deux Guards nor Quare impedit of two Churches Yet by the Judges it was held good eonugh as of Trespaâ—s for a man may joyn Lands of twenty Titles in Trespass and Trespass lyes f Wood Pasture and the like and 4 E. 2. if a man hold Lands in Capite and dye having issue only two Daughters within age and they are ravished the Lord shall have but one Ravishment de Gard. and 31 H. 6. 14. if a stranger enters upon two Parceners they shall have but one Formedon and if the Lessor shall have one Writ of Covenant for those Houses the Assignce shall have the same For the Statute of 32 H. 8. ca. 14. gives the Assignee the power of the Lessor And the Lord Chief Justice Coke said If a man seised of Lands in Fee enfeoffs an other to the use of himself for Life the Remainder of part to one of his Daughters and â—he Heirs of her Body issuing the Remainder of the Residue to the other Daughter and the Heirs of her body issuing the Eldest Daughter dyes without Issue a Stranger enters upon the whole the other Sister shall have but one Writ Mich. 8. Jacobi in Communi Banco inter Pyot dominam St. John If an Infant Lets Lands for a Term of years rendring Rent he may at his Election have an Action of Debt for the Rent reserved upon the Lease or bring Trespass for occupying of the Land and so he may have an Action of Trespass for the use of of a thing sold by him And if an infant do give an Horse to one without actual delivery of the Horse into his hands at the time of the gift and the Donee taketh the Horse by reason of the gift the Infant may have an Action of Trespass against him 18 E. 4. 2. If an Infant makes a Lease for years or a Lease per dures if the Lessee enter the Infant may have an Assise but if the Infant makes a Feoffment and deliver seisin accordingly he shall have no Assise for by the Livery of seisin the Feoffee had a possession at Will at least but if he makes a Letter of Attorney to deliver seisin he may have an Assise 9 H. 7. 24. 8. 2. Mar. 109. Dyer Rug. Case If an Obligation be made to Husband and Wife the writ may be brought in the Husbands name only 12 R. 2. Breif 639. And so Where a Lease for years is made by Husband and Wife of the Lands of the Wife rendring Rent the Action of Debt must be brought in the name of the Husband only 7 E. 4. 5. But by 2 R. 2. in a Writ concerning a Chattel real they may joyn 2 R. 2. Breif 37. As to such things which concern the person of the Wife immediately there the Writ must be brought in both their names And therefore The Husband cannot sue a Writ of Appeal for the Rape of his Wife without naming the Wife 8 H. 4. 21. 1 H. 6. 10 H. 4. Brook Baron Feme 34. Husband and Wife brought an Action of Battery for the beating of them both the Writ was adjudged good for the Battery of the Wife but not as to the Husband 9 E. 4. 54. The Husband and the Wife shall both bring an Action of Trespass for the taking away the Goods of the Wife before Marriage 21 H. 33. In a Writ of Detinue of Chartres against Husband and Wife Declaration was upon a Trover and the Writ was abated 13 R. 2. Breif 644. A Writ of Covenant was brought by the Husband and Wife for that the Defendant had Leased to them Lands by Deed for Term of years and afterwards ousted them and the Writ was adjudged to be good for if the Husband dyes the Wife shall have the Term and in this Case they were both parties to the Covenant 47 E. 3. 12. An Action of Debt for the arrearages of Rent reserved upon a Lease for years made unto the Husband and the Wife shall be brought against them both and so shall a Writ of Wast for the Wife cannot waive the Lease during the life of the Husband 6 E. 4. 10 17 E. 4. 7. An Action upon the Statute of Laborers was brought against Husband and Wife supposing that the Wife had Covenanted with the Plaintiff to be waiting-woman to his Wife for a year and that she departed out of service within the year and the writ was adjudged to be good being brought against them both 8 R. 2. Laborers 59. A man may have a writ of Detinue of Charters and of Chattels joyntly because there one thing is the ground of the Action viz. the Deteyner 44 E. 3. 41 Breif 583. Likewise a man may have a writ of Debt where part of the Debt is due by Obligation and part by Contract because there the Debt is only occasion of the suit 41 E. 3 damage 75. 1 H. 5. 4. So in things of the like nature one writ may comprehend many wrongs and therefore an Action of the Case was brought for hindring the Plaintiff to hold his Leet 2. for the disturbance of his Servants and Tenants in the gathering his Tithe 3. for Threatning so that the people c. durst not come to a certain Chappel to do their Devotion and present their Offerings 4. for the taking of his Servants and Chattels 19 R. 2. Action sur le Case 52. When an Action is given by the Statute and the Statute doth not prescribe any certain form of the writ the writ framed at the Common Law shall serve for that purpose and the special matter shall be set forth in the Declaration Dyer 37. a. 83. Where a man shall have an Action against his own Deed. A man shall have an Action against his own Deed as if I disseise an Abbot and make Feoffment in Fee with waranty and afterwards I am made Abbot of the same House my Feoffment shall not be a Barr to me notwithstanding it was with warranty I shall have an Action against my Alienee because that I recover to the use of the House and not to my own use The same Law if I disseise Major and Commonalty c. The same Law of the Parson of a Church The same Law if I take a Horse of a Feme sole and Sell it and afterwards marry her I shall have an Action of Debt against my Alienee because that I recover to the use of my Wife tamen quaere A Monk shall have a Quo minus debitum Domini Regis solvere non potest for the advantage upon a Lease made by the King reserving Rent 14 H. 4. The same Law if a Villein be made executor to a man to whom the Lord is bound the Villein shall have an Action against his Lord. The same Law if a Monk be made Executor c. The same Law if an Abbot hath been disseised and afterwards the disseisor is desseised the Disseisor releaseth with warranty and after that is made Abbot he shall find against his own Deed
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
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
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
