reversion of one of them the writ shall abate Where it appears that the writ was never good in part it shall abate in the whole As in Trespass against 3 if one be dead after the writ purchased the writ shall abate in the whole per 7 E. 4. The same Law if Trespass be brought against three and one saith that there is no such Name in Rerum Natura as the third person's name Judicium de Brevi if it be found the Writ shall abate in the whole because that I have joyned with me such a person who hath no colour or cause of affirmance my affirmance shall abate Where the writ is good for part and for part shall abate As in Debt upon Obligation against two they both deny the deed and it is found the deed of one of them and not of the other yet the Plaintiff shall recover against him whose deed it is 40 E. 3. Praecipe quod reddat against Tenant for life the Reversion descends to him depending the writ the writ shall not abate Misnomer in Trespass shall not abate the writ but only against him who pleads the Plea 5 E. 4 2. 13. 2 H. 7. 16. 33 H. 6. 23. A Praecipe is brought by three joyntly several Tenancy in parcel or in the whole is pleaded by one of the Tenants it shall abate the whole Writ and against all Rast Entr. 248. 270 1 2 3. 364 5. 282. In Right of Advowson against two as Jointenants the death of one shall abate the writ but secus in Assise of Novel disseisin or Mortd ancestor for there it sufficeth if there be any Tenant to the Freehold Cro. Car. 574 583 Rast Entr. 107. In an Appeal against two no such person in Rerum Natura as to one shall abate the whole writ but it is otherwise of the death of one as it seems 29 H. 7. 21. 2 H. 7. 8. But it is otherwise in an Assise or Writ of Dower as in Pollard's Case Com' 89. b. In Trespass in F. and H. the defendant said that there is not any such Vill or Hamlet in the said County and the better Opinion was That this Plea shall abate the whole Writ 4 E. 4. 33. a. Co. Lit. 155. b. Rast Entr. 108 298. Co. Entr. 121. But Quaere how it should have been tryed for it seems by a Jury of the Visne or Neighbourhood of F. Debt against two Executors one said That whereas he is nam'd of S. that he was of D. the day of the Writ purchas'd and prayes Judgment of the Writ and agreed That if the Plea was found for him that the Writ should abate against both and yet the other shall answer but the other plea shall be first tryed 21 H. 6. 4. Rast Entr. 108 295 298 299. 160. In Trespass against two one pleads that the place in question is within his Fee and demands Judgment of this writ quare vi et armis the writ shall abate against him only So where the one is Feme covert Jointenancy in the Demandant or Coparcener shall be pleaded in Abatement 22. E. 4. 4. 2 H. 7. 16. Cro. Eliz. 554. Rast Entr. 615. In a Quare Impedit against two one pleads that there was no such Church as was named in the Writ the other pleaded that there was no such Bishop of Lincoln as was there named and Issue was joyned upon the first Plea but to the second Plea the Plaintiffs demurred and the first being found for the Defendant the whole Writ did abate Hobart 250. In a Writ of Error the death of one of the Plaintiffs shall abate the whole writ Some Pleas in Abatement go only to the person of the plaintiff or defendant others to the Writ or Action As Excommunication in the Plaintiff or Demandant may be pleaded in disability of his person but every Excommunication shall not disable As if a Major or Bailiffs and Communalty or any other Body aggregate of many bring their Action Excommunication in the Major or Bailiffs shall not disable them because they sue and answer by Attorney but it is otherwise of a sole Corporation So if Executors or Administrators be Excommunicated they may be disabled for every one that hath to do with aâ—person Excommunicated either by commerce
or conversation are also Excommunicated Co. Lit. 134. If a Bishop be defendant an Excommunication by the same Bishop shall not disable the plaintiff and if no other matter be shewn it shall be intended for the same cause Co. Lit. ib. The Writ shall not abate for Excommunication in the Plaintiff or Demandant But the Judgment shall be that the Tenant or Defendant shall go quit without day because when the Demandant or Plaintiff hath purchased Letters of Absolution and they are shewed to the Court he may have a Resummons or Reattachment upon his Original according to the nature of his Writ Lit. lib. 2. ca. 11. Sect. 42. If an Alien brings an Action personal or mixt in his own right the Defendant may plead it in Abatement in disability of his person or in bar to the Action with this difference that in Actions personal or Trespass for breaking his house the defendant ought to aver that the plaintiff is an Alien born at such a place under the Allegiance of such a Prince who is Enemy to our Soveraign Lord the King for an Alien Friend as he may Traffick and have a House for a habitation so he may have an Action personal and Trespass for breaking his house as he may have a Writ of Error for necessity And the Opinion of the Lord Coke in his Commentary upon Littleton is That if an Alien Friend brings an Action it ought to be pleaded in disability of his person and not in barr to the Writ or Action but if he be an Alien Enemy the Defendant may conclude to the Action And therefore Mr. Theloal in his Digest of Writs well observeth That an Exception taken to a Writ propter defectum Nationis vel potius defectum subjectionis vel Ligeancie is peremptory and that the Action cannot be revived by Peace or League subsequent and that the King may grant Licence to Aliens to implead and likewise that such Aliens as come into the Realm by the Kings Licence or Safe Conduct may use personal actions by Writ though they be not made Denizens and that Denizens lawfully made by the Kings Grant and such Aliens born as are within the express words of the Statute of 25 E. 3. may use actions real by Original Writ Co. Lit. 129. a. b. 130. b. Co. 7. 1. Theloal Digest de Breifs Lib. 1. ca. 6. 32 H. 6. 23. An Alien may be Administrator and have Leases for years as well as personal Chattels and Debts Cro. Eliz. 683. Cro. Car. 8. 9. One brings an Action as Executor Utlary in the plaintiff is no Plea because he sues in auter droit but it is otherwise of Excommunication 21 E. 4. 49. 34 H. 6. 14. 14 H. 6. 14. If the defendant plead that the plaintiff is an Alien born and conclude to the person yet it seems he may demand the View 3 H. 6. 55. For the Pleading of Matters of Record in Abatement observe That in Formedon for a Mannor another Formedon depending for 20 s. Rent out of that Mannor is a good Plea 3 H. 7. 3. That where in Trespass the defendant pleaded that the plaintiff had brought Replevin against the Mayor and Commonalty of A. for the same cause and that he was one of the Commonalty die Captionis c. Necnon die impetrationis Brevis and it was there agreed That in Trespass a Replevin depending for the same Cause is a good Plea if there be not more Defendants in the Replevin than in the Trespass 8 H. 7. 27. A Quare Impedit is brought against the Bishop and another as Incumbent the Defendants plead that the plaintiff hath brought another Quare Impedit against the said Bishop for the same Presentation which was then depending undetermined and demands Judgment of the Writ and it was adjudged a good Plea But the plaintiff might have brought divers Quare Impedits against divers Defendants Hobart 138. 9. So in an Assise of Darrein Presentment it is a good Plea to say That there is a Quare Impedit depending for the same Presentation Hobart 184. But where an Assise is brought of Lands in one County an Assise for the same Lands in another County and Judgment thereupon cannot be pleaded So of a Recovery in Ancient Demesne because it cannot be intended that the Lands recovered in the Assise or in Ancient Demesne are the same Lands 4 H. 6. 24. Rast Entr. 65. In Formedon in le Diseender it is no Plea to say that the Plaintiff at another time brought a Formedon in the Remainder of the same Lands except both the Counts be of one and the same Gift 40 E. 3. 31. Where the Heir brought two several Formedons upon one and the same Gift although the last did vary from the first Gift yet it is no Plea in Abatement for he might claim by two Ancestors sub dono 4 E. 3 8. If the Defendant in a personal Action pleads another Action depending at the time of the purchasing the last Writ he ought not to say that it is yet depending for the last Writ is abated in Law notwithstanding he is afterwards non-suited in the first Writ Co. 6. Ferrers Case Where Note the diversity when the writ is general as Covenant Detinue Assise c. and the Certainty is in the Declaration for there if the Plaintiff is nonsuited in the first before he counts or declares the last shall not abate and when the writ is special and the thing demanded is specified therein as in Praecipe quod reddat c. What persons shall be admitted to plead in Abatement and what not Note One Defendant may plead the death of the other before the Writ purchased or that there is no such person in rerum natura 20 H. 6. 30. b. But in Replevin if the Defendant avow upon an Estranger the Plaintiff in the Replevin cannot plead in Abatement of the Avowry 22 E. 4. 35. b. If the Cognizee of a Statute sue execution against one Terretenant only without the other he cannot plead in Abatement but is put to his Audita Quaerela against the other because that the Cognizee is not bound to take Notice of all the Terretenants 16 Eliz. Dyer 331. a. Nota That after a Continuance the Defendant shall not be admitted to plead that the Plaintiff was made Bishop or that the Woman Plaintiff took Husband depending the Writ except that he pleads it after the last continuance but it is otherwise of the death or Coverture of the Plaintiff at the time of the Writ purchased because these Pleas do abate the Writ de Facto 32 H. 6. 10. 11. In a Replevin where the Plaintiff admits the Avowry the Priee shall not plead in Abatement but as Amicus Curiae and not then except it be apparantly known per totam Curiam 34 H. 6 8. In a Praecipe against I. S. the Son of W. Edmond at the retorn of the Grand Cape the Defendant said that his Father was named Esmond and by Thorpe it is a good
1. B. R. Sti 4. Debt upon an Obligation he pleads that he pay'd at such a day the Jury find he did not pay at that day the Truth was theâ—e were two dayes of payment and he payd one part the one day and the other at the other day the Court seemed he is condemned by the Verdict and his own Plea P 24. Car 1. B. R. Sti. 93 94. Debt upon Obligation to perform Articles the Defendant pleads Covenants performed Issue and Verdict for the Plaintiff who moved for a new Tryal to prevent Error because no Issue joyned but the Court said it was a good issue but ill plea whereon he might have demurred and ruled the Defendant shews Cause why a Replication should not be Weights Case M 24. Car 1. B. R. Sti. 139 140. In Debt upon a single Bill the Defendant pleads he had paid and the other accepted part since the Action brought ruled a good Plea in Abatement of the Writ not in Barr of the Action as here 't is Hillingworth versus Whetstone P. 1649. B. R. Sti. 112 163 Co. 9 Jnst 303. 2 Cro. 304. 959. H. 10. H. 7. Pl 3. M. 21. E. 4. Pl. 38. Debt for 40. l. against an Executor he pleads that he received but 10 l. and 40 l. was due to him the Plaintiff replies that he is Executor de tort and has more goods Et hoc parat c. where it should be Et hoc petit c. ill and that discontinues the whole Plea Alexander versus Lane In Debt for Rent Lessee pleads that Lessor nil habet c. he replyes quod habet 't is ill not shewing what estate but cured by Verdict if Issue be joyned and found quod habet Hill versus Glassey Yel 227. 2 Cro. 312. Debt upon two Bonds whereof one is not due the Defendant pleads a Release of that and another Plea to the other both found against him and this shewed in Arrest of Judgment yet shall not be stayed for by his pretending a false Release he passed over that Advantage So in Debt by an Executor the Defendant pleads he has a Co-Executor who has released to him and found against him the Plaintiff has Judgment Friths Case 3 Cro. 68 69. 4041. 110. 111. In Debt on an Obligation the Defendant pleads al jour and issue of it puis darr contin he pleads that the money was attached in his hands in London Pel versus Pel 2. Cro. 101. Debt upon two Bonds the Defendant demands Oyer of the Condition one of which was to pay c. after performance of a Will the other was to pay c. within two years after the Devisor's death and performance c. and pleads that the Will was that he should make a Release and alledges the death to be at such a day which is within two years and that he required the Defendant to make a Release and he refused Issue of the death and all found for the Plaintiff moved in Arrest c. one day is not come and damages intire so no Judgment to be but per Cur. 't is only the Allegation of the Defendant that he dyed at such a day which if true the Defendant would have rested on it and not have pleaded a false Plea whereon the Issue is taken and found against him Thurbettle versus Reeve and Tye 3 Cro. 110. 111. 40. 41. 68 69. Debt upon an Obligation the Defendant pleads non est factum 't is found that he Sealed c. and the Seal was torn off after the Plea pleaded but on atthe time of the Plea 't is against the Plaintiff Mirral versus Scebrith 3 Cro. 120 Co. 5 Rep 119. b. Debt for Rent against an Executor he pleads Levy per distress and sans Detinet void find no Levy by distress but that an assignment was made by the Testator and the Rent paid by the Assignee and adjudged for the Defendant for the substance is on the new Detinet and the rest but circumstance S. Tho. Cecil versus Harriot 3 Cro. 140. Debt on a Bond conditioned to save harmless against another Bond of Fifty two pounds And so he saved him harmless but because that he shews not that he was not damnified before ill Denis versus Thomas 3 Cro. 156. In Debt on a Bond by A. and B. the Defendant pleads the Obligation was made to them and B. And that all three have an Action depending against him Judgment is got but because the Bond to three cannot be intended And that the Plea goes in Abatement and he has concluded in Barr ill Isumet Priscot versus Hitchcot 3 Cro. 102. Debt on Obligation conditioned If such Lands be four miles distant c. the Defendant pleads that 't is four thousand paces distant the plea Ruled good for a thousand paces is a mile So it tantamounts the Condition but how a mile or the spaces shall be reckoned per communem viam or strait as a Bird could Fly qu. Mirige versus Eat 3 Cro. 212. 267. Debt super Obligation conditioned to pay 35 l. at Michaelmas and 33 at Lady-day he pleads payment of the 70 l. secundum formam Conditionis good though objected he should have pleaded several payments for the several Conditions do implye it Lox versus Lee 3. Cro 256. In Debt a good plea in Barr replication ill Judgment by nil dicit because the Defendant never rejoyned shall not be reversed for that ill till all be made up herewith agrees Co 5. Rep. 55. a Princ. Boyer versus Jennings 3 Cro. 284. Debt against an Executor the Defendant pleads that pending the Action another brought an Action for a true Debt of the Testator which he confessed and that he has nothing wherewith to satisfie the Judgment the Plaintiff protestando that was a true Debt pro placito replyes that the Recovery was by Covin to deceive him Defendant demurrs and adjudged against him for the Covin is not Issuable but reversed in Error nor could the Recovery be by Covin if the Debt true Greene versus Wilcox 3. Cro 462 463. Obligation conditioned to appear in the Kings-Bench the Defendant pleads that the Court was adjourned to Hartford and that he appeared there ill not saying prout â—atet per Recordum Corbet versus Cooke 3 Cro 466. Debt super Obligation covenanted to appear in the Kings-Bench such a day and there elect two Arbitrators who with two more to be elected by the Plaintiff shall Award c. the Defendant pleads that he appeared there at the day and there elected two the Plaintiff was not there time enough for the Award to be made nor that he had his Arbitrators there Edwards versus Marks 3 Cro 549. Debt upon Obligation conditioned that if he upon request deliver the Plaintiff all the Tallow that shall be made before Michaelmas of all Beasts killed by him or his servants then c. the Defendant pleads generally prout in Condition the plaintiff demurred supposing he ought to set out particularly
Scire Facias it shall be tryed in one Case by the Natives in the other by the Certificate of the Captain M. 11. H. 7. pl. 17. P. 21 E. 4. pl. 4. The Sheriff returns the Exigent thus Ad Comitat ' tent ' apud C. in Comitat ' Somerset 5. Exactus non comperuit because 't is not said ad Comitat ' Somerset nor Somerset set in the Margin 'T is held to be ill because it might be the County Court was not held in the County of Somerset but in another County sed adjornatur M. 11. H. 7. pl. 33. H. 6. H. 7. pl. 7. One taken upon a Capias utlegat ' by the Name of J. S. Gentleman says he is a Yeoman and was c. Scire Facias against the Plaintiff and issue that he is and was a Gentleman and the party was bailed the King dies before the Issue tried the party comes in Court temps the next King and is committed for the Bail was determined and the Cap ' utlegat ' also and a new utlegat ' awarded and returned and then he pleaded the same plea again and issue for before he could not all being determined M 1. E. 4. pl. 7. Original against W. B. Cap ' against J. B. and Outlawry shall be reversed by Moyle Danby contra Et sic per Moyle if all the three Cap ' had been against J. B. for then no Cap ' had been against W. B. quod Danby denied M. 15. E. 4. pl. 17. Trespass and Judgment for the Party and Fine for the King and Exigent at the Suit of the King and after two or three Courtiers of the King send a Supersed ' under the Privy Seal they proceed to Outlawry but shall not prevail for though the King have this Fine by reason of the parties Suit and if the party be taken he shall be Imprisoned and not discharged at the Parties Suit if he will yet till he be taken 't is only the King's Suit and the Parties have no Interest in it and if the Defendant be Outlawed after the Supersedeas 't is Error and shall be reversed P. 4. E. 4. pl. 24 36. Tr. 4. E. 4. pl. 4. M. 4. E. 4. pl. 14. H. 4. E. 4. pl. 3. vid. Co. 5. rep 88 89. The Sheriff returns the Copy of the Exigent and not the Writ it self with Proclamation c. he shall be Amerced for the Imbezlement of the Writ and if the Party render himself to the Chief Justice in Vacation time and get a Supersedeas whether he shewed it to the Sheriff or not it shall be entered in the Term and the utlegat ' discharg'd 1 Inst 128. and idem ibid. 43. b. If Error be brought of an Outlawry and it appear doubtful a Special Supersedeas shall go to the Sheriff quod capiat securitatem que les biens ne serront illoine vide 9 H. 6 44. a. b. utlegat ' after Supersedeas void and 7 H. 4. 1. a. if void and the party shall be restored to his Goods 7 H. 4 5 b. Supersedeas and Exigent rules at the day and a new Exigent and a Supersedeas the Outlawry after void H. 4. E. 4. pl. 3. Tr. 5. E. 4. pl. 13. le Amerciamt ' 37 H. 6 17. vide 3 H. 4 5. a. 8 H. 4. Cas Prin. 8 H. 4 7. a. 11 H. 4 34. a. Audita Quarela by one in Execution and he offered in Mainprize the other ut amicus Curiae surmised that the Plaintiff is Outlawed wherefore he ought to stay in Prison for the King 's Fine wherefore he was put to reverse the Outlawry or sue a Pardon H. 6. E. 4. pl. 1. The Plaintiff had sued three several Executions against the Defendant and brought Supersedeas for every one but there was granted aâ— Exigent with Precept that if any Supersedeas come to the Sheriff he should not allow it P. 7. E. 4. pl. 20. Error of an Outlawry in Debt after Judgment because no Proclamation went into the County where the party inhabited but being after Judgment resolved it need not but only in Outlawry and Process before App ' but because in all the Proceedings she was named A de B. and in the Exigent she is named nuper de B. and because it was recuperavit versus eum for eam it was reversed Lady Gargrave against Markham 2 Cro. 516. Exigent in London and 't is returned quod ad Husting ' c. and recites a Form which was ad Husting ' de Com' plit ' and that assigned for Error 2. The Exigent is that he non comperuit and 't is returned the same day it bears Teste and that was held Error Archer against Dalby 2 Cro. 660. Outlawry reversed because the Exigent supposes that Robert the Plaintiff did sue the said Robert whereas the Plaintiff's name was Thomas and Defendant being ready in Court it was reversed immediately Jonson against Kite One enters a Judgment and then is Outlawed in a personal Action then makes a Feoffment of the Lands and he that has the Judgment extends the Lands in the Hands of the Feoffee and well For by this Outlawry the King has but a pernancy of the Profits of which he is prevented by the Feoffment before Seisure not if after Seisure and if by Feoffment after Inquisition found before it be returned ibidem Opinio if the Seisure be Virtute Officii Tenant after puts the King out not if seized Virtute Windsor against Savel Outlawry against two reversed because it 's entred ideo Vtlegat ' sunt and not uterque eorum Vtlegat ' P. 15 Caroli Secundi B. R. One Outlawed after Judgment comes and pleads Misnomer and has Fieri Facias against the party and he returned Mortâ— Another Scire Facias is awarded after against the Executors and Tryal of Misnomer in this Case shall not be by Averment taken for the King but the Executors shall be made parties because it Trenches to the whole Duty but upon mort ' ret ' no Scire Facias goes against the Executors but the Misnomer is tried between the King and the Defendant 21 H. 6 21. a. 22 H. 6 7. a. In detinue of Charters and other Writings As to the other Writings the King waged Law and then as to the Charters he pleaded in Bar by Att ' nolens volens the pl. For of them concerning the Freehold no Process of Outlawry lies but Distress infinite and 8 H. 6. 23 30. Vtlegat ' lies not in Detinue for Charters and other Goods for the Charters draw the other Goods to them 21 H. 6. 42. a. 30 H. 4. b. Upon a Cap ' utlegat ' before Judgment the Sheriff may break open an House but the Plaintiff sending a Process in another Man's Name feigned an Outlawry where his Writ was but a Latitat 't is an abuse of Process and he Fined 50 l. Hob. 263. Waterhouse against Saltmarsh If one that is Outlawed for Treason Peer or Peasant be out of the Realm at the time of the Outlawry yet he cannot
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.
