such as enter into suit ar not vtterly reiected of our law for as to the 2. first which concerne profit and necessitie our law doth rigorously exact them as to the other it is not against it for it doth not forbid nor hinder any man to be curteouse to an other but it being a science rather politike then morall doth more respect the Iustice of causes then the curteous gestures of men our law doth vrge men to deale well and honestly if they do otherwise it doth punish thē but curtesy is a free spontaneal ingenious quality to which no inforcement may be vsed but I wil first examine by your patience how farreforth our law regardeth the abilitie of the person which is to impleade an other and then by course will examine all the partes of your precedent speech inquiring by our bookes howe they may sort and be sutable to our law First it hath beene receiued of vs as a currant rule from all antiquitie that the desendant may 4 Disablemēts in the person of the plaintife at the comon Law plead outlawrie in disablement of the plaintife but if he doe imparle nowe he cannot plead outlawrie to the disablement of his person but yet he may well plead it in barre of the action n 32. H. 6. 32. 35. H. 6. 36. so in a writ brought by one as sonne and heire to I. S. after imparlance the tenant cannot pleade to the writte that hee is bastarde or that hee is not heire but he may verie well pleade it in barre of the action o 22. E. 4. 35. and so outlawrie is a good plea in barre of an action of debt for by the outlawrie of the plaintife the debt if it growe by especialtie is vested in the Queene otherwise it is of an action of debt vpon a contract p 16. E. 4. 4. for in that case the debtor might wage his lawe against the debtee who is outlawed and as it seemeth by 10. Hen. 7. the outlawrie goeth rather in barre of the action then to the writte for there it is sayde that where a man cannot pleade to the writte but by shewing of a matter in barre there he may shewe it and conclude to the writte for in an action of debt a man may pleade outlawrie in the plaintife and conclude to the person and yet the matter goeth in barre and he may pleade it also in barre q 10. H. 7. 11. and conclude to the action and after that a voucher is counterpleaded and the tenant put to an other aunswere hee may notwithstanding plead that the demaundant is outlawed r 21. E. 4. 64. but after voucher the tenant may not plead to the fourme of the writte ſ 5. E. 3. 223. and 32. Hen. 6. is verie playne that where a man pleadeth that the plaintife is an alien borne or a villaine or an outlawed person it is left to his choise whether he will conclude these special matters to the writte or to the action t 32. H. 6. 27. and though the defendant haue made an attourney in a repleuin yet he may afterward alleadge that the plaintife is his villaine u 29. E. 3. 24. So 21. R. 2. in Assise brought by the husbande and wife against diuerse persons the tenantes sayde that the wife of the plaintife was entred into religion in the house of B. and there was a Nun professed demaunded iudgment if she should be aunswered and the Assise was adiorned into the common place and a writte was sent to the Bishoppe to certifie who certified that she was professed wherefore the defendants praied that the husband and wife might be barred foreuer and it was helde by the whole Court that forsomuch as the pea did stretche onely to disable the wife of the plaintife and if the husbande and wife had purchase iointly that the baron should notwithstanding the disablement haue an Assise of the whole but otherwise it is if the husbande and wife bring an Assise and a feoffement or release of the husbande or the wife or of some auncestour of one of them bee pleaded in barre both of them shall be barred therefore in this case it was helde that the iudgement ought not to be that the husbande should be barred but by the aduise of the whole Court it was awarded that the husbande and the wife nihil capiant per breue suum sed essent in misericordia x 21. R. 2. Judgem̄t 263. and in the thirde yeare of Henry the sixth it was held a good plea to say that the demandant was an alien borne in Portugall which is out of the Kings legeance with conclusion sil serra respondu a 3. H. 6. 11. and therefore Master Theloall in his Digest of writtes well obserueth that an exception taken to a writ propter defectum nationis vel potius defectum subiectionis vel ligeantiae is peremptorie and that the action can not bee reuiued by peace or league subsequent and that the King may graunt lycence to aliens to impleade and likewise that such aliens as come into the Realme by the Kinges licence and safe conduite may vse personall actions by writte though they bee not made denizens and that denizens lawfully made by the Kinges graunt and such aliens borne which are within the expresse wordes of the statute of 25. of Edward the thirde may vse actions reall by originalll writte b Thelo Digest de briefes lib. 1. ca. 6. And where a man is excommunicated and hee sueth an action reall or personall the tenant or defendant may pleade that the plaintife is excommunicated and hereof he ought to shewe the Bishoppes letters vnder his seale testifying the excommunication and then he may demaunde iudgement whether he ought to bee aunswered c Litt ' lib. 2. ca. 11. sect ' 42. but if the demaundant or plaintife cannot denie this the writ shal not abate but the iudgement shal be that the tenant or def shall go quite without day because when the demandāt or plaintife hath purchased letters of absolution and they are shewed forth to the Court he may haue a resummons or reattachement vpon his originall according to the nature of his writte d Litt ' ibid. and whereas you say that it behoueth the plaintife to be sure that he haue a good cause of action least he pay the costes that now by statute is made common Law for by the statute of 23. H. 5 The statute of 23. H. 8. of giuing damages to the defendant is cōpared with the rule of the ciuil Law 8. it is enacted that if any person or persons commence or sue in any Court of Recorde or elsewhere in any other Court any action bille or plaint of trespasse vpon the statute of King Richarde the seconde made in the fifthe yeare of his raigne for Entries into landes or tenements where no entrie is giuen by the Law or any action bill or plaint