Tenant the Tenancy in Fee 2. Avowry upon my very Tenant by the manner as I make a Gift in Tail remainder over reserving Rent Also if Tenant by the Courtesy I avow upon him as before Also where a man dyes seised of three intire Mannors and if his Wife be endowed of one Mannor intire 3. Avowry upon my Tenant by the manner as Lessee for life rendring Rent Also if à Woman be endowed of the third part of a Mannor the Heir distrains her and avowes 4. Avowry upon the Land as a Rent-Charge is granted the Grantee avowes in the Lands charged with his distress 5. Avowry upon my matter as I am seised in Fee and let for years for certain Rent and so shew the whole matter Avowry for Homage or for Rent-service although that the Avowry be made upon the person incertain yet in this case he that is a Stranger cannot plead any thing but hors de son Fee or that which is Tantamount as a Release c. which prove the Land to be out of the Fee of the Lord. A Man cannot avow the taking of Beast for Rent arrear if those Beasts were taken by Night but for damage Fesant he may Pasch 10 E. 3. Where the Avowant shall justifie and where he shall make Avowry Where the Avowant is of right to have the thing for which he distrains he shall make Avowry although that the Estate of him upon whom he avows be determined as if I let Lands for term d'auter vie and I distrain for the Rent cestuy que vie dies the other sues Replevin I make Avowry for homage he that ought to do homage dyes his Executors sue Replevin now I ought to justifie because the thing for which the the distress was made by his death is gone and extinct As two Jointenants the one enfeoffs a Stranger of all that c. upon Condition the Feoffee gives notice to the Lord here he holds of the Lord pro particula illa and the Lord shall have several Rents of the Tenants And yet if the Lord grant the services of the Feoffee to a Stranger and he attorne and afterwards the Condition is broken by which the Feoffor who was jointenant enters again here the Jointure is reviv'd and they hold the grant of Services of his part and the other Jointenant holds of the Lord as he held before and yet they are Jointenants Avowry by the Lord for homage and alledgeth seisin by the Husband of Lands which he hath in Right of his Wife The Plaintiff alledgeth that the Husband hath nothing but in right of his Wife and although he alleadgeth seisin by the Husband c. yet he sheweth that the Husband was seized in his demesne as of Fee without that that the Wife hath any thing c. 11 H. 4. If a man makes Avowry upon one as Son and Heir of his Mother where he is in as Heir to his Father the Avowry is abated In Avowry for Rent Service or any other Rent except that he shews the Commencement of the Rent as a Gift in tail or a Grant of a Rent-Charge he ought to alledg no seisin of the Rent in his Avowry because he shews the Commencement of the Rent In Avowry for Homage or Escuage if he shew not the Commencement of the Tenure he ought to shew seisin of the Homage or otherwise it is not good Avowry for Releif or aid pur file marrier he ought not to alledg seisin of the Releif nor of the Aid because that they are no parcel of the Tenure as Homage or Escuage be but incident to the Seigniory Where in Avowry the Defendant shall answer to the seisin and where he shall traverse IN Avowry the Lord alledgeth seisin of the services the Tenant cannot traverse the Tenure in part but he shall answer to the seisin For in Avowry the Tenant shall not avoid encroachment of Services but in a Writ of Rescous or in Assife he may avoid the encrochment and not answer to the Tenure If the Lord encroch an other thing which was not part of the Tenure before the encrochment it is void and the party shall avoid it and Travers it notwithstanding seisin alledged as where the Tenant holds by Homage and Ten shillings the Lord encroches a Horse this encrochment is void because it is an other thing and other then the Tenure was before Also where the Lord avowes for Homage and Ten shillings Rent the Tenant may say that he holds of him by Homage Ancestrel without that that he holds of him by Homage and ten shillings in this case he shall not answer to the seisin because that he may traverse the entire Tenure of the same thing quod nota Where the Effect of the Plea shall be Traversed THe Avowant avows that I. S. was seised of an Acre of Land and so seised grants him Twenty shillings Rent in Fee The Plaintiff saith that the said I. S. had nothing but for Term of Life of the Lease of the Plaintiff the which I. S. is dead this is a good Plea and the Plaintiff shall not say without that that I. S. was seised in Fee and yet the Avowant alledgeth that he was seised in Fee and the Plaintiff saith that he had nothing but for Term of Life which is in a manner contrary and yet the plea is good and he shall not be compell'd to say without that that he was seised in Fee and the reason is because that seisin in Fee was not the effect of the Avowry but the Grant which is confessed and avoided and because Seisin in Fee is not the effect the Plaintiff may answer it by an Affirmative and shall not be compelled to travers with a without that The same Law is in Avowries when the Avowant saith that he was seised of an Acre in Fee and let the same to the Plaintiff for Life or for years reserving Rent and for Rent arrear he avows The Plaintiff saith that one I. S. was seised in his demesne as of Fee and let to the Avowant for the life of I. N. the which I. N. dyed and the said I. S. entred before whose Entry there was nothing arrear this is a good Plea and he shall not need to say without that that the Avowant was seised in Fee at the time of the Lease for if the Seisin had been the Effect of his Avowry he ought to have Traversed or Confessed and Avoided and this he hath notdone for the Avowant saith that he was seised in Fee and the Plaintiff saith that he was seised but for Term of Life the which is no direct Travers but Argumentative but the Plea is good enough because that the seisin is not the Effect of the Barr but the Lease quod nota Bail ALattitat is sued out against two in a Joint Action and both taken one puts in Bail as of Michaelmas and the other of Hillary Term The Court was moved That the Bail of Michaelmas Term might be taken
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
