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
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
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
abjure the Realm for Felony or be outlawed of Felony the Land shall escheat and the Son shall not inherit and yet both are Attainders in Law But every Custom that is against the Common-Law shall be taken strictly Debt DEbt super obligationem in London the Defendant Pleads Delivery as an Escroul in Midd super Conditionem c. et Issint non est factum by the Issint c. the special matter is weighed and amounts to the general Issue to be tryed in London per distre in Midd. et issint Rien luy doit is a waver of the special matter and tender of the general Issue P. 27 H. 8. Pl. 34. Debt against two Executors one Pleads plene administravit the other Pleads non est factum Testatoris and if they sever and have those several Pleas in Barr multum altercatur Choke they may Moyle they may not Danby Executors may sever but if they shall have these several Pleas doubted vide I' 37 H. 6. one Pleads Misnomer the other that he is Administrator doubted if Pleadable and ibidem the Authorites they are cited and vide 21 E. 3. 10 11 12. Defendants plead not Executors cannot plead severally in dilatories but in Barr they may P. 7 E 4. Pl 19 Debt upon Obligation to perform Covenants all being in the Affirmative he Pleads Performance general and by Inglefield and Fitz he ought to shew how he performed each specialty Sed vide Co. 1 Jnst 303. a. b. In Debt upon an Obligation conditioned to discharge the Sheriff Plea That he discharged the Sheriff without shewing how M. 5 E. 4. Pl. 21. Debt super Obligationem conditioned to pay to the Chamberlain of London and his Successors he Pleads Payment to A. Chamberlain and his Successors he must Plead how he came out of his Office and how the Successor came in Else A. shall be intended to continue in M. 4. E 4. Pl. 30. Debt against three Executors who Plead several Pleas and each goes to the whole per Danby Moy'e and Clark the Plaintiff may elect which he will have Tryed first Needham contra the most peremptory shall be Tryed first Hill 8 E. 4. Pl. 3. Debt against Executors they Plead a Judgment against the Testator by A. for 200 l. and another by B. for 100 l. And that they have not Assets but to satisfie the 200 l. per Bryan the Plea is double having Pleaded 2 Judgments and rely upon one 9 Eâ— 4. 12. a. Bond to pay 20 l. when A. comes into England from Venice Plea That A. was not at Venice not good for where part is to be done within part without the Tryal must be within Tr. 19. El. et B. Hales Case Ow. 6. One bound to save another harmless Pleads that he had saved him harmless and shewed not how 't is not good but non fuit damnificat generally is good et Pop. 297. dictum per Jones If the first be generally demurred on the advantage of it is lost for which I think it not Law for in Mansels Case Co 2. the Demurrer is general upon such a Plea and Judged ill et 2 Cro. 165. 363. One Action against several Defendants for one Debt c. they may sever in Barrs but not in Dilatories Hatton 26 Hob. 245. In Debt upon a Lease for years the Defendant pleads non habuit nec occupavit adjudged no Plea other then Tenant at Will by Fitz Herbert Dy. 14. In Debt upon an Obligation with Condition payment is a good Plea with Acquittance as appears Dyer 15 b. 1 Cro. 55. 2 Cro. 59. 360. 558. but payment on a single Bill Obligatory is no plea without Acquittance nor it seems upon an Indenture to pay so much for a forfeiture Dy. 6. a. 51. a. Co 5. rep 43. 2 Cro. 86. 377. 3 Cro. 157. 3 Cro. 455. Debt upon a Statute of Usury and misrecites the Statute of Usury and sayes in the Action the Defendant lent money usuriously and received the principle and so much for Usury and that is Traversed and found against the Defendant and moved to be a Jeofail but it seems both Surplus and he need not shew the Cause of Action in the Writ And shewing the Receipt was more then received for the very lending usuriously is against the Statute though he never received it Where one has special matter and pleads it and concludes with the general Issue It waves not the matter precedent as in Debt to plead unlettered issint non est factum or a special Payment issint Riens â—uy doit or for one to Plead that he was Joyntenant with his Feoffee at the time of the Feoffment et issint Riens passe per le fait 10 E. 4. 3. b. M. 9 E. 4. Pl. 15. et fo 19 b. Debt on a Bond against an Abbot he pleads Predecessors imprisoned the Prior and threatned the Monks to imprison them if they would not seal it double one the Imprisonment of the Prior the other the threatning of the Monks And if both should be traversed and one found for the other against the Plaintiff the Court should not know for whom to give Judgment M. 15. E 4. Pl. 2. In Debt of 100 l. the Administrator pleads Judgment of 200 l. to another So plene administravit and that he had not goods preterquam non attingen ' ad 200 l. the Plaintiff demurrs generally because he shewed no certain summ whereto the goods amounted according to Co 9. Merriel Treshams Case 109 b. Hob. and Winch held performance the substance Hob 133 Moore vers Andrews The King brought an Action of Debt and averdict upon non est factum pleaded and after pardoned the Debt which Debt he at the day in Bank pleaded and was allowed to do it because he could have no Audita Querela or sei facias against the King Co. 3. Jâ—st 135. Debt and shews that he made a Lease for years Rend c. the Lessee was thereby possessed and devised it to the Defendant and he entred and Null possession c. ill first because he shewed not that any was made Executor or that he entred by his Assent nor 2 that virâ—ute legationis he entred and then it might be for another Title Dy 254. b 3. Cro 537. Debt of an Obligation conditioned that he and his Wife should appear he pleads that at the time of the Obligation he was solus and innuptus Rolls held it did not amount to ne unque Loyalment accouple and ruled for Judgment upon Demurrer nisi Causa Yeane vers Skelton H 23 Car. 1. B. R. Sti. 17. Debt to perform an Award made 10 May ready to be delivered the 11 th of May Nul Award pleaded he replyes that the Award was made the 10 th of May to be delivered the same 10 th day of May The Defendant demurred for doubtfulness or departure Resolved not yet being a thing whereof Issue is to be of the Award not of the day of the Award Tyers Case Trin 23. Car.
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