35 H. 6 36. In a Writ brought by one as Son and Heir to J. S. after Imparlance the Tenant cannot plead to the Writ that he is a Bastard or that he is not Heir but he may well plead it in Barr of the Action 22 E. 4 35. An Outlawry is a good Plea in Barr of an Action of Debt For by the Outlawry of the Plaintiff the Debt if it grow due by Specialty is vested in the King but secus of an Action of Debt upon Contract For in that Case the Debtor might wage his Law against the Debtee who is Outlawed 16 E. 4 4. By 10 H. 7. it seemeth that an Outlawry goeth rather in Barr of the Action than to the Writ for there it is said that where a Man cannot plead to the Writ but by shewing of a matter in Bar there he may shew it and conclude to the Writ For in an Action of Debt a Man may plead Outlawry in the Plaintiff and conclude to the person and yet the matter goeth in Bar and he may plead it also in Bar and conclude to the Action 10 H. 7 11. After a Voucher is counter-pleaded and the Tenant put to another Answer he may notwithstanding plead that the Demandant is Outlawed but after Voucher the Tenant cannot plead to the Form of the Writ 21 E. 4 64. 5 E. 3 223. If a Man pleadeth that the Plaintiff is an Alien born or a Villain or an Outlawed Person it is left to his Choice whether he will conclude these special Matters to the Writ or to the Action 32 H. 6 27. If the Husband and Wife bring an Assize and a Feoffment or Release of the Husband or the Wife or of some Ancestor of one of them be pleaded in Bar both of them shall be barred 21 R. 2. Judgment 263. An Exception taken to a Writ propter defectum Nationis vel potiùs defectum Subjectionis ligeantiae is peremptory and the Action cannot be revived by Peace or League subsequent Theloal Digest ' de Briefs Lib. 1. Ca. 6. The King may grant Licence to Aliens to implead and that such Aliens as come into the Realm by the King's License and safe Conduct may use Personal Actions by Writ though they be not made Denizens And Denizens lawfully made by the King's Grant and such Aliens born which are within the express words of the Statute of 25 E. 3. may use Actions Real by Original Writ Theoloal ubi supra If a Man be Excommunicated and he sueth an Action Real or Personal the Tenant or Defendant may plead that the Plaintiff is Excommunicated And thereupon he ought to shew the Bishop's Letters under his Seal testifying the Excommunication and then he may demand Judgment whether he ought to be answered But if the Demandant or Plaintiff cannot deny this the Writ shall not abate but the Judgment shall be that the Tenant or Defendant eat inde sine die because when the Demandant or Plaintiff hath purchased Letters of Absolution and they are shewed to the Court he may have a Re-summons or Re-attachment upon his Original according to the Nature of his Writ Lit. Lib. 2. Ca. 11. Sect. 42. An Action upon the Case was brought and the Plaintiff set forth that a Jury was Impannelled and Sworn and that one of the Jurors was challenged for that there were not 12 Jurors Talis de Circumstantibus was awarded and another Juror Impannelled and so legitimo modo acquietatus fuit but this was held Erroneous per totam Curiam For it doth not appear that he was legitimo modo acquietatus because he doth not say that this other Juror was sworn Mich. 8. Ja. in C. B. Reg. 10. If a Man plead a General Act of Parliament and mis-recite the same yet it shall not prejudice him because the Judges ought to take notice of it per totam Curiam and nul tiel Record ' cannot be pleaded against a General Act of Parliament although it cannot be found per Coke Chief Justice ubi supra Reg. 11. Note by all the Justices for a general Rule where a thing alleadged doth confess and avoid my Plea I may Traverse it 7 H. 6. 13 Eliz. Dyer A Copy-holder pleaded that per Licentiam Dominorum Manerii adtunc existentium he made a Lease for Years to J. S. and rul'd to be an ill plea because he hath not shewn what Estate the Lords have in the Mannor For they may be only Tenants at Will and so cannot give License to make a Lease for Years although they have Power to grant Estates by Copy A Man brought an Action of Trespass for his Horse taken The Defendant said that the Plaintiff gave him License to take his Horse and farther said that he was within Age at the time of the License c. Afterwards the Defendant said that he was not seised long time before that the Infant any thing had c. and so possessed until J. S. took and gave to the Infant This is a good Departure because that he doth not maintain his Barr sc his License 5 H. 7. Assise the Tenant pleads that his Tenant died without Heir he shall not be received to say that he committed Felony for which he was attainted because that it is new Matter and not pursuant An Obligation did bear Date the first day of May and was delivered the. 20 th day afterwards the Obligee releaseth the Second day of May which Release was delivered the same day This Release is no Barr quod nota If the Obligee brings an Action and declares upon a Bond bearing Date the first day c. and doth not say that it was afterwards delivered the 20 th day the Defendant shall barr him by the Release which was made after the first day and the Plaintiff shall not reply and shew the first Delivery of the Bond the 20 th day for that is a Departure and because that he might have alleadged it it at the Commencement By Keeble where the Defendant in Trespass fortifies his Bar and there is no other Matter but pursuant to the Barr and goes before the Barr in Conveyance of his Title This is no Departure but where the Barr is before the Matter shewn in his Rejoynder this is a Departure As in Assise the Defendant pleads the Dying seised of his Father and gives Color c. The Plaintiff pleads the Feoffment of the Defendant after that Descent the Defendant rejoyns and saith that Feoffment was upon Condition which Condition was broken and so he did re-enter Now this is a Departure for the Barr was before the Feoffment But if the Tenant in Assisse saith that J. S. was seised and enfeoffed him and gives Colour c. and the Plaintiff saith that J. S. disseised him and enfeoffed the Defendant upon whom he re-enter'd and was seized until c. if the Tenant rejoyn that after the Disseisin he releas'd to the said J. S. and then he enfeoffed him This is no Departure and yet he might have
14 H. 7. pl. 1. If the Ordinary refuse a Clerk for disability he is to give Notice to the Patron if he be a Lay-man but not if he be a Spiritual Man P. 14 H. 7. pl. 3. In a Quare Impedit by the King the Ordinary pleads that such a one presented his Clerk to him and he came to him as he was taking Horse and bid him come again in three days and he never came and so permitted a Lapse Resolved the Ordinary not bound immediately to examine the Clerk but may take convenient time to do it in for it may be at the present time he is busied in aliis agend ' and though he pleads that he presented whereas his Collation yet it seems well enough P. 14 H. 7. pl. 4. Tr. 15 H. 7. pl. 2. That the Clerk has one or two Benefices already is no cause of Refusal For 't is a Priviledge to the Clerk and the Bishop is not to meddle in it but Villein is a cause of Refusal whereof Notice must be given be the Clerk Lay or Spiritual Tr. 14 H. 7. pl. 2. Grantee of the next Avoidance brought a Quare Impedit against the Patron and Ordinary and recovers but pendente lite the Parson resigned and another is admitted This the Bishop returns on the Writ unto him Scire Fac ' Issue against the new Incumbent objected it lies not for he was to have only the next not the second Avoidance but resolved that the Church quoad him remains always void Note Co. 6. rep 52. that the Bishop ought to admit the Clerk on the Writ and then the Tryal of Right shall be between him and the Clerk admitted pendente lite and no Scire Fac ' to be sued but 2 Cro. 93. is contrary to that vide Dyer 260. Hob. 201 320. H. 2 H. 7. pl. 7. He that pleads presentation by a Corporation needs not to plead it by Deed because it may be without Deed For a presentation is but as a Letter Commendatory In Quare Impedit 't is enough to say his Clerk was Instituted and Admitted without Induction but in a Writ of right Induction is necessary because he must lay the Esplees in taking the Tythes Tr. 26 H. 8. pl. 7. Two Joynt-tenants brought a Quare Impedit one will not prosecute he shall be summoned and severed but if he come and make another Title all is gone for they must joyn in the Title Trin. 26 H. 8. pl. 22. Quare Impedit by three Joyn-tenants and make Title by a Grant to them and J. S. And J. S. presented and the Church is void so it belongs to their Presentment so they make Title of the presentment of one Joynt-tenant quod nota vide Co. 1 Inst 186. b. Accord M. â—1 E. 4. pl. 28. Mo. pl. 14. P. 27 H. 8. pl. 28. Quare Impedit and counts that A. was seized and presented and gave in Tayl to the Ancestors of the Plaintiff who presented c. And the Declaration adjudged not double laying one presentment in the Donor another in the Donee 18 E. 3. 15. a. ad idem no more than if the Heir counts in a Quare Impedit of a presentment by the Ancestors and another by his Guardian Quaere if one lays a Presentment in the Feoffer and another in the Feoffee P. 4 E. 4. pl. 3. M. 7 E. 4. pl. 21. 11 E. 4. 10. b. Co. 5. rep 98. a. 14 H. 6. 15. b. 1 H. 5. 16. 40. E. 30. 10. b. Quare Impedit and counts that he presented the Defendant and he deprived c. the Defendant pleads that the Church was full of him by 6 Months before No plea without traversing the Resignation but what a Traverse 't is see 5 E. 4. 3. b. and 12 H. 4. 11. He needs not say 't was full by 6 Months before for if he had his presentment before or pending the Writ it shall abate and he shall not have an Action for his Presentment where he has had the Fruit of it before P. 4 E. 4. pl. 37. If two present severally the Ordinary is not bound to award his Jure Patronatus without Prayer of the party H. 8 E. 4. pl. 6. In Annuity the Defendant pleads that he was presented by the King and prays in Aid of him and the Ordinary Oyer demanded of the presentment Resp ' It belongs to the Ordinary Danby There is a difference between the Bishop's Collatee and the King 's Presentee Trin. 9 E. 4. pl. 14. Composition that if the Patron of a sine Cura present not within a Month the Ordinary shall if the Patron be disturbed so as the Month past he shall recover Damages for the two Years For afterwards he hath lost his presentment though the Ordinary has not presented and so 't is not like a Lapse at six Months at the Common Law M. 13 E. 4. pl. 5. One to name the other to present he that names the Nomination shall have the Quare Impedit but if it be to name two whereof the other is to present one the Presentor is Patron because of his Election Quaere if he that has the Nomination name one and revoke can afterwards name another And it seems he may H. 14 E. 4. pl. 2. Mo. pl. 147. Quare Impedit the Incumbent pleads that the Church is full and has been 6 Months before the Writ Judgment del ' brev ' if no plea Nor to the Action by an Incumbent nor no other but him against whom a Writ of Right of Advowson lies H. 16 E. 4. pl. 6. vide 48 E. 3. 19. b. 22 H. 6. 14. The Plaintiff hath Judgment in Quare Impedit and a Writ to the Bishop and before the Clerk is admitted a Stranger brought a Quare Impedit against the Plaintiff and has a ne Admittas to the Bishop doubted which Writ he is to obey and by Littleton and Vavasor the first because it is an Execution of a Judgment Fairfax contra the last is a Supersedeas P. 18 E. 4. pl. 36. Quare Impedit the Plaintiff is Non Suit after appearance the Defendant makes Title and has a Writ to the Bishop H. 19 E. 4. pl. 12. One may in some cases maintain a Quare Impedit without alleading any presentment As one erects a New Church and presents to it and is disturbed yet the Quare Impedit lies per Billing ' per omnes Justic ' he that recovers in a Writ of Right of Advowson shall maintain a Quare Impedit without alleadging any presentment so if enacted by Parliament that one shall have such an Advowson For if a Church lapse the Ordinary shall collate and maintain Quare Impedit without alleadging presentment 21 E. 4. 3. a. b. and 17 E. 3. 13. b. 14. b. Quare Impedit by the King counts that A. was seized of a Mannor and Advowson Appendant and Attainted of Treason and Office found that the King presented c. the Defendant makes Title to himself in Gross absque hoc that
or Joynt-tenant dies Hall vers ' Epm ' Bath and Martin Co. 7. rep 25 26 27. Quare Impedit the Defendant pleads that he had been in 6 Months and traverses the Avoidance Issue of it Jury find for the Plaintiff and enquire of the three points First That the Church was full of J. S. a Stranger Secondly That 't is of Eighty pounds value Thirdly That the Action was brought within six Months after the Avoidance and Judgment quaer ' and Writ to the Bishop to admit his Clerk nominated The Plaintiff by J. S. pending the Writ and resolved in Error on it first at Common Law if an Usurper presented and had his Clerk admitted and instituted the plenarty shall be tried by Certificate because no Induction the Patron had lost his presentation pro hac vice for the Clerk could not be removed and was put to his Writ of Right for the Advowson but at Common Law the King might remove the Incumbent of an Usurper by a Quare Impedit for nullum tempus occurrit Regi but could not present No removing him without Quare Impedit if inducted Then comes the Statute and excuses the Infant and Feme Covert that they should not be bound by an Usurper but after the Disability removed they may have the same Action the last Ancestor might have had Eadem Lex if Tenant in Tail in Dower by Courtesie or for Life suffer an Usurpation he in Reversion claiming by Descent has the same remedy So in case of Usurpation in time of Vacancy of a Bishop c. But the Statute revests not the Right but gives a possessory Action to recover the presentation thereof Where one usurped on an Infant who at Age Aliened the Mannor his Alienee could have no Action for the next Avoidance because the Advowson passed not nor had himself any Remedy after but where Tenant for years brought Quare Impedit and was barred yet it barred not the Right of him that had the Freehold Secondly it makes plenarty no Barr in Quare Impedit or Assise de darrein Presentment if brought within half a year after the Avoidance though not so soon ended Thirdly It gives Damages Infants c. by purchase are not within the first and the Issue of Tayl is within the Equity of the first Branch because Tayl made the same Parl. which divided the Estate and takes away his Writ of Right at Common Law the three points were not enquirable but now they are ex officio at the Common Law No Plaintiff recovers Damage nor the King now because not within the Statute which was made to help them that lost the presentment Si tempus semestr ' transivit which the King did not yet the Declaration for the King ever counts for Damages at the Common Law if the Defendant present pend ' the Writ his Estate was to be removed So if a Stranger usurp pend ' the Writ and in all cases he that came in pending the Writ if not by good Title though by presentment from the King and since the Statute no Incumbent made before the Writ shall be removed by it unless named in it and in the case at Bar resolved the Incumbent that came in pendente lite is to be removed viz. the Writ is to be to the Bishop to admit the Plaintiffs Clerk and he cannot return plenarty and then the parties shall try it between themselves viz. if he that came in pend ' lite had good title he shall stay else be removed but in Cro. rep of this case 2 part 33. 't is held the Bishop ought to return plenarty and thereon Sci ' Fa ' go against the Incumbent and therein to shew his Right Boswell's Case but 1 Cro. 423. Writ to the Bishop for the Plaintiff and to remove the Incumbent inducted Co. 6. Rep. 49 50 51 52. If the Plaintiff be Nonsuit or discontinue 't is Peremptory and a Barr in another Quare Impedit First because the Defendant on Title is to have a Writ to the Bishop but if it be abated for false Latine or Insufficiency found by the Clark's Fault within six Months he shall have a Note so if the Plaintiff or Defendant be misnamed and the Plaintiff confess it for it may be the Clerk's Fault but if he take on him the Order of Knighthood 't is peremptory Sir Hugh Portman's Case Co. 7. rep 27. b. Quare impedit ad Medietat ' Ecclesiae good When there are two Patrons and two Parsons in one and the same Church yet it seems he may have it also ad Ecclesiam but when there is but one Parson though the Patronage be in two several hands it must be ad Ecclesiam and in a Writ of Right of Advowson When the Church is divided amongst Parceners the Writ of Right shall be ad Medietatem Advocationis but where two several Persons are to present two several Parsons to one Church each whereof is to have the half the Writ must be Advocationem Medietatis for the Advowson is entire but the possession several which make the Difference between the Quare impedit and the Writ of Right of Advowson Richard Smith's Case Co. 12. rep 136. vide Co. 5. rep 102. 1 Inst 17. b. 18. a. vide 33 H. 6. 11. 6. Quare Impedit The Defendant pleads that he is Persona Impersonata good without saying that he was so the day of the Writ purchas'd for it shall be intended to relate to the Writ and if he was not so at the time of the Plea 't is good and has made the Writ good Lady Chichesley against Thompson 1 Cro. 75. Assise de Darrein presentment in Wales The Jury fine the Church 80. l. value and Tempus semestre modo praeterit but say not how long since yet good and forty pounds Damages given the Court of Grand-sessions Writ to the Arch-bishop to admit c. and Quia Episcopus est pars doubted if they may but it seems now they may since the Court of Grand Sâ—ssions is one of the King's Courts but when they were in the Marches they could not Vrse against Epm ' St. David c. 1 Cro. 249. Quare Impedit The Defendant pleads that he was admitted instituted and inducted c. and the Plaintiff traverseth the Admission and Institution and for that was forced to reply and traverse the Induction alledged for that must be where 't is alledged because it alters the Tryal and makes it be per pais then it was moved after Verdict the Bishop was dead and that the Plaintiff might have his Judgment against the rest and so he had it Stevens against Facon 1 Cro. 276. Quare Impedit and counts that A. was seized and presented D. who died and he presented the Plaintiff the Defendant pleads that long before A. was seized Qu. Elizabeth was seized and presented him and he was admitted and instituted Plaintiff traversed that the Plaintiff was admitted c. upon the Queen's Presentment and Good without traversing the Queen's Seisin