demands a Debt or any thing by Deed he shall not be Barred but by deed or a thing of as high a nature AS Trespass for taking of an Apprentice it is no Plea to say he discharged him â—â—â—â—out speciality Mich. 22 H. 6. The same Law in Debt upon an Obligation it is no Plea for the Defendant to say that the Plaintiff hath received parcel at such a place depending the Writ Judgment 7 E. 3. The same Law in Debt upon Arrearages of Account the Defendant Pleaded Arbitrement it is no Barr because that Debt upon Arbitrement is not of so high a nature as Debt upon Arrearages of Account for there he cannot wage Law The same Law in Debt upon an Obligation it is no Plea to say that he hath paid the Summ in demand to the Plaintiff because that he ought if he will avoid the Deed to say that he hath the Plaintiffs Release or Acquittance to shew The Disseisor Levies a Fine with Proclamations the Five years pass the Disseisee is bound afterwards the Disseisor reverseth the Fine by a Writ of Error then the Disseisee may enter and yet he was once Barred Vide Barr pro tempore Where a man shall Plead a Barr which shall comprehend one matter in fait and where it shall comprehend two matters IF a man Pleads in Barr an Arbitrement he ought to say where the Submission was and also where the Award was made and so to make the Plea certain But when he Pleads a Plea which comprehends two matters he ought not to shew the certainty until the Plaintiff hath Traversed one of them Of Barrs perpetual A Woman is bound to me in an Obligation and I afterwards take her to Wife I am once Barred and allwayes Barred Tenant in Tail leaves Assets which is Pleaded against him who is Heir both he and all his Heirs are Barred for ever A man is bound to pay the Abbot of Westminster and his Successors every year Twenty shillings the Abbey being dissolved he is discharged of the Twenty shillings for ever Also if a man be obliged to keep my Court in Dale I purchase all the Copy-holds and Free-holds of the said Mannor he is discharged from keeping the said Court for ever See Pleas and Pleadings Cinque-Ports AN Elegit to extend Lands within the Cinque-Ports was directed to the Constable of Dover But he would not extend so that the Plaintiff was compelled to have a Certiorari to remove the Record out of the Kings-Bench into the Chancery And from thence by Mittimus sent to the Constable to make Execution Custom 's and Prescriptions ALI Customes against Cannon-Law are to be Tryed at Common-Law and not in the Ecclesiastical Courts Customs are payable to the King by the Common-Law the Reasons why they are so paid see in Davies Rep. fo 9. ct 10. Le case del Customs See the difference between Malum in se etmalum prohibitum and how the King may Pardon it but not licence it to be done 11 H. 7. fo 12. et Davies Rep. fo 73. Where Debt or damages are recovered in a Court-Baron the Bailiff ought not to sell the Goods of the Defendant and deliver the money to the Plaintiff But to impound them and keep them as pledges until the Defendant makes his agreement but where it hath been the use of the Court to award a Levari facias it is good by Custome Where the younger son in Burrough-English dyes the Middle Son not the Eldest shall have the Land The same Law for Customary or Copy-hold Lands It was the Custom of the Kings-Bench every Term once or twice to send the Coroner of that place to the Marshal to view the Prisoners that are in the Marshals Custody by Commititur or matter of Record and if any of them are wanting that he could not find them there then to mark their names in his Coroners Book and to inform the Court thereof And thereupon the Court did pose the Marshal who was to inform the Justices what was become of those Prisoners And if he found not sufficient cause of excuse the Court would Record their escape against the Marshal And the abusing of an Office is the escape of Prisoners in the Marshal an abuse of his Office and just cause of Forfeiture If an Alien have a son that is also an Alien and after the Father is made free and then hath another Son and after purchaseth Lands and dyes The second Son born after the Freedom shall be Heir and not the Eldest by the Common-Law and usage of the Realm And also if there be three Brothers and the middlemost purchaseth Lands and dyes without Heir of his Body the Eldest Brother shall inherit and not the Youngest By the Custom of London a Feme Covert that is to say a Sole Merchant may sue and be sued in absence of her Husband Bulstrode part 1. fo 14. where you may read of three sorts of Customs that are void and against Law 1. a Custom against Justice 2. a Custom against the Benefit of the Common-Wealth and 3. a Custom that is to the Prejudice of a third Person Custom and usage in the intendment of the Law is such a usage as hath obtained the force of Law and is binding to such particular place as Gavelkind in Kent and Burrough-Euglish in many Corporations in England When the Custom of the Realm is the Common Law WHen it is the Common-Law a Custom ought not to be alleadged or Pleaded But an Action against a Carrier Hoyman Common Hosteler and for negligently keeping of Fire the Plaintiff may declare upon the General Custom of the Realm or not at his Election And note That a Custom is always Local and to be alleadged in one certain place but a Prescription is personal and ought to be alledged in some persons certain as in such a man his Ancestors or Predecessors or those whose Estate he hath 22 H. 6. 22. A Prescription is always to be of such a thing and in such manner as may be intended to have a lawful and legal commencement or otherwise it is not good but a Custom may be contrary to the Rules and Maxims of the Law as Borough-English Gavelkind Copy-hold Tenures So Lands devisable by Custom So that the Custom be reasonable Co. 6. Gatewards case lib 5. Perimans Case None can prescribe but who hath Fee but all other Estates derived out of the Fee as Lessee for years Life or at Will ought to prescribe in him who hath the Fee Gatewards case ubi supra A Lord prescribed that he and all those whose Estates he hath in the Mannor have hitherto used to have a Herriot after the death of any Tenant for life or for years within the Mannor and good notwithstanding the Estates of the Tenants have no continuance 21 H. 7. 15. Prescription ought not to be in the Negative but if it be in the Negative with an Affirmative it is good 14 H. 6. 3. 22 H. 6. 36. 11 E. 4
