Record Foâ— versus Iucks 2 Cro. 13â— In Debt against an Executor he pleads a Judgment in Barr and because he did not plead prout patet per Recordum it was resolved to be ill 2 Cro. 226. Defendant in Debt to perform an Award which was to enfeoff or Release or pay 20 s. pleads performance ill not shewing which for performance of any one is good excuse wherefore he must shew what he hath performed 27 H. 6. I. b. In Debt against an Executor or Administrator he pleads a Judgment and that he hath not Goods preterquam que non c. Co. 9. Rep. 109 110. 'T is held ill on general demurrer not shewing what summ he has but Hob. 133. More versus Andrews 't is held but form and good on general demurrer and Vide Co. Entr. 446. a. 148. Pl. 27. 152. a. 269. a. 617. b. It is oftner pleaded in the general then to plead a particular summ c. here the Court held it but a form and cured by General demurrer Davies versus Davies Tr. 16. Car. 2. B. R. Debt on a Bond conditioned to pay all c. Defendant pleads he paid all without shewing what the Plaintiff replied he received some summs and has not paid the replication good for the knowledg is on the Defendants side what he received therefore to have been set out by him and not by the Plaintiff in the Replication and therefore the Barr ill Woodcock versus Cole Tr. 16. Car. 2. B. R. Debt super Obligation conditioned to deliver such Letters by such a day plea that he delivered them secundum Conditionem ill for being to do a particular thing by a particular day he ought to have pleaded particularly and not generally secundum conditionem Brook versus Deane P. 16 Car. 2. B. R. Rot. 451. Debt upon a Bond at London conditioned that if a ship do not miscarry c. Defendant pleads she miscarryed in Cornwall ill for he cannot plead transitory matter in another County then the Action is laid and so altered the Trial and if he have local matter to plead he must shew it Collings versus Sutton Tr. 16 Car. 2 B. R. rot 1666. 11 H. 4. 50. a. b. Debt and counts that one possessed of a Term granted him a Rent by mean Conveyances is come to the Defendants and shews not how yet ruled good aliter if the Term be pleaded to come to himself or any that he is privy to Note This was after Verdict but no advantage taken of the Verdict Cotes versus Wade m. 18. Card. B. R. Debt for an Escape and begins with the Writ of Execution and Arrest ill not shewing the Judgment quod cum recuperasset c. Jones versus Pope M. 18. Car. 2 B. R. Debt on a Bond conditioned to save against another Bond Defendant pleads that he did save not shewing how the Plaintiff sayes he was sued at Law pro eo quod the money was not paid and pleads not the Writ c. as he ought the Defendant rejoynes he had not notice which is a departure and not material the Plaintiff demurrs Resolved the Barr ill but if not to have it specially assigned for cause Secondly the eo quod affirmative and Traversable as well as if said in facto Thirdly the Replication ill not pleading the Writ c. Fourthly because the rejoyner is a departure and admits it being but ill for incertainty and circumstance has cured it Cather versus Peirce Soutbres and Falker M 18. Card. 2. in Sci. Debt against an Executor who pleas three Judgments in debt had against him and sayes nor pro vero debo and concludes prout patet per seperalia recorda et inde exeeution tato it for both Cases no resolution Palmer verses Lawson M. 18. Car. 2. R. R. Rot. 302. Debt on a Bond to perform an Award Ita quod it be made before 25 March pleads nul Award replication that ante 27 May they made an Award good without saying infra tempus limitat they may traverse nullum c. without traversing the day if not before the day the Jury is to find it Skinner versus Andrews Hill 20. Car. 2. B. R. Rot. 292. Debt against two Executors they plead a Judgment had against one as Administrator who ultra to satisfie hath not Assets et bene Parker versus Amy. Hill 20 21. Car. 2. B. R. Debt on a Bond against an Executor who pleads a Judgment and a Bond the Plaintiff replies the Judgment satisfied and satisfaction given Et hoc paratus est verificare And to the Bond assets ultra Et hoc petit quod inquiratur per Patriam Defendant demurrs and adjudged for the Plaintiff though not said to the first per Recordum for but form and cured by the general demurrer also he has not answered the last issuable Plea Hancock versus Proud M. 21. Card. 2. B. R. Debt on a Bond conditioned to do several things Defendant pleads performed generally and demurr adjudged ill he should have answered to all the particulars expressed in the Action aliter where 't is to perform Covenants Winbleton versus Helderup Trin. 22 Car. B. R. rot 704. Debt on a Bond conditioned to perform Covenants which were within two years to deliver a Mapp of all Land in D. in the possession of A. Lessee of B. and B. pleads performance repl Assigns breach that Lessee did not deliver a Mapp within two years of all the Lands in D. in his Occupation and in the occupation of B. and C. and the replication seems ill first because he does not say Lessee nor his Executors Secondly in his occupation is uncertain what is meant by it Thirdly he ought to shew what Lands were in the possession of B. and C. Q. If the recital not an Estopel to say none were Palmer versus Greenhil Executor of Greenhil Pa. 11 Jac. Rot 688 Bridg. 46. Debt by two Barons and their Femes on an Obligation made to their Femes when sole and say the money was not paid them good and though not said vel licaui eorum for payment to one is payment to both Sparmer versus Stone et ux ' vide Pa. 77 et Latch 49 and Pop. 161 ibm 3. Count jointly and severally in Action against one sufficient to say he paid not but if against all that they nec aliquis eorum Noy 69. Executors sue on a Bond Testat plea non est factum after Verdict for the Plaintiff moved yet he had Judgment Noy 79. A. and B. joyntly and severally bound to stand to an Award betwixt them and I. S. Arbitrators awarded A. to pay B. 3 s. B. to pay 10 s. to I. S. in debt on the Bond in Plea for A. to say he had performed the Award without shewing how and how B. had performed it for he is bound to him also Bendlo 5. Debt on a Contract Defendant pleads payment in a Forraign County and on demurrer adjudged ill he might have pleaded in the County and so