Sir John Dryden c. against Yates c. 1 Cro. 423. The way to stop Strangers from Presentment Pendente brevi is to sue a Ne Admittas and then the Plaintiff may remove him by a Quare incumbravit else he is put to his Scir ' Fac ' and if the person present Pendente brevi he shall barr the Plaintiff in a Scir ' Fac ' per Popham and not denyed 2 Cro. 93. The King grants the Mannor the Church Appendant being then void the presentation passes not except by special Words Phane's Case 2 Cro. 198. One sued in the Deligates to avoid an Induction supposing the Institution void was prohibited for Induction being a temporal Act and tryable at Common Law is not avoided but by Quare Impedit but this Prohibition not to be granted having Hutton's Quare Impedit because of his own shewing it should abate it but he must make his Surmise in the Deligates without mentioning that Quare Impedit Hob. 15. Hutton's Case Prohibition to the Incumbent that pending the Quare Impedit felled Timber upon the Gleeb Hob. 36. Kent against Drury Where one brings a Quare Impedit and his Title arises merely by Usurpation he must not declare generally that he was seised in Fee for that was false and so he might be tryed by the Defendant's traverse of the Seisin but he must lay his Case as 't is that A. was seised and the Church voided and he presented and now the Church being void he presents again Hob. 103. Digby against Fitzherbert Quare Impedit against the Bishop of Exeter and A. and B. they plead that he has another Quare Impedit depending against the Bishop and A. and aver it to be the same Plaintiff the same Avoidance and Disturbance c. and demand Judgment The Plaintiff says that after the first Writ he presented C. to the Bishop and he refused which is the Disturbance whereupon he new declared the Defendant demurrs whereupon the Writ abates for he shall not have two Suits at once and here was a Disturbance laid in the first Action so the new Disturbance mends not the Plaintiff's Case so if he had new brought an Assise of Darein Presentment the Quare Impedit depending had been a Barr. St. Andrew against Epm ' Ebor. Hob. 184. Noy 18. 9 H. 6. 68. 73. 22. E. 3. 4. Hob. 137. E. Bedford against E. Exeter c. Dy. 93. a Hut 3. 4. Before the Stat. 25. E. 3. Stat. 3. Cap. 7. No Incumbent could counter-plead the Title of the Plaintiff because that was Title to the Patronage and with that he had nothing to do but to avoid the Patron 's Confession of the Action Counter-plea was given by that Stat. but as Amicus Cur ' he may shew false Latine in the Writ c. for that is no pleading and the general Issue every one might plead for thereupon the Plaintiff may pray a Writ to the Bishop p. 3. H. 7. pl. 1. ad ult ' Hob. 61. 62. Co. 7. Rep. 26. 2. If he that has one Benefice in Cure take another if it be not inducted the Patron may at his pleasure take the Church to be void or not void for 't is not within the Stat. 21. H. 8. till Induction Hob. 166. Winchcomb's Case Mo. pl. 45. In Quare Impedit where one of the Defendants pleads himself inducted at the King's presentment and after surmised that he was not Inducted and prayed a Writ from the King to the Bishop and because without Induction the Defendant could not plead and the King could not be made a Defendant therefore a Writ was made for the King with a special Entry in the Judgment that the Defendant was not inducted Hob. 193. Winchcomb against Dobson Presentment pend ' the Quare Impedit does not abate the Writ F. N. B. 35. b. but if the Church be full the day of the Writ brought it abates because 't is false which says quae vacat ' c. Hob. 194. Winchcomb against Pulliston Quare Impedit the Defendant and Ordinary agree in a plea of presentment by lapse the Plaintiff replies that he presented his Clerk and the Ordinary refused him and collated the other Defendant the Plaintiff demurrs for doubleness of the plea because he says he did not present which is an Affirmative against the Ordinary's Negative He says farther that the Ordinary refused and collated but the plea held good For he must lay a Refusal to make good the Disturbance and shewing the Collation is but Aggravation and Surplussage and the only material part of his Replication was that he had presented a Clerk Hob. 197 c. Brickhead against Archbishop of York Quare Impedit laying distress General the Ordinary and Defendant make Title by Collation for Lapse The Plaintiff replies shewing that he presented and the Ordinary refused 29 May whereas his Writ bore date the ninth of May Judgment must be against him for though the count was General yet the Replication applies it to a more particular Disturbance since his Writ brought So of his own shewing he had then no cause of Action and the Court must judge upon the whole Record Ibidem Quare Impedit the Ordinary pleads nothing but his ordinary plea as Ordinary he shall not be amercied making no Disturbance but the Plaintiff shall have Judgment against him pro falso Clamore but if the Ordinary cast an Essoin 't is a Disturbance Ibid. If the Patron bring a Quare Impedit before any Disturbance and after surcease his time per Hob. the Ordinary shall not be debarred of his Lapse Ibid. A. brought a Quare Impedit against B. pend ' the Writ a Stranger gets in C. his Clerk and then A. has a Writ and his Clerk admitted thereupon yet if C. have better Right he shall retain the Benefice Hob. 320. Dy. 364. ibid. 201. 2 Cro. 93. b. 6 rep 52. a. vide H. 21 H. 7. pl. 7. The Church is void A. and B. severally pretend Right present their Clerk the Ordinary refuses both A. brought Quare Impedit against the Ordinary and B. and his Clerk the six Months Incur The Ordinary collates by Lapse A. recovers he shall remove the Ordinary's Clerk Hob. 214. No Infants nor Woman's Release by the Statute Westm ' 2. 5. against Usurpations made against them during Infancy or Coverture but for such Advowsons as they have as Heirs and not as Purchasers or Successors of single Corporations are relievable within the Equity of this Statute an Heir out of the Ward as well as within and an Heir in Soccage upon a double Usurpation before he comes to the Age of 21 Years not if the Guardian surrender to him or Institute in ventre sa mere and the Purchaser may be within the Statute as if the King grant the Advowson and one usurps For he is in loco Haered ' and per Hob. an Heir of him in Remainder as well of him in Reversion vide 2 Inst 359. and so it is of Tenant in Tayl but
if the Heir himself of full Age make a Lease and the Lessee suffers Usurpation that is out of the Statute For the Lease must not be made by the Heir himself but his Ancestor So if a Bishop suffer an Usurpation being in Succession his Successor shall not have a Quare Impedit but if it were in time of Vacation he shall and the King upon this Statute may present at the next Avoidance H. 239. Lord Stanhop aginst Bishop of Lincoln 2 Inst 358 360. 1 Inst 16. a F. N. B. 31 a. Collation being by right or wrong gains no Patronage doing it in the Patrons Right Hob. 154. Co 6. rep 29. Green's Case and 50 Boswell's Case 1 Leon. 226. Mo. pl. 222. Hob. 124 b. 122. A Church being void the King within a Month reciting ad nostram presentationem spectam ' jure prerogativae presents one who is admitted c. and dies the King presents again the true Patron brings a Quare Impedit Resolved the King's Presentation is void as 't is in Green's Case Co. 6 rep where the King presents as by Writ of his own Title where he had Right of Lapse and the Patron had not only Right of Quare Impedit but might have presented upon him at any time and by the Bishop's receiving his Clerk the other is ipso facto out For it was but as an undue Collation of the Bishop and no Uâ—urpation in the King Hob 301. Grandy vers ' Epm ' Cant. Dy. 327. One had a Grant of Outlaws Goods in the Rape of Bramber and that had a Grant of the next Avoidance of the Church within the Rape was Outlawed and the Church became void the Grantee shall have it For it hath such a Locallity within the Rape that the Lord of the Liberty shall have it wheresoever the Grantee of the Voidance or his Deed is which the other needs not shew coming in the Post Hob. 132 Hollam against Shelley Before the Statute 25 E. 3. The Incumbent or Ordinary could not counterplead the Plaintiffs Title yet if the Quare Impedit were brought against the Incumbent and Ordinary the Incumbent must plead in Abatement that the Patron is alive not named c. Hob. 316. Ellis against Bishop of York No Incumbent is enabled to counterplead by 25 E. 3. 27. till he be possessed that is till he be inducted and if he resign he could not counterplead for that was given to maintain his possession which by the Resignation is gone Hob. 319 193. Dyer 1. b. 293. a. H. 2 H. 7. pl. 15. If any one of the several pleas of the several Defendants in a Quare Impedit against a Patron he shall be barr'd against all therefore name no more Defendants than necessary No not the Ordinary if the Church be once filled Quare Impedit against two the Incumbent sets up one Title the Patron another Neither Estops the other and because it appears not which is true both are to be admitted Hob. 320. Co. Ent. 491 492. pl. 10. In making Title in Quare Impedit lay the presentation of the last Incumbent and name him yet 't is not material whether the Clerk were the same that is named so it be of the same Patron Hob. 321. Lord of a Mannor whereto an Advowson is Appendant grants the three next Avoidances and usurps upon the Grantee at the first this puts the Grantee out of possession of all the three Avoidances and he has the whole Advowson again Appendant to the Mannor so that being Attainted and the King grants the Mannor adeo plene as the Grantor viz. the Parson attainted habuit it passes the Mannor with the intire Advowson Appendant and not as the three Avoidances were in Gross and the rest of the Advowsons Appendant to the Mannor for then that in Gross would not pass for the King's Grant Hob. 321 202 323. Elves against Bishop of York Process at Common Law was Summons Attachment and Distress infinite but by Marlbridge cap. 12. if he came not at the Grand Distress Judgment and a Writ to the Bishop although Nichil be returned on every Process Distress against two one makes Default the Plaintiff shall have a Writ to the Bishop by the Common Law but if the Defendant appear at the Distress and make Default afterwards no Judgment but a new distress must be 2 Inst 124 125. F. N. B. 39. The common Essoyne de malo veniendi is allowed in Quare Impedit not de servitio Regis c. 2 Inst 125. None ought to present the King 's or any Judge's Clerk to a Livery in Controversie on pain that the Clerk shall lose the Church and his Service to it for a year 2 Inst 212. It was ordained at the Council of Lyons that Lapse be given against a Patron after six Months but this bound not the King nor Subject till it was here allowed and in many Cases it 's restrained by Act of Parliament as in some to give notice c. As it 's said it was by the Council of Lateran 2 Inst 273. 368. In Ass de Darrâ—in presentment or a Writ of Right of Advowson none can have Title without alledging Seisin in himself but in a Quare Impedit one may have Title of the Seisin of him by whom he claims and in a Writ of Right he may declare of his Ancestors Seisin but a Purchaser can only have it of his own and before Westm ' the second if Tenant in Tail or for Life had suffered an Usurpation they had been without Remedy 2 Inst 356. 358. If the Heir within Age be in Ward he shall not have a Quare Impedit till he come of Age but if out of Ward he shall immediately have such Quare Impedit as the Ancestors by Possession might have had though the Ancestor actually had it not 2 Inst 359. Plenarty hanging the Writ was no Plea but Plenarty before the Writ brought was a good plea in Quare Impedit at Common Law but by West 2. 5. 't is none unless it be by the space of six Months before the Writ brought 1 Inst 360. No Plenarty is barr to the King whether he presents in his own Right or in a Subjects but 't is in case of the Queen though she claims by the King's Endowment Vide 43 E. 3. 14. 47 E. 3. 4. 21. 8 E. 3. 38. b. 1 E. 3. 3. 15. Co. 1 Inst 119. b. 344. a. 'T is said no Plenarty is against the King till Induction that it seems a hindring from presenting but Induction is no barr of his Quare Impedit 2 Inst 361. When several persons claiming an undivided Interest in the Advowson agreed by fine c. to present by Turns if one usurps the other's Turn he is not put to a Quare Impedit but shall have a Scir ' Fac ' out of the fine and therein a Plenarty by six Months is no barr 2 Inst 362. F. N. B. 34. l. Dy. 259. If upon the Foundation of a Chantry the Composition be
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
ab Actione praecludi ill being specially demurred on it ought to be petit Judic ' et dampna sua sibi adjudicari Lady Broughton against Holly Tr. 21 Car. 2. B. R. Trespass for Battery Defendant pleads son Assault demesn Plaintiff replies the Defendant would have rid over him and he molliter assaulted the Defendant in defence of his person and so the Battery was of his own Assault qui est idem insultus In the Barr the Defendant demurrs and Judgment for him for the Replication molliter assaulted ill it should have been molliter manus imposuit Jones against Trysillian Tr. 21 Car. 2 B. R. Trespass for taking his Cattel Defendant justifies damage feasant in his Free-hold Plaintiff replies and claims Common to a Messuage c. Defendant rejoyns that he set sufficient Common for all the Cattel levant and couchant in the Messuage Plaintiff demurrs and objected he should have averred sufficient Common to the Messuage for all levant c. for at that time he might not have so many levant as he had right of Common for but adjudged the Rejoynder good Leech vers ' Mickley H. 21 22 C. 2. B. R. Trespass Defendant justifies as Owner of an House and says That long before the Trespass he was et adhuc seisit ' existit and doth not say necnon tempore Transgression ' praedict ' yet per Hob. Winch and Hutton good Grise against Lee Winch 16 17. Trespass for Battery of A. and B. his Servant per quod servitium amisit Defendant justifies because A. and B. would have erected a Building to the Nusance of his Lights and on demurrer adjudged ill because he says not as Servants or by command of the Plaintiff And then he answers the quod servitum amisit which is the Gist of his Action Norris against Baker H. 13 Jac. Bridg. 47. Trespass for entring and breaking his Close and driving his Cattel Defendant justifies as to the Entry and driving the Cattel Issue of it and Verdict but Judgment against him because he proved not the Breach as well as the Entry Praunce against Tuckle P. 8 Jac. B. R. Rot. 138. 1 Bull. 164. Trespass str May Defendant Justifies 7 May quae est eadem c. and on demurrer adjudged a good Plea without a Traverse and if he had Justif ' of the same time he need not say quae est eadem but at another time he must Vasterope against Taylor H. 8 Jac. Rot. 1337. Trespass for Assaulting Wounding Taking and Imprisoning the Defendant quoad the Assault and Wounding pleads Not Guilty and as to the Taking and Imprisoning justifies and on Demâ—rrer ill because he justifies not the Assault and there could be no taking without the Assault and the quoad captionem and Imprisonment does not imply and include the Arrest Wilson against Dodderidge Hill 12 Jac. B. R. 2 Bulstrod 335. Trespass Defendant makes Title by Descent from J. S. to himself as Heir Plaintiff demurrs generally resolved then of the not saying how Heir but forme and amendable Duke of New-Castle against Wright M. 18. Car. 2. B. R. Trespass for breaking six Closes Not guilty to two pedibus ambulando for the rest pedibus ambulando he justifies for a way upon which Issue For the Trespass cum Averiis he pleads want of Inclosure The Plaintiff saith the Inclosure was good and the Defendants Cattel unruly absque hoc that they were out of Repair upon which the Defendant demurrs and for cause shews that the matter of Inducement is idle Opinion of the Court was that 't was good and the Traverse necessary upon that Inducement that an Inducement is not material a man may have many if the Issue offered be single resolved the Replication good Parnell against Row Anno 15 Car. 2. in B. R. Trespass Quare clausum fregit cuniculos suos ad valentiam c. Verdict for the Plaintiff moved in Arrest of Judgment that it ought not to be ad valentiam of a living thing but precii 2. That it ought not to be cuniculos suos resolved by the Court 1. Ad valentiam was but matter of Form 2. That it shall be intended that it appeared upon the Evidence that they were domestick Coneys and that the Jury were directed by the Judge Also that the Jury gave not any greater Damages in Respect of Property alledged by the Plaintiff in his Count. Judgment for the Plaintiff per totam Curiam Sir Orlando Bridgman also declared that the Opinion in 1 Cro. 15 Car. Child against Greenhill that of Deer in a Park or Coneys in a Warren a man might say suos is not Law and contrary to Coke lib. 7. Case of Swans Saywell against Thorpe 16 Car. 2. in C. B. Trespass quare coepit c. 100 Oves Judgment for the Plaintiff Damages 2 d. after which upon another Action for the Conversion it was resolved that the damages were only for driving them away and not for the Conversion 1 Cro 36. Lacon against Bernard He that hath the possession of an Hawk may have an Action of Trespass for striking and killing her 1 Cro. 18. Sir Fran. Vincent's Case Trespass a man after he is arrested upon a Latitat tenders Amends according to 21 Jacobi resolved it comes too late 1 Cro. Wats against Baker 264. Trespass lies of Trespass done in an Hamlet Yelv. Lapworth against Wast fo 77. Trespass the Plaintiff lays it in an Acre bounded c. with Abuttels the Jury found it to be in Dimidio Acrae infrascript ' 't is good also if the Jury had found it to be half an Acre whereas it was assigned an Acre 't were well enough Yelv. Winkworth against Man 114. But in an Ejectione firmae 't were incertain and void Yelv. ibid. 2 Cro. 183. 2. Wager of Law IN Debt for an Amerciament in a Court-Baron 't is said one cannot wage Law But two or three Presidents are there cited where in such Cases Wager has been Mo. Pl. 430. In Debt by an Attorney for his Fees the Defendant cannot wage Law But for Monies laid out by him as a Solicitor he may Rolls versus Jermin Mo. Pl. 500. Tenetur that the Defendant cannot wage Law in Account for the profits of Lands Popworth versus Archee Mo. Pl. 670. A wager of Law may be done by eight ten or twelve hands As the Court shall appoint The Party is to swear directly that he oweth or detayneth nothing The Compurgators that they beleive that he oweth or detaineth nothing Term. Ley. 341. Cooke sayes Debts by simple Contract are forseited by Outlary though it puts by the party his Wager of Law and so he sayes is the latter opinion of the Books and of the Judges now And he sayes in every Quo minus by the Kings Debtor it puts the Defendant by his Wager of Law for the benefit of the King though not party à fortiori where the King is adjudged party Slades Case Co. 4. Rep. 93. a. 95. a b. 9 Rep. 88. a. 89. b.