2. A Prescription by Que Estate ought not to be of things which lye in Grant as Rents Villein c. but ought to be made only in him who prescribes and his Ancestors or otherwise he ought to shew the Deed and Grant by which he claims But a man may alledg a Que Estate of a thing which lyes in Grant when it is but a Conveyance to another thing as to say that he and all those whose Estates he hath in an Hundred have used alwayes to have a Leet So a man may alledge a Que Estate in another of a thing which lyes in Grant although not privy to the Conveyance as the Plaintiff in Replevin may alledg a Que Estate in the Seigniory in the Avowant Co. Lit. 121. Such things as cannot be forfeited or seised before the Encheson of the forfeiture be found by Record cannot be claimed by Prescription as Bona et Catalla Felonum c. Co. Lit. 113. Lib. 9. Abbot de Strata Marcella's Case When one hath Common by Prescription paying for it such a Summ of money he may prescribe generally and if the Money be not paid it may be shewn of the other side and also is a Condition subsequent but when a Custom is for one to have Pot-water c. paying a peny for it Quaere if it may be claim'd generally because that the other part hath not any Remedy for the peny Co 5. Rep. Grayes Case In Replevin the Avowant said That the Plaintiff and his Ancestors and those whose Estate he hath in such Lands c. have Common in locus in quo c. being the Land of the Avowant and that he and his Ancestors c. have paid 10 s. per annum for the same and so avowes and good per curiam 26 H. 6. 5. When a Corporation which hath any thing by Prescription be changed and incorporated by an other name c. how they ought to prescribe see Co. Lib. 6. fo 66. 7 E. 4. 32. Co. Lib. 8. fo 64. Inhabitants of a Town cannot prescribe but they may alledg a Custom 18 E. 4. 3. A man prescribes that he and his Ancestors and all their Tenants at Will have Common of Turbary it is not good See the Prescription in the Bishop of Winchesters Case 2 Rep. 1. That he and his Predecessors Bishops there have used time out of mind for himself and their Tenants to hold the Demesnes of the Mannor discharged from Tithes 9 H. 6. 62. A Benefit or Profit apprendre cannot be claimed by Custom in the Lands of another except in Cases of necessity as in the Case of a Copy-holder when he claims Common or other profit in the wasts of the Mannor or in other Lands of the Lord with the Mannor But when he claims it in the Lands of any other within or out of the Mannor he must prescribe in the Lord and the thing where c. be it aliened and severed from the Mannor or comes again to the Lord although the Copy-holder in such Cases may alledg the Custom Co. 6. Gatewards Case Lib. 4. 31. Co. 8. 64. Swains Case An Action upon the Case for stopping a Water-course que currere consuevit was brought against one and held good But if it be against a Terretenant or when a Quod permittat or an Assise is brought there he must prescribe and shew his Title A Custom pro bono privato cannot be alledged in an Upland Town which is neither City or Burrough But Customs which are pro bono publico as to have a Way to the Church to make By-Laws for Reparations of a Church Highways or Bridges or for the good ordering of a Common may be alledged in an Upland Town or Hamlet Co. Lit. 110. A Copy-holder ought not to alledge a Custom to make a Surrender because it is the Custom throughout England so of a Lease for a year for by the general Custom of England Copy-holders may make Leases for a year Co. 9. 751. Combes Case Co. Entr. 576. But particular Customs of particular places may be alledged as the Custom of Gavelkind and of Burrough-English which Customs must be precisely pleaded and alledged 28 H. 8. Dyer 27 b. Rast Entr. 143. Co. Entr. 602. But the Lord Coke in his Commentary upon Littleton fo 175. b. is of Opinion that it is sufficient to say that the Land is of the Custom of Gavelkind or of Burrough-English for that the Law takes notice of the Quality of the Customs How and in what manner a Custom may be pleaded and when it shall be a good plea and when not SEE James Bags Case in the Lord Cokes Reports lib 11. fo 94. where in the Margin of the Pleading in Action upon the Case against the Major and Burgesses of Plimouth it is said that in the Plea of the Major and Burgesses they ought to have first prescribed that they were a Corporation of a Major and Burgesses time out of mind c. Co. 11. 94. Note The Parishoners may prescribe to Choose two Church-Wardens and may put them out of their Office if they see cause The Parishioners may not bring an Action of Account against the Church-Wardens But they may choose other Church-Wardens and they may have an Action of Account against the former No man can prescribe to have a Pew or Seat in a Church but in an Isle adjoyning to the Church which he hath used to repair at his own Charge If a man dwell in one Parish and hold Lands in another Parish he shall be Taxed towards the repair of that Church where the Lands lye For he is accounted a Parishioner there in respect of the Land and the person and not the Land is chargeable But if a man lets Land to another the Lessor is not chargeable in respect of the Rent he receives If a man comes to a Common Inn and delivers his Horse to the Hostler and requires him to put him out to Grass and he doth it accordingly and the Horse is stolen the Inn-holder shall not answer for it Tythes shall be paid for the second mowing of Grass unless there be a prescription to be discharged by payment for the Tythes of the first Mowing But after Tithes are paid for the first Mowing it is thereby discharged for that year for all after pasture for Tythes shall not be paid two ways in one year for the same thing No prescription in Lands maketh a Right Therefore a man must shew some other matter to prove his Right but a prescription of Rents or Profits out of Lands makes a Right A Woman may prescribe that all the Women within such a Town have been endowed of the moiety of all the Lands of their Husbands of which they were seized as of Fee yet she shall not be endowed of the Moiety of the Rent Where there is a Custom That if the Father be hanged for Felony his Son shall Inherit and the Land shall not escheat to the Lord yet if the Father shall
