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
ad distringend ' d'per Ballivum Dni ' Regis The Limitation of this distress to the Kings Bailiff is void and it is good to give a power of distress to I. S. the Grantee and his Bailiffs Bacons Elem. of Law 15. Error IF a Writ of Error be brought and allowed And the Plaintiff in the Writ of Error dyes pendente breve Errore the Plaintiff in the Action may sue out a Scire facias against the Executors or Administrators of the Plaintiff in the writ of Error without mentioning the Writ of Error for that it is no Supersedeas but only to privies and not to Strangers When a Writ of Error is allowed Execution upon the former Judgment ought not to be awarded For by the writ of Error the Record it self is Removed and the Court hath nothing whereupon to award Execution Yet supersedeas the safest way If a man Levy a Fine sur Conusance de droit Come Ceo c. And suffer a Recovery of the same Lands and there is Error in them both He cannot bring Error first upon the Fine because by the Recovery his Title of Error is discharged and released in Law inclusively But he must begin with the Error upon the Recovery which he may do because a Fine executed barreth no titles that accrue de puisne tempus after the Fine levied and so restore himself to his Title of Error upon the Fine If a man levyeth a Fine where he hath nothing in the Land which inureth by way of conclusion only and is executory against all purchases and new titles which shall grow to the Conusor afterwards And he purchaseth the Land and suffer a Recovery to the Conusee and in both Fine and Recovery there is Error this Fine is Janus Bifrons and will look forward and Barr him of his Writ of Error brought of the Recovery And therefore it will come to the reason of the first case of the Attainder That he must reply that he hath a Writ also depending of the same Fine and so demand Judgment Execution IN Escape against the Sheriff The Case was That a Prisoner being in Executition the Gaoler lets him out of Prison about his occasions and after the Prisoner returns to the Goal and another Sheriff comes in and then the Prisoner escapes and comes no more It was held That an Action did not lye against the last Sheriff for the Prisoner was utterly discharged of the Execution by the first permissiom of going at large by the Gaoler The Sheriff may not break open the doors of any man to execute a Fieri facias much less a Landlord to distrain by the same reason Judgment in Debt against three and a Capia's ad satis faciendum against the Principal the Sheriff retorns non est inventus upon which issued a Scire facias against the Sureties and before the retorn the Principal came into Court and prayed his Body might be taken in Execution which was done accordingly Mich. 10 Jacobi in C. B. And with this agrees the Course of the Court of King's-Bench and divers Presidents of this Court A Writ of Error was brought 4 November retornable 10 January whereupon the Court was moved for Execution because it seemed to be but for delay in regard the Retorn is so long and with this agrees 4 H. 6. an Execution was granted by the Court Mich. 16 Jac. in C. B. Of Estoppels and Conclusions HE who claims nothing by him that was estopped shall not be estopped As two jointenants are disseised the disseisor lets to the one now he is stopped to say that he hath another Estate than for Life Afterwards he to whom the Land was so let dyes the other Jointenant shall have the Land and he shall not be by that Deed estopped for he claimed nothing by him who was estopped by the Survivor If I am named W. B. and I bring my Action by the name of I. B. and recover by that name afterwards if I will bring my Action against another person by my right name he shall not estop me by that Recovery of the same name for if I had been estop'd I should not have had my Action against the other person but he that is party may estopp me well enough 26 H. 6. 30 H. 6. et 10 E. 4. contr Where he in Reversion or Remainder claims nothing by Tenant for Life he shall not be estopped AS the Father disseiseth the Son and Levies a Fine thereof to a Stranger where Recovery is had against the Father and afterwards the Father dyes the Son enters or he that recovers or he that was party to the Fine between him and the Son brings an Assise and the other pleads the Fine or Recovery by way of Estoppel this is no Plea because that notwithstanding that the Son is privy to him that was estopped yet he claims nothing by him Where there is Lord and Tenant and the Lord lets his Seigniory to one for Life the Tenant for Life of the Seigniory distrains the Tenant and he bring an Action of Trespass against him and he justifies for that he holds of him by ten shillings of Rent and the other traverses it and it is found against the Lord