or Joynt-tenant dies Hall vers ' Epm ' Bath and Martin Co. 7. rep 25 26 27. Quare Impedit the Defendant pleads that he had been in 6 Months and traverses the Avoidance Issue of it Jury find for the Plaintiff and enquire of the three points First That the Church was full of J. S. a Stranger Secondly That 't is of Eighty pounds value Thirdly That the Action was brought within six Months after the Avoidance and Judgment quaer ' and Writ to the Bishop to admit his Clerk nominated The Plaintiff by J. S. pending the Writ and resolved in Error on it first at Common Law if an Usurper presented and had his Clerk admitted and instituted the plenarty shall be tried by Certificate because no Induction the Patron had lost his presentation pro hac vice for the Clerk could not be removed and was put to his Writ of Right for the Advowson but at Common Law the King might remove the Incumbent of an Usurper by a Quare Impedit for nullum tempus occurrit Regi but could not present No removing him without Quare Impedit if inducted Then comes the Statute and excuses the Infant and Feme Covert that they should not be bound by an Usurper but after the Disability removed they may have the same Action the last Ancestor might have had Eadem Lex if Tenant in Tail in Dower by Courtesie or for Life suffer an Usurpation he in Reversion claiming by Descent has the same remedy So in case of Usurpation in time of Vacancy of a Bishop c. But the Statute revests not the Right but gives a possessory Action to recover the presentation thereof Where one usurped on an Infant who at Age Aliened the Mannor his Alienee could have no Action for the next Avoidance because the Advowson passed not nor had himself any Remedy after but where Tenant for years brought Quare Impedit and was barred yet it barred not the Right of him that had the Freehold Secondly it makes plenarty no Barr in Quare Impedit or Assise de darrein Presentment if brought within half a year after the Avoidance though not so soon ended Thirdly It gives Damages Infants c. by purchase are not within the first and the Issue of Tayl is within the Equity of the first Branch because Tayl made the same Parl. which divided the Estate and takes away his Writ of Right at Common Law the three points were not enquirable but now they are ex officio at the Common Law No Plaintiff recovers Damage nor the King now because not within the Statute which was made to help them that lost the presentment Si tempus semestr ' transivit which the King did not yet the Declaration for the King ever counts for Damages at the Common Law if the Defendant present pend ' the Writ his Estate was to be removed So if a Stranger usurp pend ' the Writ and in all cases he that came in pending the Writ if not by good Title though by presentment from the King and since the Statute no Incumbent made before the Writ shall be removed by it unless named in it and in the case at Bar resolved the Incumbent that came in pendente lite is to be removed viz. the Writ is to be to the Bishop to admit the Plaintiffs Clerk and he cannot return plenarty and then the parties shall try it between themselves viz. if he that came in pend ' lite had good title he shall stay else be removed but in Cro. rep of this case 2 part 33. 't is held the Bishop ought to return plenarty and thereon Sci ' Fa ' go against the Incumbent and therein to shew his Right Boswell's Case but 1 Cro. 423. Writ to the Bishop for the Plaintiff and to remove the Incumbent inducted Co. 6. Rep. 49 50 51 52. If the Plaintiff be Nonsuit or discontinue 't is Peremptory and a Barr in another Quare Impedit First because the Defendant on Title is to have a Writ to the Bishop but if it be abated for false Latine or Insufficiency found by the Clark's Fault within six Months he shall have a Note so if the Plaintiff or Defendant be misnamed and the Plaintiff confess it for it may be the Clerk's Fault but if he take on him the Order of Knighthood 't is peremptory Sir Hugh Portman's Case Co. 7. rep 27. b. Quare impedit ad Medietat ' Ecclesiae good When there are two Patrons and two Parsons in one and the same Church yet it seems he may have it also ad Ecclesiam but when there is but one Parson though the Patronage be in two several hands it must be ad Ecclesiam and in a Writ of Right of Advowson When the Church is divided amongst Parceners the Writ of Right shall be ad Medietatem Advocationis but where two several Persons are to present two several Parsons to one Church each whereof is to have the half the Writ must be Advocationem Medietatis for the Advowson is entire but the possession several which make the Difference between the Quare impedit and the Writ of Right of Advowson Richard Smith's Case Co. 12. rep 136. vide Co. 5. rep 102. 1 Inst 17. b. 18. a. vide 33 H. 6. 11. 6. Quare Impedit The Defendant pleads that he is Persona Impersonata good without saying that he was so the day of the Writ purchas'd for it shall be intended to relate to the Writ and if he was not so at the time of the Plea 't is good and has made the Writ good Lady Chichesley against Thompson 1 Cro. 75. Assise de Darrein presentment in Wales The Jury fine the Church 80. l. value and Tempus semestre modo praeterit but say not how long since yet good and forty pounds Damages given the Court of Grand-sessions Writ to the Arch-bishop to admit c. and Quia Episcopus est pars doubted if they may but it seems now they may since the Court of Grand Sâ—ssions is one of the King's Courts but when they were in the Marches they could not Vrse against Epm ' St. David c. 1 Cro. 249. Quare Impedit The Defendant pleads that he was admitted instituted and inducted c. and the Plaintiff traverseth the Admission and Institution and for that was forced to reply and traverse the Induction alledged for that must be where 't is alledged because it alters the Tryal and makes it be per pais then it was moved after Verdict the Bishop was dead and that the Plaintiff might have his Judgment against the rest and so he had it Stevens against Facon 1 Cro. 276. Quare Impedit and counts that A. was seized and presented D. who died and he presented the Plaintiff the Defendant pleads that long before A. was seized Qu. Elizabeth was seized and presented him and he was admitted and instituted Plaintiff traversed that the Plaintiff was admitted c. upon the Queen's Presentment and Good without traversing the Queen's Seisin
ab Actione praecludi ill being specially demurred on it ought to be petit Judic ' et dampna sua sibi adjudicari Lady Broughton against Holly Tr. 21 Car. 2. B. R. Trespass for Battery Defendant pleads son Assault demesn Plaintiff replies the Defendant would have rid over him and he molliter assaulted the Defendant in defence of his person and so the Battery was of his own Assault qui est idem insultus In the Barr the Defendant demurrs and Judgment for him for the Replication molliter assaulted ill it should have been molliter manus imposuit Jones against Trysillian Tr. 21 Car. 2 B. R. Trespass for taking his Cattel Defendant justifies damage feasant in his Free-hold Plaintiff replies and claims Common to a Messuage c. Defendant rejoyns that he set sufficient Common for all the Cattel levant and couchant in the Messuage Plaintiff demurrs and objected he should have averred sufficient Common to the Messuage for all levant c. for at that time he might not have so many levant as he had right of Common for but adjudged the Rejoynder good Leech vers ' Mickley H. 21 22 C. 2. B. R. Trespass Defendant justifies as Owner of an House and says That long before the Trespass he was et adhuc seisit ' existit and doth not say necnon tempore Transgression ' praedict ' yet per Hob. Winch and Hutton good Grise against Lee Winch 16 17. Trespass for Battery of A. and B. his Servant per quod servitium amisit Defendant justifies because A. and B. would have erected a Building to the Nusance of his Lights and on demurrer adjudged ill because he says not as Servants or by command of the Plaintiff And then he answers the quod servitum amisit which is the Gist of his Action Norris against Baker H. 13 Jac. Bridg. 