dig to make a drayne in a Meadow Ibidem Owen 66. 67. Hutt 103. Dy. 37. a. Co. 1. Inst 53. 2 Leon. 174. Lessee builds a new house 't is wast to suffer it to decay not if the Lessor builds it after the Devise Ibidem Co. 1. Inst 35. s. Hutt 103. Whether Tenant by the Curtefie were punishable for wast by the Common Law Or not Vide Co. 2. Instit 299. 145. The first Statute that gave prohibition of wast and damages against Farmers was Marlbcapâ— 23. And where the Statute says vastum c. non facient 't is to be understood also non permittent vastum and so 't is in the Condition of a Lease Co. 2. Inst 145. None can claim to be dispunishable of wast in a particular Estate but by deed because 't is the Lessor's disherison Co. 2. Inst 146. Dyâ— 281. a. Lessee of a Mannor commits wast in a Tenement escheated the Lessor shall declare in wast of a Lease of the Tenement and maintain it by special Matter Co. 2. Inst 146. At the Common Law to prevent wast by Guardian Tenant in dower or by the Curtesie the Party might have a Prohibion to the Sheriff and by that he might have a posse Comitatus and so it may be done at this day And such Remedy as is against them at the Common Law is against Farmers c. by Marlb ca. 23. Co. 2. Inst 299. Vide Stat. 10 R. 2. c 14. If a Lease be made to A. for his own life Remainder to him for the life of B. or where a Remainder for years is upon an Estate for life there if A. does wast it shall be punished because himself had both Estates and in the latter case the Remainder shall not destroy the Term for years Co. 1. Instit 54. 2. Inst 301. The Husband that holds in Right of his Wife Lessee for life does wast the Wife dyes the wast is not punishable because the Husband held not but in his Wife 's Right and the Estate was her's Clifton's Case ibidem Co. 5. Rep. 75. b. Although Tenant in Tail after possibility of Issue extinct be dispun of wast yet if he grant over his Estate it is punishable in the Assignee ibidem 302. Tenant by Statute Merchant Staple or Elegit though they have but a Chattel are not within the Statute of Glocester 1. 5. Executors shall be punished for wast done in their own time not in the Testators He that holds a third or fourth part pro indiviso is within the Act. Tenant for years assigns upon Condition the Assignee does wast and he enters for that Condition the Action must be against the Assignee Ibidem Tenant for Years or Life assigns and takes the profits and does wast the Action lyes against the pernor of the profits by 11 H. 6. c. 5 Co. 5. Rep. Booth's Case 77. Tenant assigns the Term except the Trees Wast is done in the Trees the Action lyes against the Assignee Co. 5. Rep. Saunder's Case Lessee commits Wast and then assigns Wast in the Tenant shall be maintained against the Lessee and the place wasted and treble Damages shall be recovered against him Non Tenure general is no Plea in Wast but special non Tenure is Assignment and no Wast done before the Assignment or Wast done by the King's Enemies or Tempest or Lightning is not punishable Co. 2. Inst 302. 303. The Tenant shall answer for permissive Wast unless in such case where he could not prevent the Wast as where he is ousted by Cotssee of a Statute entred into before his Lease and that Cotssee does wast or by any precedent Title ibid. 303. Feme Tenant in Dower of a Mannor and Copy hold commits Wast the Action lies against the Tenant in Dower Ibid. 303. Femes Coverts and Infants shall answer for Wast done by Strangers though some have held the contrary and so shall the Wife for wast done by the Husband for Lease made to them for Life if she agree to the Estate Ibid. 303. Where the Wast is done Sparsim in houses Woods or Meadow there the whole shall be recovered ibid. 304. One may have an Action of Wast in the Tenct after the Term is determined by Expiration Death or the Act or Wrong of the Tenant and theresore if the Term end hanging the Writ it shall not abate because maintainable for the damages but if the Tenant surrender after the Wast done no Writ is maintainable for the Lessor cannot by his own Act alter the form of the Action Ibid. 304. The Heir cannot maintain an Action for Wast done to the Ancestor because the damage belongs not to him yet if two parceners be and wast is done and one of them dyes and wast is done again one Action shall be maintained for both and the Writ shall say both Wastes were to both their Disherison but the Judgment shall be for the place wasted to them both and for the damages severally in their several Tenures Ibid. 305. Guardian shall not be punished for Wast done by Strangers unless it be such as he might have prevented and would not for then qui non prohibet jubet ibidem 305. If the Gnardian commit Wast he shall by Gloue ' Ca. 5. lose the Wardship and single Damage and if it be done so near his Age as he could not bring his Action of Wast or had not notice of it then he shall recover treble damages upon the said Statute as a common person shall Ibidem 306. Wast upon the Stat. of Glouc ' Ca. 5. lyeth not in Ancient Demesne because they cannot award a Writ to the Sheriff to inquire Ibid. 306. Owen 24. contra In an Action of Wast by two in the Tenuit if one relinguisheth it barrs both not so of an Action in the Tenet Ibid. 307. A. has B. and C. in his Wardship Ratione Custodiae and commits Wast in the Lands of B. yet he shall not lose the Wardship of C. because the Wast was not to his Disherison Ibid. 306. At the Common Law there lay an Estrepement after Judgment Glouc. c. 13. gives it Pendente placito and may be sued out with the Original If the Tenant alien pendent the Plea the Estrepement may be against him and his Alienee and the Defendant shall not have his Age in it And tho the Statute says Du Tenement in demand yet in the Scire Facias to execute a Fine in a Quid juris clamat or in Wast an Estrepement may be had yet no Land is demanded in the Writ Upon the Statute the party shall recover damages after delivery of the Lands Co. 5. Rep. 114. b. It lyes before or after Judgment in Wast and the Sheriff may take the Posse Comitatus to prevent the Wast Co. 2. Inst 328. 329. In Wast the Process is Summons Attachment Distress and then upon default a Writ ad Inquirend ' and the Sheriff by the Statute is to go in Person and with the Jury view every place in every
take the Inquisition at another place Co. 8. R. 15 2. b. Lease for Life Sans Impeachment of Wast per parol mult ' alterâ—at ' and not resolved whether the Priviledge be good without deed but resolved if the Priviledge be void without Deed yet the Estate is good as an Estate without the Priviledge Co. 9. R. 9. a. 10. b. In Wast for cutting down a tree nothing shall be recovered but the Circuit of the Root and not according to the Latitude of the Branches Co. 11. R. 50. a. Lease for years Sans Impeachment c. Lessor confirms his Estate for Life the Term is merged and he punishable for wast so lease pur auter vie Sans Impeachment c. Remainder in him for his own Life it merges his first Estate c. he is bare Tenant for Life punishable for wast Co. 11. R. 83. b. Term expires Lessee continues in Tenant at Sufferance and does voluntary wast his Lessor also being Tenant for years brings Action upon the Case and adjudged it lyes and not Trespass as objected by Littleton it ought to be and the rather here because the Plaintiff being but a Termor subject to Wast ought to sue his Action to have as much in Damages as he may be charged over West against Trend 1 Cro. 135. vid. Co. 5. r. 13. b. Error of a Judgment in wast assigned first because the Wast being assigned in several things entire Damages are taxed which ought not to be for some of them be Pettits not punishable and the Court is to judge Sed non allocatur being found not intended any of them Pettit Secondly thirteen Jurors enquire and they not an Inquest of Office as Writ to enquire of Damages for Attaint lyes but that seemed well enough also Thirdly the Wast is assigned in cutting twenty Trees and the Jury found him guilty but of two and yet no Misericordia pro Resid ' But Barkley held it well for when they find any part of the same thing assigned there needs no Miserecordia pro resid ' But if they find wast in some things and no Wast in any part of one thing as if Wast assigned in Domibus Boscis and they find it in part in Domibus and none in Boscis he shall be in Misericordia pro Boscis but where they find a less number of trees than assigned Jones and Cro. doubted K. uxor against Fitzh 1 Cro. 299. 327. Eradication of white Thorns is wast not succidendo and vendendo unless they grow in places for defence of Cattel and it be so averr'd 2 Cro. 126. Lease for years with House-boot and Hay-boot sine impetitione vasti as good as sine impetitione vasti and traverse to the whole not the House-boot and Hay-boot Ley against Eyre 2 Cro. 226. or 216. Wast and Counts general of wast done ad exhered ' 't is found that the Defendant was Lessee for years Remainder to D. Sans Impeachment of Wast who is dead and if the wast was committed in the Life of B. yet good amover for though then no Action lay and B. might have licensed him to do wast yet now he may count of it as Wast immediately done to himself Bray against Tracey 2 Cro. 688. Wast and Counts of a Lease for Life Defendant pleads 't is part of an Hospital whereto the Plaintiff presented him for life it seems it lyes not for he is in from the Foundation and though in but for Life the person has the time no Revertion in him 21 H. 6. 2. Wast by an Abbot and Counts of a Lease by the Predecessor and assigns wast general without saying whether in the Predecessors time or his own and good for were the wast committed in the Predecessors time the Successor shall punish it and so is 42 E. 3. 22. And if the Predecessor had released it yet the Predecessor may punish it for being in the Realty the Predecessor could only release for his own Life eod Libr. E. 3. yet there 't is doubted if an Agreement had been made with the Predecessor for the wast if it had not been a Bar. And in 21 H. 6. where one justifies to cut Ashes for Fire-wood could be had and that per Curiam yet note in the end of the Case t is pleaded and that no under-wood was there And in this case 't is held by some that Ashes Oaks c. under twenty years growth may be taken for Fire-boot c. but denyed by others for they are Ashes and 't is held that Lessee Sans fait may take House-boot c. as well as if by Deed and that if Lessor in the Deed of Lease granted that he will require the House Lestue may take Trees in his default and pleaded it in Bar of the wast and so seems Dyer 198 b. 124. a 24 H. 6. 46. 47. 48. The Summons Attachment and Distress all retorned nihil and whether a VVrit to enquire of the VVast shall be awarded no VVrit being retorned served or an Alias distringas multum dubitatur alter catur but at last the VVrit was awarded To inquire of Wast vide 41. or 14. H. 6. 2. b per Roll. If Baron and Feme Tenants in Common of a Term be and wast is done wast lyes against her after his Death quod alii concesserunt Trav. denyed Et vide F. N. B. 59. Baron and Feme Tenants for Life she shall not be punishable after his Death for VVast done by him 46 E. 3. 25. vid. Case 21 H. 6 56. a. b. H. 6 25. b. VVast and assigns wast in cutting down so many Oaks and in cutting down the Springs that came up from the Roots again Resolved this is double wast and so may be double Assignment and is not a double Assignment of the same wast and treble Damages shall be given for each cutting tho by some it can be recovered but once 2 H. 12. a. b. Tenant in Dower or by the Courtesie grants over their Estate yet the Husband shall maintain an Action of Wast against them but if he assigned his Reversion his Assignee must have it against their Assignee Co. 1. Inst 316. a. F. N. B. 45. Two bring an Action of VVast one releases it bars both if it be in the Tenuit wherein Damages only are to be recovered not if in the tenet where locum vastatum is to be recovered also Co. 1. Inst 355. b. In Co. 1. Inst 't is held of one side and denyed by the other that an Attachment lyes upon an Inquiry of wast But 1 Cro. 't is held clearly that it does And F. N. B. fays it was fo resolved by the Court 2 H. 4. But his Opinion is contrary Co 1. Inst 355. b. 1 Cro. 299. F. N. B. 107. c. The Reversion must continue in him that brings the Action at the time of the Action brought because 't is said Ad Exheredationem and it must be in him at the time of the wast done unless in special Cases as Tenant for Life
makes a Feoffment on Condition VVast is done and he enters for the Condition Lessor shall have wast fo if Lessee of a Bishop commits wast in time of Vacancy the Successor shall have the Action so if Tenant for Life be disseised and wast is done and the Tenant re-enters Lessor shall have wast yet he had no Reversion Note 't is no plea for Lessee in wast to say generally that Lessor had no Reversion c. but must shew how he lost it But in wast by Assignee of the Reversion such Plea general is good vid. 39 E. 3. 19. 20. Wast by Successor of a Bishop or wast done in the Predecessors time quaere sc bon for laid ad exheredationem Ecclesiae Co. 1. Inst 356. a. vid. 1. H. 4. 26. Opinion that Successor of an Abbot or Prior shall have wast for wast done in the Predecessors time or if a Bishop Parson c. that can make Executors Vid. 71 E. 3. 53. b. 43 E 3. 8. 49 E. 3. 26. Successor of an Abbot not chargable for wast of a Predecessor In wast if the Plaintiff's Reversion determine either before or pendant the Suit his Action is gone but if it be pendente the Suit it must be so specified Ewer against Moyle Yel 141. In Wast the Plaintiff declares Quod cùm seisitus fuit and let for years the Defendant had wasted and though not said of what Estate seised so it might be for Life yet being ad exheredationem and that alledging of Seizin but Surplus held by most good enough Sir Walter Astoâ— against Sweten hall 3 Cro. 47. Wast assigned in the house where it appears the Plaintiff has but two parts of the Reversion yet good he cannot assign it otherways Wast inquired of by the Sheriff where it was confessed by Nihil dicit yet no Error Warnford against Haydock 3 Cro. 290. Wast against a Husband Tenant for life in right of his Wife dead not being in the Tenet or Tenuit ill also the Writ is Quod fecit vastum and being in her right it should have been fecerunt vastum But by Co. 1. Inst this Wast is dispunishable by her death otherwise if it had been a term for years Co. 1. Inst 54. P. Note the Estate was made to the use of the Wife for Life yet Action lyes Sackervil against Bagnell Con. to Dr. and Student Co. 3. Cro. 356. 357. In wast the plaintiff prayed a writ of Etrepement against the Tenant and his Servants and at last a Warrant against both though doubted at first if it lye in this Action though it do in Writ of Entry c. Anderne against Anderne 3 Cro. 393. F. N. B. 61. In a Writ of Entry sur disseisin done to himself the plaintiff prayed a writ of Etrepement doubted if allowable because in that Action he is to recover Damages but because Non constat whether the Tenant be able to satisfie him if he pull down his Houses granted Wright against Pearcy 3 Cro. 484. 774. Tenant in cutting three hundred Oaks Defendant as to two hundred justifies that the House was ruinous and he cut and employed them in repairs and for the other hundred he cut them to have them ready to repair Tempore opportuno adjudged an ill Plea on Demurrer for so every Lessee might â—ut where there is no Necessity Grey against Stanfeild 3 Cro. 593. vid. 498. 499. Waâ—t the writ was general and that the woman held c. ex dimissione A. her former Husband and counted that A. enfeoffed B. to the intent a Rocovery be had against him to the use of A. for Life Remainder to the woman for Life which was done accordingly and for this Judgment against the Plaintiff for the writ ought to have been recited for the Husband could not let to the Wife but she is in by the Husband and so has the Estate from the Feoffee Green feild against Dennis 3 Cro. 722. A. le ts to B. B. assigns to C. and D. D. assigns to E. except the Trees then 't is enacted by Parliament that the Heir of the Body of A. shall have the Land A. being dead leaving three Daughters who took Husbands one of them dyes the other two and their Husbands quitt the Tenant by the Curtesie brings wast against C. and E. in the Term the Term being ended adjudged first the Writ good notwithstanding the setling the Estate by the Statute without shewing the special Title and secondly without joyning the Tenant by the Curtesie because he not intitled to the Damages non locum vastat And thirdly the Writ supposes quod tenuerunt which implies a Joynt-tenancy now they appear Tenants in Common good because the Land at first one and entire but if wast can be committed in the Trees excepted by the Lessee not agreed but in Co. 5. Rep. adjudged it does and the Exception void Sir Roger Leuknor against Freed 1 Leon. 48. 3. Cro. 17. Co. 6. Rep. 12. b. Lessee for Life and he in Reversion make a Lease wast is committed they shall joyn and Tenant for Life recover Locum vastatum and he in Reversion the damages Lessee for Life Sans Impeachment c. Wast is committed by a Stranger the Lessee in Trespass shall recover no Damages for the Trees cut but only for the Entry for the property of the Trees remaining in the Lessor 1 Leon. 49. Co. 1. Inst 42. a. p. 27. H. 8. p. 36. Lease of Lands exceptis arboribus grossis super Praemissa crescentibus Trees then little grow great and are cut if wast Semble non per Anderson for they were excepted whereas great and not only what were great at the time of the Lease Garrock versus Cliffe 1 Leon. 61. A. le ts to B. for years and during the Term le ts to C. for years by Indenture to commence presently B. commits wast A. brings a Writ against B. the Defendant cannot plead nul wast nor can he plead that the Lessor had nothing for the Plaintiff will estop him by the Indenture and though the Count be general of a Lease and says not per Indenturam yet a Replication that by Indenture is no departure but a coroborating of the Declaration 1 Leon. 156. Tenant for Life is disseised and Disseisor commits wast he in Reversion shall maintain an Action of wast against Tenant for Life yet note that by the disseisin the Reversion was out of him 1 Leon. 264. If wast be assigned in a whole wood sparsim if the Jury have view of the out-side of the wood 't is good without entring and viewing of every part and so of a house otherwise if the wast were assigned in certain part of the wood or Rooms in the house 1 Leon. 267. Feoffment to the use of himself and wife for Life Remainder to his own Heir he dyes she commits wast the Writ must be general Quas tenet de hereditate c. non ex dimissione for she comes in by the Statute 2 Leon. 222. vid. Co. Entr.