for Term of Life This shall be no Estoppel to him in the Reversion If a man pleads a Plea in which he confesseth a thing that is not material it shall not be an Estoppel As if a man voucheth one as Son and Heir to such a person and when he comes he is bound to warranty by his own Deed yet may say afterwards in an Assise of Mortdancestor that the same person which I vouched before as Son and Heir is a Bastard for the words Son and Heir in his voucher are not material The same Law in a Writ of Trespass brought by one Executor of Goods taken out of his possession Where a writ of Debt is brought by an Executor who counts of a duty due to himself there the word Executor is not material and he shall not be estopped but he may say afterwards that he never was Executor nor ever administred as Executor If a man will plead a Record to estopp him that was privy he ought to shew what end the Action had AS if I bring an Action against you in which Action you plead that at anotheâ—â—ime viz. such a day c. I brought an Action of Trespass against you and the Defendant pleaded Villenage and the Plaintiff confest it he ought to shew further by force of which he was nonsuited and to shew what end the Plea had and demand Judgment if against that he shall be answered Where a man hath Judgment to recover Land by that Judgment he shall be estopped to claim any other Title than he hath by the Recovery AS if a man recover by Writ of Right Sur disclamer if the Tenant ceaseth afterwards he shall not have a Cessavit to recover the Land though he sues not out Execution for he shall be estopped to claim
any other Title or to have any other Action to recover the Land than that by which he hath recovered and by the same reason that he shall not have a Cessavit he shall not have Eschete If a man hath Rent in Fee he may distrain or have a Writ of Annuity and if he brings a Writ of Annuity and hath Judgment to recover although that he sues not out Execution yet he shall never distrain for the Rent afterwards Tenant in Tail discontinues for Life and dyes and the Tenant for Life aliens in Fee and the Heir bring in consimili casu and recovers now by this Judgment he shall never have a Formedon of the same Land c. The disseisor enfeoffs the disseisee by deed indented upon Condition or makes a Lease for Life by Deed indented this is a good Conclusion to the disseisee to demand his Right and the Reason is that by the Deed indented the disseisee hath affirmed the Estate of the Disseisor which is as much as if he had confirmed his Estate before the Feoffment In Debt upon an Obligation the Defendant pleads a Release upon which the Plaintiff is Nonsuit afterwards the Plaintiff brings a new Action of Debt the Defendant shall be estopped to say that he was deins age or that the Obligation was made per minas But it is otherwise if the Plea be discontinued An Essoin is cast for the Tenant in a Writ of Dower yet the Tenant shall be received to say that he hath been allways ready to render Dower and because that an Essoin may be cast for a Stranger this Essoin is no Estoppel for an Estoppel shall be good to every intent but because an Essoin may be cast for a Stranger as well as for the Tenant himself it shall be said an Estoppel I bring an Assise of Mortdancestor and recover when in Truth I have no Right c. yet the Wife of the same Father shall be endowed c. Also in Avowry Tenant for life Aliens in Fee the Wife of Tenant for Life shall be endowed against the Feoffee Also Tenant in Tail is bound by Statute and makes Feoffment Execution against the Feoffee Of some Estoppels none shall have advantage but those who are parties or privies AS if I loose Land by Erroneous Judgment or false Verdict those that are Strangers shall have no advantage But of some Estoppels every one shall have advantage As Bastardy certified by the Bishop User of Action is no Estoppel to prejudice an other viz. Heir c. AS a man grants a Rent Charge in Fee to an Abbot and his Successors or to a Feme-Covert and her Heirs if the Abbot or Husband brings an Action it shall not prejudice the Successor or the Wife In no Case one person shall estopp another but in Dower AS where a Woman demands Dower and she hath Writings touching the Inheritance of the Heir for in debt it is no Plea to say that the Plaintiff is indebted to the Defendant in ten pounds because that it cannot be tryed by the Original 3 H. 6. In every Case where I am Barred of Land as if it be found that I am not next Heir this Estoppel shall pass with the Land and every one that claims the Land by me shall be Estopped but of other Lands it shall be no Estoppel against me 33 H. 6. IF I bring a Praecipe quod reddat by the name of Richard when my name is John and recover by default against the Tenant and afterwards I bring another Writ by my right name against the same Tenant he shall not estopp himself by that Recovery So if I have misnamed the Tenant in the first Record because he shall not be grieved by it Mich. 33 H. 6. contra per Prisot contra per Fortescue 34. By Prisot none shall be received to plead an Estoppel against another but he that pleads may be estopped by the same plea and this is where both parties are parties to the Record otherwise not For if I bring an Action by the name of Robert when my name is John against one that pleads with me if afterwards I sue him by the name of John he shall estopp me by that Record but against a Stranger I shall not be estopped by it by Prisott and by Fortescue 30 H. 6. 