47. Trespass for entring and breaking his Close and driving his Cattel Defendant justifies as to the Entry and driving the Cattel Issue of it and Verdict but Judgment against him because he proved not the Breach as well as the Entry Praunce against Tuckle P. 8 Jac. B. R. Rot. 138. 1 Bull. 164. Trespass str May Defendant Justifies 7 May quae est eadem c. and on demurrer adjudged a good Plea without a Traverse and if he had Justif ' of the same time he need not say quae est eadem but at another time he must Vasterope against Taylor H. 8 Jac. Rot. 1337. Trespass for Assaulting Wounding Taking and Imprisoning the Defendant quoad the Assault and Wounding pleads Not Guilty and as to the Taking and Imprisoning justifies and on Demâ—rrer ill because he justifies not the Assault and there could be no taking without the Assault and the quoad captionem and Imprisonment does not imply and include the Arrest Wilson against Dodderidge Hill 12 Jac. B. R. 2 Bulstrod 335. Trespass Defendant makes Title by Descent from J. S. to himself as Heir Plaintiff demurrs generally resolved then of the not saying how Heir but forme and amendable Duke of New-Castle against Wright M. 18. Car. 2. B. R. Trespass for breaking six Closes Not guilty to two pedibus ambulando for the rest pedibus ambulando he justifies for a way upon which Issue For the Trespass cum Averiis he pleads want of Inclosure The Plaintiff saith the Inclosure was good and the Defendants Cattel unruly absque hoc that they were out of Repair upon which the Defendant demurrs and for cause shews that the matter of Inducement is idle Opinion of the Court was that 't was good and the Traverse necessary upon that Inducement that an Inducement is not material a man may have many if the Issue offered be single resolved the Replication good Parnell against Row Anno 15 Car. 2. in B. R. Trespass Quare clausum fregit cuniculos suos ad valentiam c. Verdict for the Plaintiff moved in Arrest of Judgment that it ought not to be ad valentiam of a living thing but precii 2. That it ought not to be cuniculos suos resolved by the Court 1. Ad valentiam was but matter of Form 2. That it shall be intended that it appeared upon the Evidence that they were domestick Coneys and that the Jury were directed by the Judge Also that the Jury gave not any greater Damages in Respect of Property alledged by the Plaintiff in his Count. Judgment for the Plaintiff per totam Curiam Sir Orlando Bridgman also declared that the Opinion in 1 Cro. 15 Car. Child against Greenhill that of Deer in a Park or Coneys in a Warren a man might say suos is not Law and contrary to Coke lib. 7. Case of Swans Saywell against Thorpe 16 Car. 2. in C. B. Trespass quare coepit c. 100 Oves Judgment for the Plaintiff Damages 2 d. after which upon another Action for the Conversion it was resolved that the damages were only for driving them away and not for the Conversion 1 Cro 36. Lacon against Bernard He that hath the possession of an Hawk may have an Action of Trespass for striking and killing her 1 Cro. 18. Sir Fran. Vincent's Case Trespass a man after he is arrested upon a Latitat tenders Amends according to 21 Jacobi resolved it comes too late 1 Cro. Wats against Baker 264. Trespass lies of Trespass done in an Hamlet Yelv. Lapworth against Wast fo 77. Trespass the Plaintiff lays it in an Acre bounded c. with Abuttels the Jury found it to be in Dimidio Acrae infrascript ' 't is good also if the Jury had found it to be half an Acre whereas it was assigned an Acre 't were well enough Yelv. Winkworth against Man 114. But in an Ejectione firmae 't were incertain and void Yelv. ibid. 2 Cro. 183. 2. Wager of Law IN Debt for an Amerciament in a Court-Baron 't is said one cannot wage Law But two or three Presidents are there cited where in such Cases Wager has been Mo. Pl. 430. In Debt by an Attorney for his Fees the Defendant cannot wage Law But for Monies laid out by him as a Solicitor he may Rolls versus Jermin Mo. Pl. 500. Tenetur that the Defendant cannot wage Law in Account for the profits of Lands Popworth versus Archee Mo. Pl. 670. A wager of Law may be done by eight ten or twelve hands As the Court shall appoint The Party is to swear directly that he oweth or detayneth nothing The Compurgators that they beleive that he oweth or detaineth nothing Term. Ley. 341. Cooke sayes Debts by simple Contract are forseited by Outlary though it puts by the party his Wager of Law and so he sayes is the latter opinion of the Books and of the Judges now And he sayes in every Quo minus by the Kings Debtor it puts the Defendant by his Wager of Law for the benefit of the King though not party à fortiori where the King is adjudged party Slades Case Co. 4. Rep. 93. a. 95. a b. 9 Rep. 88. a. 89. b.
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
c. The same law if an Abbot make a Feoffment in Fee and afterwards is deposed and sometime after is made Abbot now he shall have an Action against his Deed which he himself made when he was Abbot because that now he comes in as Successor and not in the place as he was before The same Law of Warden and Schollars But it would have been otherwise if he had disseised a Parson and made Feoffment in Fee with warranty or without warranty and afterwards is made Parson now if he will use an Action his own Feoffment shall be a Barr against him because that all that he shall recover by this Action is to his own use The same Law if a man disseise a woman and makes a Feoffment in Fee and afterwards he takes the woman to Wife in this case the Husband shall be Barred because that he will have advantage of this Recovery to his own use If a man hath right to have Land where his Entry is tolle and releaseth to the Tenant all manner of Actions and dye his Heir shall have his Action and recover the Land because that by such release no right is extinguished and if the Tenant makes Feoffment in Fee or dyes seised he that made the release shall have his Action against the Heir of the Tenant or his Feoffee against his own release and the cause is because that nothing is released but his Action against the same person and not any right If the Son disseise his Father and make a Feoffment with warranty or without warranty and after his Father dyes he cannot ouste his Feoffee because that it was his own Deed. A man hath good cause of Action sometimes and yet by matter ex post facto and by the Act of a Stranger his Action is destroyed As I am disseisee and he is disseisor and I release to the disseisor Also I bail or lend Goods to one a Stranger takes them the bailor sells them to a Stranger c. Action of Debt upon an obligation brought by an Executor the writ shall be detinet and not debet and for this cause they joyn in the same Action for an Horse delivered by themselves to the same Obligor The same Law if a man recover Lands by default in which I have an Estate for life and he recovers by another writ by default Lands wherein I have an Estate Tail I shall have a Quod ei deforceat because the conclusion of the writ serves me And so a man may joyn two or three things in his Action where the conclusion of his Action is pertinent to the several matters and doth not vary If two or three Acres are given severally in tail and the party discontinue the whole his Heir shall have Formedon for the whole because that the writ is le quel un I. dit S. dona and although the Acres