to cut Beeches is wast Lopping Oak Ash or Elme or any thing to prejudice Trees is wast Making Charcoal of wood is wast Felling Timber to repair voluntary wast is double wast To dig for Gravel Stone c. is wast unless for Reparation of the house To suffer a Sea-wall or against a River to decay is wast To take Timber c. to make new Fences is wast Tenant cuts Trees for Repair and sells them though he buyes them again and employs them 't is wast Burning a house by Negligence or Mischance is wast 1 Inst 53. 40. E. 3. 15. b. Willows cut in view of the House is wast 40 E. 3. 25. b. So to cut Hasels in a Wood where there is no other Timber If one grants in his Leafe that Wast shall be redressed by Neihgbours and not by Plea yet he may bring an Action of Wast for the place wasted is not otherwise recoverable 1 Inst 53. a. If the Tenant repair houses before any Action of Wast be brought the Action of Wast is not maintainable but he must not plead Quòd non fecit vastum but the special matter 38 Ass 1 Reparation after the Writ brought not pending the Action seems no Plea 1 Inst 55. D. None shall have wast unless he had the immediate Inheritance yet an other may joyn with him against Tenant by the Curtesie with the surviving Partner Joyntenant for life with him that hath the Fee Where the Estate is determinable the Wast is general as Tail becomes Tail after possibility c. The Heir cannot have it of Wast in his Ancestors time nor a Bishop of his Predecessor nor shall Executors be punished for Testators wast Aunt and Neece may joyn 45 E. 3. 8. b. Gift to two and the Heirs of one he that hath Fee cannot have Wast against his Joyntenant but his heir may if wast after if the other survive if the Reversion be not continued in the same it was at the time of the wast done the Action is gone though taken back again 1 Inst 53. D. Wast lyes against Tenant by the Curtesie and in Dower though they have assigned unless the Reversioner have assigned also All others shall answer for their own wast unless Guardians And if the Guardian assign it lyes against the Assignee Guardian shall not answer wast by an other because 't is poenal unless he is Joynt-Guardian If one recovers against him under Age he recovers the Land else only Damages Infants Feme coverts c. shall answer Wast c. done by Strangers and she for her Husband Co. 1. Inst 53 b. 54. a. Husband Tenant for Life in his Wives Right does wast she dyes 't is dispunishable but if tenant for years in her Right not because the marriage is a Gift of it to him Tenant for Life grants his Estate on Condition Grantee does wast Grantor entâ—rs Wast lyes against the Grantee and the place shall be recovered Lord not punishable for wast done by his Villein before Entry Occupant punishable generally or specially Tenant afsigns and takes the Profits wast lyes against the Tenant Wast done sparsim in Woods or Houses all is to be recovered No Action of wast lyes against Guardian in Socage but Trespass or Account 3 Cro. 357. If Lessee take Trees c. to repair houses 't is not wast though he was not bound to repair them as his Lessor covenanted to repair them for if it was sans Impeachment of wast for the houses as the house was ruinous at his Entry and this for that Favour the Law gives to houses of Habitation Co. 1. Inst 54. b. a. Dyer 194. 198. b. Brook 463. Tit. Wast Lease of lands he may dig in open Mines and if it were of lands and mines if any were not open he can open none new but if none were then open he may open new ones Co. 1. Inst 54. b. 5 R. 1. 2. Tenant for Life makes Feoffment wast is done 't was upon Condition Lessee enters for Condition broken Lessor shall have wast So Successor of a Bishop shall have Wast on his Predecessors Lease for wast done in time of Vacation So if Lessee for Life be disseised and wast done if he enters he shall be charge able for the rest yet in none of these cases had the Lessor any Reversion in him at the time of the wast as regularly he ought but these cases stand upon their particular Reasons 1 Inst 13. b. The Aunt and Neece joyn in Action of Wast done in the old Sisters Life the Aunt alone recovers the damages Co. 1. Inst 233. b. Tenant for Life makes a Lease for years and enters upon his Lessee and consents to a Recovery in Wast against him the Lessee for years shall be for ever excluded for of necessity the place wasted must be recovered but if he had granted a Rent charge and committed Wast and the land recovered the Rent had continued Co. 1. Inst 233. b. Perkins 844. Tenant for Life does wast and grants over his Estate Lessor releaseth all wast to the Grantee it shall discharge the Lessee Idem of Tenant in Dower or by the Curtesie for besides the Privity that endures if the Lessor should maintain his Action he should recover Locum vastatum against the Grantee contrary to his own Release Co. 1. Inst 269. b. Lessee does wast and then surrenders 't is said the Lessor shall maitain wast but the Book seems to be misprinted and that it should be shall not maintain c. for by his own Act he hath determined his Action in part Co. 1. Inst 285. 