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
two persons having several Interests in Lands acknowledg the note of a Fine before a Judg and then one of them dyes The Conusee may for all that proceed with his Fine against the other alone for the death of the other is no impediment for the Conusans of every one is against himself and shall work for so much as he can pass A man and his Wife acknowledged a note of a Fine before Commissioners the 26 th of March by Dedimus potestatem and the wife dyed 27 th of the same month and the next day being the 28 th Composition was made in the Alâ—enation-Office upon a Writ of Covenant Retornable in Hillary Term before and the Kings Silver was entred as of the same Hillary Term and so the Fine was past and ingrossed And in Easter Term the Heir of the Wife moves against the Fine But upon debate it was agreed the Fine should stand Tenant in Tail Levies a Fine with Proclamations and 5 years pass in his Life-time Yet this shall not Barr his Issue A man of full age and his Wife being but 19 Levy a the Fine of Inheritance of the Wife whereby an Estate is conveyed to the Husband and Wife in Tail and the Remainder to the right Heirs of the wife and many exceptions taken against the proceedings by the Heir to the Wifes inheritance viz. I. S. as that the said Feme was not of full age at the time of the Fine Levied and other undue means committed in getting out the Son Yet by the whole Court the Fine was held good Law for Facta valent multa que fieri prohibentur If there be Tenant for Life the Remander in Fee to an Infant and they both Levy a Fine and afterwards as to the Infant the Fine is Reversed yet the Conusee shall have the Land for the Life of the Tenant for each may pass and give what he lawfully may If there be two Jointenants and one of them suffer a Recovery declaring the uses of the whole this shall bind but only a Moiety unless the consent of the other Jointenant can be proved Heir IF an Heir be sued upon a Bond and Lands are proved to descend unto him from his Ancestor you must have a special Writ to enquire what those lands are worth to be delivered to the Plaintiff at a reasonable extent and price and if the Heir confess the Action and shew what Lands come to him by descent Then his Body and all other his Lands and Goods and Chattels are free from that Execution but if he deny the Action and plead Riens per descent or it go by default against him then Execution shall be against Body Goods or other Lands And the Declaration shall be in the Debet and Detinet as though it were his proper Debt Outlawries and Outlaws OVtlawry was pleaded in Barr and day given before when the Defendant reversed it the Defendant shall not be condemned for Failer of Record but Respondouster Green against Gascogne vide Title failer of Record Yel 36. Outlawry in the Kings Bench reversed by Error in the same Court but that is for Error in Fact not in Law as if no Outlawry lay in the Case and if Process of Outlawry lie in an Action upon the Case for turning a Water-Course vide P. 10. H. 7. pl. 15. Dy. 195. b. 196. Original in Debt called the Defendant Nuper de Lond. Exig called him de Lond. is erroneous for it must pursue the Original without Variance and the Original was against Lancelot the Exigent was against Lancelot ill 3 Cro. 49. vid. 50 95. 104. 116. 172. Error of a Judgment in Debt and Outlaw'd 2. on it against 2. where the Sheriff return'd quod non habent bona out catalla quod summon ' potuer it should have been per quod c. 2. it should be nec eorum aliquis het ' 3. the Original is against Lancelot A. and the Exigent is against Lancelot A. 4. 't is said in Hastings and it should be in Hustingis de Com. plac revocetur Lancelot vers ' Jones 3. Cro. 50. An Outlawry was reversed because it was against Lewellin with a single l and now the mean Process against Llewellin with a double Ll and it was against two and returned quod non sunt inventi and not nec eorum aliquis Llewellin against Watkins vide M. 2. R. 3 4 13. pl. 16. 3 Cro. 85. 104. 49. 50. 116. 198. 240. 248. 205. M. 21. H. 7. pl. 37. Exigent names no place where the Sheriff is to have the Body and that adjudged Error to reverse the Outlawry For the Sheriff cannot tell in what County to carry him Cesar against Stone 3 Cro. 104. Outlawry reversed because the Party was Indicted in Com. Somerset and supposed to be of London and the Capias awarded to the Sheriff of Somerset where it ought to go to the County where he lives Rorset's Case 3 Cro. 179. vid. Dy. 295. b. vid. M. 1 E. 4. pl. 2. One Outlawed of Felony assigned his Term and then reversed the Outlawry the Grantee shall maintain Trespass for the Profits taken in the mean time between the Assignment and the Reversal of the Outlawry For though it was then the King 's yet it is now as if no Outlawry had been at all Ognell's Case 3 Cro. 270. vide 218. Accord Outlawry is not reversed but by pleading without Writ of Error per tot Cur. though there be apparent Faults in it 3 Cro. 274. vide Co. 1. Inst 259. b. One is Outlawed and has his Term sold and then reversed the Outlawry he shall be restored to the Term it self not the Money Otherwise if sold on a Fieri Facias c. quod vide plus Title Exec. Eyre against Woodfare 3 Cro. 778. Co. 5. Rep. 90. b. 1. Acc. pl. 285. In Debt against an Executor the Defendant pleads that the Testator was Outlawed and doubted if a good Plea because the Testator may have some Goods not forfeited by Outlawry as simple Contract c. but on the other side such special Ass shall not be intended to Com. next he has nothing Wooley against Brade 3 Cro. 575. 851. Outlawry reversed because the Writ was Teste Edmund Anderson so wanting a Title had no Teste which is the Warrant of it Growdy and Juham 3 Cro. 592. Judgment against two in Debt C. and B and Capias only against one and he Outlawed whereupon was brought Error and reversed it because the Capins should have gone against both Also 't was not per Judiâ— ' Coron ' Beverly against Beverly 3 Cro. 648. Debt against the Sheriff on an Escape where the Case was that the Party was Outlawed after Judgment reversed it by Error within the Year and because he assigned not any Error the Plaintiff took out a Capias utlegatum and the Sheriff took him and let him go and resolved for the Plaintiff and in Co. 1. Report of this Case the difference is taken of an Outlawry