are given severally that is not material forasmuch as the common Writ will serve in this case But if the Acres are given by divers or several men or that the one shall be given to the Heirs Males and the other to the Heirs Females and the third to the Heirs General in this case the Heir shall have several writs and not one writ because that one writ cannot serve for such several Gifts If I deliver Goods to one who is indebted to me and he dyes against his Executors I may have a writ for the Goods and for the Debt because that the writ is against the Executors for the Debt in the Detinet and for the detinue it is in the Detinet and therefore the writ well warrants the count to declare partly for debt and partly for Detinue but such an Action he could not have had against the Testator because that for the debt against him the writ ought to have been in the debet and detinet A Feoffment is made upon condition of payment by the Feoffor he commits Trespass and afterwards enters by force of payment c. yet the Feoffee shall have Trespass because his possession is affirm'd 43 E. 3. Assumpsit If he would relinquish such a debt to pay him 30 l. and sayes he did relinquish it c. and after Verdict for the Plaintiff Judgment stayed because he shews not how he relinquished it and it may be by parol which were void Gregory versus Lovell 3 Cro. 292. Assumpsit in Consideration he would discharge him from an Arrest and sayes that exoneravit ipsum moved in Arrest c. he shews not how he discharged him sed non allocatur for they might be per parol or for a time but in Pleading a discharge of a Rent or bond which must be by Deed and perpetual it must be shewed how King versus Hobs. 2. Cro. 930. 960. Assumpsit the Defendant pleads the discharge of the promise whereof Issue taken and found for the Plaintiff and divers defects in the Declaration moved in Arrest of Judgment but by Wrâ—y all these defects tending to the Assumpsit are cured by the collateral Plea Manwood v. Buston 2. Leond. 203 204. Assumpsit If he would make it appear c. and sayes he made it appear by the Court-Roll Good without saying what the Court Rolls were for the Infinitly So a Bond to save harmless from all Estreates good without shewing what for the same reason Vide 9 E. 4. 15. a. 22 E. 4. 41. a Mo. Pl. 1175. 3 Cro. 149 Pl 3. 919. Pl. 3. 3 Bulst 31. Latch 130. H. 2. H. 7. Pl 22. H. 6. H. 7. Pl. 8. 8. 22 E. 4. 15. ab 28. b. 29. a. Assumed he would assign Goods to pay c. and sayes he assigned and shews not how but per scriptum yet good Note after verdict Forth v. Yates Tr. 30 Car. 2. B R. Assumpsit against an Executor who Pleads solvit to such a one on a Bond of 100 l. and to another 100 l. on a Bond and so to divers others which he was forced to do the Payment being post exhibitionem Bille and Pleads a Recognizance in force not satisfied the Plaintiff Pleads non solvit to such a one 100 l. nor to such a one 100 l. Et si de ceteris hoc petit c. and to the Recognizance that it was satisfied and kept in force of Fraud the Defendant demurred quià replicatio multiplyed and double consisting of two matters where one goes to the whole but Judgment for the Plaintiff for the first objection to one 100 l. to another 100 l. make several Issues though que de hoc And in case of an Executor one may answer to every thing alledged by him H. 21 22. Car. 2. B. R. Jeffreys v. Dod. Assumpsit to permit Land to descend breach laid quod non permisit well being in the negative but in the affirmative it ought to be shewed how disposed though they could not descend H. 9. Jac. B. R. rot 3 Bulstr 18. Assumpsit to perform an Award and sets it forth the Defendant pleads
1. B. R. Sti 4. Debt upon an Obligation he pleads that he pay'd at such a day the Jury find he did not pay at that day the Truth was theâ—e were two dayes of payment and he payd one part the one day and the other at the other day the Court seemed he is condemned by the Verdict and his own Plea P 24. Car 1. B. R. Sti. 93 94. Debt upon Obligation to perform Articles the Defendant pleads Covenants performed Issue and Verdict for the Plaintiff who moved for a new Tryal to prevent Error because no Issue joyned but the Court said it was a good issue but ill plea whereon he might have demurred and ruled the Defendant shews Cause why a Replication should not be Weights Case M 24. Car 1. B. R. Sti. 139 140. In Debt upon a single Bill the Defendant pleads he had paid and the other accepted part since the Action brought ruled a good Plea in Abatement of the Writ not in Barr of the Action as here 't is Hillingworth versus Whetstone P. 1649. B. R. Sti. 112 163 Co. 9 Jnst 303. 2 Cro. 304. 959. H. 10. H. 7. Pl 3. M. 21. E. 4. Pl. 38. Debt for 40. l. against an Executor he pleads that he received but 10 l. and 40 l. was due to him the Plaintiff replies that he is Executor de tort and has more goods Et hoc parat c. where it should be Et hoc petit c. ill and that discontinues the whole Plea Alexander versus Lane In Debt for Rent Lessee pleads that Lessor nil habet c. he replyes quod habet 't is ill not shewing what estate but cured by Verdict if Issue be joyned and found quod habet Hill versus Glassey Yel 227. 2 Cro. 312. Debt upon two Bonds whereof one is not due the Defendant pleads a Release of that and another Plea to the other both found against him and this shewed in Arrest of Judgment yet shall not be stayed for by his pretending a false Release he passed over that Advantage So in Debt by an Executor the Defendant pleads he has a Co-Executor who has released to him and found against him the Plaintiff has Judgment Friths Case 3 Cro. 68 69. 4041. 110. 111. In Debt on an Obligation the Defendant pleads al jour and issue of it puis darr contin he pleads that the money was attached in his hands in London Pel versus Pel 2. Cro. 101. Debt upon two Bonds the Defendant demands Oyer of the Condition one of which was to pay c. after performance of a Will the other was to pay c. within two years after the Devisor's death and performance c. and pleads that the Will was that he should make a Release and alledges the death to be at such a day which is within two years and that he required the Defendant to make a Release and he refused Issue of the death and all found for the Plaintiff moved in Arrest c. one day is not come and damages intire so no Judgment to be but per Cur. 't is only the Allegation of the Defendant that he dyed at such a day which if true the Defendant would have rested on it and not have pleaded a false Plea whereon the Issue is taken and found against him Thurbettle versus Reeve and Tye 3 Cro. 110. 111. 40. 41. 