5 Rep. 12. b. Wast brought against Tenant pur auter vie in Ass he dyes pending the Writ it shall not abate but proceed for the damages because altered by Act in Law but if Baron and Feme Tenants in Tail special bring Wast and she dies without Issue pendente brevi so as the Husband becomes Tenant in Tail apres possibility d'issue extinct it shall abate because all wast must be ad exheredationem And note that Release of actions real bar wast and so doth Actions personal for he shall not apportion his own Action Co. 1. Inst 285. a. One devises Lands by the general words Bosc ' Maherem ' Miner ' Carbon ' in tam amplis modo forma as the Lessee habuit or habere potuit the Lessee opens a Mine and cuts Trees to use about it the cutting is wast for the Trees were not granted it being a Lease nor do they pass as incident to the Mine it not being open And Hobard holds that if the Mine had been open at the time of the Lease it had been wast Hobard 234. Darcy against Ashwich Hutton 190. 191. Lessee cannot change the nature of the thing devised and therefore not turn Meadow into Arrable or Wood into Pasture dry up an ancient Poole suffer a Park pale to decay destroy a stock of Deer Fish c. but may better a thing in the same kind and therefore may
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
where not Further if the Award be that he shall go to Pauls with an Estranger this is void and vet it is possible but peradventure the Stranger will not go with him Note if the Award be that one of the parties shall deliver to the other the Goods that is in the house of I. S. this is void and yet it is not impossible but because that he might do wrong to I. S. to enter into his house and to convey his Goods from thence But if the Property of the Goods be in the party that is to perform the Arbitrement peradventure it may be otherwise forasmuch as his Entry is lawful Audita Quaerela A Statute is Acknowledged before the Major of Westminster and Recordor of London according to the Statute The Cognizor being within the age of one and twenty viz. 20 years and upwards And after his full age to the 23 d he brings his Audita Quaerela upon this matter and Judgment that he take nothing by the Writ because it could not then be tryed by inspection whether he were within age or not And the form of the Writ in the Registors is to alleadge that he still is within age Audita Quaerela lyes upon Nihil facias but not upon Scâ—re facias 21 E. 3. For vigilantibus et don dormientibus subvenient Leges per Hutton Mich. 11 Jacobi in C. B. The Executor of the Conusee releaseth to the Conusor in a Statute Merchant and afterwards dyes and one takes Administration of the Goods of the Conusee not Administred and hath Execution of the Statute and against him the Conusor brings an Audita Quaerela Trin. 28 Eliz. rotulo 2136 in C. B. Avowry vide Replevin AVowry for an Amerciament in a Court Baron quia presentatum fuit that he was Summoned and came not and alleadges in fact that he was resident c. as he must c. for when t is only presentatum c. and not alledged in fact 't is ill Mo. Pl. 221. In Avowry it was set forth that a Dean and Chapter were seised in Jure Ecclesie and not said seized in Fee and held ill for they might be seized per auter vie and their Title ought to be certainly set forth and this is but that they made a Lease for 99 years per dodrige if it had been that they made a Lease for 200 years it had implyed a Feoffment in Fee Pop. 163. Latch 121. Avowry Avowry for damage feasant and shews a Lease from I. S. seized in Fee the Plaintiff says I. S. was seized in Tayl and conceives the Estate to himself as Heir the Avowal seizes the Land rendring Rent and that he had accepted it Qu. If it be not a departure 1 Jnst 304. It seems a fortifying of the Avowry and so not Sti. 41. Taylors Case Yelv. 134. Wood versus Haukshind i. Cro. 156. 2 Cro. 121. 3 Cro. 404 Dy. 956. 1 Jnst 304 Hob. 271 Dy. 103. 253 b. Yelv. 96 Leon. 32. 156. Avowry on a New Grant of a new Rent-Charge in Fee the Plaintiff pleads that nothing passes by the Deed 't is an ill Plea he should have said that he did not grant by the Deed for a thing not in Esse could not pass though it was raised by the Deed Stewards Case 2 Leond. 13. Avowry by an Executor for Rent reserved by her and her Husband upon a Lease for years derived out of a Lease Exception taken because not shewed when the Husband dyed so it appeared not due in his time but because all belongs to her one way or other Wellwood in Newman Latch 121 Pop. 163. Costs to the Avowant upon 7 H. 8. c. 4 vide Common et Commoners Sect 4. Costs given to the Avowant for Damage-Fesant by 21 H. 8. c. 19. Cro. 1. James vers Tutneg 532. Replevin against 3 the one Avowes and the other 2 makes Conusance and Judgment against the Plaintiff but reversed because that those two did not make Conusance as Bailiffs to another Yelv. Owen vers Williams 108. The Lord hath still his choice to avow as at the Common-Law but if he will take the Benefit of the Statute then the Privity on both sides is removed and the Tenant shall Plead any discharge though he be a meer Stranger for the Charge of the Land is only in question