Scire Facias it shall be tryed in one Case by the Natives in the other by the Certificate of the Captain M. 11. H. 7. pl. 17. P. 21 E. 4. pl. 4. The Sheriff returns the Exigent thus Ad Comitat ' tent ' apud C. in Comitat ' Somerset 5. Exactus non comperuit because 't is not said ad Comitat ' Somerset nor Somerset set in the Margin 'T is held to be ill because it might be the County Court was not held in the County of Somerset but in another County sed adjornatur M. 11. H. 7. pl. 33. H. 6. H. 7. pl. 7. One taken upon a Capias utlegat ' by the Name of J. S. Gentleman says he is a Yeoman and was c. Scire Facias against the Plaintiff and issue that he is and was a Gentleman and the party was bailed the King dies before the Issue tried the party comes in Court temps the next King and is committed for the Bail was determined and the Cap ' utlegat ' also and a new utlegat ' awarded and returned and then he pleaded the same plea again and issue for before he could not all being determined M 1. E. 4. pl. 7. Original against W. B. Cap ' against J. B. and Outlawry shall be reversed by Moyle Danby contra Et sic per Moyle if all the three Cap ' had been against J. B. for then no Cap ' had been against W. B. quod Danby denied M. 15. E. 4. pl. 17. Trespass and Judgment for the Party and Fine for the King and Exigent at the Suit of the King and after two or three Courtiers of the King send a Supersed ' under the Privy Seal they proceed to Outlawry but shall not prevail for though the King have this Fine by reason of the parties Suit and if the party be taken he shall be Imprisoned and not discharged at the Parties Suit if he will yet till he be taken 't is only the King's Suit and the Parties have no Interest in it and if the Defendant be Outlawed after the Supersedeas 't is Error and shall be reversed P. 4. E. 4. pl. 24 36. Tr. 4. E. 4. pl. 4. M. 4. E. 4. pl. 14. H. 4. E. 4. pl. 3. vid. Co. 5. rep 88 89. The Sheriff returns the Copy of the Exigent and not the Writ it self with Proclamation c. he shall be Amerced for the Imbezlement of the Writ and if the Party render himself to the Chief Justice in Vacation time and get a Supersedeas whether he shewed it to the Sheriff or not it shall be entered in the Term and the utlegat ' discharg'd 1 Inst 128. and idem ibid. 43. b. If Error be brought of an Outlawry and it appear doubtful a Special Supersedeas shall go to the Sheriff quod capiat securitatem que les biens ne serront illoine vide 9 H. 6 44. a. b. utlegat ' after Supersedeas void and 7 H. 4. 1. a. if void and the party shall be restored to his Goods 7 H. 4 5 b. Supersedeas and Exigent rules at the day and a new Exigent and a Supersedeas the Outlawry after void H. 4. E. 4. pl. 3. Tr. 5. E. 4. pl. 13. le Amerciamt ' 37 H. 6 17. vide 3 H. 4 5. a. 8 H. 4. Cas Prin. 8 H. 4 7. a. 11 H. 4 34. a. Audita Quarela by one in Execution and he offered in Mainprize the other ut amicus Curiae surmised that the Plaintiff is Outlawed wherefore he ought to stay in Prison for the King 's Fine wherefore he was put to reverse the Outlawry or sue a Pardon H. 6. E. 4. pl. 1. The Plaintiff had sued three several Executions against the Defendant and brought Supersedeas for every one but there was granted aâ— Exigent with Precept that if any Supersedeas come to the Sheriff he should not allow it P. 7. E. 4. pl. 20. Error of an Outlawry in Debt after Judgment because no Proclamation went into the County where the party inhabited but being after Judgment resolved it need not but only in Outlawry and Process before App ' but because in all the Proceedings she was named A de B. and in the Exigent she is named nuper de B. and because it was recuperavit versus eum for eam it was reversed Lady Gargrave against Markham 2 Cro. 516. Exigent in London and 't is returned quod ad Husting ' c. and recites a Form which was ad Husting ' de Com' plit ' and that assigned for Error 2. The Exigent is that he non comperuit and 't is returned the same day it bears Teste and that was held Error Archer against Dalby 2 Cro. 660. Outlawry reversed because the Exigent supposes that Robert the Plaintiff did sue the said Robert whereas the Plaintiff's name was Thomas and Defendant being ready in Court it was reversed immediately Jonson against Kite One enters a Judgment and then is Outlawed in a personal Action then makes a Feoffment of the Lands and he that has the Judgment extends the Lands in the Hands of the Feoffee and well For by this Outlawry the King has but a pernancy of the Profits of which he is prevented by the Feoffment before Seisure not if after Seisure and if by Feoffment after Inquisition found before it be returned ibidem Opinio if the Seisure be Virtute Officii Tenant after puts the King out not if seized Virtute Windsor against Savel Outlawry against two reversed because it 's entred ideo Vtlegat ' sunt and not uterque eorum Vtlegat ' P. 15 Caroli Secundi B. R. One Outlawed after Judgment comes and pleads Misnomer and has Fieri Facias against the party and he returned Mortâ— Another Scire Facias is awarded after against the Executors and Tryal of Misnomer in this Case shall not be by Averment taken for the King but the Executors shall be made parties because it Trenches to the whole Duty but upon mort ' ret ' no Scire Facias goes against the Executors but the Misnomer is tried between the King and the Defendant 21 H. 6 21. a. 22 H. 6 7. a. In detinue of Charters and other Writings As to the other Writings the King waged Law and then as to the Charters he pleaded in Bar by Att ' nolens volens the pl. For of them concerning the Freehold no Process of Outlawry lies but Distress infinite and 8 H. 6. 23 30. Vtlegat ' lies not in Detinue for Charters and other Goods for the Charters draw the other Goods to them 21 H. 6. 42. a. 30 H. 4. b. Upon a Cap ' utlegat ' before Judgment the Sheriff may break open an House but the Plaintiff sending a Process in another Man's Name feigned an Outlawry where his Writ was but a Latitat 't is an abuse of Process and he Fined 50 l. Hob. 263. Waterhouse against Saltmarsh If one that is Outlawed for Treason Peer or Peasant be out of the Realm at the time of the Outlawry yet he cannot
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
ad distringend ' d'per Ballivum Dni ' Regis The Limitation of this distress to the Kings Bailiff is void and it is good to give a power of distress to I. S. the Grantee and his Bailiffs Bacons Elem. of Law 15. Error IF a Writ of Error be brought and allowed And the Plaintiff in the Writ of Error dyes pendente breve Errore the Plaintiff in the Action may sue out a Scire facias against the Executors or Administrators of the Plaintiff in the writ of Error without mentioning the Writ of Error for that it is no Supersedeas but only to privies and not to Strangers When a Writ of Error is allowed Execution upon the former Judgment ought not to be awarded For by the writ of Error the Record it self is Removed and the Court hath nothing whereupon to award Execution Yet supersedeas the safest way If a man Levy a Fine sur Conusance de droit Come Ceo c. And suffer a Recovery of the same Lands and there is Error in them both He cannot bring Error first upon the Fine because by the Recovery his Title of Error is discharged and released in Law inclusively But he must begin with the Error upon the Recovery which he may do because a Fine executed barreth no titles that accrue de puisne tempus after the Fine levied and so restore himself to his Title of Error upon the Fine If a man levyeth a Fine where he hath nothing in the Land which inureth by way of conclusion only and is executory against all purchases and new titles which shall grow to the Conusor afterwards And he purchaseth the Land and suffer a Recovery to the Conusee and in both