68 69. Debt upon an Obligation the Defendant pleads non est factum 't is found that he Sealed c. and the Seal was torn off after the Plea pleaded but on atthe time of the Plea 't is against the Plaintiff Mirral versus Scebrith 3 Cro. 120 Co. 5 Rep 119. b. Debt for Rent against an Executor he pleads Levy per distress and sans Detinet void find no Levy by distress but that an assignment was made by the Testator and the Rent paid by the Assignee and adjudged for the Defendant for the substance is on the new Detinet and the rest but circumstance S. Tho. Cecil versus Harriot 3 Cro. 140. Debt on a Bond conditioned to save harmless against another Bond of Fifty two pounds And so he saved him harmless but because that he shews not that he was not damnified before ill Denis versus Thomas 3 Cro. 156. In Debt on a Bond by A. and B. the Defendant pleads the Obligation was made to them and B. And that all three have an Action depending against him Judgment is got but because the Bond to three cannot be intended And that the Plea goes in Abatement and he has concluded in Barr ill Isumet Priscot versus Hitchcot 3 Cro. 102. Debt on Obligation conditioned If such Lands be four miles distant c. the Defendant pleads that 't is four thousand paces distant the plea Ruled good for a thousand paces is a mile So it tantamounts the Condition but how a mile or the spaces shall be reckoned per communem viam or strait as a Bird could Fly qu. Mirige versus Eat 3 Cro. 212. 267. Debt super Obligation conditioned to pay 35 l. at Michaelmas and 33 at Lady-day he pleads payment of the 70 l. secundum formam Conditionis good though objected he should have pleaded several payments for the several Conditions do implye it Lox versus Lee 3. Cro 256. In Debt a good plea in Barr replication ill Judgment by nil dicit because the Defendant never rejoyned shall not be reversed for that ill till all be made up herewith agrees Co 5. Rep. 55. a Princ. Boyer versus Jennings 3 Cro. 284. Debt against an Executor the Defendant pleads that pending the Action another brought an Action for a true Debt of the Testator which he confessed and that he has nothing wherewith to satisfie the Judgment the Plaintiff protestando that was a true Debt pro placito replyes that the Recovery was by Covin to deceive him Defendant demurrs and adjudged against him for the Covin is not Issuable but reversed in Error nor could the Recovery be by Covin if the Debt true Greene versus Wilcox 3. Cro 462 463. Obligation conditioned to appear in the Kings-Bench the Defendant pleads that the Court was adjourned to Hartford and that he appeared there ill not saying prout â—atet per Recordum Corbet versus Cooke 3 Cro 466. Debt super Obligation covenanted to appear in the Kings-Bench such a day and there elect two Arbitrators who with two more to be elected by the Plaintiff shall Award c. the Defendant pleads that he appeared there at the day and there elected two the Plaintiff was not there time enough for the Award to be made nor that he had his Arbitrators there Edwards versus Marks 3 Cro 549. Debt upon Obligation conditioned that if he upon request deliver the Plaintiff all the Tallow that shall be made before Michaelmas of all Beasts killed by him or his servants then c. the Defendant pleads generally prout in Condition the plaintiff demurred supposing he ought to set out particularly
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
was the Opinion of Twisden in the King's-Bench H. 22 23. Car. 2. That if a Forraign plea which is not local be pleaded the Plaintiff may demurr upon it but if it be local he cannot demurr upon it but then the plea must be sworn Debt on a Bond to account he pleads he accounted Plaintiff Assigns breach in 30 l. received not accounted for Defendant rejoynes and saies Robbed of it and gave notice Et hoc paratus c. good and not Et hoc pet it c. for now he leaves the other to traverse the Robbery though it makes a negative and affirmative Vere versus Smith P. 23. Car. 2 B. R. Cook versus Whorewood Debt on a Bond to perform Covenants to enjoy such Land against A. and B. Defendant pleads Covenants performed Plaintiff replyes and sayes A. and B. habentes jus virtute tituli eis inde fect ' ante Burg. predicta ' entred the Defendant demurrs because the breach Assigned too general but per Hall good enough he being a Stranger Twisden doubted Proctor versus Newton Trin. 23. Car. 2. B. R. Rot. 826 Debt on a Bond to save harmless from payment of Legacies and Assigns breach that A. sued in Chacery for a Legacy first not shewing were the Chancery was Secondly saying he sued for a Legacy and saies not in fact a Legacy was given Dainty versus Faire Mich. 10. Jac. B. R. Debt upon an Obligation dated at Hamburgh was brought in London and good for Hamburgh in that sence shall be taken for a place as Antwerp Tavern in London not for the Town of Hamburgh in Germany and it was brought in the Detinet only and yet good because of Forraign Coyne But naught if for English money A man may bring an Action of Debt upon a Statute-Merchant but not on a Statute-Staple Debt against a Prisoner for Debt or for an Attorney for Fees no Wager of Law lyes But a Prisoner for Lodging and Dyet may wage his Law It lyes not for Rent it lyes upon a simple contract if it be brought in Debt But if it brought in Case the Defendant cannot wage his Law A man brings an Action of Debt against two and hath Judgment and two Precipe's against them and Arrests one by Fieri facias and the other by Capias ad satisfaciendum it is vicious per totam Curiam But he may Arrest one by one Capias and the other by another Capias and if one of them satisfies the Judgment the others Body is free and with this agrees 36 H. 6. Hillary's Case and 4 E. 4 it is said that the Plaintiff shall have but unicam executionem i. e. unicam satisfactionem Mich 11 Jacobi in Communi Banco An Action of Debt ought to be brought in the Debet et Detinet against an Heir but against Executors only in the Detinet per Coke Lord Chief Justice ib. A man brings a Writ of Debt upon a Deed and declares de octinginta Libra the Defendant prays oyer of the Deed and hath it and it was octogesima Libra and good per totam Curiam and with this agrees 9 H. 6. et Pasch 12 Jacobi where yginta for viginti was adjudged good Mich. 13 Jacobi in C. B. Detinue IN Detinue of a Box of Writings the Defendant pleads that A. B. and C. have each of them severally brought their Writ of Detinue against him and brought the Writings into Court ready to deliver to whom the Court shall award they shall interplead and the interpleader shall be on the eldest Original viz. A. shall interplead with the Plaintiff to Barr his Title and B. shall plead against them all But vide if there be variance of the Writings c. in the Declaration when no interpleader shall be P. 4. E. 4. Pl. 11. 11. E 4. 11. a. 3 H. 6. 20. a. 32 H. 6. 25. b. 25 H. 6. 20. a. Trin. E. 4. Pl. 2. Detinue and counts of a purchase of an Annuity and the deed the Defendant pleads non Detinet Jury find the sale c. but it is not agreed that the Defendant should detayne the Deed till the money payd which is not before the plea but on the general Issue he ought not to have given that in Evidence but should have pleaded it for upon the general Issue that which would make a special Barr cannot be given in Evidence or if found by the Jury is it material vide Cest Case title Averment 22 H. 6. 37. Detinue of Charters and Counts of a writing Cont ' that I. S. infeoffed c. And though he said but in facto a Deed whereby I. S. infeoffed c. but Cont ' that c. And so for ought appears no Livery might be yet per curiam well for 't is a deed though nothing passed and the Action lyed But Princ. it may work by Confirmation 39 H. 6. 