of debt or couenant vpon any especialtie made to the plaintife or plaintifes or vpon any contract supposed to be made between the plaintife or plaintifes and any person or persons or any action bill or plaint of detinue of any goods or chattels where the plaintife or plaintifes shall suppose that the propertie belongeth to them or any of them or any action bill or plaint of Accompt in the which the plaintife or plaintifes suppose the defendant or defendants to be their Bailife or Bailifes receiuer or receiuers of their Manor mease money or goods to yeeld accompt or any action bill or plaint vpon the case or vpon any statute for any offence or wronge personal immediatly supposed to be done to the plaintife or plaintifs and the plaintife or plaintifes in any such kind of action bill or plaint after appearance of the defendant or defendants be nonsuted or that any verdict happen to passe by lawfull trial against the plaintife or plaintifes in any such action bill or plaint that then the defendant or defendants in euerie such action bill or plaint shall haue iudgement to recouer his costes against euerie such plaintife or plaintifes e 23. H. 8. c. 15. Rast Dammages 6. Likewise whereas as you saie that the partie plaintife ought to be warie least hee 6. Suite must not be mainteined before an incompetent iudge according to the common law cause the defendant to appeare before an incoÌ„petent iudge that agreeth fullie with the common lawe for if a man doe sweare vnto me that he will enfeoffe me of such land before such a daie if he do not enfeoffe me I may not sue him in the Ecclesiasticall Court Pro laesione fidei because the acte which is to be done is a temporal acte and ought to be tried by the Common law and therefore if the partie be sued in the Ecclesiasticall Court for it he may haue a prohibition f Fitzh N. B. 43. D. so if a man deuise to one landes or tenements deuiseable the deuisee may not sue for these lands in the ecclesiasticall Court but if he make a deuise of goods or chattels reall as of an estate for tearme of yeares or of a warde for such he may 7. The seueral iurisdiction of diuerse courtes is described sue in that Court g Fitz. 161. F. and if a trespasse bee done vpon the gleabe of a beneficed person this must be tried at the Common lawe h 19. H. 6. 20. but if the termor of certaine land doe deuise his croppe and die the spiritual Court shal hold plea for this crop i 8. H. 3. Prohibit 19. but if a man sue in the spirituall Court for a rent reserued vpoÌ„ a lease for tithes or offerings a prohibition lieth for this is a lay rent k 44. E. 3. 32. and a man may sue a prohibition directed to the Sheriffe that the Sheriffe shall not permit nor suffer the Queenes lay people and subiects to come to any place at the citation of Bishops ad facienduÌ„ aliquas recognitiones vel sacramentuÌ„ praestanduÌ„ nisi in causis matrimonialibus testameÌ„tarijs l Fitzh N. B. 41. A. but if a testameÌ„t beare date at Cane in Normandie yet it may bee proued in England the executors may thereupon haue an action m 18. E. 2. Testam 6. a testameÌ„t shewed vnder the seale of the Ordinaire is not trauersable n 36. H. 6. 31. Paâ—k tit Testam furthermore if one which is of the Queenes houshold sue an other which is not of her Maiesties houshold in the court of Marshalsie the defendaÌ„t may plead to the iurisdictioÌ„ of the Court and if the Court wil not allow this exception he may haue a writ of Error and the iudgement giuen in the Marshalsie may bee reuersed in the Kings bench o 18. E. 4. 22. 19. E. 4. 2. 4. 7. in Scir fa. inter Prior. de Merton Prior. de Bingh per Littlet and if one of the Queenes houshold sue an other of the same houshold and the plaintife is put out of seruice depending the plea the other may shewe this and abate the writte but otherwise it is if the defendant be put out of seruice p Lib. de diuers des Courts fol. 102. b. and if a man be impleaded in the CoÌ„mon place for lands within the cinque portes the tenant may shewe to the Court that the lande is within the Cinque ports and by this plea the Court shall bee outed of iurisdiction but if the tenant do plead a plea in barre which is founde against him so that the demaundant hath iudgement to recouer the land this iudgement shall binde the tenant foreuer q Lib. de diuers des courts 107. and so it is of landes in auncient demesne if a writte bee brought for them in the Common place if the tenant appeare and plead in barre and take no exception to the iurisdiction and the plea is found against him so that the demaundant recouereth the tenant shall not reuerse this by a writte of Error because hee might haue taken in time exception to the iurisdiction of the Court and that should haue beene allowed r Ibidem but the lorde may reuerse this iudgement by a writ of disceite and make the land auncient demesne as it was before Å¿ Ibid. 16. E. 2. Continuall Claime 10. 11. H. 4. 86. 7. H. 4. 44. 8. H. 4. 24. 17. E. 3. 41. 26. E. 3. 33. now I come to the citation â— That the summons of the partie defendant is necessarily exacted by the common law or summons of the partie defendaunt which you haue prooued to bee necessarie by the Ciuill lawe and I will likewise prooue that it is by the Common lawe necessarilie exacted In a writte of Trespasse the Sheriffe returned Non est inuentus wherefore a Capias issued that the defendaunt might bee taken who afterwarde came into the Court and said that hee was sufficient and might haue beene summoned and prayed a writte to make the Sheriffe to come to aunswere to the King and to the partie for his false returne and hee had it t 31. E. 3. Processe 55. and in an attachment vpon a prohibition the Sheriffe returned Non est inuentus the plaintife prayed a Capias to an other Sheriffe in an other Countie but the Clarkes said that he ought not to haue any other processe then an attachment in the other Countie because it may bee that hee hath assets in the other Countie u 13. E. 3. Processe 34. by which hee may be summoned and so 11. H. 4. it is said that in an action of dette or trespasse a Capias will not lie against an Earle or any of like estate because it is to bee intended that they haue assets whereby they may bee summoned and brought to their answere x 11. H. 4. 15. per Hals and in a writte against P. and T.