Fine and Recovery there is Error this Fine is Janus Bifrons and will look forward and Barr him of his Writ of Error brought of the Recovery And therefore it will come to the reason of the first case of the Attainder That he must reply that he hath a Writ also depending of the same Fine and so demand Judgment Execution IN Escape against the Sheriff The Case was That a Prisoner being in Executition the Gaoler lets him out of Prison about his occasions and after the Prisoner returns to the Goal and another Sheriff comes in and then the Prisoner escapes and comes no more It was held That an Action did not lye against the last Sheriff for the Prisoner was utterly discharged of the Execution by the first permissiom of going at large by the Gaoler The Sheriff may not break open the doors of any man to execute a Fieri facias much less a Landlord to distrain by the same reason Judgment in Debt against three and a Capia's ad satis faciendum against the Principal the Sheriff retorns non est inventus upon which issued a Scire facias against the Sureties and before the retorn the Principal came into Court and prayed his Body might be taken in Execution which was done accordingly Mich. 10 Jacobi in C. B. And with this agrees the Course of the Court of King's-Bench and divers Presidents of this Court A Writ of Error was brought 4 November retornable 10 January whereupon the Court was moved for Execution because it seemed to be but for delay in regard the Retorn is so long and with this agrees 4 H. 6. an Execution was granted by the Court Mich. 16 Jac. in C. B. Of Estoppels and Conclusions HE who claims nothing by him that was estopped shall not be estopped As two jointenants are disseised the disseisor lets to the one now he is stopped to say that he hath another Estate than for Life Afterwards he to whom the Land was so let dyes the other Jointenant shall have the Land and he shall not be by that Deed estopped for he claimed nothing by him who was estopped by the Survivor If I am named W. B. and I bring my Action by the name of I. B. and recover by that name afterwards if I will bring my Action against another person by my right name he shall not estop me by that Recovery of the same name for if I had been estop'd I should not have had my Action against the other person but he that is party may estopp me well enough 26 H. 6. 30 H. 6. et 10 E. 4. contr Where he in Reversion or Remainder claims nothing by Tenant for Life he shall not be estopped AS the Father disseiseth the Son and Levies a Fine thereof to a Stranger where Recovery is had against the Father and afterwards the Father dyes the Son enters or he that recovers or he that was party to the Fine between him and the Son brings an Assise and the other pleads the Fine or Recovery by way of Estoppel this is no Plea because that notwithstanding that the Son is privy to him that was estopped yet he claims nothing by him Where there is Lord and Tenant and the Lord lets his Seigniory to one for Life the Tenant for Life of the Seigniory distrains the Tenant and he bring an Action of Trespass against him and he justifies for that he holds of him by ten shillings of Rent and the other traverses it and it is found against the Lord for Term of Life This shall be no Estoppel to him in the Reversion If a man pleads a Plea in which he confesseth a thing that is not material it shall not be an Estoppel As if a man voucheth one as Son and Heir to such a person and when he comes he is bound to warranty by his own Deed yet may say afterwards in an Assise of Mortdancestor that the same person which I vouched before as Son and Heir is a Bastard for the words Son and Heir in his voucher are not material The same Law in a Writ of Trespass brought by one Executor of Goods taken out of his possession Where a writ of Debt is brought by an Executor who counts of a duty due to himself there the word Executor is not material and he shall not be estopped but he may say afterwards that he never was Executor nor ever administred as Executor If a man will plead a Record to estopp him that was privy he ought to shew what end the Action had AS if I bring an Action against you in which Action you plead that at anotheâ—â—ime viz. such a day c. I brought an Action of Trespass against you and the Defendant pleaded Villenage and the Plaintiff confest it he ought to shew further by force of which he was nonsuited and to shew what end the Plea had and demand Judgment if against that he shall be answered Where a man hath Judgment to recover Land by that Judgment he shall be estopped to claim any other Title than he hath by the Recovery AS if a man recover by Writ of Right Sur disclamer if the Tenant ceaseth afterwards he shall not have a Cessavit to recover the Land though he sues not out Execution for he shall be estopped to claim
any other Title or to have any other Action to recover the Land than that by which he hath recovered and by the same reason that he shall not have a Cessavit he shall not have Eschete If a man hath Rent in Fee he may distrain or have a Writ of Annuity and if he brings a Writ of Annuity and hath Judgment to recover although that he sues not out Execution yet he shall never distrain for the Rent afterwards Tenant in Tail discontinues for Life and dyes and the Tenant for Life aliens in Fee and the Heir bring in consimili casu and recovers now by this Judgment he shall never have a Formedon of the same Land c. The disseisor enfeoffs the disseisee by deed indented upon Condition or makes a Lease for Life by Deed indented this is a good Conclusion to the disseisee to demand his Right and the Reason is that by the Deed indented the disseisee hath affirmed the Estate of the Disseisor which is as much as if he had confirmed his Estate before the Feoffment In Debt upon an Obligation the Defendant pleads a Release upon which the Plaintiff is Nonsuit afterwards the Plaintiff brings a new Action of Debt the Defendant shall be estopped to say that he was deins age or that the Obligation was made per minas But it is otherwise if the Plea be discontinued An Essoin is cast for the Tenant in a Writ of Dower yet the Tenant shall be received to say that he hath been allways ready to render Dower and because that an Essoin may be cast for a Stranger this Essoin is no Estoppel for an Estoppel shall be good to every intent but because an Essoin may be cast for a Stranger as well as for the Tenant himself it shall be said an Estoppel I bring an Assise of Mortdancestor and recover when in Truth I have no Right c. yet the Wife of the same Father shall be endowed c. Also in Avowry Tenant for life Aliens in Fee the Wife of Tenant for Life shall be endowed against the Feoffee Also Tenant in Tail is bound by Statute and makes Feoffment Execution against the Feoffee Of some Estoppels none shall have advantage but those who are parties or privies AS if I loose Land by Erroneous Judgment or false Verdict those that are Strangers shall have no advantage But of some Estoppels every one shall have advantage As Bastardy certified by the Bishop User