706. Pl. 9. 700. Pl. 7. Feoffment to the use of A. for Life without Impeachment of wast and power to cut and sell Trees and make Leases Remainder for Life to B. with the same power Latch 163. 268. Poph. 193. 706. Pl. 9. A. makes a Lease and dyes quaere whether B. may cut the Trees not agreed but ' t is agreed that the Clause Sans Impeachment gave an Interest and A. might have done what he would with the Trees but not his Executor after his Death because it was an Interest annexed to his Estate and determined with it the doubt of the Remainder chiefly seems to be because the Lease ariseth partly out of the first Feoffment and partly of the Lessors Estate for Life Note the Lease was excepted the Trees and the Exception good because Tenant for Life had an Interest by the Sans Impeachment Secherval versus Dale Latch 163. 268. c. as before Lessor brings wast against Lessee for Trees of the Plaintiff the Lessor himself cut them 't is a good Bar and therefore in Trespass by the Lessee against Lessor for the cutting he shall recover only for the Fruit and Shade because not charged over as if a Stranger had cut them he should Co. 13. r. 96. 70. M. 10. H. 7. Pl. 3. 2 E. 4. 2. or 7. b. In wast for digging Gravel Defendant justifies by Command of the Lessor no plea for 't is the Lessee's Land pur temps not the Lessors so he could not command him also 't is per parol and without Deed and against the Tenant for Life yet dict such a Command to cut Trees good because not the Lessee's but Lessor's and that is agreed in Co. 11. R. 48. b. H. 2. H. 7. Pl. 20. M. 10. H. 7. Pl. 3. Feoffee to use Cestuy que use makes a lease for years according to the Statute R. 3. The Reversion remains in the Feoffee for the Statute does but give Authority to Cestuy que use to dispose as where one wills that his Executor shall sell if Lessee commits wast the Feoffee shall bring the Action tho no Privity because they could not have any so shall the Lord in Escheate maintain Wast yet he had not Privity Mi. 5. H. 7. Pl. 11. H. 8. H. 7. Pl. 1. Tr. 26. H. 8. Pl. 131. or 31. 'T is wast to pull down or suffer a wall to go to Ruine be it made of Wood Mud or Stone or be it within the house for Separation or without for Inclosure so to destroy wood of hasle or willow not to cut them Husbandly To cut Fruit Trees in an Orchard and destroy them is wast not if they grow in Hedges and Closures and if a house be ruinous at the Entry 't is no wast to suffer it to decay otherwise if not ruinous at the Entry but where 't is held ploughing Meadows is no wast 't is no Law Hob. 234. Ow. 66. M. 10. H. 7. Pl. 3. 4. In an Action of Wast in the Tenuit an Accord is a good Plea because only damages to be recovered not in the Tenuit because locum vastatum is to be recovered also Co. Entr. 706. 707. Pl. 9. H. 11. H. 7. Pl. 7. P. 13. H. 7. Pl. 3. Co. 6. R. 44. a. Upon Scire facias of a Judgment in wast one may have a Writ of Estrepement or in any Suit where no Damages are to be recovered but not Scire facias of wast committed after the first Scire facias because he might have had Estrepement at first But for wast after Estrepement a Scire facias lyes to shew Cause why he committed the wast and a Scire facias lyes in Assise for wast done after Judgment not before Judgment because he cannot recover Damages for its after verdict but in a Formedon not because he might have had Estrepement and Pl. 20. Error of a Judgment in Assise and the Piaintiff in the Error prayed an Estrepement and could not have it because he may it seems have Scire facias for damages done after the Judgment c. But questioned per Fennel because by the Statute he finds Security in the Writ specified to answer for all the Damages Mich. 14. H. 7. Pl. 20. but vid. 32 or 33 H. 6. b. a. In Scire facias of a Fine Estrepement lyes Lessee does wast in a corner of a Wood only the part not the whole shall be recovered but if he do in the whole Wood and there be plots of ground within the Wood that shall be recovered with the Wood. Tsin 15. H. 7. Pl. 21. Furnaces Fatts Posts Rails c. fixed to the Free-hold by Lessee for years 't is hâ—ld by some that if he remove them during the Term 't is no Wast quod qu. But agreed that if he leave them there till the Term ended he cannot remove them Vid. 42 E. 3. 6. a. 6. M. 20. H. 7. Pl. 24. Trin. 21. H. 7. Pl. 4. Owen 70. Lease Absque impetitionc vasti in Wast he shall plead that in Excuse but if the Lease at first were given and then a grant after that he shall not be punished in Wast it is not pleadable in Bar but to bind as a Covenant Vide divers such Cases 21 H. 7. 30. Tenant for life grants his Estate to one Parcener in Reversion and her Husband 't is no Surrender and if the Baron and Feme do wast the other Sister shall bring a Writ in all their names and the Baron and Feme shall be summoned and severed M. 2. H. 7. Pl. 60. In wast by Lessor the Lessee pleads not guilty and gives in Evidence a grant to cut c. to repair c. And per Brook Pollard and Elliot it was no wast but ought to have been pleaded and not given in Evidence for thereby the Advantage thereof is lost Ad quod Bradnet concessit but held it wast but not punishable Wast and he held that if a Lessor covenant to repair and do not Lessee may do it and deduct it out of the Rent And if one covenant to repair a ruinous house if he do not 't is wast but he may take Trees else it had not yet in that case he might have repaired it and taken Trees to do it though not bound to do it And at Common law Lessee might take Boots but if excessive it is Wast Lessee suffers Posts Pales c. to decay it is wast Trin. 12. H. 8. Pl. 1. or 4. Wills WIl ls and Testaments were originally proved at the Common Law as Perkins confesses and Leonard says they are by the Curtesie of England proved in the Spiritual Court not de communi jure nor in other Nations and in divers Mannors the Lords have the Probate at this day Co. 5. Rep. 73. b. 16. a. 9. Rep. 38. a. 5. Rep. 30. b. Issue at Common Law for Lands devised by Will and the question whether a Will or not and now they moved at the Spiritual Court to it which will blemish the Evidence at the
THE TOUCHSTONE OF Precedents Relating to JUDICIAL PROCEEDINGS AT Common Law By G. F. of Grayes-Inn Esquire In magnis voluisse sat est Hor. LONDON Printed for Awnsham Churchill at the Black Swan at the lower end of Paternoster-Row near Amen-Corner 1682. TO THE READER NOtwithstanding the present Age hath so plentifully abounded with Books of Pleading in Publick yet certainly there hath been as manifest a Deficiency of some good Directions for the Understanding them tho' perhaps one Reason hath been for that Pleading is esteemed by the Learned the most difficult part of the Study of the Law and therefore Collections of this Kind more liable to the Censure of the Over-critical 'T is true there are two Tracts extant upon this Subject but it happens so unluckily that one is but the particular Observations of a single Person in part of his Time at the Bar and the other as Antique or Obsolete as the Language it is writ in and much wanting the finishing hand of the Designer Such hath been our misfortune as to this Subject and we may well deplore our ill fate that none of the Learned Gentlemen of the Long Robe hath yet given us their Rules and Methods on a Subject so Excellent as the Incomparable Littleton doth Characterize it viz. And know my Son that it is one of the most honourable laudable and profitable things in our Law to have the Science of good Pleading in Actions Real and Personal and therefore I counsel thee especially to employ thy Courage and Care to learn it The Reader will here find most Excellent Directions to guide him in his Practice through the Difficulties of the several Parts of Pleading wherein the Nature of Writs Counts Barrs Pleas Replications Rejoinders Issues as also Disclaimers Discontinuances Estoppels Conclusions Departures Double Pleas c. are Succinctly and Methodically handled from Authorities in the Law both Ancient and Modern far more useful and beneficial than any Collection hitherto Published as will sufficiently appear to any intelligible Person upon a strict and serious perusal of the Book it self Abatement of Writ or Count. IN Debt by two Executors one was summoned and severed and dyed and it was adjudged that it should not abate the Writ Co. 10. Read and Redman's Case If there be two Joynt-Tenants and the one is summoned and severed and dyes the Writ shall abate but in a Stire facias the death of one after Summons and Severance shall not abate the Writ Co. ib. Where note the difference between a Writ Original and a Judicial Writ Two Coparceners one is summoned and severed and hath Issue and dyes there the writ shall abate for that his Issue hath Title to the Moiety Co. ibid. But if one of the Coparceners takes husband the writ shall not abate In all Actions personal or mixt where the intire thing is to be recovered as in Quarâ— Impedit Detinue of writings and the like there after summons and severans the death of one shall not abate the Writ Also the death of one after Judgment in personal Actions shall not abate the writ although there be no severans Co. ib. Where the Writ goes in discharge as an Audita Querela and the one is summoned and severed and dies the Writ shall not abate Co. ib. Note In all personal Actions where no severans lyes there the death of one of the parties shall abate the Writ but not if it be a Judicial Writ after Judgment Co. ubi supra In Formedon against divers some plead Non tenure and others take the Tenancy upon them intirely the writ shall not abate and those who plead Non tenure shall not have Judgment 22 E. 4. 4. 4 E. 4. 33 a. Stat. 25 E. 3. 13. Misnosmer in a Scire facias shall abate the writ 9 E. 4. 35. a. If a Praecipe be brought of a Mannor and 20 s. Rent it is a good Plea to say that the Rent is parcel of the Mannor So in Formedon for Land it is a good plea to say that the Demandant hath brought another Formedon of 20 s. Rent issuing out of the same Land 3 H. 7. 3. A Writ was brought against A. Rector of B. de placito debiti 100 s. The Defendant pleaded That die impetrationis predicti brevis he was commorant at C. in another County but the Court would not allow the Plea because a Rector is always supposed to be resident upon his Benefice quod nota So a man that hath two Benefices shall be intended to dwell upon them both although he doth not deny that he is Parson 10 H. 6. 8. Co. 11. Magdel Colledg Case In a Writ of Right of Advowson against A. B. Dean of C. he pleaded That by Authority of Parliament the Corporation was defeated and avoided and it was held by Brian to be a good Plea 4 H. 7. 7. Rast Entr. 101 182. In Assise it is a good plea to the Writ to say that the Plaintiff was seised of the Freehold of the Lands in the Plaint but in a Forcible Entry it is no plea to say that he was seised the day that the Writ was purchased 5 H. 7. 41. Death or Coverture at the time of purchasing the writ shall abate the writ de facto but Coverture afterwards makes it but abateable 32 H. 6. 11. 3. Br. 138. Co. Entr. 173. Rast Entr. 107 108 126 161. It is no Plea to the Writ to say that the Summons were of other Lands for the Defendant may wage his Law de non Sum. 37 H. 6. 26. A Quare Impedit was brought and the Plaintiff made his Title to the Advowson as appendant The Defendant said that a Moiety was in Gross and it was doubted whether this Plea should go to the Writ or to the Action 32 H. 6. 10 11 12. A Quare Impedit is brought against the Incumbent without naming the Patron he being alive this makes the Writ only abateable and is not good upon a Writ of Error In a Writ of Quare Impedit or other Original Writs the death of the King before Judgment shall abate the Writ de facto but it is otherwise where the Defendant dies But in an Information for the King or for the King and the Informer upon the death of the King before Judgment the whole Proceedings are discontinued but the Information it self shall stand good and Process shall be awarded against the party de novo So of Indictments that are not for Felony or Treason for after Trial they are within the Statute of 1 E. 6. ca. 7. When the Original bears Teste before the cause of Action accrues the Writ shall abate de facto propter defectum Anderson 1. 241. a. 96. Rast Entr. 459. Co. Entr. 624. Brown's Entries 1. Part Tit. Abatement The death of the Plaintiff of Plaintiffs or of one or more of the Plaintiffs where there be many shall abate the writ Rast Entr. 416. Fitz. N. Br. 35. B. Where it appears by the plaintiffs own shewing that he had
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
amended where the Christian name was omitted but entred in the Clerk of the Warrants Office upon the Statute of 38 H. 6. and it was amended Mich. 14 Jacobi in C. B. A Judicial Writ shall be amended by the Record because it came from thence Paschae 15 Jacobi in C. B. The Original Writ is primo Martii and in the Declaration it is primo Maii it is void for there is no such Record and it cannot be amended because the Count cannot be amended 4 E. 4. and Coâ—e Chief Justice said That a Judgment given without an Original is not void but voidable Mich. 10 Jacobi ubi supra Misprision shall be amended by the Statute of 14 E. 3. As upon Variance between the Count or Declaration and the Writ if it be in default of the Clerk it shall be amended The same Law if an Exigent be awarded retornable Octabis Michaelis and the Roll is Quindena Martini 7 E. 4. The same Law in Trespass the Parties were at Issue and Venire facias and Habeas corpora were served and Distringas awarded with Nisi prius the Roll was Quindena Martini and the Writ Mense Michaelis at the day in pais the Justices took the Enquest notwithstanding that it was brought without Warrant the Writ of Nisi prius shall be amended 7 E. 4 The same Law Ravishment de gard was brought against one Banaster and the Process was Vanastr ' and for that it was amendded Mich. 4 H. 6. The same Law if the Roll varie from the Original the Process c. 19 H. 6. Amendment is properly where there is default in the Clerk as where a man shews an Obligation to a Clerk of the Chancery and the Clerk doth not make a good Origiginal upon it now it shall be amended because the Clerk had sufficient Instructions but it is contrary if he shew the Clerk only a Copy of the Obligation The like Law if a man brings a Formedon and these words quam â—lamat esse jus et heredltatem suam are omitted there the Original shall be amended for the Clerk ought to look to his Register and there he might see in what Form he should make the said Writ So it shall be where the Original is good in any case and the judicial Process naught it shall alwayes be amended for it appears to be wholly the default of the Clerk The like Law shall be in Trespass the Defendant pleaded non cul et ponit se super patriam and the Clerk entred it Et def similiter where it should have been Et praedictus querens similiter this shall be amended because it appears that the default is in the Clerk as in other cases before But where no default is in the Clerk otherwise as if in a Plea that matter which he would a verre be omitted it shall not be omitted it shall not be amended for it is part of the Plea The like if a Colour be omitted in a Writ of Trespass or Assise And so see the diversity In Assise brought against two or three where one is Tenant and the other is Disseisor the Tenant takes the Tenancy upon him and Pleads in Barr now if the Plaintiff makes Title and Traverseth the Barr and concludes et issint fuit il seisie tanque per les trois disseisie this Plea is not good for he ought to maintain his Writ and there he shall have it pro falso clamore So it is in Trespass a second Capias is awarded and then an Exigent the Defendant appears upon the Exigent and shews the matter now the whole Process is discontinued and shall not be amended for it was the fault of the Party for he ought to pray his Process at his peril and then the Office of the Clerk is to make it as it should be c. So if Summons be awarded in Precipe quòd reddat and afterwards a petit cape or grand Cape be made it shall not be amended for the cause rehearsed A Judgment given in a Writ of Annuity was reversed for that the Writ of Annuity was Precipe quod reddat 26 marc ' 6d 8â— que ei aretro sunt de annuo reddit ' 4 marc ' per annum and the Count the 6s 8d were left out and because that there was a disagreement and it is the warrant of the Writ it was reversed for the Count is by the Party and not by the Clerk 9 E. 4. Venire facias was made Vicecomiti but Salop was omitted and the Sheriff of Salop impanelled the Jury and it was amended a Tryal and diversity taken whereby special Plea the issue shall be of another County and the Award of the venire fâ—cias special there it shall be ill but where upon general Issue or within the same County the Award is fiat inde Jurata there it sâ—all be amended Yelvertons Rep. Lee vers Lacon 69. and 2 Cro. 73. Appearance A Man is Arrested upon mean Process and gives Surety to the Sheriff by bond to appear and after Supersedeas comes to the Sheriff before the day of appearance Yet the Defendant ought to appear otherwise the Bond is not saved By the Statute of W. 2. a man of 70 years old shall not be amerced for not appearing upon the Jury per tot Cur. Mich. 9 Ja. in C. B. Annuity AN Annuity is granted pro consilio impenso et impendendo to one Plumer an Attorney There is a Suit depending between the Grantor and a Stranger The Attorney gives Councel to the Stranger That is adversary to the Grantor But it is not required to give Councel to the Grantor in that Cause Whether this was against the effect and intent of the Grant aforesaid And it was held not by the Court and that the Annuity should continue Note in Annuity it is not necessary to express in the Declaration the Estate of the Grantor but only to say That the Grantor did grant the Annuity Co. Entr. Fol. 49. Arbitrement DEbt upon Obligation or upon arrâ—arages of account cannot be put in arbitrement with other Trespasses or such like notwithstanding the submission be by Deed but it is otherwise of a contract quod nota Arbitrement is not good except that the party can perform it without the aid or licence of an other as if Arbitrators award that the one Party sâ—all enfeoffee the other of the Mannor of D. of which I. S. is seised this is a void Arbitrement and yet it is possible for he might disseise I. S. and make Feoffment c. or might purchase the Mannor of I. S. and thereof make Feoffment according to the Award but the party shall not be charged with these mischiefs and therefore the Arbitrement shall be void Otherwise it is if the Award was that one of the parties sâ—all Enfeoffe the other of the Mannor of D. generally without speaking of I. S. that he is there compellâ—d to make Feoffment thereof And so note the diversity where it appears upon the Award and