was their fault to take such a joint Estate or that the Obligor was bound to them jointly 35 H. 6. 23. a. In Replevin Verdict is given for the Avowant and the plea is discontinued afterwards by the death of the King or otherwise and the Avowant sues a Scire facias against the Plaintiff in this case the plaintiff may plead a Release of the Avowant after Verdict of all Actions or he may plead other matter to discharge himself 5 E. 4. 19. In Trespass the Defendant pleads two pleas and the Plaintiff demurrs to one and doth not plead over to the other it is a discontinuance as it appears by two Presidents in the Books of Entries and Holcrofts Case Co Lib 4. where it is pleaded accordingly In Precipe quòd reddat the Tenant disclaims the Judgment shall be that the Demandant nihil capiat per breve and if the Tenant will make a Feoffment in Fee the Demandant may enter upon him and if the Tenant will discontinue the Demandant may say that he hath nothing in the Land but by disseisin which he made to I. S. and put him from the disclaimer because that by the disclaimer he hath nothing but his Right and the Entry of the disseisee is lawful upon him because that he hath nothing until by that discontinuance he perfects the Recovery In Replevin the Defendant makes Conusans as Bailiff to an Abbot upon an Estranger as upon his very Tenant The Plaintiff prays aid of this Stranger because he let for years they join in aid and process is continued until his Term at which time the Term ends they both disclaim to hold of the Abbot the Court awarded that the Plaintiff sue forth a Writ of Inquiry of Damages 29 H. 6. No man can disclaim against a Termor because that if his Lessor will not bring his Writ of Right upon disclaimer he hath no Remedy 9 E. 4. Husband and Wife cannot disclaim in Avowry for if they do the Lands of the Wife shall be lost by it 10 E. 4. per Cur ' In Replevin the Defendant avows upon Plaintiff and he disclaims to it he shall not be received for you have made a Feoffment of the Lands so that we cannot have a Writ of Right Sur disclaimer held a good plea To which the Plaintiff saith that he was seised of those Lands in Fee without that that he hath made a demise In a Writ of Entry in le quibus of the disseisin of the Demandant or his Ancestor against two one would disclaim and could not because he was in of his own wrong Distress vide Trespass IF a man distrain Household-Goods That will take hurt by wet or weather he ought to impound them in an House within three miles within the same County where they were taken But if he put them in an open place were they perish the distreynor shall not answer for them If a man distreyn a Horse and the Horse leaps out of the Pound and after the distreynor Retakes him and tyes him to a Post and in strugling the Horse strangles himself the Distreyner shall be punished inan Action of Trespass So if a man distrain a Cow he ought not to milk her although it be for the good of the Cow for you must not do good in such a Case without the Owners consent For Peradventure the Owner might come in time and milk her himself and if the Cow perish for want of milking The Distrayner may distrayn again and so be at no damage An Officer of the Sheriff cannot justifie the breaking open of doors to distrayn for the Kings Rent much less a Landlord A man shall not use things distreyned because he hath them but as Pledges in the Law No man shall drive a distress out of the Hundred it was taken in or to any Pound above the space of three miles or into several Pounds whereby the party shall be driven to take out several Replevins None shall drive a distress out of the County Nor shall distrain in the High-way None shall drive distress into a Castle or Hold to withhold them from the Owner upon his Replevin If a man come to distrain and the party seeing his purpose drives the Cattle off the Land or put the goods out of the house to the intent he shall not take them upon the ground for a distress Then I may lawfully pursue and if I take the same upon the High-way or upon the ground the taking is lawful as if I had taken it upon the ground or house out of which the rent issues to whomsoever the property of the goods or Cattel do belong A man cannot distrain for an amerciament in a Court-Baron but for an amerciament in a Court-Leet he may If a man grants a Lease to B. rendring Rent to be paid at four several Quarters and if it be behind and lawfully demanded That then it shall be lawful for the Lessor to distrain c If a man comes to distrain and the Tenant inclose the ground or shuts the doors of the house That the Landlord cannot distrain for his Rent it 's a disseisin For the Landlord may not break the doors or Fences to come at the Distress Also Forstallment That is lying in wait or threatning a Landlord whereby he is disturbed and hindred of the means to come by his Rent is a disseisin of the Rent viz. to hinder the taking of his Rent A man brought Yarn to the house of his Neighbour on Horse-back to the intent to weigh the same by his Neighbours Beam the Landlord comes and distrains the Horse and Yarn for Rent due out of the house to which the Yarn was brought and by the whole Court adjudged an unlawful distress A man cannot distrain for Rent but on the Land or House out of which it becomes due and there he may take what he finds to whom soever the same belongs If a man distrains Beasts without cause and impounds them in a Pound overt it 's not lawful for the Owner to break the Pound but must bring his Replevin If Beasts dye or goods distrained for Rent perish the Landlord may distrain again for the same Rent and the loss of such Beasts so dying shall be loss of the Tenant if it be in a Pound overt If the Landlord be in view of Cattel he intends to distrain for Rent and the Tenant to avoid the Distress drives the Cattel out of the Landlords Fee Yet the Landlord may take them in or out of his Fee And it seems the same Reason if a man comes to a house to distrain for Rent and be in the house and have â—ight of the Goods and the Tenant to hinder the distress shuts up the Roomes The Landlord may force open the doors if the Tenant will not open them upon request If I grant a Rent to I. S. and his Heirs out of my Mannor of D. Et obligo Manerium et omniabona et Catalla mea super Manerium predict existentia
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