declaratioÌ„ that the action wil not lye for somethinges mencioned in the writ yet the writ may be in force for the remnant as in a writ of Wast if a man assigne parcel of the wast in a thing which cannot properly be said to bee wast the writ notwithstanding shal not abate for the whole and so a writ of Dower shall not abate for the whole though the plaintife doe demaund Dower of something whereof she is not endowable c 9. H. 6. 10. 46 10. H. 6. 5. So in a writ of Accompt brought against one as Bailie if the defendant pleade to parcell that he was lessee for yeares and not Bailie this shal abate the writ onely for that parcel d 18. E. 3. 16. and 8. E. 4. in a writ of Entre brought vpon the statute of 5. of King Richarde the second for entring into a Mannor and into an aduowson because the action will not lie for the aduowson it was held by Lakin that the writ should abate for parcel e 8. E. 4. 3. likewise in an action of Trespas brought by the husband and wife for a batery done to theÌ„ both after verdict found that both of theÌ„ were beaten the writ abated as to the battery of the husband and as to the battery of the wife they recouered their damages f 9. E. 4. 54. and it is said 11. E. 3. that a man may not alleadge in a writ of Eiectment de gard quod blada sua apud B. nuper crescentia messuit blada alia bona c. cepit because proclamation lyeth for the one but not for the other g 11. E. 3. 471. but a man may haue a writ of Detinue of Charters and of Chattels iointly h 44. E. 3. 41. Briefe 583. because there one thing is the ground of the action namely the deteiner and so a man may haue a writ of Det where parcell of the debt is due by obligation and parcel by contract because there the debt is the onely occasion of suit and so in things of the like nature i 41. E. 3. Damag 75. 1. H. 5. 4. one writ may comprehende many wronges and therfore an action vpon the câ—se was maintained for the hindering of the plaintife to holde his Leete for the disturbance of his seruants and tenants in the gathering of his tithe and for threatning made so that the people c. durst not come to a certaine Chappell to doe their deuotion and to present their offeringes and for the takeing of his seruants and chattels k 19. R. ActioÌ„ sur le case 52. but in Adamses case it was ruled that whereas an action vppon the case was brought for speaking these words you haue made a false record I wil make you aunswere where you dare not shewe your face and you haue sought my death the defendant as to the falsifiyng of the recorde iustified because he did make a misentrie once into a rolle in a Court where hee was Stewarde and as to the rest he pleaded non Culpable and hee was founde guiltie of the whole and damages were assessed to twenty poundes and it was mooued for stay of Iudgement that some of the wordes would not beare action as namely to say that he sought his death because that may bee by due meanes in Lawe nor the other wordes that he woulde make him aunswere where he durst not shewe his face wherefore because no action will lie for part of the matter alleaged the assessement of the damages for the whole is not good and therefore iudgement ought not to be giuen to which it was answered that when words are spoken to the disgrace of a man they cannot be otherwise vnderstood then in malam partem and therefore to say to one that he hath beene layed of the pockes is tâ— bee intended of the Frenche pockes and though action will not lye for some of the wordes which were vttered yet it must be intended that damages were assessed for these wordes which are of effect to beare action and this case hath bin adiudged that one called an other villaine and stronge theefe the defendant pleaded non Culpable and he was found guiltie to the damages of xl li. though action doe not lye for the wordes verie villaine yet iudgement was giuen that the plaintife should recouer the entier damages and so was iudgment giuen in the principall case l 25. Elizab. Adamses case Nomomat Wel no more of this giue me leaue 6 An other exception is taken for superfluous alleaging of the day and hower of the trespasse done further to obiect what need you say in your libel die decimo nono Augusti proxime praeteriti for it is not materiall when a wronge is done but mee thinkes it shoulde suffice to alledge that it was done and therefore much lesse neede you haue said hora tertia vel circa againe me thinkes your libel is too prolixe in setting downe the words and circumstances of the iniurie and likewise you haue vsed too many wordes in describing the assault and batterie which might haue bin briefly expressed by these words insultum in eum fecit eum verberauit neither doe I see the vse of these wordes pacifice conseruando neminique iniuriam 8 Exception is takeÌ„ for saying nemini iniuriam inferendo inferendo For what if Titius the plaintife had beene fighting with Seius a straunger is it therefore lawfull for Sempronius the defendant in this case to assault and beate Titius and what neede you say in your libell animo iniurioso for 9 Exception is likewise taken for vsing these words animo iâ—iurioso being taken for a surplâ—sage no wronge can bee done without an iniurious meaning and the secreate meaning must needes appeare by the open description of the wronge Codicgn Giue me leaue to satisfie you in all these particuler obiections and to render a reason of the allegations in the libell The very day 10 Codicgn answereth the exceptions wherein the wronge was done to beginne with your first obiection is necessarily to bee sette downe that the defendant may haue certaine notice of the wrong m §. atrox Institut de iniur and that it may appeare to the Court that the iniurie was committed within the yere c. for a verball iniurie is ended and ceaseth within the yeare c. n l. non solum §. 1. ff de iniur and whereas you disliked the multitude of wordes in discribing the wronge surely the wronge cannot better be discribed then by fulnesse of tearmes which are apte and significant to agrauate the iniurie o l. praetor §. sin l. vulneris l. si est questionis l. sed si vnus §. quidam ff de iniur and whereas you finde fault because it is alleaged in the libell that the plaintife did behaue himselfe peaceably nemini iniuriam inferendo they are to verie good purpose for if the plaintife