37. b. In Detinue after Verdict 't was moved in Arrest of Judgment that Sattago was not good but Sartago and igneum ferrum anglice a firegrate improper yet the Court adjudged the Declaration good enough Smith versus Warder 13 Car. 2. in B. R. Of Disclaimers and Discontinuances of Actions ONe brought an Action of Covenant and had Judgment and a Writ of Enquiry of damages and afterwards it was discontinued by Rule of Court Trin. 10 Jac. in communi Banco If a man brings an Action of Trespass in 3 Towns and mentions but 2 Towns where the Trespass was committed the whole is discontinued 16 E. 4. 11. So 9 E. 4. 51. A man brought an Action of Debt and demanded by his Writ 10 l. 6 s. 8 d. and his Declaration was but of 10 l. and his Writ did abate An Action of Trespass was brought in the Court of Common-Pleas oâ— several things one of which was discontinued and by Warberton Justice the whole Action was thereby discontinued adjudged in Sir Fran Pawmes Case If two are bound jointly and severally and an Action of Debt is brought against them both and it was discontinued against one of them it shall abate against both 7 H. 4. Fitzh Tit. Breif 279. 5 E. 4. 107. But by Hobart Chief Justice a man may put more in the Writ than in the Declaration but not more in the Declaration than in the Writ Hill 12. Ja. Pl. 4 in C. B. In Audita quaerela scire facias or Attaint by 2 the Nonsuit of one shall not be Nonsuit of both and his Release shall only Barr himself and the reason is because they are compell'd by the Law to joyn in the Action and the cause of Action accrues not by their deed but by Act in Law and for that the Law is favourable to them So that if one will not sue the other may sue by himself But if a debt be due to two by reason of Contract or by Obligation or two Jointenants have cause to have an Action of Trespass in this case the Nonsuit of the one or the Release of one shall Barr the other because it
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
706. Pl. 9. 700. Pl. 7. Feoffment to the use of A. for Life without Impeachment of wast and power to cut and sell Trees and make Leases Remainder for Life to B. with the same power Latch 163. 268. Poph. 193. 706. Pl. 9. A. makes a Lease and dyes quaere whether B. may cut the Trees not agreed but ' t is agreed that the Clause Sans Impeachment gave an Interest and A. might have done what he would with the Trees but not his Executor after his Death because it was an Interest annexed to his Estate and determined with it the doubt of the Remainder chiefly seems to be because the Lease ariseth partly out of the first Feoffment and partly of the Lessors Estate for Life Note the Lease was excepted the Trees and the Exception good because Tenant for Life had an Interest by the Sans Impeachment Secherval versus Dale Latch 163. 268. c. as before Lessor brings wast against Lessee for Trees of the Plaintiff the Lessor himself cut them 't is a good Bar and therefore in Trespass by the Lessee against Lessor for the cutting he shall recover only for the Fruit and Shade because not charged over as if a Stranger had cut them he should Co. 13. r. 96. 70. M. 10. H. 7. Pl. 3. 2 E. 4. 2. or 7. b. In wast for digging Gravel Defendant justifies by Command of the Lessor no plea for 't is the Lessee's Land pur temps not the Lessors so he could not command him also 't is per parol and without Deed and against the Tenant for Life yet dict such a Command to cut Trees good because not the Lessee's but Lessor's and that is agreed in Co. 11. R. 48. b. H. 2. H. 7. Pl. 20. M. 10. H. 7. Pl. 3. Feoffee to use Cestuy que use makes a lease for years according to the Statute R. 3. The Reversion remains in the Feoffee for the Statute does but give Authority to Cestuy que use to dispose as where one wills that his Executor shall sell if Lessee commits wast the Feoffee shall bring the Action tho no Privity because they could not have any so shall the Lord in Escheate maintain Wast yet he had not Privity Mi. 5. H. 7. Pl. 11. H. 8. H. 7. Pl. 1. Tr. 26. H. 8. Pl. 131. or 31. 'T is wast to pull down or suffer a wall to go to Ruine be it made of Wood Mud or Stone or be it within the house for Separation or without for Inclosure so to destroy wood of hasle or willow not to cut them Husbandly To cut Fruit Trees in an Orchard and destroy them is wast not if they grow in Hedges and Closures and if a house be ruinous at the Entry 't is no wast to suffer it to decay otherwise if not ruinous at the Entry but where 't is held ploughing Meadows is no wast 't is no Law Hob. 234. Ow. 66. M. 10. H. 7. Pl. 3. 4. In an Action of Wast in the Tenuit an Accord is a good Plea because only damages to be recovered not in the Tenuit because locum vastatum is to be recovered also Co. Entr. 706. 707. Pl. 9. H. 11. H. 7. Pl. 7. P. 13. H. 7. Pl. 3. Co. 6. R. 44. a. Upon Scire facias of a Judgment in wast one may have a Writ of Estrepement or in any Suit where no Damages are to be recovered but not Scire facias of wast committed after the first Scire facias because he might have had Estrepement at first But for wast after Estrepement a Scire facias lyes to shew Cause why he committed the wast and a Scire facias lyes in Assise for wast done after Judgment not before Judgment because he cannot recover Damages for its after verdict but in a Formedon not because he might have had Estrepement and Pl. 20. Error of a Judgment in Assise and the Piaintiff in the Error prayed an Estrepement and could not have it because he may it seems have Scire facias for damages done after the Judgment c. But questioned per Fennel because by the Statute he finds Security in the Writ specified to answer for all the Damages Mich. 14. H. 7. Pl. 20. but vid. 32 or 33 H. 6. b. a. In Scire facias of a Fine Estrepement lyes Lessee does wast in a corner of a Wood only the part not the whole shall be recovered but if he do in the whole Wood and there be plots of ground within the Wood that shall be recovered with the Wood. Tsin 15. H. 7. Pl. 21. Furnaces Fatts Posts Rails c. fixed to the Free-hold by Lessee for years 't is hâ—ld by some that if he remove them during the Term 't is no Wast quod qu. But agreed that if he leave them there till the Term ended he cannot remove them Vid. 42 E. 3. 6. a. 6. M. 20. H. 7. Pl. 24. Trin. 21. H. 7. Pl. 4. Owen 70. Lease Absque impetitionc vasti in Wast he shall plead that in Excuse but if the Lease at first were given and then a grant after that he shall not be punished in Wast it is not pleadable in Bar but to bind as a Covenant Vide divers such Cases 21 H. 7. 30. Tenant for life grants his Estate to one Parcener in Reversion and her Husband 't is no Surrender and if the Baron and Feme do wast the other Sister shall bring a Writ in all their names and the Baron and Feme shall be summoned and severed M. 2. H. 7. Pl. 60. In wast by Lessor the Lessee pleads not guilty and gives in Evidence a grant to cut c. to repair c. And per Brook Pollard and Elliot it was no wast but ought to have been pleaded and not given in Evidence for thereby the Advantage thereof is lost Ad quod Bradnet concessit but held it wast but not punishable Wast and he held that if a Lessor covenant to repair and do not Lessee may do it and deduct it out of the Rent And if one covenant to repair a ruinous house if he do not 't is wast but he may take Trees else it had not yet in that case he might have repaired it and taken Trees to do it though not bound to do it And at Common law Lessee might take Boots but if excessive it is Wast Lessee suffers Posts Pales c. to decay it is wast Trin. 12. H. 8. Pl. 1. or 4. Wills WIl ls and Testaments were originally proved at the Common Law as Perkins confesses and Leonard says they are by the Curtesie of England proved in the Spiritual Court not de communi jure nor in other Nations and in divers Mannors the Lords have the Probate at this day Co. 5. Rep. 73. b. 16. a. 9. Rep. 38. a. 5. Rep. 30. b. Issue at Common Law for Lands devised by Will and the question whether a Will or not and now they moved at the Spiritual Court to it which will blemish the Evidence at the