of a Recognizance entred by A. and B. returned Terre-tenants come in and plead that C. hath three Acres of A. Land not summoned c. whereof he was seized in Fee Issue that A. was not seized of three Acres Verdict find that he and E. were joyntly seized and infeoffed C. per Popham and Gaudy 't is against the Defendant for now though the moyety of these Lands are subject to the Extent yet upon the special Plea which is false for A. was not seized alone of them in Fee as the Plea alledges he cannot abate the Writ Fenner con ' Dame Needam against Buning Vide 3 Cro. 524. 52. Scire facias against two for Damages recovered in Assize by three one Defendant pleads that one of the Plaintiffs supposed by the Plaintiff to be dead at the time of the Scire Facias was alive and the other pleaded that one of the Plaintiffs now supposed alive is dead ill for they must joyn in Dilatories though objected they might have severed in their Pleas to the first Vide p. 26 H. 8. pl. 7. One imparls the other demands the view in a Precipe quod reddat quaere of that M. 7. H. 7. pl. 8. m. 10. H. 7. pl. 6. m. 12. H. 7. fo 3. Scire Facias to have Restitution of Money or Reversal of Judgment the Defendant pleads Payment not good against a Record without matter of Record or specialty and 't was long before it was agreed that levyed by the Sheriff in a Scire Facias was a good Plea but at last agreed because grounded on the Scire Facias which he cannot withstand Vrse against Harrison sed vide 2 Cro. 29. Ognel against Randal Per Popham bare payment without Writing is no Plea to barr an Execution by Fieri Facias of Scire Facias vide H. 4. 58. 59. In Debt on a Judgment leavyed Fieri Facias and paid to the Plaintiff no Plea because the Sheriff is to bring the Money into Court not to deliver it to the Plaintiff other if the Lands were extended by Elegit 1 Cro. 239. Scire Facias as Cousin and Heir to D. viz. Fitz A. c. Plea that I had no such Son good and he needs not shew who was the Plaintiff's Mother as if it had been pleaded the Plaintiff was not the Son of A. for then the Birth of A was confessed he must when he takes one Mother from him give him another but here the Birth of the Plaintiff is not at all mentioned admitted or granted Vide talem 11 H. 456. b. 74 75. H. 4. 38. 9. E. 3. 30. 31. Plea that he had no such Son not admitted but he for to plead whose Son he was 8 H. 4. 21. a. 9 E. 3. 30 31. Scire Facias on a Recovery against the Heir and Terre-tenants the Sheriff an Heir and four more Terre-tenants the Heir Nil dicit the other four plead that two of them are Joynt-Tenants of part with J. S. not named and resolved that the Joynt-tenancy is a good Plea in this Action but not for all but for that part wherein the Joynt-tenancy is but because all joyned where but two were Joynt-tennants the Plea was ill for all four Holland against Donitree c. 3 Cro. 739. Scire Facias on a Recognizance Defendant pleads an Acquittance Plantiff replies 't is razed in such and such material places and demands Judgment of the Writ per Curiam this being but a matter tryable by the Court is but a Plea in Abatement whereon a respond ' Ouster shall be and lies not peremptory sic de Margine dict in all In all our Books Matters tryable by the Court go only in Abatement and are not peremptory which seems must be intended either of matters of Fact or with some restraint for every Plea in Law is tryable by the Court 5 E. 3. 32 b. Scire Facias on a Judgment against an Executor he pleads a Judgment to J. S. of 100 l. another to himself of 100 l. and that he has but 100 l. to satisfie J. S. and says not ultra to satisfie himself ill for he may pay himself if he have not ultra to pay J. S. and himself he is not bound to pay the Plaintiff Feltham against Executors of Tourston Tr. 8. Car. 2. in Scaccario In Scire Facias on a Recognizance for the Plaintiff 't is sufficient to assign breach that he beat one contra Pacem without saying vi armis aliter in Battery Hutchins against Perryman M. 14. Jac. B. R. 3. Bulstr ' 220. In Scire Facias of a Judgment against an Executor he pleads Plene administravit Jour de brief ill for he might have paid Bonds before so should he have pleaded Riens tempore mortis nec unquam postea but the Plaintiff taking Issue waved the benefit of the ill Plea Harcourt against Wrenham Mo. pl. 11. 78. Sheriff Bailiff c. ALattitat was delivered to the Under-Sheriff to be executed the Defendant being in Company with the Under-Sheriff and the Under-Sheriff lets the Defendant go and returns non est invent ' Whereupon the Plaintiff brings his Action of the Case against the Under-Sheriff setting forth the whole Frand and Falseness of the Under-Sheriff and Judgment by default But upon Motion in Court in Arrest of Judgment the Action did not lye for the Sheriff is the person alone to answer in Court for all Misdemeanors of the Under-Sheriff and Bailiffs Upon a Fieri Facias if the Sheriff return that he hath levyed the Money and do not pay it to the Plaintiff at the Return of the Writ the Plaintiff may have a Scire Facias against the Sheriff to shew cause wherefore the Sum levyed should not be levied of the Goods of the Sheriff The Sheriff cannot break open any man's House or Close upon a Fieri Facias executing and much less the Landlord shall not break open doors to distrein for Rent but where the King is concern'd as upon an Utlary there the Sheriff may justifie the breaking open the doors if he be resited but he must acquaint them in the House with the Cause of his coming before he force them open If a man be in the hands of the Under-Sheriff in Execution for Debt and the Debtee tell the Sheriff that the Prisoner hath satisfied him if the Sheriff release not the Prisoner it is false Imprisonment A Bailiff having a Warrant to attach the Goods of a Person to answer at the Couâ—ty Court doth attach the Goods accâ—rdingly and after delivers them to the Defendant and takes Bond of him to appear at the day or redeliver the Goods to the Bailiff this is not within the Statute of 23 H. 6. A Bailiff of a Liberty cannot execute a Capias Vtlegatum and if the party be in the hands of the Bailiff the Sheriff may take him for it is a Non Omittas in it self Per Curiam Hill 13. Ja. in C. B. Observations upon the Statute of 29 Car. 2. Regis for prevention of