case of felonie for in case of treason the King shall bee presently after the attainder in actuall possession without office founde by the statute of 33. H. 8. cap. 20. and if a man bee executed for felonie or die after Iudgement before he be put in execution yet the writ shall say pro quo suspensus fuit and if he be put to death by some other punishement then hanging though the writte say pro quo suspensus fuit that is not materiall k Fitz. nat bre 144. H. and if the father purchase lande and his eldest sonne is attainted of felonie and dieth hauing issue a sonne and the father dieth the next in degree of discent and worthines of bloud vnto the sonne attainted shall not haue the lande but it shall escheate to the immediate Lord of whom the Land is held for the bloud is corrupted otherwise it had b in if he had died in the life of his father hauing no issue l 32. H. 8. 48. Dyer Nomom Though I must needes confesse that it is verie good reason that the sonnes of thē which are dissoyall subiectes and traitors to their Prince shoulde be barred from the enheritance of their auncestours that their fathers infamy should alwaies accompanie them and that they shoulde liue in perpetuall memorie indignitie and disgrace that their life should be a punishment vnto them and their fathers fault a continual corrisiue for that is done because their fathers vices are feared in them it may be wel thought that being bredde and brought vp of naughtie parents they will be prone to doe the like and punishment in that case is vsed in the nature of a medicine and not in fourme of a penaltie and as it hath the effect of a punishment euerie one is punished for his owne fault onely but as it hath the effect of a medicine so one man is punished for an others fault that by suffering shame hee may be deterred from crime yet here it may be said what place is there left for innocencie if the most guiltles may be punished for the misdemeanor of the most guiltie for as it is not the fault of the corne that it groweth in a badde soile so it is not the fault of the sonnes that they are begotten of lewde fathers therfore it may seeme meet and expedient that there should be ibi paena vbi culpa and that offences should rest vpon the authors and that the falle shoulde goe no further then the fault and there is a Law in Deutronom Non interficiantur patres pro filijs nec filij pro patribus sed quisque pro peccato suo interficiatur m Deut. c. 24. and in an other place vnusquisque in iniquitate sua morietur quicunque comederit vuam acerbam illius dentes obstupescent n Ierem. 31. and againe anima que peccauit ipsa morietur filius non portauit iniquitatē patris nn Ezechi 18. Codicgn But Saule did not obserue that rule in Deutronom when he did put to the sword the citizens of Nobe where he did slay men women children oxe asse and sheepe ore gladij o 1. Reg. 22. Canonol But Dauid did keepe it who woulde 4 The aforesaid determinations conclusions of ciuil and common law touching the forfaiture of the offendor are examined by the Law of God not haue had reuenge taken vpon Isboseth the son of Saul p 2. Reg. 4. and caused them to bee slaine who wrought his death Codicgn Yet God did otherwise who in the diluge did destroy the parentes with their children who spared neither sexe nor age in Sodom who destroied together all the whole nation of the Amalekites who would needs haue Achan destroied with the children who did roote out al the inhabitants of Ierusalem Cononol We must otherwise conceiue of God his iudgements then of mens proceedinges hee hath said viae meae non sunt viae vestrae all perfection goodnes and iustice beginneth at him who doth not any thing because it is iust but it is therefore iust because hee doth it or woulde haue it done and if Achan had bin arrained before an Ordinary tribunall he onely had perished and not his children but God his iudgement is extraordinarie and his will is therefore a Lawe because he is God he is not bound to render accompt to any neither is he guided by any Lawe but by the Lawe of his owne will and though one man know not what an other doth purpose and imagin yet God knoweth the hart and searcheth the reines and might see somewhat condemnable in Achans children which man could not discouer yet in some cases he doth obserue an ordinarie course of punishment for q Numb 26. Core perished onely but not his sonnes but they were kept safe for the Lords seruice and of their posteritie came Samuel Codicg That which I spake before Canono out of the scripture was but by way of obiection for our law punisheth not the Sons with death but only with losse of inheritance in case of treason r ff C. ad l. Iul. mai Anglonomoph The same Lawe doe we obserue both in felonie and treason together with the forfaiture of the goods Codicgn The losse of inheritance in our Lawe doth comprehend the forfaiture of the goods Nomom Ye haue dwelt a long time in this discourse of tenures and seruices now therefore I would haue ye to speake somwhat of Iointenancie and tenancie in common The fifth Dialogue of Jointenancie and tenancy in comon NOmom Let me aske you this question 1. Diuision Codign when two be iointenants or tenants in common as we tearme them whether by rigor of law the profits ought to go to them all in common or no. Codicgn By common right they ought to haue 1 That Iointenants and tenants in cōmon ought to haue equall profit equall profit whether it be of money marchandise or other matter of negociation for if one shold haue more profit thē an other the gaine should not bee alike the societie or as it pleaseth you to tearme it Iointenancy or tenancy in common should be Leonina that is rather the deuouring of Lyons a ff Pro socio l. si non fuerint §. vlti then the deuiding of men or according to the common prouerbe a man should deuide honie with a Beare yet in this equal diuision which the law requireth recompense must be had of thinges persons and the industrie of the parties b l. omnes l. si socij l. l. si non fuerint ff cod Anglonomoph By our law if two bring a writ of warde of the body of the heire being within age and the one of them is summoned and seuered and the other recouereth he which was seuered may haue a writte of accompt against the other for the profites c 45. E. 3. 10. and a writ of accompt lieth if one iointenant take all the profites d 39.