though in that Statute 21 H. 8. there be no literal Provision so to be Hob. Brown vers Goldsmith 108. Avowry for 5 l. and 80 l. nomine poenae no demand of the Rent was alledged which made it unsufficient for the penalty but Retorne adjudged to him for they appeared to the Court to be several Hob. 133 Howel vers Samback If the Donee Alien the Donor cannot Avow upon the Alienee Keilway 130. b. Prescription that if one be chosen Constable at the Leet he must serve himself or find a sufficient man to do it and the Avowant saies that the Plaintiff was chosen and did not find a sufficient man to serve upon which it was demurred and Adjudged That the Avowry was ill Escot vers Stokes 14 Car 2. in B. One who is a Stranger to the Avowry shall not Plead any Plea but hors de son Fee or some other which is Tantamount As Lord and Tenant the Tenant makes a Lease the Termor shall plead no Plea but hors de son Fee because that he is a Stranger to the Avowry and he cannot have a Writ of Mesne because it is a Maxime Where a man cannot be helped by way of Action he shall be aided by way of Reversion He that is a Stranger to the Avowry cannot disclaim for a man cannot disclaim in auter droit An Abbot cannot disclaim nor Tenant in Tail Mich. 9 E. 4. fo 34. Hill 8 H. 5. Disclaimer 11. 26. If a man hath common by Especialty as in Land held of me the Rent is not arrear if I take the Beasts of the Commoner I do him wrong and he shall recover damages for he may Plead rien arrere although that he be a Stranger to the Avowry If the Tenant be in arrearages with his Lord and the Tenant makes a Feoffment in Fee which was notice to the Lord in this case the Lord may choose whether he will take him for his Tenant or not if he will not tender him his arrearages and the reason is if he will accept him for his Tenant generally he shall never be received to avow for the arrearages afterwards But if the Tenant dye so that the Tenancy discends to his Son or that the Tenancy is recover'd or that the Tenant hath forjudg'd the Mesne so that he is become Tenant to the Lord Paramount in all these Cases he shall accept them for his Tenants and make Avowry upon them for all the arrearages and the reason is because they are become Tenants to him against his Will As to Avowries 5 things are to be known 1. AVowry upon my very Tenant where the Lord hath the Rent in Fee simple and the
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
made of two Acres the one for Life the other in Fee without determining in certain in which he shall have Fee this incertain Feoffment may be reduced to certainty as if the Feoffee loose both the Acres by default he may have a quod ei deforceat for the one and a Writ of Right for the other Acre and thereby the certainty of the gift shall be determined and known Lit. Fo. 13. a. And so if one Grant a Rent-charge to one now the Grantee may avow or have a writ of Annuity and which of them he will use shall be maintainable and yet at the Commencement it was incertain and yet notwithstanding this incertainty the Grant was good Lit. Tit. Rents Fo. 13. a. In like manner if a man Grant to one 20s or a Robe yearly the Grantee there cannot know the certainty of the Grant for peradventure he shall have alwayes the 20s or perhaps alwayes the Robe and yet the Grant there shall be held good because that it is reducible to a certainty by the Will of the Grantor 9 E. 4. 37 en Dett per Lit. Fo. 13. a. And so a Lease for so many years as I. S. shall name is good and yet it is incertain but if I. S. name a certain number then it is good ab initio Lit. ib. So If I haue two Horses in my Stable a black and a white and I give to I. S. one of these Horses now this gift is good notwithstanding the incertainty because that by the circumstances Viz. by his Election the certainty may be known Lit. ib. Also if a man Let all the Acres of Land which he hath in Dale to I. S. for years rendring for every acre 12d although that the number of the Acres were not known by the Lessor nor by the Lessee and because the Rent is at the commencement incertain yet upon mensuration or other Triall had the Rent reserv'd may be known certainly and then the Lessor may have a writ of Debt for the Rent and so by this possibility of Tryall the reservation is made good which at the commencement was void for the incertainty So if a man Lett Black-Acre and White-Acre for Life the remainder of one of the two Acres in Fee now it is incertain which of the two Acres he in the remainder shall have but if he License the Lessee to cut down Trees in White-Acre then he sâ—all be adjudged to have had the remainder of that Acre ab initio and so thereby that which at the commencement was incertain is afterwards made certain And so was Wheelers case sc one Grants his Term to another upon condition that 〈◊〉 the Grantee shall obtain the Favour of the Lessor and also pay so much as I. S. shall award this was taken for a good Grant after the condition was performed 14 H. 8. 17. 