where not Further if the Award be that he shall go to Pauls with an Estranger this is void and vet it is possible but peradventure the Stranger will not go with him Note if the Award be that one of the parties shall deliver to the other the Goods that is in the house of I. S. this is void and yet it is not impossible but because that he might do wrong to I. S. to enter into his house and to convey his Goods from thence But if the Property of the Goods be in the party that is to perform the Arbitrement peradventure it may be otherwise forasmuch as his Entry is lawful Audita Quaerela A Statute is Acknowledged before the Major of Westminster and Recordor of London according to the Statute The Cognizor being within the age of one and twenty viz. 20 years and upwards And after his full age to the 23 d he brings his Audita Quaerela upon this matter and Judgment that he take nothing by the Writ because it could not then be tryed by inspection whether he were within age or not And the form of the Writ in the Registors is to alleadge that he still is within age Audita Quaerela lyes upon Nihil facias but not upon Scâ—re facias 21 E. 3. For vigilantibus et don dormientibus subvenient Leges per Hutton Mich. 11 Jacobi in C. B. The Executor of the Conusee releaseth to the Conusor in a Statute Merchant and afterwards dyes and one takes Administration of the Goods of the Conusee not Administred and hath Execution of the Statute and against him the Conusor brings an Audita Quaerela Trin. 28 Eliz. rotulo 2136 in C. B. Avowry vide Replevin AVowry for an Amerciament in a Court Baron quia presentatum fuit that he was Summoned and came not and alleadges in fact that he was resident c. as he must c. for when t is only presentatum c. and not alledged in fact 't is ill Mo. Pl. 221. In Avowry it was set forth that a Dean and Chapter were seised in Jure Ecclesie and not said seized in Fee and held ill for they might be seized per auter vie and their Title ought to be certainly set forth and this is but that they made a Lease for 99 years per dodrige if it had been that they made a Lease for 200 years it had implyed a Feoffment in Fee Pop. 163. Latch 121. Avowry Avowry for damage feasant and shews a Lease from I. S. seized in Fee the Plaintiff says I. S. was seized in Tayl and conceives the Estate to himself as Heir the Avowal seizes the Land rendring Rent and that he had accepted it Qu. If it be not a departure 1 Jnst 304. It seems a fortifying of the Avowry and so not Sti. 41. Taylors Case Yelv. 134. Wood versus Haukshind i. Cro. 156. 2 Cro. 121. 3 Cro. 404 Dy. 956. 1 Jnst 304 Hob. 271 Dy. 103. 253 b. Yelv. 96 Leon. 32. 156. Avowry on a New Grant of a new Rent-Charge in Fee the Plaintiff pleads that nothing passes by the Deed 't is an ill Plea he should have said that he did not grant by the Deed for a thing not in Esse could not pass though it was raised by the Deed Stewards Case 2 Leond. 13. Avowry by an Executor for Rent reserved by her and her Husband upon a Lease for years derived out of a Lease Exception taken because not shewed when the Husband dyed so it appeared not due in his time but because all belongs to her one way or other Wellwood in Newman Latch 121 Pop. 163. Costs to the Avowant upon 7 H. 8. c. 4 vide Common et Commoners Sect 4. Costs given to the Avowant for Damage-Fesant by 21 H. 8. c. 19. Cro. 1. James vers Tutneg 532. Replevin against 3 the one Avowes and the other 2 makes Conusance and Judgment against the Plaintiff but reversed because that those two did not make Conusance as Bailiffs to another Yelv. Owen vers Williams 108. The Lord hath still his choice to avow as at the Common-Law but if he will take the Benefit of the Statute then the Privity on both sides is removed and the Tenant shall Plead any discharge though he be a meer Stranger for the Charge of the Land is only in question though in that Statute 21 H. 8. there be no literal Provision so to be Hob. Brown vers Goldsmith 108. Avowry for 5 l. and 80 l. nomine poenae no demand of the Rent was alledged which made it unsufficient for the penalty but Retorne adjudged to him for they appeared to the Court to be several Hob. 133 Howel vers Samback If the Donee Alien the Donor cannot Avow upon the Alienee Keilway 130. b. Prescription that if one be chosen Constable at the Leet he must serve himself or find a sufficient man to do it and the Avowant saies that the Plaintiff was chosen and did not find a sufficient man to serve upon which it was demurred and Adjudged That the Avowry was ill Escot vers Stokes 14 Car 2. in B. One who is a Stranger to the Avowry shall not Plead any Plea but hors de son Fee or some other which is Tantamount As Lord and Tenant the Tenant makes a Lease the Termor shall plead no Plea but hors de son Fee because that he is a Stranger to the Avowry and he cannot have a Writ of Mesne because it is a Maxime Where a man cannot be helped by way of Action he shall be aided by way of Reversion He that is a Stranger to the Avowry cannot disclaim for a man cannot disclaim in auter droit An Abbot cannot disclaim nor Tenant in Tail Mich. 9 E. 4. fo 34. Hill 8 H. 5. Disclaimer 11. 26. If a man hath common by Especialty as in Land held of me the Rent is not arrear if I take the Beasts of the Commoner I do him wrong and he shall recover damages for he may Plead rien arrere although that he be a Stranger to the Avowry If the Tenant be in arrearages with his Lord and the Tenant makes a Feoffment in Fee which was notice to the Lord in this case the Lord may choose whether he will take him for his Tenant or not if he will not tender him his arrearages and the reason is if he will accept him for his Tenant generally he shall never be received to avow for the arrearages afterwards But if the Tenant dye so that the Tenancy discends to his Son or that the Tenancy is recover'd or that the Tenant hath forjudg'd the Mesne so that he is become Tenant to the Lord Paramount in all these Cases he shall accept them for his Tenants and make Avowry upon them for all the arrearages and the reason is because they are become Tenants to him against his Will As to Avowries 5 things are to be known 1. AVowry upon my very Tenant where the Lord hath the Rent in Fee simple and the
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
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
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
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
pleaded it at first Also if the Plaintiff plead a Feoffment upon Condition to J. S. and that the Condition is broken and that thereupon he entred the Defendant may say that he released to J. S. after the Condition broken and then he enfeoffed him A Man pleads a Feoffment in Barr in Assize of the Plaintiff and the Plaintiff saith that he Let to him for Life and afterwards he made a Feoffment by which he entered the Tenant may well say that after the Lease and before the Feoffment the Plaintiff releas'd to him This is no Departure because that it is pursuant and yet it might have been said at first 1 E. 4. Quare Impedit against a Bishop he pleads that he claims nothing but as Ordinary and demands Judgment c. The Plaintiff replies that such a day he presented to him such a person whom he refused to which the Bishop rejoyns that the Church was void and shews how and that thereupon he collated by Laps Judgment c. This is no Departure 35 H. 6. In Assize the Defendant pleads a Lease of the Plaintiff for Years which is yet in being the Plaintiff shews the Alienation of the Tenant the Tenant saith that the Plaintiff released to him after the Lease This is a Departure by Marten 3 H. 6. Precipe quod reddat the Tenant pleads that J. S. was seized of the same Lands and that they were devised to him in Fee by Force whereof he entred and gives Colour c. The Plaintiff saith that J. S. was seized and that he died seized and that the Lands descended to him as Son and Heir and that he entred cum hoc that he will averr that the said J. S. was within the Age of 21 Years at the time of the Devise The Tenant rejoyns that the Custom is that every Infant of the Age of 15 Years may Devise and that he was of the Age of 15 Years at the time of the Devise The Court was of Opinion that it was a Departure 37 H. 6. In Assize the Tenant pleaded the Dying seized by Protestation of his Father The Plaintiff said that J. S. was seized and enfeoffed him and so seized c. To which the Tenant replied that his Father by Protestation died seized and that J. S. did abate and enfeoff the Plaintiff and that the Tenant as Heir to his Father entered and was seized by Fortescue This is no Departure because the Tenant hath maintained his Barr and hath only added new Matter to maintain it 37 H. 6. If a Man plead a Gift in Tayl in Barr and the Demandant reply ne dona pas if he shew a Recovery in Value it is no Departure In Assise the Tenant pleaded hors de son Fee the Plaintiff shewed that the Tenant held of him issint de son fee and the Defendant shewed a Release of all Right This is a Departure because this plea was a Barr 5 H. 7. In Formedon the Tenant pleaded ne dona pas the Demandant shewed a Recovery in Value issint dona The Tenant shall not plead a new Barr because that that would be a Departure quod nota 21 H. 6. Reg. 12. In all Pleadings where you claim as Legatee you must surmise the Consent of the Executor as cui quidem dimissioni idem J. S. consentivit After Verdict the Plaintiff dies viz. before the day in Bank in Error brought this is assigned for Error and the Plaintiff per Attornatum suum pleads that he was alive 't was tried and found that he was dead Argued by Mr. Allen That there was no Tryal proper for the Cause for that the Issue was joyned by a Stranger and that there ought to be a Scire Facias against the Executors or Administrators of the Plaintiff and that the Writ of Error is discontinued But per totam Curiam the Tryal is good and the Judgment revers'd for that Error in fait Mich 14 Car. 2. in B. R. Dove vers ' Dinkey Quare Impedit IN Quare Impedit to present by Turns to an Advowson in Gross Three Judges were of Opinion that the Commencement how it came presentable by turns must be shewed But two Judges were of a contrary Opinion Leek against Coventry 3 Cro. 111. A Viccarage and none presented to it for one hundred and sixty Years Resolved that all Viccarages are taken out of the Parsonage and are not remitted to them by Non-usage without some Act. Robinson against Beadle 3 Cro. 873. Quare Impedit by the King against A. he pleads that the King made a Lease for Years to J. S. and during the Term J. S. presented him c. And it was moved that he being Incumbent could not traverse the King's Title without making one for himself but shew that he came in by Usurpation during the Lease but in the Writ it was excepted that the Patron and Ordinary are not named but only the Incumbent which they ought to be in all Cases but that of Collation but because the Defendant shews that he came in during the Term in which Term the King could have no Right it was adjudged for the Defendant Regina versus Middleton vide Co. 7. rep 26 27. 25 H. 6. 62. a. 3 H. 4. 2 3 11. Writ against the Incumbent only adjudged ill and abated by 46 E. 3. vide 7 E. 3 11. 7 H. 4 26. Writ against the Incumbent only good 1 Leon. 44 45 46. vide 47. E. 3. 10 11. Quare Impedtt and Counts of an Advowson appendant that 't is become void and he presented J. S. The Defendant pleads that 't is in Gross and Let to him and that he presented J. S. absque hoc that 't is appendant the Traverse is good but where the Count is of an Advowson in gross c. and the Defendant pleads that 't is appendant there the Presentment is traversable not that it appendant For the Presentment makes it in gross Seignior Buckhurst against Epm. Winton 1 Leon. 154. In a Quare Impedit by Tenant for Life Exception was taken because he counted of a Presentment only in himself and laid not any in his Lessor but adjudged good For the Lessor may lay a Presentment on his Lessee therefore 't is good for the Lessee Palmes versus Epm. Peterborough 1 Leon. 230. Co. 5. rep 57. b. 3 Cro. 518. vid. M. 7 E. 4. pl. 22. con 8 H. 5. 4 Accord Quare Impedit against the Bishop and J. S. and Judgment they joyn in a Writ of Deceit and avoid the Judgment for Non Summons and of that a Writ of Error brought and assigned that they could not joyn and Adjourned Guilliams against Blower sed vide 3 Cro. 65. They joyn in a Writ of Error on a Judgment in a Quare Impedit 1 Leon. 293. One that had a Benefice was presented to another and then purchased a Dispensation it came too late and so the first was void and if that be such as that it avoids the last quaere Vnderhill against Savage 1
Leon. 316. Queen Mary seized of a Rectory impropriate granted Advocationem Ecclesiae the Advowson passed not For being appropriate it cannot be disappropriate and the Rectory it self could not pass For by the Appropriation the Advowson is gone and not in esse Eadem Lex if it were the Grant of a Common person Regina against Lord Lumley 2 Leon. 80. A Common person presents to a Church before Institution he may revoke it and present another But the King may revoke it after Institution and before Induction wherewith agrees F. N. B. 34 C. but says a Common person having presented cannot revoke at all And Mr. Bacon in his Reading on the Statute of Simony in August 14 Car. 2. held clear that a Common person may revoke his Presentation and so is 14 E. 4 2. b. By the Common Law Filius non potest succedere Patri in Ecclesia and therefore where the Patron presented the Son of the last Incumbent the Bishop refused him but that holds not in England but the Patron presented another whom the Bishop instituted c. The first got a Dispensation of the Canon and sued the Bishop in the Delegates and he prayed a Prohibition and had it though both Parties claim by one Patron I suppose because the latter Presentment was a Revocation of the first If the Bishop will not Institute c. duplex quaerela lies Stoke against Sykes Latch 191 192. A. brings a Quare Impedit against B. pending which B. was instituted and inducted Then A sues in the Spiritual Court to remove him prohibition prayed first because he sues in duplici foro Secondly 't is after Induction granted Oliver and Hussey Latch 205. Quare Impedit and Counts of an Avoidance The Defendant pleads that the Avoidance was by Resignation and that he had notice the Church continued void six Months whereby he presented by Laps ill not shewing that it was void six Months without notice as it must be not after the resignation wherefore he amended it H. 1 H. 7. fo 9. pl. 8. The Defendant in a Quare Impedit reversed a Judgment had against him for Default of a Letter of Attorney and prayed a Writ to the Bishop and could not have it till he made Title H. 1 H. 7. fo 13 pl. 28. Three Mannors descended to three Sisters to one of which an Advowson is appendant they make Partition of all except the Advowson and assigned the Mannor whereto c. to one and another to each of the other and say nothing of the Advowson and if it be Appendant or in Gross alternis vicibus viz. Appendant when the Sisters Turn comes that has the Mannor or in Gross pro toto doubted but the Opinion seems that 't is in Gross pro toto For the Partition is as a Sale excepting the Advowson and if the Advowson had not been excepted then clearly it had been in Gross vide Dyer 205. A Church may be Appendant and in Gross alternis vicibus M. 2 H. 7. pl. 16. In a Quare Impedit against a Bishop he claims nothing but as ordinary The Defendant pleads that he presented A. and he refused him The Plaintiff replies that such a day before the Presentment J. S. presented one and then he presented c. whereby the Church became litigious The Plaintiff Demurrs The plea of the Bishop good Secondly If the Plaintiff thereupon might pray a Writ to the Bishop quaere but the Court divided but it was agreed that the Bishop might have pleaded this at first and now has put the Plaintiff upon Title with a Stranger whereas perhaps before he might have prayed a Writ to the Bishop either himself or the Metropolitan but which quaere It seems a Departure 34 H. 6 11 12. a. P. 5 H. 7. pl. 1. Quare Impedit against a Bishop and counts that he presented A. who was admitted c. and died and the Church continued void for Six Months the Bishop collated B. by lapse and that A. died so as it belonged to him c. The Defendant pleads that J. S. presented B. to him and traverses the Collation and whether the Bishop in Suit against him might set up a Title in a Stranger to avoid the Plaintiffs Suit was the Question And it seems he having the Cure of the Church and to see that the Rightful Patrons do present may and hereby the Usurpation of J. S. the now Patron is out of Possession Quaere if a Disturber may plead such a plea Tr. 5 H. 7. pl. 2. One grants Omnia tenta ' if an Advowson passes 't is doubted For it seems it cannot be held because no place for a Distress and therefore no Tenure of it can be vid. Trin. 5 H. 7. 3. Co. 1 Inst 6. a. 19. b. 154. a. by what Name Rents c. do pass and vide P. 6 H. 7. pl. 5. some doubt if an Advowson may pass by Livery and Seisin semble non because a thing meerly in Grant but the son may take Livery by the Ring of a Door for his Induction by way of Seisin vide H. 5 H. 7. fo 37. a. pur le livery and 12 H. 7. 16. Tr. 26 H. 8. pl. 1. Usurpation in the time of a Lessee for years of the Mannor wherein c. it seems puts not the Patron out of Possession after the Lease nor makes not the Advowson continue in force after the Lease ended P. 10 H. 7. pl. 6. Tr. 11 H. 7. pl. 15. Quare Impedit declares that he presented A. to the Church being void c. the Defendant pleads that long before he presented A. and that he being in Possession the Plaintiff presents him it seems not good without a Traverse that the Church was void when the Plaintif presented him P. 11 H. 7. pl. 1. Quare Impedit and lays a Presentation in J. who was seised and that his Lands came to the King by the Stat. and the Church voided and he granted to the Queen the immediate Presentment and also the next Avoidance The Queen presents and 't is void again and was disturbed It seems the laying these Presentments makes the Declaration double for one of them well makes a Title but at last they judged not And it seems because the Statute is so high that no Title can be precedent to it so that what was laid in J. only was Surplussage H. 13 H. 7. pl. 7. P. 16 H. 6. pl. 11. P. 13 H. 8. pl. 2. In a Quare Impedit against the Parson Patron and Ordinary they all joyn and plead one plea and Exception taken by Keeble that they have several Interests and Rights and so ought to have severed in the Plaintiff and none can plead to the Right of Patronage but the Patron H. 13 H. 7. pl. 24. In a Quare Impedit against two one appears at the Distress and the other made Default and a Writ was awarded to the Bishop immediate quoad him and the Plaintiff proceeded with the other Defendant to Tryal P.