of Action is no Estoppel to prejudice an other viz. Heir c. AS a man grants a Rent Charge in Fee to an Abbot and his Successors or to a Feme-Covert and her Heirs if the Abbot or Husband brings an Action it shall not prejudice the Successor or the Wife In no Case one person shall estopp another but in Dower AS where a Woman demands Dower and she hath Writings touching the Inheritance of the Heir for in debt it is no Plea to say that the Plaintiff is indebted to the Defendant in ten pounds because that it cannot be tryed by the Original 3 H. 6. In every Case where I am Barred of Land as if it be found that I am not next Heir this Estoppel shall pass with the Land and every one that claims the Land by me shall be Estopped but of other Lands it shall be no Estoppel against me 33 H. 6. IF I bring a Praecipe quod reddat by the name of Richard when my name is John and recover by default against the Tenant and afterwards I bring another Writ by my right name against the same Tenant he shall not estopp himself by that Recovery So if I have misnamed the Tenant in the first Record because he shall not be grieved by it Mich. 33 H. 6. contra per Prisot contra per Fortescue 34. By Prisot none shall be received to plead an Estoppel against another but he that pleads may be estopped by the same plea and this is where both parties are parties to the Record otherwise not For if I bring an Action by the name of Robert when my name is John against one that pleads with me if afterwards I sue him by the name of John he shall estopp me by that Record but against a Stranger I shall not be estopped by it by Prisott and by Fortescue 30 H. 6. 26 H. 6. 14 E. 4. contra Bastardy certified against me or found against me every Stranger shall estopp me because that every Stranger is estopped to say that I am mulier But if I am certified mulier a Stranger shall not be estopped by it to plead special Bastardy because that it may be that I am a Bastard in our Law and a mulier in the spiritual Law but not è contra No Stranger shall take advantage by an Estoppel but where the Estoppel extinguisheth the Right AS if a Man makes a Lease to me for Term of years of my own Land and the Term passeth and he enters and grants a Rent Charge in Fee and afterwards I recover against the Grantor the Land by default the Grantee shall not falsify the Recovery by Estoppel A Stranger shall not take advantage of an Estoppel in fait if it be in the Realty but by matter of Record it is otherwise A Man takes a Lease of Lands for years or for Life of which Lands he himself â—s seâ—sed in Fee or in Tail at the time of the Lease made if it be by Deed indented he is estopped to say that he had any Estate or Right in those Lands at the time of the Lease The same Law if a man be disseised and takes a Lease of the disseisor for a term of years of the same Lands by Deed indented But if a man takes a Lease for term of life of his disseisor he shall not be thereby estopped notwithstanding it be by Deed indented because that by the Livery he is remitted and the Lease is void ut dicitur quaere tamen for the Indenture is strong against him but if it be indented it is cleer Law but if it be by Fine it shall be an Estoppel because that the Estoppel takes effect before his Entry Or if Livery be made out of the Lands within View c. If a man makes a Lease by Deed indented to one of his own Lands now he is concluded after the Lease determines the Lessor enters by force of the conclusion and a stranger comes in aid of him the Lessee shall punish the stranger for this Trespass and he shall not conclude him by force of the Lease because he is wholly a stranger to the Judgment per totam Curiam 14 H. 6. But quaere if he justify as servant if he shall conclude himself Fines and Recoveries A Fine was Levied of Lands in two Counties and but one County mentioned in the Fine yet because it was for the uses declared in an Indenture which did mention the Lands in the other County all the Lands mentioned in the Indenture did pass If
after Judgment where the Plaintiff hath not over-stayed his Time viz. the Year but many have Habeas Corpus or Fieri Facias without Scire Facias If the Prisoner be taken by Capias utlegatum he shall be in Execution for the Party without the Prayer of the Party or Accord of the Court if he will but if it be after the Year not without Prayer 't is the Course upon Outlawry after Judgment if Error be brought to award a Capias utlegatum if he does not assign Error but if it be before Judgment and the Defendant brought in the Plaintiff must declare against him de Novo and if one Outlawed after Judgment bring Error and comes to assign Error he shall be committed to the Marshalsey and find Security to reverse the Outlawry and answer the party Lishton against Garpores 3 Cro. 706 707 850. Co. 5. rep 88. 89. vid. 1 Leon. 51. 263. stat 1 H. 7. pl. 6. Moâ— pl. 772. 817. One recovers in Quare impedit against the Kings Presentee and is Outlawed the King shall have a Scire Facias to have the Presentment for the Church was immediately revested in him before any Writ to the Bishop and though the King be not Party to the Judgment he shall maintain the Scire Facias being Intitled by Act in Law but the Scire Facias must mention the whole Record of the Outlawry And so in Debt on a Bond and Judgment to recover the King shall have a Scire Facias Beverley against Cornwall 1 Leo. 63 64. In Debt on a Bond the Defendant pleads that the Plaintiff was Outlawed by the name of J. S. of D. the Plaintiff replied that at that time he dwelt at S. absque hoc that he dwelt at D. he avoids the Plea of Outlawry for he shall be intended another Person 1 Leo. 87. Upon an Exigent to Lond. it was return'd that he had proclaimed the party de Com' in Com' and for that the Outlawry on Felony was reversed For it should have been de Hustingo in Hustingum Marshes Case 1 Leo. 326. Outlawry of Murder the King seizes Lands and because the Outlawry was ill for the quinto Exact ' and was ad comitat ' omitting meum Wherefore to affirm the King's Title the Attorney General prayed a Certiorari to the Coroner to certifie what County and on such a President shewed granted Fumes Case Latch 210. Where one is Outlawed before the Justices of Assize or Justices of Peace on an Indictment of Felony the same Justice may award a Capias utlegatum For they that have Process of Outlawry have power also to award a Capias utlegat ' per omnes Justic ' Co. 1â— rep 103. Appeal of the Death of her Husband and because some of the Defendants lived in another County a Capias with a Proclamation issued to that County The King dies and Reattachment sued If it be General then a new Capias and Proclamation must go into the Foreign County if Special not for the Statute has been once satisfied Vid. Co. 7. rep 30. a. b. 1 E. 5. 