Common Law wherefore prohibition prayed but granted only quoad the lands and that it be proved quoad bona Hill against Thornton 1 Cro. 118. Debt on a Bond conditioned he permit his Wife to make a Will to the value of 50 l. and 't is found on Issue Nullum fecit voluntatem c. that she did make a Will of 50 l. but was covert 't is for the Plaintiff for though properly a Feme-Covert can make no Will in Law yet 't is a Will within the Intent of the Condition and the Husband is bound to perform it Marriot vers Kinsman 1 Cro. 159. And so Tilly and Parryes Case 273 274. Bond to pay 300 l. to such Persons and Uâ—es as the Wife should appoint she appoints in form of a Will he is bound to pay it And 433 Bond to permit her to make a Will and pay c. Plea that he permitted c. without pleading payment not good Action upon the Case lyes not for Non-payment of a Legacy for no Duty in our Law so it cannot take notice of the wrong in Non payment Mich. 18. Car. 2. Nicholson against Sherman in Banco Regis Bond conditioned that the Wife shall make a Will of 300 l. in presence of the Husband if he will be present if not in his Absence she makes it and it appears not that he was requested to be or that he was present of 250 l. to several persons and not an entire Legacy yet after Verdict the Plaintiff had Judgment for the Intent was that she should make a Will whether he would or not and she needed not devise all to one nor devise the whole 300 l. for Cui licet quod majus c. Mich. 14. Car. 2. Harris against Bury in Banco Regis Debt by A. as Executor the Defendant prays Oyer of the Will which was thus Memorandum Quòd A. B. fecit Testamentum Nuncupativum in hunc modum viz. Constituit C. D. fore Executorem suum And this was under Seal of the Ordinary and resolved a good Will and he Executor and well able to sue and so was it decided upon Appeal to the Delegates Mich. 16. Car. 2. Lewis against Shaw in B. R. Witnesses HE that is attainted of a false Verdict Conspiracy or convicted of Perjury Premunire or Forgery upon 5 Eliz. or Felony or that has stood in the Pillory lost his Ears been stigmatiz'd c. whereby he becomes infamous or Recreant in a Writ of Right or an Infidel under Age of Discretion or interessed ought not to be a Witness nor a man's Wife for or against her Husband But one outlawed in personal Actions may be a witness Co. 1. Inst 6. b. 25. J. K. Witnesses are not to prove a Negative ibid. Where Tryal is by Witnesses there ought to be two at the least ibid. A Juror may give Evidence as a Witness to his Companions but it must be publickly by Examination in Court not privately to his Fellows Stiles Rep. 233. Bail for the Defendant being a Witness for him upon motion was taken off the File and new Bail filed Idem 385. A Felon that has been burned in the hand may be a Witness for he may purchase and his Punishment has satisfied his Offence Idem 385. In Ejectment he that had the Inheritance of the Land was admitted as a Witness where note the Plaintiff and Defendant both claimed under one person Idem 482. A Counsellor at Bar being examined as a Witness for his Clyent was denyed to be examined on the other side for he shall not be put to discover the Secrets of his Clyents Cause Idem 449. Debt on 5 Eliz. 9. because the Wife did not appear whereas he served her and tendred to her her Charges c. to his Damage And though not laid what Damage yet being for the 10 l. upon the Statute not for his damages for her not appearing and a Feme Covert being within the Statute 't was held good enough 3 Cro. 130. 1 Leon. 122. Note she being the person who was to appear the Charges are to be tendred to her or her Husband Iidem ibid. Debt for 10 l. against a Witness that being Subpenaâ—d appeared not moved first 't is not shewed that the Subpena was left resolved it needs not for it might be for more Witnâ—sses 2. There was but 12 d delivered but resolved since he promised to pay the rest and the Witness accepted the 2 d. 't is good else the Witness had not been bâ—â—nd 'till the whole Charges had been tendred But thirdly because he avâ—rred not that he was damnified by the Non-Appearance of the Witness though the Action be but for the ten pound Pâ—nalty and not for the Damages over Râ—â—olved it lyes not 1 Cro. 376. 388. Judgment staid because the Verdict was had upon the Testimony of one Witness and he since convict of Pâ—rjury in the very same thing Pasch 17. Car. 2. Banco Regis In Deceipt for forging a Will one that took a Legacy by the same Will was allowed and sworn as a Witness in a Tryal for the Forgery for this makes nothing to the Probate of the Will or Recovery of the Legacy in the Spiritual Court nor do they take notice of it Moved to examine a material Witness that lay dying and it was said by the Court that if the adverse party did consent it might be done else they could not compell him Mich. 13. Car. 2. B. R. A Councellor may be examined as a Witness against his Clyent so far as it is of his own Knowledge not what he knows by the revealing of his Clyent Pasc 15. Car. 2. B. R. One shall not justifie what he heard an other say ibid. In an Indictment for beating one of the King's Messengers the Witnesses for the Defendant were sworn because though against the King and criminal yet not Capital Pasch 17. Car. 2. B. R. One that was a Witness indorsed to the Livery upon a Feoffment having part of the Lands as Tenant at Will was allowed as a Witness in the Tryal on the Feoffment afterwards in a Tryal at Bar. Bulstrodes Rep. 202. A Person attainted of Felony though afterwards pardoned by the King is uncapable after of being a Witness and therefore a Suggestion being proved only by two such a Consultation was granted 2 Bulstr 154. Words TO say of a Woman that J. S. did beget her with Child and she had a Child by him by speaking whereof she lost a Marriage with I. D. Although these words are a Spiritual Slander yet the loss of Marriage is Temporal and therefore the Action lyes for them Co. 4. 16. b. Ann Davis against Gardner adjudged So if a Man saith of a Woman that J. S. had the use of her Body by which she loseth her Marriage an Action lyes Pasch 5. Jac. B. R. Dame Morison against Case adjudged If a man says to J. S. Thou art a Whore-Master for thou hast lain with B's Wife and hadst to do with her against