of a Recognizance entred by A. and B. returned Terre-tenants come in and plead that C. hath three Acres of A. Land not summoned c. whereof he was seized in Fee Issue that A. was not seized of three Acres Verdict find that he and E. were joyntly seized and infeoffed C. per Popham and Gaudy 't is against the Defendant for now though the moyety of these Lands are subject to the Extent yet upon the special Plea which is false for A. was not seized alone of them in Fee as the Plea alledges he cannot abate the Writ Fenner con ' Dame Needam against Buning Vide 3 Cro. 524. 52. Scire facias against two for Damages recovered in Assize by three one Defendant pleads that one of the Plaintiffs supposed by the Plaintiff to be dead at the time of the Scire Facias was alive and the other pleaded that one of the Plaintiffs now supposed alive is dead ill for they must joyn in Dilatories though objected they might have severed in their Pleas to the first Vide p. 26 H. 8. pl. 7. One imparls the other demands the view in a Precipe quod reddat quaere of that M. 7. H. 7. pl. 8. m. 10. H. 7. pl. 6. m. 12. H. 7. fo 3. Scire Facias to have Restitution of Money or Reversal of Judgment the Defendant pleads Payment not good against a Record without matter of Record or specialty and 't was long before it was agreed that levyed by the Sheriff in a Scire Facias was a good Plea but at last agreed because grounded on the Scire Facias which he cannot withstand Vrse against Harrison sed vide 2 Cro. 29. Ognel against Randal Per Popham bare payment without Writing is no Plea to barr an Execution by Fieri Facias of Scire Facias vide H. 4. 58. 59. In Debt on a Judgment leavyed Fieri Facias and paid to the Plaintiff no Plea because the Sheriff is to bring the Money into Court not to deliver it to the Plaintiff other if the Lands were extended by Elegit 1 Cro. 239. Scire Facias as Cousin and Heir to D. viz. Fitz A. c. Plea that I had no such Son good and he needs not shew who was the Plaintiff's Mother as if it had been pleaded the Plaintiff was not the Son of A. for then the Birth of A was confessed he must when he takes one Mother from him give him another but here the Birth of the Plaintiff is not at all mentioned admitted or granted Vide talem 11 H. 456. b. 74 75. H. 4. 38. 9. E. 3. 30. 31. Plea that he had no such Son not admitted but he for to plead whose Son he was 8 H. 4. 21. a. 9 E. 3. 30 31. Scire Facias on a Recovery against the Heir and Terre-tenants the Sheriff an Heir and four more Terre-tenants the Heir Nil dicit the other four plead that two of them are Joynt-Tenants of part with J. S. not named and resolved that the Joynt-tenancy is a good Plea in this Action but not for all but for that part wherein the Joynt-tenancy is but because all joyned where but two were Joynt-tennants the Plea was ill for all four Holland against Donitree c. 3 Cro. 739. Scire Facias on a Recognizance Defendant pleads an Acquittance Plantiff replies 't is razed in such and such material places and demands Judgment of the Writ per Curiam this being but a matter tryable by the Court is but a Plea in Abatement whereon a respond ' Ouster shall be and lies not peremptory sic de Margine dict in all In all our Books Matters tryable by the Court go only in Abatement and are not peremptory which seems must be intended either of matters of Fact or with some restraint for every Plea in Law is tryable by the Court 5 E. 3. 32 b. Scire Facias on a Judgment against an Executor he pleads a Judgment to J. S. of 100 l. another to himself of 100 l. and that he has but 100 l. to satisfie J. S. and says not ultra to satisfie himself ill for he may pay himself if he have not ultra to pay J. S. and himself he is not bound to pay the Plaintiff Feltham against Executors of Tourston Tr. 8. Car. 2. in Scaccario In Scire Facias on a Recognizance for the Plaintiff 't is sufficient to assign breach that he beat one contra Pacem without saying vi armis aliter in Battery Hutchins against Perryman M. 14. Jac. B. R. 3. Bulstr ' 220. In Scire Facias of a Judgment against an Executor he pleads Plene administravit Jour de brief ill for he might have paid Bonds before so should he have pleaded Riens tempore mortis nec unquam postea but the Plaintiff taking Issue waved the benefit of the ill Plea Harcourt against Wrenham Mo. pl. 11. 78. Sheriff Bailiff c. ALattitat was delivered to the Under-Sheriff to be executed the Defendant being in Company with the Under-Sheriff and the Under-Sheriff lets the Defendant go and returns non est invent ' Whereupon the Plaintiff brings his Action of the Case against the Under-Sheriff setting forth the whole Frand and Falseness of the Under-Sheriff and Judgment by default But upon Motion in Court in Arrest of Judgment the Action did not lye for the Sheriff is the person alone to answer in Court for all Misdemeanors of the Under-Sheriff and Bailiffs Upon a Fieri Facias if the Sheriff return that he hath levyed the Money and do not pay it to the Plaintiff at the Return of the Writ the Plaintiff may have a Scire Facias against the Sheriff to shew cause wherefore the Sum levyed should not be levied of the Goods of the Sheriff The Sheriff cannot break open any man's House or Close upon a Fieri Facias executing and much less the Landlord shall not break open doors to distrein for Rent but where the King is concern'd as upon an Utlary there the Sheriff may justifie the breaking open the doors if he be resited but he must acquaint them in the House with the Cause of his coming before he force them open If a man be in the hands of the Under-Sheriff in Execution for Debt and the Debtee tell the Sheriff that the Prisoner hath satisfied him if the Sheriff release not the Prisoner it is false Imprisonment A Bailiff having a Warrant to attach the Goods of a Person to answer at the Couâ—ty Court doth attach the Goods accâ—rdingly and after delivers them to the Defendant and takes Bond of him to appear at the day or redeliver the Goods to the Bailiff this is not within the Statute of 23 H. 6. A Bailiff of a Liberty cannot execute a Capias Vtlegatum and if the party be in the hands of the Bailiff the Sheriff may take him for it is a Non Omittas in it self Per Curiam Hill 13. Ja. in C. B. Observations upon the Statute of 29 Car. 2. Regis for prevention of
Frauds and Perjuries 1. BY this Act it appears That if a Feoffment be made and Livery and Seisin duly executed although it were before many credible Witness as formerly the Law was yet unless it be put into Writing nothing shall pass thereby but an Estate at Will and in like manner all leases made by word for any longer time than three years or other Estates made or created without Writing are subject to the same Rule that is shall be only Estate at Will that are so made by Words without Writing after the 24 th of June 1677. 2. After the said 24 th of June 1677. No Executor or Administrator shall be charged with any special Promise to answer Damages out of their own Estates but only in Relation to the Testator having Assetts in their hands and that no other person shall be charged with any special promise to pay the Debt of another man or answer for the Default of any other or upon any Agreement of Marriage or for any Agreement for Lands or for any other commodity or thing not to be performed within one Year after the making of any such Agreement unless the same Promise Bargain or Agreement be set down in Writing and signed by the party to be charged therewith or by some other person lawfully authorised by him so to do 3. All Wills and Bequests of Lands Tenements c. after the said 24 th day of June 1677. shall be put into writing and subscribed by the Testator or some person else in his Presence and by his express Directions and attested and subscribed in the presence of three or four Witnesses other wise all such Gifts to be void all such Devises so made and subscribed by the Testatoror his Directions as aforesaid shall be good and stand effâ—ctual in the Law unless the Testator shall at any time cancell the Will or alter it by a subsequent Will 4. All Trusts shall be in Writing and signed by the Party declaring the Trust else to be void except such Trusts as arise by Implication of Law and Lands in Trust for the use of others shall be chargeable with the Judgment and lyable to the Execution sued out against Cestuque use 5. Aman seized of one Estate pur autre vie may devise the same by Will in manner afoâ—esaid and no such devise shall descend to the Heir that so died seized as Lands in Fee-simple should do and such Heir shall be chargeable therewith as a special Occupant and in case of no such special Occupancy then shall the Land descend to the Executors and Administrators 6. From and after the said day every Judgment shall be signed with the day of the Month and the Year in which such Judgment was Signed and the day of the Month and Year are to be entred on the Margin of the Plea-Role and they shall be accounted Judgments but from that day wherein they were so signed and not from the first day of the Term as formerly was used the like Rule for Recognizances 7. No Writ of Fieri facias or Writ of Execution shall after the property of Goods but from the day the Writ was delivered to the Sheriss to execute which day and year the Sheriff is to endoâ—se on the back-side of the Writ 8. No Bargain of Goods above the value of ten pounds shall stand good unless the Buyer take part of the Goods so sold into his Possession or give something in Earnest or that some Note or Memorandum be made thereof in Writing 9. No nuncupative Will whereby an Estate is bequeathed above the value of thirty pounds shall be good unless it shall be proved by three Witnesses at the least nor unless the Testator did bid the parties present bear witness that so was his Will or to such like effect nor unless such a Will was made in the time of the Testator's last Sickness and in his place of Habitation and unless he was surprised and taken sick from Home and that no Testimony shall be received to prove such Will after six Months unless the Testamentory Words were committed to Writing within six Days after the making of such Will 10. No words unless they are committed to Writing and read to the Testator and allowed by him and proved by three Witnesses to be his Will shall alter any Will in Writing concerning any Goods or Chattels or any Device or Bequest therein Trespass IF my Servant without my knowledge puts Beasts into another mans Ground the Servant is Trespasser and not the Master If a man beat my Servant I may have Trespass and my Servant another Action of Trespass diversis respectibus It is good to lay the Action some day after the Trespass committed yet it is not material or traversable if be laid before For it 's but a Circumstance As Trespass done the Fourth of May the Plaintiff alledgeth the First of May it 's sufficient if upon Evidence it be proved that the Trespass was done before the Action brought A Master is punishable for his Servant if he be about his Masters Business An Abbot for his Monk a Captain for his Souldier an Host for his Guess So a Sheriff for his Under-Sheriff and Bayliffs But a Master shall not be Punnished for Trespass of Battery or Entry into Lands or Felony or Murder or such like done by the Servant unless done by his Command If a Servant keeps his Master's Fire so negligent that it burns his Master's and the Neigbours House the Master is chargeable therewith A man is chargable with the Faults of his Family or of his Beasts If a Ship is perishing and the Marriners cast the Goods to save them on the Land next adjoyning yet this is Trespass and punishable by him that holds the Land A Servant may justifie the beating of another in Defence of his Master A Man shall not have his Action of Trespass for Threatning and recover Damage as well as in Assault and Battery The Law does not allow any man to strike in Revenge of Ill words and the reason is because there is no proportion between Words and Blows but he that is struck may strike again In Trespass he that consents and gives aid to the committing of Trespass is a Principal and no Accessary to the same Trespass If Tenant at Will commits voluntarily Waste Trespass lies against him notwithstanding his Possession so that if I deliver my Sheep to another to Fold or Dung his Land or a Horse to Ride or Oxen to Plow his Land If the Bailiff spoil or kill them I have an Action of Trespass against him notwithstanding the Delivery of them or Trover at his Election If a Man desseize me of my Land or dispossess me of my Goods yet I may enter upon the Land or take my Goods although I release to the party Disseizer or Trespasser all Actions yet this Release shall not Bar my Right No Trespass can be excused by Law but it may be justified as upon son assault demesne or
Affidavit that he was sick yet no day but he pleaded al pais 3 Bulstr 316. on default Judgment and no day Ben. 151. Debt for Scavage and declares that the Mayor Aldermen c. time out of mind have so much for Scavage and the defendant brought so many Boards whereby so much was due defendant waged Law and on demurrer adjudged it lyes not on this debt grounded on a Custom Ma. c. of London against Delpester Tr. 26. Ca. 2. b. r. Wast DEvise to one for Life Remainder to A. in Fee Tenant for Life does wast he in Remainder shall have an Action of Wast but the Writ must be special and shew that he was the Reversioner by Devise not generally ex assignatione Hutton 110. Lease excepting wood and underwood Lessee cuts Timber it seems an Action of Wast lyes not because the Wood was devised and so not within the Statute Dyer 19. a. 1 Leon 61. In Wast it seems that the defendant if he never attorned may either say que riens passa and give in Evidence that he never attorned or plead it Dyer 31. a. 231. a. b. In Wast for cutting and selling Trees the selling must be answered as well as the cutting for that is traversable Dyer 75. b. 90. b. Co. 1. Inst 53. Hob. 104. If an house be ruinous at the Lessee's Entry 't is no wast to suffer it to fall but to pull it down 't is and 't is wast in the Lessee to cut Timber to re-edifie such an house per Dyer but I suppose not for if the house fall by Tempest the Lessee may cut Trees to repair by Co. 1. Inst 53. b. 54. a. contrary to Dyer 36. a. Co. 4. Rep. 63. a. 11. 81. a. The general property of Trees remains in the Lessor and the Lessee hath but particular Interest to take them and in Dyer 't is said the Lessor cannot grant them without the Lessee's License But Co. 11. Rep. 't is said 't is good to take effect after the Lease which is yet a doubt upon Waller and Pettit's Case Dyer 36. a. b. Co. 4. Rep. 36. b. 11. Rep. 48. b. 81. 1 Cro. 199. Wast assigned quòd amputavit decapitavit quadragiâ—ta Fraxinus viginti Vlmas and adjudged it well lyes Dyer 55. a. Wast assigned Succidendo quercus the Truth was he did not lop and top them he may plead Nul wast fait and give the special matter in Evidence Dyer 92. a. Upon the Retorn of the Summons 't was said quòd quer ' obtulit se quarto die per Attorn ' without naming him and though he was named in the assigning of the Wast yet 't was Error and so it was that the Estate was not set forth in the Writ though it was in the Action of Wast Also he shewed one Tenant for Life by way of use the Reversion to him and said not spectaâ— ' vel pertinen ' Dyer 93. b. Wast may be assigned in destroying the Planks and Managers in a Stable but then they must be averred fixed to the Free-hold And so of letting a Brick-wal fall but it must be averred that it was covered 1 Inst 53. a. Dyer 108. Wast by a Bishop moved to abate the Writ because 't was ad Exheredationem ipsius Episcopi where it should be ad Exheredationem Ecclesioe but no Resolution given Mich. 10. H. 7. Pl. 8. Ad Exheredationem ipsius A. B. Ecclesioe de S. Mich. 42. E. 3. 22. b. Dyer 129. a. Lessee of an house and Wood covenanted to repair the house at his proper Costs and took Timber to repair it he is not charged with Wast but in Covenant he is The same Law if the Lessor had covenanted to repair it and the Lessee had took Trees on his default Vide 21 H. 6. 47. a. Lessee may plead in Bar of Wast that the Lessor granted the Repair and he took the Trees to do it in his default Dyer 198. b. 314. a. Dr. and Stud 66. b. Perkins § 738. Plow Com. 29. Dyer 32 a. A. makes a Lease to commence in futuro and before the Lease commences infeoffs B. The Lessee does wast B. brings wast supposing quod tenet ad terminum c. ex Assignatione A. de quo idem defend ' tenuit c. and good there being no other forme though he never held of A. for his Term was never commenced in A's time Dyer 206. b. Hutton's Reports fo 110. Lessor grants the Reversion to A. who grants it to B. the Lessee assigns the Term to C. Form of the Writ denyed per Justic ' utriusque Banci Dyer 208. Scire facias of a Fine and Writ of Estrepement sued one that purchased wood long before the Scire facias is hindred to fell it Quoere what Remedy Dyer 110. b. In wast assigned in taking a Furnace fixed to the Soyl the defendant pleaded a Devise of it by the Termor and removal of it by the Executor's Assent It seems no Plea being doubted if the Plaintiff ought not to have Judgment for the wast confessed Dyer 272. b. Owen's Rep. 70. Wentworth's Office of Executors fol. 36. Quid Juris Clamat was brought upon a Fine and after Judgment and before Execution a Writ of Estrepement awarded Dyer 325. b. In wast for cutting Trees the defendant pleaded quòd fuerunt aridoe cavoe putridoe in culminibus non existentes sufficiens Maheremium pro edificiis Two Judges held it ill because not said non portantes fructus nec folia Dyer contra it tantamounts But agreed non existen ' sufficiens maheremium ad edificand alone ill for it may be fit for other uses And to other he justified to make Posts for Inolosures and that ill because not shewed that all those Trees were so employed Dyer 332. More pl. 246. A. and B. Joyntenants for Life Reversion to B. make a Lease they shall joyn in wast And so if Tenant for Life and he in Reversion make a Lease they shall joyn and Tenant for life shall recover Locum vastatum he in Reversion damages 1 Inst 42. a. b. 1 Leon 49 To cut down Timber is Wast to suffer the young Germina to be destroyed is Destruction so if one when he has cut a Sale-wood lets the spring be spoiled or stubs it up Cutting Willows Beech Maple c. that stand in defence of the house and stubbing up a quick set Hedge is destruction for all which an Action of Wast lyes 1 Inst 53. I. K. L. M. To suffer a ruinous house to fall down that was so at one's Entry is not wast ytt he may take Timber and re-edifie it but if he pull it down it is wast To destroy Glass Wainscot Doors Furnaces c. fixed to the Free-hold is wast Cutting Fruit-trees in the Orchard or Garden is wast otherwise not If a house be blown down by Tempest Lightning c. the Tenant must in convenient time repair it Destroying the Stock of Dove-houses Warrens c. is wast Where Timber is scant