43. a. In Appeal of Robbery the Defendant was Outlawed and Sued a Pardon and Scire Facias thereupon Dicitur he ought to shew a Release of the Appeal before the Scire Facias be granted then the Pardon to he Special not General but the Appellor not appearing at the day of the Scire Facias returned the Pardon was allowed but at another day came the Appellor and prayed Execution but his Default being Recorded could not have it Note sometimes the Pardon is General sometimes Ita quod stet rectus c. M. 2. R. 3. fol. 8. pl. 17. M. 9 H. 7. pl. 1. One Outlawed of Felony ductus ad Barram to say why Execution c. pleaded that he was in Oxford Castle all the time and because he did not say in what County Oxford is nor did not say he was in any Bodies Custody there the Plea adjudged ill H. 11. H. 7. fo 13. pl. 27. Baron and Feme Outlawed in Debt he brought Error and after a special Pardon Ita quod stet rectus a Scire Facias and prays it may be allowed but the Court would not till his Wife came in also that the Plaintiff may declare against both and then it seems he may declare against them in the Kings Bench within the Equity of the Statute of 5 Ed. 3. tho' it say rendre al Court donec le Exigent fiat sher ' it went out of the Co. B. but now 't is in the Kings Bench by Writ of Error P. 1 H. 7. pl. 7. H. 1. H. 7. pl. 19. One taken by Cap ' utleg ' an Appellee of Felony came in and pleaded that it was against J. S. Gentleman and he is but a Yeoman and the plea allowed and a Scire Facias against the Appellor who not coming in he was discharged so 21 H. 7. pl. 16. Outlawry against J. S. de D. he pleaded that he lived at S. good without Error Vide 21 H. 6. 20 and 23 H. 6. 4. a. Outlawry when reversed by plea when by Writ of Error 37 H. 6. 16. vide M. 21. E. 4. pl. 61. 21 E. 4. 37. H. 5. H. 7. pl. 7. M. 6 H. 7. pl. 2. M. 21 H. 7. pl. 27. Co. Ent. 689. 4 E. 4. pl. 15. A. takes the Goods of B. who was Outlawed if the King may seize the Goods of B. vide M 6 H. 7. pl. 4. vers finem and pl. 5. One that reversed an Outlawry had a Writ de bonis restituend ' to the Bayliff of Westminster who returned that he was not Bayliff not good he must answer to the having the Goods and must deliver them tho' gone out of his Possession or shew Cause M. 6 H. 7. pl. 5. b. H. 4. E. 4. pl. 3. An Outlawry was reversed because the Sheriff said ad Comitat ' tent ' such a day in Comitat ' Midd ' and said not Comitat ' meum seems Error of Outlawry because the Exigent was in R. 3. Time and two Proclamations then and the other three in H. 7. So the Exigent abated but being in Felony he must have Scire Facias against all the Lands tho' dicitur he had no Lands For that must appear Judicially and upon Scire Facias though the Outlawry were reversed for the Default of the Exigent he must answer for the Felony otherwise if at Suit of the party he were discharged against him H. 6. H. 7. pl. 7. M. 11. H. 7. pl. 33. M. 7. H. 7. pl. 7. Writ of Error delivered before the Exigent awarded and the Plaintiff Outlawed yet it is not void but voidable by Error and Issue shall be joyned to try Delivery before the Exigent but not by Jury P. 10. H. 7. pl. 25 31. One may avoid an Outlawry as well by saying he was beyond Sea by the King's Command as that he was a Souldier at Calais under such a Captain and shall not shew the Patent if the party appear upon
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.
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
because he cannot have the next Avoidance and so is the second part of Croke 691. Shelley's Case and that if one grants a third Avoidance and the Woman recovers that in Dower the Grantee shall have the fourth Co. 1. Inst agrees with three Cro. grantee of proximam Advocationem cannot have the second where one is granted before Dy. 35. a. b. 1 Inst 378. b. 379. a. 3. Cro. 790. 791. One had the Nomination of a Church to an Abbot and the Abbot to present the Church being in the King's hands he presented without nominating the Party may have a Quare Impedit against the Incumbent without naming the King for it lies not against the King and he that had the Nomination had the Patronage Vide Mo. pl. 147. Vide 14. H. 4. 11. He that has the Nomination brings the Writ Quod permittat nominari the Writ abated for it should have been nominare 1 H. 5. 1. b. Dy. 48. a. 1 Cro. Daviston against Yates F. N. B. 33. b. 14 H. 4. 11. Two Parceners the younger in Ward the Guardian marries the eldest and presents in both their Names the Church voids again and whether the elder Sister shall present as in her Turn for the younger quaere Dy. 55. a. The Jury finds the Church full of a Stranger presented by one not party to the Writ and that ex officio yet good Dy. 77. a. Co. 6. rep 52. a. In Quare Impedit one made Title to a fourth part of the Church in Grosle and that he presented and shewed that others were seised of the other three parts as appendant to certain Mannors and they presented and their Clerk dyed and so it belongs to him to present Dy. 78. b. Quare Impedit by the King the Bishop makes Title to a Stranger and he permitted a Lapse then the ordinary presented the Clerk pleads that he is Parson Imparsonee of the Presentment in causa forma preallegata It seems that the Plea by the Bishop that he presented c. is good enough though indeed he collated but the Clerk's Plea is per totam Curiam uncertain and void for in causa preallegata cannot refer to any thing in his own Plea because nothing alledged and to the Ordinary in cannot because to the Ordinary he is a Stranger not a Servant p. 14. H. 7. Pl. 4. Tr. 15. H. 7. Pl. 12. Quare Impedit by a Corporation the Defendant pleads that they are incorporated by another name and demands Judgment so where the Plaintiff goes but to the Right by Fitzherbert 't is ill sans doubt p. 26. H. 8. Pl. 3. a. In Quare Impedit he counts of an Avoidance by Deprivation and shews not how it became void or for what cause and that assigned for Error for it might be for Simmony or some such Cause that gives a Title to the King sed non alloc ' and Judgment was affirmed Episcopus Glouc ' against Veake 3 Cro. 678. Quare Impedit the Bishop claims nothing but as Ordinary the Writ good if a Writ against him immediate quaere the Plaintiff says he presented A. whom he refused he says he presented to the Church because litig ' if a Departure semble 't is for he intended to have pleaded it at first Tr. 5. H. 7. Pl. 3. In a Quare Impedit the Plaintiff claims by a grant of a next Avoidance by A. the Defendant says that A. was Tenant in Tail held of D. by Knights Service and describes the manner whereto c. and then usurped upon the Description and dyed his Heir within Age and the Lord granted the Ward to him adjudged the Plea not double tho the Usurper had Writ Remitter which was one thing and though the Grantee of the Ward should have the first present against the Grantor of the next Avoidance which is no more than a Lease for years which the Guardian shall avoid for his time and he have it after the Ward comes of Age for with pleading both he could not shew his Title Tr. 5. H. 7. pl. 3. Quare impedit and makes Title as appendant and that A. as Ancestor presents B. c. the Defendant protests 't is not appendant says that he presented D. c. The Plaintiff says that at the time he presented D. it was in Lease to E. the Defendant rejoyns that before the Lease his Ancestor presented I. 