c. ibid. What Trees are Tithable what not see ibid. Parson makes parol Agreement of Tithes for his Life afterwards grants to another who sues for them Concord is no Plea ibid. Simony to give 10. l. to Patron to present Parson to next Avoidance the Church being full ibid. If Parson in by Simony dyes shall the King present ibid. Pleas and Pleadings Special non est factum to Debt upon Bond delivered as an Esâ—râ—ul whole matter pleaded Judgment on Demurer for Plaintiff p. 185. Solvit ad diem pleaded specially ibid. Recovery pleaded in Barr ill instead of Execution ibid. Bond ill dated how to declare upon it ibid. Acts of Parliament and Records how to be recited in pleading p. 186. Where Villenage no good Plea ibid. Pleading must be certain and why ibid. Where Frankfâ—e no good Plea ibid. Where Corruption of Blood by Attainder no good Plea ibid. In what case Warranty of Ancestor with Assets no good Plea in Formedon ibid. Of reversing Attainders ibid. 188. Of pleading in Formedon ibid. Attorney may plead not informed if no Order to the contrary ibid. If Defendant in case pleads to issue for part and demurrs to other part Demurrer shall be argued first p. 189. Plea by Manucaptors to Sci. Fa. ill double c. ibid. Plea shall be taken most strictly against him that pleads it ibid. Pleas ill for Ambiguity p. 191. For Incertainty of Intendment ib. Impropriety of words ibid. Repugnancy in pleading p. 192. Barrs may be good to common Intent though not to every Intent ibid. In pleading a man shall not disclose that which is against himself p. 193. Repleader awarded upon non dimisit p. 194. Covenant to make Assurance at my Charge 't is no Plea to say he was ready to do it unless he tender the Writings ready to seal and I refuse to pay the Charges ibid. Pleading of Judgments by Executor adjudged upon Demurrer to amount but to Plene Administravit specially ibid. Administrator durante minoritate c. Wasting Goods shall be punished as Executor in his own Wrong ibid. Administration brings Debt and avers Administration granted at L. when it bears date in another place the Plaintiff shall abate p. 195. Sci. Fa. against two Executors nulla bona retorn'd to both and Devastavit to the value of the Debt against one and another Sci. Fa. and Judgment against him only by default and Fi. Fa. de bonis propriis against him alone ibid. Two Executors one confesseth the Action the other lets it go by default c. or pleads Non est factum or Plene administravit Judgment shall be against both de bonis Testatoris for diverse Executors but as one representing the Person of the Testator who if living should have made but one Answer to the Action ibid. After Imparlance the Tenant cannot plead to the Writ that the Demandant is a Bastard but he may plead it in Barr of the Action p. 196. If Husband and Wife bring Assise and Feoffment or Release of either of them or the Ancestor of one of them be pleaded in Barr both shall be barred p. 197. Excommunication pleaded in disability of the Plaintiff or Demandant p. 198. Action of the Case wherein Legitimo modo acquietatus is set forth makes the Declaration erroneous p. 198. If a man pleads a general Act of Parliament and mis-recite the same yet it shall not prejudice him and why p. 199. Where a thing alledged doth confess and avoid my Plea I may traverse it ibid Departure in pleading what Several Cases of Departures ibid. 200 201 202 203 204. Quare Impedit TO present by Turns in an Advowson in gross the Commencement how it came presentable by Turns ought to be shewed per 3 Justic 2 contra p. 205. Descent of three Mannors to three Sisters Advowson is Appendant to one Partition is made of all except the Advowson the Advowson seems to be in gross pro toto but if not excepted it had been clear p. 209. A Church may be appendant and in gross alterternis vicibus ibid. See the Method of bringing Writs of Quare Impedit of counting thereon and variety of Pleading therein p. 205 to 248. Release OF part of the Money due upon Recognizance if not mentions the Recognizance shall be for so much as is paid only and not destroy the Recognizance p. 248. A man bound to pay 100. l. tenders the same at the day he is not bound to pay the same at another day without Acquittance or Release ibid. Replevin see Avowry Variety of pleading in Replevin p. 248. to 254. Scire Facias HOw to be brought and pleading thereto 254. to 261. Statute Observations on the Statute of 29 Car. 2. for prevention of Frauds and Perjuries p. 266. Trespass WHere it lyes how to declare therein and plead thereto p. 261. Wager of Law IN what Cases Wager of Law doth lye and in what not what persons shall wage Law and the manner of performing it p. 294. to 316. Wast Where an Action of Wast doth properly lye how it is to be brought and the manner of pleading to the same p. 317. to 357. Wills Wills and Testaments originally proved at Common Law 358. They are proved in the Spiritual Court not de Communi Jure but by Courtesie ibid. Prohibition granted to the Spiritual Court to hinder the Probate of a Will quoad Lands and allowing that it may be proved quoad bona ibid. Bond conditioned he permit his Wife to make a Will he is bound to perform it ib. 350. Action upon the Case lyes not for Non-payment of a Legacy 359. Bond conditioned that the Wife shall make a Will of so much in the presence of her Husband if he will be present if not in his Absence she makes it not requesting him to be neither doth it appear that he was present yet good ibid. Memorandum quod A. B. fecit Testamentum suum nuncupativum in hunc modum viz. constituit C. D. fore Executorem Resolved a good Will and he Executor and well able to sue ib. 360. Witnesses Of the Crimes which render Persons incapable of being Witnesses p. 360. One under the Age of Discretion or interessed or a mans Wife for or against her Husband cannot be Witnesses ibid. One out-lawed in personal Actions may be â— Witness ibid. Witnesses are not to prove a Negative ib. Where Tryal is by Witnesses there ought to be two at the least ibid. A Juror may give Evidence publickly not privately to his Fellows p. 361. Bail cannot be Witness for the Defendant ib. A Felon burned in the hand may be a Witness ibid. In Ejectment he that had the Inheritance of the Land was admitted as a Witness ibid. A Councellor at Bar being examined as a Witness for his Clyent was denyed to be examined on the other side and why ibid. Debt for 10 l. brought on 5 Eliz. ca. 9. against the Wife for not appearing being served and Charges tendred held good ibid. Debt for 10. l. against a Witness that being subpened appeared not does not lye without averring that he was damnified by the Noâ—appearance of the Witness p. 362. Judgment staid because the Verdict was had upon the single Testimony of one convict of Perjury in the very same thing ibid. In Deceipt for forging a Will a Legatee allowed as a Witness in a Tryal for the Forgery ibid. A material Witness that lyes dying may be examined by consent of both Parties not otherwise p. 363. A Councellor may be examined as a Witness against his Clyent so far as it is of his own Knowledge not what his Clyent bath reveal'd to him ibid. One shall not justifie what he heard an other say ibid. Witnesses may be sworn against the King in Indictments Battery c. because though Criminal not Capital ibid. Tenant at Will of Lands in Question allowed a Witness in Tryal at Bar. ibid. Person attainted of Felony and afterwards pardoned by the King is uncapable after of being a Witness ibid. Words VVHat Words are actionable and what not see fol. 265. to the end FINIS