Frauds and Perjuries 1. BY this Act it appears That if a Feoffment be made and Livery and Seisin duly executed although it were before many credible Witness as formerly the Law was yet unless it be put into Writing nothing shall pass thereby but an Estate at Will and in like manner all leases made by word for any longer time than three years or other Estates made or created without Writing are subject to the same Rule that is shall be only Estate at Will that are so made by Words without Writing after the 24 th of June 1677. 2. After the said 24 th of June 1677. No Executor or Administrator shall be charged with any special Promise to answer Damages out of their own Estates but only in Relation to the Testator having Assetts in their hands and that no other person shall be charged with any special promise to pay the Debt of another man or answer for the Default of any other or upon any Agreement of Marriage or for any Agreement for Lands or for any other commodity or thing not to be performed within one Year after the making of any such Agreement unless the same Promise Bargain or Agreement be set down in Writing and signed by the party to be charged therewith or by some other person lawfully authorised by him so to do 3. All Wills and Bequests of Lands Tenements c. after the said 24 th day of June 1677. shall be put into writing and subscribed by the Testator or some person else in his Presence and by his express Directions and attested and subscribed in the presence of three or four Witnesses other wise all such Gifts to be void all such Devises so made and subscribed by the Testatoror his Directions as aforesaid shall be good and stand effâ—ctual in the Law unless the Testator shall at any time cancell the Will or alter it by a subsequent Will 4. All Trusts shall be in Writing and signed by the Party declaring the Trust else to be void except such Trusts as arise by Implication of Law and Lands in Trust for the use of others shall be chargeable with the Judgment and lyable to the Execution sued out against Cestuque use 5. Aman seized of one Estate pur autre vie may devise the same by Will in manner afoâ—esaid and no such devise shall descend to the Heir that so died seized as Lands in Fee-simple should do and such Heir shall be chargeable therewith as a special Occupant and in case of no such special Occupancy then shall the Land descend to the Executors and Administrators 6. From and after the said day every Judgment shall be signed with the day of the Month and the Year in which such Judgment was Signed and the day of the Month and Year are to be entred on the Margin of the Plea-Role and they shall be accounted Judgments but from that day wherein they were so signed and not from the first day of the Term as formerly was used the like Rule for Recognizances 7. No Writ of Fieri facias or Writ of Execution shall after the property of Goods but from the day the Writ was delivered to the Sheriss to execute which day and year the Sheriff is to endoâ—se on the back-side of the Writ 8. No Bargain of Goods above the value of ten pounds shall stand good unless the Buyer take part of the Goods so sold into his Possession or give something in Earnest or that some Note or Memorandum be made thereof in Writing 9. No nuncupative Will whereby an Estate is bequeathed above the value of thirty pounds shall be good unless it shall be proved by three Witnesses at the least nor unless the Testator did bid the parties present bear witness that so was his Will or to such like effect nor unless such a Will was made in the time of the Testator's last Sickness and in his place of Habitation and unless he was surprised and taken sick from Home and that no Testimony shall be received to prove such Will after six Months unless the Testamentory Words were committed to Writing within six Days after the making of such Will 10. No words unless they are committed to Writing and read to the Testator and allowed by him and proved by three Witnesses to be his Will shall alter any Will in Writing concerning any Goods or Chattels or any Device or Bequest therein Trespass IF my Servant without my knowledge puts Beasts into another mans Ground the Servant is Trespasser and not the Master If a man beat my Servant I may have Trespass and my Servant another Action of Trespass diversis respectibus It is good to lay the Action some day after the Trespass committed yet it is not material or traversable if be laid before For it 's but a Circumstance As Trespass done the Fourth of May the Plaintiff alledgeth the First of May it 's sufficient if upon Evidence it be proved that the Trespass was done before the Action brought A Master is punishable for his Servant if he be about his Masters Business An Abbot for his Monk a Captain for his Souldier an Host for his Guess So a Sheriff for his Under-Sheriff and Bayliffs But a Master shall not be Punnished for Trespass of Battery or Entry into Lands or Felony or Murder or such like done by the Servant unless done by his Command If a Servant keeps his Master's Fire so negligent that it burns his Master's and the Neigbours House the Master is chargeable therewith A man is chargable with the Faults of his Family or of his Beasts If a Ship is perishing and the Marriners cast the Goods to save them on the Land next adjoyning yet this is Trespass and punishable by him that holds the Land A Servant may justifie the beating of another in Defence of his Master A Man shall not have his Action of Trespass for Threatning and recover Damage as well as in Assault and Battery The Law does not allow any man to strike in Revenge of Ill words and the reason is because there is no proportion between Words and Blows but he that is struck may strike again In Trespass he that consents and gives aid to the committing of Trespass is a Principal and no Accessary to the same Trespass If Tenant at Will commits voluntarily Waste Trespass lies against him notwithstanding his Possession so that if I deliver my Sheep to another to Fold or Dung his Land or a Horse to Ride or Oxen to Plow his Land If the Bailiff spoil or kill them I have an Action of Trespass against him notwithstanding the Delivery of them or Trover at his Election If a Man desseize me of my Land or dispossess me of my Goods yet I may enter upon the Land or take my Goods although I release to the party Disseizer or Trespasser all Actions yet this Release shall not Bar my Right No Trespass can be excused by Law but it may be justified as upon son assault demesne or