6. 1. p Newt Nomomath Whether ought he to whom the 3. Diuision goods be deliuered make them good if they be stolne and embeasilde from him or by some other mischance doe perishe Codicgn He is not to be charged if the goods 1 That the bailie is not to be charged with the losse of the goods which happeneth merely by casualty be lost by any casualtie but onely in such case where there is default deceipt and couin or apparant negligence in him x l. quod Nerua Iaco But in l. in re mandata C. Mandati Iustit quib mod re contra oblig §. penult Anglonomoph If a man deliuer to me his goods to keepe and I put them amongest mine owne they be embesiled I shal not be charged for the goods y 29. Ass pl. 28 and if a man be bounde to bring mee a summe of money and he is robbed of it by the way he shall be by Law excused z 40. E. 3. 6. But 9. E. 4. he shall not be excused vnlesse he vndertake to keepe it and to bring it as he wil his owne goods and then he may pleade this in discharge of accompt before auditors but not in barre of Accompt so that it appeareth by this Booke that if he vndertake generally to bring the goods he must bring them at his perill But 3. H. 7. is that if a 9. E. 4. 40. the Baily be robbed of the goods he shall not be further charged but if the goods be taken away by a trespassor whom the Baily doth know he shal be charged ouer to his Bailor because he may haue an action against the trespassor b 3. H. 7. 4. But 20. E. 4. it is said that if I. S. deliuer goods to one to keepe and a straunger taketh them out of his possession I. S. may haue an action against him or against his Bailie c 20. E. 4. 11. but in that case if the goods be stolne from the Bailie in the endictment of the felon the wordes must bee bona I. S. in custodia talis d 7. E. 4. 14. Lamb. Eirenar 494. 495. The tenth Dialogue of the forme of ordinarie proceeding in matters of Law NOmomat It remaineth Codicgn that 1. Diuision ye should now speak of the forme and manner of ordinarie proceeding in matters of Lawe which because it dependeth wholy vpon the practise and custome of Courts in which I haue imployed no great trauaile nor obseruance I must therefore request you to stretche your sinewes in this regarde and not onely to argue but open things vnto me and be not angrie with me if in the handeling of these matters I bring ye from the hil that is your high and intricate pointes to the valley or plaine that is to matters more plaine and easie and againe from the valley to the hill when I finde in my selfe strengthe of vnderstandinge to ascende First I pray you shew vnto me what is to bee done at the commencement or beginning of a suit or action Codicgn Because in euery controuersie of law 1 The things which are to be obserued of the plaintife at the beginning of a suit by the Ciuil law there must be a plaintife and a defendant it is not amisse nor impertinent to mention such thinges as ought to be obserued regarded of the plaintife when he draweth any man into suit and they are three in number the one concerning profit the other necessitie and the third vrbanitie It is a point of profit or warinesse for the plaintife before he commence suit against any to be well aduised and assured whether himselfe be a lawfull person to stande in iudgement and to demaunde that which he bringeth into question a l. 1. C. qui legit person standi in iud hab he ought likewise to be sure that he haue a good cause of controuersie or els in some cases hee must be adiudged to pay the costes to the defendant in other some he must beare the losse of the charges of the suit b l. eum quem temere ff de iudicijs likewise he ought to beware least he draw the defendant before an incompetent Iudge 2. It is a point of necessitie that the partie whom the plaintife sueth be cited or summoned before for against the partie not summoned nor heard nothing can bee determined c l. de vnoquo que ff de re iud c. 1. exc de caus poss ê“prietat Citation as we say is parcell or the 2 Citation is proued to be of the substaÌ„ce of the proceeding contrary to the opinion of some ciuilians Lawe of nature d Clem pastoralis de re iud therefore of necessitie the partie defendant must be summoned because in euerie action the iudgement hath a retrospect to the originall and to the summons and as we say in plaine tearmes to that part of the action which is de in ius vocando e Ext. de procurat C. in nostra in sin l. prolatam C. de sent interloq om iud otherwise the iudgemeÌ„t is erronious f Iusti de offic iud in princ in §. omnem in authen delitigios Gloss in cap prudentia §. 1. de offic de leg because Citation is of the substance of the proceeding for that is the beginning of the suit howsoeuer some holde opinion that the suit is not begun ante litis contestationem g d. authen de litigios §. si vero a preside l. apertisaimi C. de Iudic before the appearance of the party def and the libel exhibited in Court notice taken thereof by the def by by some responsory act because say they post litis contestationeÌ„ non potest forum declinari h ff de iudic l. 1. 2. C. de litis Contest the iurisdiction cannot be auoided after the apparaÌ„ce the exhibiting of the libel any kind of aunswere applied but others hold in my opinioÌ„ more agreable to the truth that it is one of the fundamentall beginnings of the suit and one of the essentiall and formall parts of the iudgement because the omitting of it doth frustrate the iudgement i l. de vno quoque ff de re iud in c. 1. de caus poss ê“prietat extra 3. The other point is a matter of ciuilitie or curtesie because humanitie doth require that before any man doe contende in suite and doe prepare and addresse himselfe ad experiendum summum ius that hee friendly and mildely doe admonishe him with whom he is to deale of his duetie that if by faire meanes he may be wonne the rigor of Law may not be exercised m l. quid vberius ff de seruitut vrban praed l. debitores C. de pign Anglonomoph These cautels which your Law 3 The cautch to be obserued at the commoÌ„ law in the coÌ„mencement of an action prescribeth to