't is a Departure for he might at first have laid the Presentment in I. p. 10. H. 7. pl. 6. Tr. 11. H. 7. pl. 15. p. 27. H. 8. pl. 11. Quare Impedit for the King the Defendant pleads the Statute 25 E. 3. 1. That the King shall not present to any living in Auter droit but such as fall in his own time and if he do the Court is not to hold plea Judgment Si Curia cognoscere vult per Thurning This is a plea to the Action not merely to the Jurisdiction For pleas for the Jurisdiction of one Court give Jurisdiction to another which this does not 11 H. 4. 8. a. Quare Impedit and Counts of an Advowson appendant and makes Title to a Gift in Tayl the Defendant pleads the Donee in Tayl was seized of it in Gross and granted per Curiam illam admit it once Appendant and not shew how it after came to be in Gross 44 E. 3. 15. b. Quare Impedit to present to a Church in Somersetshire the Defendant pleads that the Land whereto the Plaintiff supposed it to be reputed parcel of the Mannor of S. in Devonshire Issue of both Counties tryed it Bend ' 26. Release IF Money be due upon Recognizance and the Counsor pay part and the Counsee give him a Release if the Release mentions not the Recognizance it shall release so much as paid only For the Recognizance is entire and being destroyed in part is destroyed in the whole If a man be bound to pay an 100 l. to another on such a day and he tender the same at the day he is not bound to pay the same on any other day unless the Obligee will give him an Acquittance or Release Replevin IN a Replevin the Defendant avoyed to distrein for Rent Charge granted in Tayl the Plaintiff says that an Ancestor of the Defendant whose Heir he is was seized of the Lands discharged of the Rent and gave to him with Warranty No Assetts descended adjudged an illlegal plea First because he pleads Warranty from an Ancestor and shewed not what whether lineal or collateral Nor Secondly because he pleads that he was seized of the Lands discharged of c. and shewed not how viz. by Union or otherwise H. 21 H. 7. pl. 11. Replevin avows Damage feasant barr that the place where his Acre called A. whereof he is seized of 100 l. and has Common in the Residue after Verdict moved the Blank in the Declaration makes all uncertain quid resid ' est sed non alloc ' 't is found there is a Residue and be it what it will he
Bustard against Collyer 3 Cro. 899. Trespass the Defendant prescribes for Estovers at all times except fawning times the Plaintiff made an ill Replication the Defendant demurrs though the Bar was ill the Defendant not shewing that at the time that he cut c. was not fawning time yet he having demurred on the Plaintiff's Replication the Court would not to the Bar but no Judgment of the Plaintiff's ill Replication Russel against Booker 2 Leon. 209. 210. Trespass for Battery the Defendant justifies Molliter manus imponendo in defence of the Possession of his House the Plaintiff replyes de Injuria sua absque c. Verdict for the Plaintiff and Judgment Replication good for the principal is the Battery Hall against Gerrard Latch 128. 3 Cr. 225. Laâ—ch 221. 273. Trespass the Defendant pleads the Plaintiff is a Recusant convict whom the Statute 3 Jac. 5. makes excom ' Judgment de billa because it wants Et hoc paratus c. per Recordum also the Conclusion is unapt for the Plea for the Plea is in Disability the Conclusion is barr but it seems the Conclusion is but form and used by general Demurrer And vide the form of several Conclusions Inde si Cur ' vult cognoscere 2. Al' person ' sit serra respond ' 3. Al' briefe Judgment ate ' Br. 4. Al' accon ' del briefe 5. In barr ' Com' apprest Bracton de excepc ' and differ Quando le ple al' br ' of perempt ' quando neme If the pleading to the Writ be tryable and tryed per pais is peremptory to the Defendant other if Demurrer upon respond ' but if the Plea be tryable by Certificate of the Ordinary 't is never peremptory and if the Plea to the Writ be to the Action of the Writ it seems peremptory so Plea to the Action of the Writ and Conclusion to the Writ peremptory if demurred one pleaded to the Action of Avowry he shall not resort to plead in Abatement after Imparlance one pleads Outlawry in the Plaintiff allowed Dr. Cudman against Grendon Vide 40 E. 3. 9 pl. Abatement Avowry and Conclusion the barr Latch 177 178 179. Co. 11. rep 52 a. and 1 Cro. 117. Trespass the Defendant justifies as Executor the Plaintiff says that the Defendant was annulled upon Appeal to the Court of Rome and so not Executor if the Conclusion good diverse of opinion semble as well as where one pleads a Divorse in the Spiritual Court and so not his Wife M. 2. R. 3. fo 22. pl. 51. In Trespass for Misprision the Defendant pleads that Robery had been done and that he being a Watch-man and the Plaintiff coming through the Town in the Night he stopped him to see what he was doubted if not double for he might stop him generally either under Suspition or particularly as a Night-Walker being a Watchman H. 4. H. 7. pl. 2. Trespass against two Defendants they Justifie Et hoc paratus ut Justific ' exceptionis taken because it should have been Et hoc parat ' sunt 1 Cro. 413. 414. Trespass for taking his Apprentice Plea that the Plaintiff discharged him not good for he cannot be Apprentice but by Indenture and then he cannot be discharged but by Deed no more than one Covenant to build me an House in Covenant to plead a Discharge of the Building unless he plead it by Deed 21 H. 6. 31 32. Trespass Defendant pleads a Lease at Will made to him by Vertue whereof he entred and was possessed and held good without shewing of what Estate he was possessed Idem in pleading a Feoffment c. For it may be doubtful in Law as if made by an Infant c. Therefore more safe to plead the Matter and to omit the Conclusion how he was seized and leave it to the Court 35 H. 6 63. b. Trespass the Defendant pleads that the Plaintiff had nothing but in Common with J. S. c. per Cur ' he ought to shew how Tenant in Common viz. the Feoffment c. if of a Joynt Tenancy personar c. but not after the Plaintiff stands not on it but says he was sole seized and some thinks the Law is he pleaded a Tenancy in Common of the adverse side but if he had pleaded on his own side then I agree I must shew how 3 H. 6 56. Trespass for Fishing in his several Fishings the Defendant pleads 't is not Freehold and by some the plea is good till the Plaintiff make a particular Title to the Fishing Idem in Case of Warren but per Yel and not denied but not so for Common because when one demands Common it must be intended in alieno solo But when one demands Fishing or Warren it may be intended in his own Soyl And so for the Defendant to plead un ' Fr ' Tent ' a good plea prima Facie till the other makes a Title but per Fortescue with a Traverse of Fishing c. 't is good else not no Resolution vide Title Forrest per tout And Title Fishing per tout plus de cest ' matter and vide 21 H. 6. 21 b. and the Plaintiff makes Title 18 H. 6. 