a Chest By which he lost his Marriage with A. D. c. I. S. shall have an Action for these words 2 Cro. 323. Mathews Case Mich. 12. Jac. B. R. Sell against Fairee per Cur. To say to a Woman Thou art a Whore I will marr thy Marriage by which she loseth her Marriage an Action lyes Trin. 22 Jac. B. R. Tonson against Spring adjudged upon Arrest of Judgment In Action upon the Case if the Plaintiff declare that she hath many Wooers to marry her and that the Defendant said of her She is with Child and hath taken Physick for it whereby she came into Disgrace Et perdidit consortium vicinorum suorum c. Although that it be not alledged that she lost any Marriage thereby yet the Action lyes Mich. 21. Jac. B. R. Medhurst against Balam adjudged in Arrest of Judgment If a man saith to an other Thou wast found in Bed with J. S. his Wife by reason of the speaking of which words he lost his Marriage with A. S. c. Although that he might be in Bed with her without any ill done yet because that it sounds in Disgrace and he hath lost his Marriage by it the Action lyes Mich. 8. Car. B. R. Southal against Dawson adjudg'd in Arrest of Judgment If the Plaintiff in an Action of the Case for words declare that the Defendant said of him He had the use of my Wife's Body by Force by reason of which words he was brought before certain Justices c. and examined by them for a Rape committed by him upon the said Woman whereupon to purge himself thereof he expended divers Sums of Money an Action lyes upon this Deelaration for the temporal Dimage he had thereby Mich. 9. Car. B. R. Harris against Smith adjudged upon Writ of Error In Action upon the Case if the plaintiff declares that in London by the Custom a Common Whore ought to be carted and a Bason rung before her And that the Defendant spoke these words of the Plaintiff Thou art a Whore and a common Whore and art a Bawd to thy Mistress and I will have a Bason tinged before thee the Action well lyes upon this Declaration for these Words Trin. 15. Car. B. R. Hassell against Capcot adjudged in Arrest of Judgment In Action upon the Case if the Plaintiff declare that in London there is a Custom that a Bawd ought to be carted and the Defendant said these words of the Plaintiff She is a Bawd and I will have her carted Hill 15 Car. B. R. Riley against Lewes adjudged in Arrest of Judgment If the Plaintiff declares in an Action upon the Case that whereas he was a Parishoner of S. the Defendant being Vicar there to the intent to scandalize the plaintiff and to create an evil opinion of the plaintiff among his Neighbours so that they Abstraherent seipsos à consortio of the plaintiff tanquam ab homine excommunicato nulla fide aut credentia digno and to exclude the Plaintiff injustly from the Church and for a long time to deprive him of the benefit of hearing divine Service in the said Church the Defendant in time of divine Service in the Church in the hearing of the parishioners maliciously pronounced the plaintiff excommunicated Praetextu cujusdam Instrumenti by him received from the Ordinary whereas he never had any such Instrument of Excommunication nor was he excommunicated And also at another time to the same Intent aforesaid in time of Divine Service in the hearing of the parishoners maliciously pronounced the plaintiff excommunicated and refused farther to celebrate divine Service until the plaintiff departed out of the Church whereupon the plaintiff was compelled to go out of the Church whereas the plaintiff was not excommunicated whereby the plaintiff was scandalized and hindred from hearing Divine Service for a long time and for the clearing of this Scandal and of his Innocency therein Diversos corporis sui grandes labores capere diversas ingentes denariorum summas errogare exponere coactus fuit in extremam depauperationem ignominium maximum of the plaintiff This Action lyes notwithstanding he doth not shew that any person did avoid his Company or refused to trade or deal with him and notwithstanding he doth not set forth any temporal or spiritual loss for it is a great Scandal and malicious tho to his Soul and spiritual Mich. Car. B. R. Barnabas against Traunter Adjudged in Arrest of Judgment If a man saith of another who hath lands by discent That he is a Bastard an Action upon the Case lyes for it tends to his Disinheritance and disturbance by Suit Mich. 3. Jac. B. R. per Curiam In an Action upon the Case if the plaintiff declare that he was Heir apparent to his Father and B. his Brother and that either of them hath Lands in Fee to the value of 40 l. per annum and that they did intend to suffer the said Lands to descend to him or to convey the same to him yet the defendant intending to disinherit the plaintiff said to the plaintiff Thou art a Bastard whereby his Father and Brother intended to disinherit him and to convey their Lands to another The Action lyes upon this Declaration for the temporal damage which might come to him thereby Pasch 13. Car. B. R. Humfries against Stutfield Adjudged in Arrest of Judgment Where there was Grand-father Father and Son and the Son brought an Action upon the Case and declared that the Grand-father whose heir he is entailed certain Lands upon him and the Heirs males of his Body and the Defendant intending to scandalize his possibility that he hath to inherit this Land as Heir of the body of his Grand-father said that he was a Bastard notwithstanding that the Grand-father and Father were alive yet the Action brought as above by the Son did lye Humfries Case ubi supra In an Action upon the Case if the Plaintiff declare that he exhibited Articles in the Kings Bench against the defendant for the good abearing and swear the Articles to be true before Justice W. Innuendo the said Oath taken upon the said Articles although it be not averr'd that the Oath was taken of Record yet the Action lyes for it shall be intended the Articles exhibited in Court and sworn before a Justice of the Court Mich. 10. Car. B. R. Yolden against Wannel Adjudged in Arrest of Judgment If a man saith of an other He hath written a forged Will wherein I will prove him salse forsworn and perjur'd in a Will that he made of John Hunt an Action lyes for these words for it shall be intended that he was perjur'd in his Oath taken touching the said Will. Hil. 12. Car. in B. R. Cowley against Clough In an Action upon the Case if the plaintiff declare that there was a Writ to inquire of Damages between A. and B. in a Court of C. at the Sessions-house where he was sworn to give Evidence according to his Knowledge