Common Law wherefore prohibition prayed but granted only quoad the lands and that it be proved quoad bona Hill against Thornton 1 Cro. 118. Debt on a Bond conditioned he permit his Wife to make a Will to the value of 50 l. and 't is found on Issue Nullum fecit voluntatem c. that she did make a Will of 50 l. but was covert 't is for the Plaintiff for though properly a Feme-Covert can make no Will in Law yet 't is a Will within the Intent of the Condition and the Husband is bound to perform it Marriot vers Kinsman 1 Cro. 159. And so Tilly and Parryes Case 273 274. Bond to pay 300 l. to such Persons and Uâ—es as the Wife should appoint she appoints in form of a Will he is bound to pay it And 433 Bond to permit her to make a Will and pay c. Plea that he permitted c. without pleading payment not good Action upon the Case lyes not for Non-payment of a Legacy for no Duty in our Law so it cannot take notice of the wrong in Non payment Mich. 18. Car. 2. Nicholson against Sherman in Banco Regis Bond conditioned that the Wife shall make a Will of 300 l. in presence of the Husband if he will be present if not in his Absence she makes it and it appears not that he was requested to be or that he was present of 250 l. to several persons and not an entire Legacy yet after Verdict the Plaintiff had Judgment for the Intent was that she should make a Will whether he would or not and she needed not devise all to one nor devise the whole 300 l. for Cui licet quod majus c. Mich. 14. Car. 2. Harris against Bury in Banco Regis Debt by A. as Executor the Defendant prays Oyer of the Will which was thus Memorandum Quòd A. B. fecit Testamentum Nuncupativum in hunc modum viz. Constituit C. D. fore Executorem suum And this was under Seal of the Ordinary and resolved a good Will and he Executor and well able to sue and so was it decided upon Appeal to the Delegates Mich. 16. Car. 2. Lewis against Shaw in B. R. Witnesses HE that is attainted of a false Verdict Conspiracy or convicted of Perjury Premunire or Forgery upon 5 Eliz. or Felony or that has stood in the Pillory lost his Ears been stigmatiz'd c. whereby he becomes infamous or Recreant in a Writ of Right or an Infidel under Age of Discretion or interessed ought not to be a Witness nor a man's Wife for or against her Husband But one outlawed in personal Actions may be a witness Co. 1. Inst 6. b. 25. J. K. Witnesses are not to prove a Negative ibid. Where Tryal is by Witnesses there ought to be two at the least ibid. A Juror may give Evidence as a Witness to his Companions but it must be publickly by Examination in Court not privately to his Fellows Stiles Rep. 233. Bail for the Defendant being a Witness for him upon motion was taken off the File and new Bail filed Idem 385. A Felon that has been burned in the hand may be a Witness for he may purchase and his Punishment has satisfied his Offence Idem 385. In Ejectment he that had the Inheritance of the Land was admitted as a Witness where note the Plaintiff and Defendant both claimed under one person Idem 482. A Counsellor at Bar being examined as a Witness for his Clyent was denyed to be examined on the other side for he shall not be put to discover the Secrets of his Clyents Cause Idem 449. Debt on 5 Eliz. 9. because the Wife did not appear whereas he served her and tendred to her her Charges c. to his Damage And though not laid what Damage yet being for the 10 l. upon the Statute not for his damages for her not appearing and a Feme Covert being within the Statute 't was held good enough 3 Cro. 130. 1 Leon. 122. Note she being the person who was to appear the Charges are to be tendred to her or her Husband Iidem ibid. Debt for 10 l. against a Witness that being Subpenaâ—d appeared not moved first 't is not shewed that the Subpena was left resolved it needs not for it might be for more Witnâ—sses 2. There was but 12 d delivered but resolved since he promised to pay the rest and the Witness accepted the 2 d. 't is good else the Witness had not been bâ—â—nd 'till the whole Charges had been tendred But thirdly because he avâ—rred not that he was damnified by the Non-Appearance of the Witness though the Action be but for the ten pound Pâ—nalty and not for the Damages over Râ—â—olved it lyes not 1 Cro. 376. 388. Judgment staid because the Verdict was had upon the Testimony of one Witness and he since convict of Pâ—rjury in the very same thing Pasch 17. Car. 2. Banco Regis In Deceipt for forging a Will one that took a Legacy by the same Will was allowed and sworn as a Witness in a Tryal for the Forgery for this makes nothing to the Probate of the Will or Recovery of the Legacy in the Spiritual Court nor do they take notice of it Moved to examine a material Witness that lay dying and it was said by the Court that if the adverse party did consent it might be done else they could not compell him Mich. 13. Car. 2. B. R. A Councellor may be examined as a Witness against his Clyent so far as it is of his own Knowledge not what he knows by the revealing of his Clyent Pasc 15. Car. 2. B. R. One shall not justifie what he heard an other say ibid. In an Indictment for beating one of the King's Messengers the Witnesses for the Defendant were sworn because though against the King and criminal yet not Capital Pasch 17. Car. 2. B. R. One that was a Witness indorsed to the Livery upon a Feoffment having part of the Lands as Tenant at Will was allowed as a Witness in the Tryal on the Feoffment afterwards in a Tryal at Bar. Bulstrodes Rep. 202. A Person attainted of Felony though afterwards pardoned by the King is uncapable after of being a Witness and therefore a Suggestion being proved only by two such a Consultation was granted 2 Bulstr 154. Words TO say of a Woman that J. S. did beget her with Child and she had a Child by him by speaking whereof she lost a Marriage with I. D. Although these words are a Spiritual Slander yet the loss of Marriage is Temporal and therefore the Action lyes for them Co. 4. 16. b. Ann Davis against Gardner adjudged So if a Man saith of a Woman that J. S. had the use of her Body by which she loseth her Marriage an Action lyes Pasch 5. Jac. B. R. Dame Morison against Case adjudged If a man says to J. S. Thou art a Whore-Master for thou hast lain with B's Wife and hadst to do with her against
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.
of God or of an Estranger may abate the Writ p. 17 18 19 20. Ab Initio Where the Grant shall be good Ab Initio although it was incertain at the Commencement p. 20 21 22 23. Able and Disable Where an Obligee was able at the time of the making the Obligation and afterwards disabled by his own Act è contra p. 23 24. Acceptance Where it shall be no Prejudice to the Acceptor p. 24. Action Where the principal thing is devested yet the Plaintiff shall have an Action which is accrued to him by reason thereof ibid. Where the Husband shall have an Action without naming his Wife and where not p. 25 26 27 29 33 34. Where the Plaintiff hath Election to bring his Action against the Heir or Executor p. 27. Bill teneri c. in 20. l. solvend in Watches Action shall be brought for the Money not the Watches but if the number had been express'd contra p. 28. Assault and Battery and Ejectment will both lye in one Declaration ib. Of bringing Actions of Trespass and what words are most proper to be used therein upon several occasions p. 28 29. How Executors and Executors of Executors shall sue and be sued p. 29. Of bringing Actions of Covenant p. 30 31 32. Of Infants bringing their Actions p. 32 33. Where several things may be put into one Declaration p. 35. Of bringing Actions upon the Statute ib. Where a man shall have an Action against his own Deed. p. 36 37 38. Where a man hath good cause of Action sometimes and yet by matter ex post facto and by the Action of a Stranger his Action is destroyed p. 38 39. Of bringing Actions upon the Case Sur assumpsit p. 40 41. Amendment In what Cases the Court will suffer an Original Writ Venire Facias Quare Impedit Habeas Corpora or Writ of Nisi prius c. to be amended p. 43. to 51. Misprisions of the Clerk no Errors shall be amended p. 45 46. Appearance The Defendant having given Bond to the Sheriff to appear if supersedeas comes to the Sheriff before day of Appearance yet he must appear to save his Bond. p. 51. By W. 2. a man of 70 not bound to appear upon Juries ibid. Annuity Grantee in Annuity pro Consilio c. not bound to give Counsel to the Grantor unless required p. 51. How to declare in Annuity p. 52. Arbitrement Where good where not p. 52 53. Audita Querela Brought by an Infant who was non-pros'd and why p. 53 54. It lies upon Nihil Facias not Scire Facias ibid. Brought by Conusor in Stat. Merch. against Administrator of Executor of the Conusee after Release p. 54. Avowry Avowry for Amercement in Court Baron ill and why ibid. Set forth in Avowry that Dean and Chapter were seised in Jure Ecclesiae not saying in Fee ill and why ibid. Pleading in Avowry Damage fesant and on a new grant p. 55. Exceptions to an Avowry by an Executor ibid. Costs to Avowant ibid. Judgment for Avowant revers'd and why p. 56. The Lord hath Election to avow at Common Law or upon the Statute and which most beneficial ibid. Avowry for two Sums nomine penae without alledging Demand of Rent insufficient c. ibid. Donee aliens Donor cannot avow upon Alienee ibid. Avowry adjudged ill upon Demurrer and why ibid. Stranger to Avowry shall plead nothing but hors de son fee or matter tantamount p. 57. Stranger to Avowry cannot disclaim nor any person in auter droit ibid. Five things to be known in Avowries p. 58 59. Where in Avowries the Defendant shall answer to the Seisin and where he shall traverse p. 61. Where the Effect of the Fee shall be traversed p. 62. Bail UPON Latitat 64. Vpon Capias ib. for Husband and Wife ib. Vpon Writ of Error p. 65. Difference of being Bail in King's Bench and Common Pleas. ibid. Bail sells his Lands if chargeable p. 66. If one puts in Bail to a Debt in C. B. and be afterwards arrested in London for the same Debt he shall have an Attachment ib. Bankrupt Creditors after refusal may upon Tener of their Proportions towards the Charge of the Commission be received to have their parts as other Creditors if no Distribution hath been made of the Bankrupt's Estate before ibid. Commissioners may sell Bankrupt's Goods if by him before disposed to his Creditors after he became Bankrupt ibid. They may sell his Copy-hold Lands p. 67. Two brought Debt joyntly as assigned to them by Commissioners per Cur. they ought to have assigned pro rata to every Creditor ibid. A Bankrupt cannot sell his own 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 he may ibid. Barr. A man may be barred pro tempore and yet afterwards he shall have his Action p. 68. To plead a thing by way of Barr or Estoppel which the Demandant or Plaintiff is to defeat or destroy by the Vsage of his Action is no good Plea ibid. Of pleading Recoveries in Barr. p. 69. Where a man demands a Debt or any thing by Deed he shall not be barred but by Deed or something of as high Nature p. 70. Where a man shall plead a Barr which shall comprehend one matter in Fact and where it shall comprehend more p. 71. Of Barrs perpetual ibid. Cinque-Ports HOW Lands shall be extended in the Cinque-Ports p. 72. Customs and Prescriptions Customs against Canon Law how to be tryed p. 72. Customs payable to the King by the Common Law and why ibid. Difference between malum in se and malum prohibitum ibid. Bailiff ought not to sell Goods taken in Execution for Debt or Damages in a Court Baron but impound and keep them as Pledges till the Defendant makes his Agreement but where the Court hath used to award a Levari Facias 't is good by Custom p. 73. Custom of Burrough English ibid. Custom for the Court of King's Bench every Term to send the Coroner to the Marshal to view the Prisoners that the Coroner might mark the Names of those were wanting in his Book and inform the Court thereof who would record their Escape against the Marshal as an Abuse of his Office and cause of Forfeiture ibid. The Law and Vsage of the Realm concerning Aliens and their Issue p. 74. Custom of London concerning Feme sole Merchant ibid. Custom and Vsage binding to particular places ibid. In what Cases the Custom of the Realm is the Common Law ibid. Prescription what and how to be alledged p. 75 76 77. Profit Apprendre cannot be claimed by Custom in the Lands of another except in Cases of Necessity p. 77. Where a man may have an Action upon the Case for a Tort and where he must prescribe and shew his Title p. 78. How and where Customs pro bono privato and pro bono publico are to be alledged ibid How
Copy-holders ought to alledge Customs ibid. Of alledging Customs in particular places p. 79. In what manner Customs shall be pleaded ib. Of Prescription by Parishoners ib. 80. Custom of England concerning Inn-keepers ib. Of Tithes ibid. No Prescription of Lands makes a Right but of Rents or Profits it doth p. 81. Women may prescribe to be endowed of a moiety of the Lands of her Husband but not of the Rent ibid. Gavelkind Lands shall escheat if the Father abjure or be outlawed for Felony ibid. Every Custom against Common Law shall be taken strickly ibid. Debt SEE variety of Pleading in Debt from 81. to 104. Detinue Inter-pleader in Detinue p. 104. Vpon general Issue in Detinue that which would make a special Barr cannot be given in Evidence or if found by the Jury is it material p. 105. Detinue will lye of Chartres not specially and particularly named what they are ibid. Improper words in Detinue adjudged good enough after Verdict Disclaimers and Discontinuances of Actions Action of Covenant discontinued after Judgment and Writ of Inquiry by Rule of Court p. 106. Action of Tresp in three Towns and mentions but two Towns where it was committed the whole is discontinued ibid. So in Debt for that the Writ was 10. l. 6. s. 8. d. and the Declaration but 10. l. ib. So if the Declaration be of several things and it be discontinued as to one it shall be discontinued as to all ibid. Debt brought against two Joyntly and Severally bound it being discontinued against one did abate against both ibid. In what Cases where two Persons bring their Action the Non-suit of one shall not be the Non-suit of them both è contra p. 107. If after Verdict for the Avowant in Replevin the Plea be discontinued and he sues a Scire Facias the Plaintiff may plead a Release of the Avowant after Verdict of all Actions or other matter to discharge himself ibid. Trespass Defendant pleads two Pleas Plt ' demurrs to one and doth not plead over to the other it is a discontinuance ibid. In Pr. quod reddat if the Tenant disclaims the Judgment shall be that the Demandant nihil capiat per breve p. 108. Writ of Inquiry awarded upon Disclaimer in Replevin ibid. No man can disclaim against a Termor ib. Husband and Wife cannot disclaim in Avowry ibid. In Replevin the Defendant avows upon the Plaintiff and he disclaims to it he shall not be received 109. He that is in of his own Wrong shall not disclaim in a Writ of Entry in le quibus ib. Distress If Houshold Goods be Distrained they ought to be preserved in an House from the Injury of the Weather but if put in an open place where they are spoiled the Distrainor shall not answer for them ibid. If an Horse Distrain'd happen to strangle himself the Distrainor shall be punished in an Action of Trespass ibid. A man shall not milk a Cow he hath distrained without the Owners Consent and if the Cow perish for want of Milking he may distrain again and so be at no Damage ibid. 110 112. Sheriffs Officer cannot justifie breaking open Doors to distrain for the King 's Rent much less a Landlord's ibid. Things distrained shall not be used because but Pledges in Law ibid. Distress not to be driven out of the Hundred or to a Pound above three Miles or to several Pounds or out of the County No Man shall distrain in the High-way nor drive Distress into a Castle or Hold ib. The Tenant shall not disturb the Landlord in taking his Distress or hinder him of the Lawful Means to come by his Rent ib. Distress of a Strangers Goods for the Tenants Rent unlawful ibid. Owner must bring Replevin not break the Pound tho' the Distress be unlawful p. 112. Where Limitation of Distress void ibid. Error WHere the Plaintiff in the Action may sue out a Scire Facias against the Executors or Administrators of the Plaintiff in the Writ of Error p. 113. After Writ of Error allowed Execution upon the former Judgment shall not be awarded and why ibid. Where there is Fine and Recovery of Lands and Error in them both a Writ of Error cannot be brought first upon the Fine but upon the Recovery ibid. In what case a Fine shall barr a Writt of Error brought of a Recovery p. 114. Execution Action lies not against the Sheriff for Escape of a Prisoner in Execution in the time of his Predecessor ibid. Sheriff may not break open Doors to execute Fieri Facias p. 115. Ca. sa against Principal return'd non est invent ' then Sci. Fa. against Sureties before the Return whereof the Principal Surrenders his Body in Execution allowed per Cur ' ibid. Execution granted by the Court upon Motion after a Writ of Error brought because the Retorn was too long ibid. Estoppels and Conclusions He who claims nothing by him that was estopped shall not be estopped by his Act. Where he no Reversion or Remainder p. 115. claims nothing by Tenant for Life he shall not be estopped p. 116. If a Man pleads a Plea in which he confesseth a thing that is not material it shall not be an Estoppel p. 117. If a man plead a Record to Estop him that was privy he ought to shew what end the Action had p. 118. Where a Man hath Judgment to recover Land by that Judgment he shall be Estopped to claim any other Title than he hath by the Recovery ibid. Of some Estoppels none shall have Advantage but Parties or Privies 120. And of some every one shall have advantage ibid. Vser of Action no Estoppel to prejudice another ibid. In what case one shall estop another ibid. Where I am barred of Land the Estoppel shall pass with it but of other Lands it shall be no Estoppel against me ibid. None shall be received to plead an Estoppel against another but may be estopped by the same Plea and both must be Parties to the Record otherwise not p. 122. In what cases a Stranger shall take Advantage by an Estoppel p. 123. Fines and Recoveries SEveral Cases of Fines and Recoveries p. 125 126. Heir The manner of Suing an Heir upon a Bond entred into by his Ancestor p. 159. Outlawries PLeaded in Bar and Disability p. 161 163 165 175 177 181 196 197. Reversed for several causes p. 161 162 163 164 165 168 170 171 172 173 178 179 181. Partition TWo Tenants in Common of a Mannor before Partition one of them is said to have dimidium Manerii but after Partition medietatem Manerii and an Indictment of forceable Entry after Partition it shall be Medietas not Dimidium Manerii p. 183 Priviledge Lost by Chancery Clerk by suing out Supers ' in C. B. Parson Parsonage becomes void by Acceptance of a Bishoprick p. 183. And Acceptance of a second Benefice makes the first void p. 184. Tith of things proceeding from the Earth as Corn Hay c. shall be severed upon the Ground but secus of Sheep
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