and A. the wife of T. by diuerse praecipes in the summons A. was omitted wherefore the writte abated a 2. E. 3. 39. 8. E. 3. 44. 10. E. 3. 532. 27. H. 6 6 likewise in a writ of dower by seuerall praecipes the name of one of the tenants was omitted in the clause inde queritur and in the summons whereupon the writte was abated b 12. E. 3. Brief 671. furthermore if a man recouer in a writ of waste by the default of the defendant where hee was not summoned hee may haue a 9. That by the default of lawfull summons the proceeding of the plaintife is frustrated by the Common law writ of disceit c 19. E. 3. Disceit 3. 20. E. 3. Disceit 5. 29. E. 3. 54. 48. E. 3. 19. 19. E. 2. Disceit 56. 17. E. 3. 58. Fitzh N. B. 98. b. 105. a. in this writ of disceit if there weare two summoners returned vpon the writ in which the summons failed if the Sheriffe do returne one of the summoners dead yet the other summoner shall be examined and if it be found that he did not summon the partie he shal be restored to his land d 8. E. 3. Disceit 7. 1. E. 2. Disceit 48. but if the summons be returned to be made by foure men whereas in truth they did not execute the summons of the writ as long as two of them liue the tenant who lost in the writ may haue a writ of disceit e Fitzh N. B. 98. D. but if three of thē die a writ of disceit may not be brought f 35. H. 6. 46. but an action vpon the case g 1. H. 6. 1. in a Praecipe quod reddat against the husband and the wife if at the grand Cape the husband appeare in person and the wife appeareth by Attorney who hath a warrant of Attorney which is not sufficient therefore iudgement is giuen vpon the wifes default against the husband and wife yet they may haue a writ of disceit if they were not summoned h 18. E. 2. Disceit 54. 55. Fitzh N. B. 99. B. and how necessarie a summons is may appeare verie plainly by the booke of 7. H. 6. where in a Formedon they were at issue and the tenant at the Nisi prius made default the demandant shewed how hee was in prison in the warde of the Marshall and praied that they would sende for him to appeare otherwise hee would saue his default afterward by imprisonment wherefore the Court sent for him and he came i 7. H. 6. 38. Nomomath Yee haue spent a great deale of 2. Diuision time in treating of the commencement or beginning of a suit or action yet I desire to haue some further knowledge of the nature of a citation or summons therefore resolue mee when a man is summoned to appeare within two or three daies after such a returne whether shall the second or third daie be accompted in the citation so that then he that is cited may well enough appeare when as in the one case one daie is past so that he doth not appeare within the two daies appearing first in the morning of the second daie in the other case two daies be past so that he appearing the third daie doth not appeare within the three daies so that if he will saue his default me thinketh he should appeare the first day of al. Codicgn This question is easily resolued for if 1. That by the Ciuill law if a man be boūd to appeare within tenne daies the tēth day is taken inclusiue he appeare within the two daies or three daies it is clearely sufficient because the last daie that is put in the citation doth implie that he may differre his appearaunce vnto the last daie k ff de verb. oblig l. qui ante Calendas l. eum qui ita ff eod and though an appeale be to be brought within 10. daies after the iudgement yet the last daie is taken inclusiue and not exclusiue l ff de success edict l. 1. §. dicimus and if time be giuen to one either by the partie or by Lawe that he may paie so much monie within or doe or propound anything de iure suo within 10. daies or from hence vntill 10. daies he may paie do or propound the 10. daie without any preiudice or surcease of time m Instit de verb. oblig §. si in diem Anglonomo If a man be bound to paie monie in festo sanctae Trinitatis if he tender the monie in the vigil of the feast it is not good nor in the octaues but the tender must be made the very daie of the feast but if the paimēt had bin limited on this side the feast or before the feast then it may well be made in the vigill of the feast n 21. E. 4. 52. and these words ab octabis sanctae Trinitatis must be intēded à 4. die octabis Trinitatis thereupon M. Brooke noteth that to this intent the first daie and the 2. That the first day and the fourth day of appearance are all one at the Common law fourth daie al the daies meane are but one day in law o 21. E 4. 43. Br. Iour iours en court 57. therfore if after the day of the returne of the writ of Capias and before the fourth day which is ful tearme the Sheriffe doth arrest a mā this arrest is not iustifiable because the first day and the fourth day be all one daie p 33. H. 6. 42. Nomom I would not haue you to insist longer 3. Diuision vpon this matter but now shewe vnto mee how causes are opened declared disclosed in your Courts and how faults and wrongs are manifested to the iudges Anglonomoph Al wrōgs offences are either 1. A diuersitie of opening prosecuting of priuate and publike offences at the Cōmon law priuate or publique priuate offences which are done by one mā to the hurt of an other are made knowne to the Court remedied by originall writte bil or plaint publique offences which are committed by the partie against the Queene and Commonweale are opened punished by way of enditement and information which is put in practise by common informers Nomom The māner of such informing seemeth 2. Exceptiō is taken to informations vsed by common informers to me to be a very harde course of Iustice for by that meane lewde persons are animated to terrifie impeach poore simple men and to bring them into danger for what mischiefe will they not do when a reward is proposed vnto them Codicg It is true our law doth generally disallow such proceeding therfore the name of a delator or informer is in our law accompted dishonest q L. 3. C. de Iniur and therefore it saith expresly Delatores 3. Many obiections are made out of the Ciuill lawe against common informers