26 H. 6. 14 E. 4. contra Bastardy certified against me or found against me every Stranger shall estopp me because that every Stranger is estopped to say that I am mulier But if I am certified mulier a Stranger shall not be estopped by it to plead special Bastardy because that it may be that I am a Bastard in our Law and a mulier in the spiritual Law but not è contra No Stranger shall take advantage by an Estoppel but where the Estoppel extinguisheth the Right AS if a Man makes a Lease to me for Term of years of my own Land and the Term passeth and he enters and grants a Rent Charge in Fee and afterwards I recover against the Grantor the Land by default the Grantee shall not falsify the Recovery by Estoppel A Stranger shall not take advantage of an Estoppel in fait if it be in the Realty but by matter of Record it is otherwise A Man takes a Lease of Lands for years or for Life of which Lands he himself â—s seâ—sed in Fee or in Tail at the time of the Lease made if it be by Deed indented he is estopped to say that he had any Estate or Right in those Lands at the time of the Lease The same Law if a man be disseised and takes a Lease of the disseisor for a term of years of the same Lands by Deed indented But if a man takes a Lease for term of life of his disseisor he shall not be thereby estopped notwithstanding it be by Deed indented because that by the Livery he is remitted and the Lease is void ut dicitur quaere tamen for the Indenture is strong against him but if it be indented it is cleer Law but if it be by Fine it shall be an Estoppel because that the Estoppel takes effect before his Entry Or if Livery be made out of the Lands within View c. If a man makes a Lease by Deed indented to one of his own Lands now he is concluded after the Lease determines the Lessor enters by force of the conclusion and a stranger comes in aid of him the Lessee shall punish the stranger for this Trespass and he shall not conclude him by force of the Lease because he is wholly a stranger to the Judgment per totam Curiam 14 H. 6. But quaere if he justify as servant if he shall conclude himself Fines and Recoveries A Fine was Levied of Lands in two Counties and but one County mentioned in the Fine yet because it was for the uses declared in an Indenture which did mention the Lands in the other County all the Lands mentioned in the Indenture did pass If
or conversation are also Excommunicated Co. Lit. 134. If a Bishop be defendant an Excommunication by the same Bishop shall not disable the plaintiff and if no other matter be shewn it shall be intended for the same cause Co. Lit. ib. The Writ shall not abate for Excommunication in the Plaintiff or Demandant But the Judgment shall be that the Tenant or Defendant shall go quit without day because when the Demandant or Plaintiff hath purchased Letters of Absolution and they are shewed to the Court he may have a Resummons or Reattachment upon his Original according to the nature of his Writ Lit. lib. 2. ca. 11. Sect. 42. If an Alien brings an Action personal or mixt in his own right the Defendant may plead it in Abatement in disability of his person or in bar to the Action with this difference that in Actions personal or Trespass for breaking his house the defendant ought to aver that the plaintiff is an Alien born at such a place under the Allegiance of such a Prince who is Enemy to our Soveraign Lord the King for an Alien Friend as he may Traffick and have a House for a habitation so he may have an Action personal and Trespass for breaking his house as he may have a Writ of Error for necessity And the Opinion of the Lord Coke in his Commentary upon Littleton is That if an Alien Friend brings an Action it ought to be pleaded in disability of his person and not in barr to the Writ or Action but if he be an Alien Enemy the Defendant may conclude to the Action And therefore Mr. Theloal in his Digest of Writs well observeth That an Exception taken to a Writ propter defectum Nationis vel potius defectum subjectionis vel Ligeancie is peremptory and that the Action cannot be revived by Peace or League subsequent and that the King may grant Licence to Aliens to implead and likewise that such Aliens as come into the Realm by the Kings Licence or Safe Conduct may use personal actions by Writ though they be not made Denizens and that Denizens lawfully made by the Kings Grant and such Aliens born as are within the express words of the Statute of 25 E. 3. may use actions real by Original Writ Co. Lit. 129. a. b. 130. b. Co. 7. 