29 30. Trespass Quare lib ' Warr ' fregit et Cuniculos cepit the Defendant pleads that the Plaintiff was seized and let to A. he by Command of A. took the Conyes Judgment le sans Title Mre ' and after waves that and pleads ut auter Judgment si Acco ' per Danby on plea because the Warren passed not by the Lease of the Land and one may have Warren in his own Freehold Note he may plead Title under the Plaintiff himself and Note the General Issue and Note after he pleads the Freehold in a Stranger who let ut supra and that he by Command of A. c. absque hoc pt ' the Plaintiff has any Warren there Jenny that is doubt the Freehold in a Stranger and traverse of the Warren and thereon he Demurrs L. 5 E. 4 54. Trespass for cutting Trees Defendant makes Title to the Lord in Right of his Ward and that he cut prout sibi bene licuit Danby Chief Justice and the Conclusion ill For it appears waste and unlawful Marle mal Opinion ut mihi videtur 't is Lawful quoad the Plaintiff and good For before the Statute of Waste Lessor or Ward had no Remedy against the Lessee or Guardian by Trespass and now 't is punishable only by Waste not in Trespass but it may be an Estoppel in Waste therefore better to plead he cut them for a Repair prout sibi bene licuit L. 5 E. 4 64 89. b. Trespass for taking beating and impounding his Cow Defendant quoad ven ' vi armis and pleads Not Guilty and quoad the taking and impounding justifies for a Distress ill not answering the Beating Copeley against Piercy Trin. 19 Car. 6. B. R. Trespass for taking Cattel Defendant justifies Plaintiff replies and avoided it hoc c. unde petit Judicium si
point of the Action as in Debt upon a Lease he may plead non dimisit In Debt for Arrearages of Account he may plead non computavit but in Debt for Money or Wares sold to him he may plead non debet and traverse that he sold them Dyer 121. b. In Account the Defendant pleads ne unque Receiver and waged Law thereon and had day and at the day would have waved his Law for part and confessed the Action for it and waged Law for the Residue per Curiam he cannot without the Plaintiffs assent Dy. 261. a. 'T is held that at the Common Law he that waged Law in a Court of Record was to bring with him Fideles Testes wherewith Glanvil agrees Lib. 1. C. 9. But in inferiour Courts one might wage Law without Witnesses to prevent which was Magn. Ch. 28. made Nullus Ballivus ponat aliquem ad legem c. sine testibus fidelibus ad hoc inductis Others hold that Ballivus there extends to all Judges Co. 1. Inst 168. b. An Infant cannot wage his Law but the Husband and Wife for the Debt of the Wife may 18. E. 3. 53. a. A Mute wages Law by Signs Co. 1. Inst 172. Wager of Law is not allowed in any case where a Contempt Trespass Deceit or Injury is offered but 't is allowed in some Cases in Debt Detinue and Account 't is not allowed when there is a Specialty Co. 1. Inst 295. a. One Infamous cannot wage Law nor an Infant but a Femâ— Covert with her Husband may No Wager lyes where the Suit is for the King or his Benefit by Quo minus no Wager against an Infant An Alien must wage Law in his own Language No Wager against Receipt Pâ—r auter maines on Account unless his Wives or his Companion Bailiff of a Mannor cannot wage Law in Account in Debt for Rent or nue for a Lease no Wager because sounding in the Realty It lyes in Debt for a Fine in a Leet because a Court of Record otherwise for an Amercement No Wager in Debt upon Account before Auditors otherwise if but one Auditor No Wager in Debt by a Goaler for Victuals nor against an Attorney in Debt for his Fees nor against a Servant retained according to the Statute in Debt for his Wages One charged as Executor c. shall not wage no Wager in Debt for a Penalty given by a Statute Co. Ent. 118. Pl. 1. Error of a Judgment against an Executor in Bristol upon a Concessit solvere per Custom there to pay a Debt of the Testator by simple Contract because it takes from the Wager of Law Cur ' advise c. Wigg against Roberts H. 22. C. 1. b. r. Rot. 956. Pascal against Spurning p. 1649. b. r. Rot. 75. Sti. 145. 198. 199. 228. In Debt against Baron and Feme for Beer sold to the Feme dum sola they waged Law So note he waged Law for the Defendant Hucks against Holmes 3 Cro. 161. Debt against an Executor for Money awarded to be paid by the Testator it lyes not for the Testator might have waged his Law which the Executor cannot Hampton against Bower Sed vide Latch 213. Symonds Case no Wager of Law against an award P. 1. H. 7. Pl. 18. 13. H. 3. Noy 96. No Wager against an Award because the third Person cannot 3 Cro. 557. 600. 11. H. 4. 56. b. Wager in Debt for the Son award In Account against A. as Bailiff of his Mannor of D. the Defendant waged Law and had day to make it but at the day 't was ruled that Ley gager lyes not in this Case being a matter tryable per Pais Archees Case 3 Cro. 579. Debt on a Contract against two one pleads Nil debet per Patriam the other waged Law he cannot but must plead per Patriam being joyntly concerned in one Contract 3 Cro. 645. Debt sued by one in Chancery a Servant to the Lord Keeper Defendant as to part waged Law and to the Residue pleaded Nil debet per Patriam And being sent into the King's Bench 't is doubted if he may make his Law good but de bene esse it was done Audley against Franke. 3 Cro. 648. In Debt for Money on sale of Land doubt if the Defendant could wage Law being on a real Contract and resolved he may and he did make his Law Miller against Eastcrowe and so 't is held by Newton 22 H. 6. 11. a. and not denyed 3 Cro. 750. In Account against one as Bailiff he cannot wage his Law but as Receiver he may Sheffeild against Barnefield Note it was Account against him as a Bailiff of Towngoods as Merchandize not a Bailiff of a Mannor 7 Cro. 790. Debt against a Defendant for his Dyet he would wage his Law but could not and pleaded ad Pais Bish against Walford vid. 39. H. 6. The Court divided in this point H. or E. 19 H. 6. 10. a. Per totam Curiam he may wage in Debt for Dyet 3 Cro. 818. In Account upon a Receipt by the hands of the Plaintiff's Wife the Defendant was to wage his Law because that is not a Receipt per auter maines upon a Receipt by the hands of the Plaintiff's Wife they being one Person Goodrick's Case 3 Cro. 919. In Debt against the Abbot of D. on a Contract by the Predecessor for Goods that came to the use of that House the Defendant would to wage Law Et per opinionem Curiae he may and vide there divers Cases where one may wage Law on anothers Contract Prior de Dunstable's Case P. 1. H. 7. Pl. 18. M. 13. H. 7. Pl. 2. H. 22. E. 4. Pl. 39. H. 6. 22. a. In Detinue of a Bailment per auter mains the Defendant may wage Law so in Debt on a Contract per auter mains otherwise on Account on a Receipt per auter mains for there the Receipt is traversable but in the first Bailment 't is not but the Detinue M. 18. H. 8. Pl. 15. In a Writ of Right of Advowson Grand Cape issued for default the Defendants came and offered to wage Law of Non-Summons and because some said the Writ was peremptory so as he could not have another the Ley gager was respited Tr. 27. H. 8. Pl. 2. In Account upon a Receipt at the Plaintiff's hands though by Writ the Defendant shall wage his Law and by Detinue upon a Bailment by deed for he might take them again and 't is that Detinet is the cause of Action not the Bailment Er. 27. H. 8. Pl. 14. Debt against J. S. he waged Law and at the day appeared to make it the Plaintiff said there is J. S. Senior and J. S. Junior and the Action brought against the elder and this is the younger and in tant ' the elder makes default prays Judgment Er. 5. E. 4. Pl. 22. In Debt for dyet the Defendant may wage Law whether the dyet were for himself or another 22. H. 6. 13. b. But on a Lease of a