had beene a quarrellous or contencious person and had giuen some occasion of strife the wrong might with more reason bee imputed to him then the defendant p Glo. in l. ob haec verba ff de his qui no inf in l. 1. §. cum arietes ff si quadâ—up paup fec and hee cannot be sayd to haue done a wrong who incontinently for his safegarde after the same maner whereby hee is assaulted doth defende himselfe for when a man is assaulted by weapons he may resist with weapons q l. vt vim ff de inst iure l. si quis percustor C. ad leg Cor. de sicar but if he doe exceed measure in repealing iniurie as if being vexed with wordes he resiste with weapons and by such resistance doe beate or wounde the partie he that is so grieued may haue an action of iniurie against him r l. sententiam §. qui cum aliter ff ad l. Aquil. recouer damages Å¿ l. item apud La be oneÌ„ §. si quis seruo ff de iniur and to prescribe some temper moderation in the resisting of verbal actuall iniuries I remeÌ„ber a verse not altogether vnpleasant Res dare pro rebus pro verbis verba solemus Pro bufis bufas pro trufis reddere trufas Thinges must be recompenced with thinges buffets with blowes And wordes with wordes and taunts with mockes and mowes And to conclude you seeme not with your fauour be it spoken iustly to reproue these words animo iniurioso for they are expressed for difference sake because if a man in iesting wise should strike an other or vse broad boward against him this woulde not beare an action because it was not done animo iniuriandi sed iocandi t l. illud peraeque ff de inim l. si non conuicij C. cod this I think you are sufficiently quieted in opinion as to the doubts which you proposed Nomomat Nay verily I rest as yet doubtful and for the fuller clearing of my minde I woulde haue Anglonomoph to speake somewhat of these thinges out of the common Law which in matters of declaration and pleading is very curious and exquisite Anglonomoph Truth and error are both equally 11 Anglo particularly examineth discusseth the exceptions beholden vnto you for in some thinges by the censure of our Law one of you hath the vpper hand in other some the other for proofe hereof I will by your patience particularly handle euery of the aforesaid obiections which hath in it any colour of truthe as to the day of the moneth wherein the wronge is supposed to be done I doe nott with Codicgnostes thinke that in this case the very day necessarily ought to haue bin mentioned because it is not trauersable nor materiall to make any issue but it is sufficient for obseruing formalitie to set downe any day that is past Codicgn But with vs it is material and if the day be not truely set downe the defendant may take aduantage of it Anglonomoph With vs it is not so for as Newton saith 20. H. 6. the day in an action of Trespas and repleuin are not trauersable for if the defendant iustify at an other day after he ought to say without that he tooke them before u 20. H. 6. 40. per Newt and so 19. H. 6. in a trespas of battery the def said that the plaintife did assault him at an other time then he hath declared that the hurt which was done vnto him came of his own wroÌ„g sans ceo that he was CulpÌ„ before or after this ple he was enforced to pled by the court x 19. H. 6. 47. yet in some case the day and time for auoiding vncertainty and that the Iurie may more easily find out the truth is issuable therefore in an action of trespas supposing a batterie the defendant said that the same day wherein the trespas was supposed the plaintif and the defendant by common accorde did play together at cudgels and the hurte which he did vnto him was by that play without that that he hurt him in any other maner iudgmeÌ„t si action To which the plaintife replyed that the same day when they were departed the defendant came vnto him and assaulted him and beate him of his owne wronge and the defendant reioined that all the day and at euerie time of the day by their common accorde they played together without that that he beate him in other maner a 12. R. 2. BarrÌ„ 244. And so in a repleuin of his beastes wrongfully taken the first day of August the defendant auowed because the plaintife helde the lande c. of him by homage and fealtie and suit at his Court at such a place and because he was summoned to bee at his Court the fifth day of the said moneth and yeare and did not come he was amerced and for the sayd amerciament hee tooke the beastes the twenteth day of August without that that he tooke them the first day of August and it was sayd by Markeham that this was no plea for if you toke theÌ„ at an other day before the presentment it is wrongful wherefore you ought to say without that that you tooke the beastes before the twentith day but issue was in this case taken without that he tooke them the first day of August b 20. H. 6. 40. whereupon Master Fitzherbert noteth that the day in a writte of Trespasse or Repleuin is not trauersable but where the speciall matter doth require it c Fitz. Repl. 7. and this he seemeth to ground vpon 2. H. 4. likewise in an action of trespasse for the taking of goods the 8. day of Aprill the defendant said that the plaintife was possessed of them as his proper goods and chattels and solde them to such a one who left them in the custodie of the plaintife and after he solde them to the defendant wherefore he tooke them at the time time supposed to which the plaintife replyed that he was possessed of them vntil the defendant took them the 8. day of April as before hath bin alleaged sans ceo that the other solde them to the defendant before that day and hereupon they were at issue d 2. E. 4. 16. Nomomas Well let this matter passe what say you to the multitude of wordes vsed in the description of the wrong is that the tollerable in your Law Anglonomoph Surely it is conuenient that the 12 Anglo Excuseth and defendeth the abundance of words in declarations and libels qualitie of euery thing should be apparanted by termes of efficacie it is better to haue a declaration too copious then carion-leane neither is any thing more plausible to a good vnderstanding then that words be ponderous and emphaticall where the matter seemeth to bleed wherefore Virgill in describing the loftie pace of the lusty and couragious horses maketh his verse after a sort to gallop and doth in liuely termes as