1. Theloal Digest de Breifs Lib. 1. ca. 6. 32 H. 6. 23. An Alien may be Administrator and have Leases for years as well as personal Chattels and Debts Cro. Eliz. 683. Cro. Car. 8. 9. One brings an Action as Executor Utlary in the plaintiff is no Plea because he sues in auter droit but it is otherwise of Excommunication 21 E. 4. 49. 34 H. 6. 14. 14 H. 6. 14. If the defendant plead that the plaintiff is an Alien born and conclude to the person yet it seems he may demand the View 3 H. 6. 55. For the Pleading of Matters of Record in Abatement observe That in Formedon for a Mannor another Formedon depending for 20 s. Rent out of that Mannor is a good Plea 3 H. 7. 3. That where in Trespass the defendant pleaded that the plaintiff had brought Replevin against the Mayor and Commonalty of A. for the same cause and that he was one of the Commonalty die Captionis c. Necnon die impetrationis Brevis and it was there agreed That in Trespass a Replevin depending for the same Cause is a good Plea if there be not more Defendants in the Replevin than in the Trespass 8 H. 7. 27. A Quare Impedit is brought against the Bishop and another as Incumbent the Defendants plead that the plaintiff hath brought another Quare Impedit against the said Bishop for the same Presentation which was then depending undetermined and demands Judgment of the Writ and it was adjudged a good Plea But the plaintiff might have brought divers Quare Impedits against divers Defendants Hobart 138. 9. So in an Assise of Darrein Presentment it is a good Plea to say That there is a Quare Impedit depending for the same Presentation Hobart 184. But where an Assise is brought of Lands in one County an Assise for the same Lands in another County and Judgment thereupon cannot be pleaded So of a Recovery in Ancient Demesne because it cannot be intended that the Lands recovered in the Assise or in Ancient Demesne are the same Lands 4 H. 6. 24. Rast Entr. 65. In Formedon in le Diseender it is no Plea to say that the Plaintiff at another time brought a Formedon in the Remainder of the same Lands except both the Counts be of one and the same Gift 40 E. 3. 31. Where the Heir brought two several Formedons upon one and the same Gift although the last did vary from the first Gift yet it is no Plea in Abatement for he might claim by two Ancestors sub dono 4 E. 3 8. If the Defendant in a personal Action pleads another Action depending at the time of the purchasing the last Writ he ought not to say that it is yet depending for the last Writ is abated in Law notwithstanding he is afterwards non-suited in the first Writ Co. 6. Ferrers Case Where Note the diversity when the writ is general as Covenant Detinue Assise c. and the Certainty is in the Declaration for there if the Plaintiff is nonsuited in the first before he counts or declares the last shall not abate and when the writ is special and the thing demanded is specified therein as in Praecipe quod reddat c. What persons shall be admitted to plead in Abatement and what not Note One Defendant may plead the death of the other before the Writ purchased or that there is no such person in rerum natura 20 H. 6. 30. b. But in Replevin if the Defendant avow upon an Estranger the Plaintiff in the Replevin cannot plead in Abatement of the Avowry 22 E. 4. 35. b. If the Cognizee of a Statute sue execution against one Terretenant only without the other he cannot plead in Abatement but is put to his Audita Quaerela against the other because that the Cognizee is not bound to take Notice of all the Terretenants 16 Eliz. Dyer 331. a. Nota That after a Continuance the Defendant shall not be admitted to plead that the Plaintiff was made Bishop or that the Woman Plaintiff took Husband depending the Writ except that he pleads it after the last continuance but it is otherwise of the death or Coverture of the Plaintiff at the time of the Writ purchased because these Pleas do abate the Writ de Facto 32 H. 6. 10. 11. In a Replevin where the Plaintiff admits the Avowry the Priee shall not plead in Abatement but as Amicus Curiae and not then except it be apparantly known per totam Curiam 34 H. 6 8. In a Praecipe against I. S. the Son of W. Edmond at the retorn of the Grand Cape the Defendant said that his Father was named Esmond and by Thorpe it is a good
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
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
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