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
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
423. per Curiam It being moved in Arrest of Judgment and the plaintiff never had Judgment in it Mich. 1650 inter Winter and Barnard â—djudged In Action upon the Case for words the plaintiff Thomas Bâ—owne declares that one A. G. had a Bastard Son begotten of her Body then living the Defendant knowing it of his Malice to defame him and to bring him in danger of the Statute of 18 Eliz. having Speech of the said Bastard and of the plaintiff said of the Plaintiff that Brown is the reputed Father of that Child whereby he was greatly prejudicâ—d in bargaining and selling and put to great Expences for the clearing of himself in hac parte the Action lyes not for these words upon this Declaration because it is not said by the plaintiff that he was to be punished by the said Statute for he was not to have corporal punishment or to be imprisoned unless the Bastard be some charge to the Parish Hill 11. Car. B. R. inter Salter and Brown Adjudged in Writ of Error In an Action upon the Case for scandalous words if the plaintiff declare that the Defendant said these words of the plaintiff being a Feme sole viz. This is that Whore that my man A. got a Bastard by and withal spent all my money And being asked by an other person standing by whether he were not mistaken for the Maid hath been but little above a year in Town the defendant replyed The Quean hath been too long to my Cost No Action lyes for these words for to say that a Woman had a Bastard is no cause of Action Trin. 1651. Inter Owen and Jevan Adjudged in Arrest of Judgment If a man saith of another He was the true Patron of the Advowsâ—n of S. but he hath lost that Patronage and Presentation by being a Symonist and a Recusant both which I will prove him to be yet no Action lyes for by the Symony only comes the loss of the Presentation pro hac vice by the Temporal Law and the Recusancy only toucheth him in Religion sor it doth not appear that he intends him to be a Recusant according to the Statute Trin. 16. Jac. B. R. Sir John Tasborough's Case adjudged in Arrest of Judgment Iâ— a man saith of an other He hath forsworn himself no Action lyes for these words Pasch 40. Eliz. B. R. To say to a man Thou hast forsworn thy self Leak Court no Action lyes without shewing what manner of Court it is because that it cannot be intended nor known whether it be such a Court as may compel one to swear or not Mich 8. Jac. B. R. Inter Law and Bennet per Curiam If a man saith of an other He did forswear me ineuendo the plaintiff 46 s. worth of Tithes in Canterbury Court no Action lyes for these words for there are divers Courts in Canterbury and it is not shewn in what Court nor before what Judge nor that the Judge had Authority to hold Plea of Tithes Pasch 43. Eliz. B. R. Inter Bray and Partridge adjudged If a man say of J. S. I had not been cast in that Action if it had not been for the Oath of J. S. and he was forsworn and I marvel that B. would marry his Daughter to such a forsworn man In an Action upon the case for these words if the Plaintiff aver that there was an Issue between him and A. and that Ad Curiam Baronis de Geton Soca Domini Regis tenta apud S. in Comitatu praedicto He himself was produced as a Witness and sworn about the matter of the Issue and afterwards the defendant having Communication of this Issue spoke the words aforesaid No Action lyes upon this Declaration because that it is not alledged that S. is within the Soke of Geton and so peradventure the Court was held out of their Jurisdiction and also because that it is not alledged that he was sworn about a matter pertinent to the Issue Miâ—h 11. Jac. B. R. Inter Crawford and Brice adjudged If a man saith of an other he is a forsworn Knave for he swore that the wood was worth 40 s. where it was dear of 13 s. 4 d. No Action lyes for those words though he aver that there was Communication between them of the matter at the Assises where the Plaintiff was sworn as a Witness because that he did not say directly that the Wood was not worth 40 s. but that it was dear of 13 s. 4 d. Also it doth not appear that the Defendant intended it sworn at the Assises Hill 13. Jac. B. R. Inter Stephen Apthorpe and Cockerel adjudged If a man saith to an other Thou wert forsworn in B Court which is but a Court-Baron no Action lyes because it is no Court of Record Pasch 8. Jac. in Scaccario Inter Perie and Rock agreed per Curiam If a man saith to another Thou art forsworn and didst take a false Oath at the Assises at Hereford against J. S. No Action lyes for these words without an Averment that it was at a Tryal or before the Court or Jury for it might be at the Assises in a private house or other place Pasch 15. Car. B. R. Inter Prichard and Smith Adjudged per Curiam If a man saith to an other Thou deservest to be hanged no Action lyes for these Words because it only expresseth his Opinion and Judgment of him Trin. 4. Jac. Inter Hake and Molton adjudged If a man saith to J. S. Thou art a scurvey bad Fellow and hast done that thou deservest to be hanged No Action lyes Mich. 11. Car. B. R. inter Fisher and Atkinson adjudged per Cur. in arrest of Judgment after Verdict for the plaintiff If a man saith to another You are no true Subject to the King no Action lyes for these words because they are too general for it might be he had not paid his Taxes Mich. 5. Jac. B. R. inter Smith and Turner adjudged If a man saith to another Thou art a Rogue and an arrant Rogue and I will prove thee to be a Rogue no Action lyes Mich. 41. 42. Eliz. B. R. adjudged FINIS THE TABLE Abatement WHERE the Death of one of the Parties after Summons and Severans shall abate the Writ and where not page 1 2. What shall be a good Plea to a Writ what not p. 2 3. In what Cases the Writ shall abate de facto p. 4. What Pleas shall abate the Writ in the whole and what in part p. 5 6 7 8 9 What Pleas in Abatement go only to the person and what to the Writ or Aâ—tion p. 9 10. How matters of Record shall be pleaded in Abatement p. 12. 13. Who shall be admitted to plead in Abatement who not p. 14. Where the Writ abates in part by the Act of the Court and where by the Parties Confession p. 15 16. That a Defendant or Tenant cannot abate a Writ by his own Act but the Act of the Plaintiff or Demandant Act
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