now being come to issue the triall is to be by the countrie which as to such matters in facto are to bee directed by the testimonie and euidence of witnesses Nonomath Well if the defendant happen to be found not guiltie what is then the iudgement vpon these precedents Codicgn It is thus Et nos Seneschallus praedictus 20. The forme of iudgement in the Ciuill law visis diligenter Iurisperitorum nostrae praesidialis Curiae consilio totius praesentis processus merit ' appensate diligenter accurate examinatis Quia per processum defensionalem dicti rei praeuenti denuntiati intitulati elicitur intentio praedicti quereÌ„tis ideo exhis alijs ex processu result antibus per hanc nostram definitiuaÌ„ sententiaÌ„ quaÌ„ pro tribunali more maioruÌ„ nostroruÌ„ sedenies in his ferimus scriptis dicimus pronuntiamus declaramus dictuÌ„ reum denuÌ„tiatum praeuentum non fuisse vel esse criminuÌ„ sibi impositorum culpabilem Quinimmo à dictis criminibus sibi impositis fore esse absoluendum quem eadem nostra sententia absoluimus expensas hinc inde factas in causacompensando c. Anglonomoph Our forme of iudgement is a great deale shorter for it runneth thus Ideo consideratum 21. The forme of entring iudgement at the Common law est quòd praedictus W. nihil capiat per breue suum praedictuÌ„ sed sit in misericordia sua pro falso clamore suo inde praedictus P. L. eat inde sine die Nomomath Well ye haue bin long in haÌ„dling these matters of formal proceeding wherefore I wil aske you of this but one question more and then will passe ouer to intreate somewhat of coÌ„mon trespasses wrongs resolue me first in this whether may the executor of the testator that 7. Diuision was wroÌ„ged by such diffamatorie speeches haue an action for the said slaunder after the death of the restator Codicgn It neither lieth for the executor of 1. That by the Ciuill lawe an action of iniuries will not lie by executor against executor him that is slauÌ„dered nor against the executor of him that did slaunder because noxa caput sequitur vnlesse the suit were beguÌ„ne in the life of the testator in which case the executor may well prosecute it a Insti de iniu◠§. non omnes §. penales ff de miur â—miuriarum Anglonomoph It is a rule with vs that actio personalis 2. That by the Common law actio personalâ— moritur cum persona vnlesse it be in some speciall cases moritur cuÌ„ persona yet this is not generally and indefinitely to be admitted but onely in such case where the wroÌ„g did principally immediatly rest vpoÌ„ a mans person wheÌ„ as the Ciuilians say it is ita affixa ostibus vt in aliuÌ„ transferri non possit b ff de pecu l. si quis ergo And therefore where one is entitled to haue a writ of accoÌ„pt or an actioÌ„ of trespasse for the taking away of his goods and is attainted of treason or felony the Queene shall haue these actioÌ„s as forfaited to her highnes c 30. H. 6. 5. 28. E. 3. 92. but otherwise it is of a trespasse of batterie d Stamf. fol. 188. and so it hath bene pronounced for law that if a termor make wast after he maketh his executors and dieth the action of waste is gone for it lieth not against his executors e 23. H. 8. Br. Waste 138. 46. E. 3. 31. but though a couenant bee a thing merely personal yet both an executor an administrator may haue a writ of couenant f Fitzh N. B. 146. D. 2. Mari. 112. Dy. The eleuenth Dialogue of common wrongs and Trespasses NOmomath Now that ye must treate of 1. Diuision common wroÌ„gs trespasses I doubt not but you wil be lesse troubled with my questions because such matters ar more plaine to you and to me not very difficult Notwithstanding for learning sake because I would ground my selfe vpon some certaintie of knowledge I will mooue some doubts of these matters first how many sorts or wroÌ„gs are there Codicg Iniurie as we say is two folde for either 1. The diuerse kinds of iniuries in the Ciuill lawe it is done re or verbis re when a man is assaulted or beaten verbis when a man is slaundered and by tearmes disgraced or discredited a L. 1. ff de iniutâ—â—s Nomomath I pray you Anglonomophylax illustrate and explaine the members of this diuision by some conuenient cases Anglonomoph Very willingly and to beginne 2. What an assault is according to the Commo law with the first an assault is made when one man menaceth an other with a weapon or staffe though neuer a blow bestroken yet this is an assault b 22. Assis pl. 60. and 43. E. 3. the writte was Quare insultum fecit vulnerauit verberauit maihemauit and it was allowed though the wrong did sound to be mayhem c 43. Assis 39. and as it was held per Curiam where a man maketh an assault it is not lawfull for any to beate him if the partie assaulted may escape with his life d 2. H. 4. 8. yet the opinion of M. Brooke is that he may beate him if he cannot otherwise escape without stripes or wounds or mayming e Br. Trespasse 71. yet the opinion of 9. E. 4. is that I may beate a man if he will take my goods from me and a seruant may iustifie a batterie in the defence of his maister f 9. E. 4. 28. 48. but the assembling of people in a warlike maÌ„ner is no assault but he that is the ringleader of such assemblies before hee may be impeached of assault must doe something els as namely by vttering contumelious speeches or stretching out his armes or some other token whereby his intent may be knowen g 17. E. 4. 4. and he that commeth in companie of them that make the assault or hee which commeth to ayd them is a principal trespassor h 22. Assis pl. 43. and if a Iustice of Peace see a man doing an assault he may presently arrest him by commandement or worde to the intent that he may finde suretie of the peace i 9. E. 4. 3. and it is lawfull for one maÌ„ to beate an other in defense of his goods and chattels or of his wife k 19. H. 6. 31. 35. H. 6. 51. and a man may likewise haue an action of trespasse for the entring into his house l Fitzh N. B. 88. l. but if a man licence one to come into his house he doth a trespasse there he shal be punished for the trespasse but not for the entre which was grauÌ„ted vnto him m 3. H. 7. 15. p Townes and nothing 3. That the Common law giueth an action vpon the case for a slaunder is more vsuall then