6. b. In Trespass the case was That the Defendant and the Plaintiff had bargained together that the Defendant should go to a place where certain Wheat grew and to see the Wheat and if he lik'd it upon the view that then he should take it from thence paying 40d for every Acre this there was held a good contract notwithstanding the incertainty of the quantity of the Wheat and of the gross Sum which should be paid for it because that upon the circumstance the certainty may appear for although it was a conditional agreement between the parties yet it is held a good Justification if he presently paid for it at the time of his carrying it away P. 17 E 4. Fo. 1. Fo 6 b. Able and Disable SFe the diversity 17 H. 7. where Reg. 1. one sc the Obligee was able at the time of the making of the Obligation and afterwards he is disabled by his own Act and where he was not able at the time of the making of the Obligation For in the first case the Defendant shall be discharged and if a man be bound to another by Obligation upon Condition that if he pay to the Obligee an Annuity of 10 l. at the Feast c. Til he promotes him to a convenable Benefice and afterwards the Obligee takes a Wife or enters into Religion the Obligor shall be discharged of the Annuity because he hath disabled himself from receiving a Benefice But if he be disabled at first when the Obligation is made it is otherwise Acceptance A Man is bound to make a Feoffment of a Mannor to the Value of 20 l. per annum the Obligee accepts a Mannor to the Value of 10 l. he shall have advantage notwithstanding the Acceptance 32 H. 7 Action WHere the principal thing is devested Reg. 1. yet the Plaintiff shall have an Action which is acrued to him by reason thereof If I disseise one and a stranger does Trespass to me the disseisee reenters I shall have an Action of Trespass for the Trespass before And so if a Lord does Trespass and afterwards recovers by Cessavit WHere the Husband shall have Reg. 2. an Action without naming his Wife and where not IF a man be disseised of Lands in right of his Wife he shall have an Assise in his own name Also he shall have a writ of Droit de gard in his own name without his Wife Trin. 8 E. 3. The same Law upon an Obligation to Husband and Wife the Husband shall have the Action without the Wife Trin. 12 R. 2. And in 3 H. 6. adjudged that he might name his Wife if he would The same Law if the Cattle of the woman be taken in the name of distress and I Marry her I shall have Replevin in my own name Mich. 32 E. 2. Also of the disturbance of Advowson which a man hath in the right of his Wife he shall have a Quare impedit in his own name Pasch 7 E. 4. If a man be bound to a woman and afterwards she takes Husband both shall have Action 11 H. 6. The same Law if a man be Receiver to a Feme sole and afterwards she takes Husband both shall have an Action of Account Trin. 9 R. 2. Where the Husband and Wife recover seisin of the Land and damages for the damages they shall join in the Action The same Law if a Feme sole makes a Lease reserving Rent and afterwards takes Husband they shall joyn in an Action for the recovery of the Rent 7 E. 4. A writ of Droit de gard as of the right of the Wife ought to be brought in both their names because it concerns the right and not the possession by Choke Anno predicto If the Beasts of a Feme sole be distrained and she takes Husband the Husband Sues a Replevin in his own name it seems the Action does not lye for in every case where the cause of Action is given to a Feme sole and not to the Husband the Husband ought to joyn his Wife with him as if a contract be made with a Feme sole and she takes Husband c.
So it is of a Lease for years made by a Feme sole reserving Rent and She takes Husband So of an Obligation made to a Feme sole and she takes Husband for otherwise the words of the writ are false But if a Feme sole make a Bailiff of her Mannor of Dale and takes Husband of all the Rent received by the Bailiff after Coverture the Husband shall have an Action of Account in his own name for there the words of the writ are true And when an Action personal is given to the Husband and also to his Wife during the Coverture it is at the Liberty of the Husband to bring the Action in both their names or in his own name if it be so that the Wife may have advantage of it When a thing is given to Husband and Wife by matter of Record then he ought to joyn with her But there is a Diversity when it is of the part of the Plaintiff and when it is on the Defendants part as a Feme sole disseiseth me and takes Husband the Assise lyes against both supposing that they both disseised me So it is of Trespass Note It is at the Election of the Plaintiff to bring his Action of Debt against the Heir or against the Executors A Man marrieth a Wife That hath a Rent Charge out of the Lands of another Rent is arrear before and after marriage The Plaintiff shall recover by Action of Debt against the Grantor or his Heirs Action of Covenant shall not go to the Heir but to the Executors As Action of Debt upon a Bond or a Lease for years the Term goes to the Executors and not the Heir or any thing where damages shall be only recovered for that every Heir may not have Chattels descend and so not this Action A man seized of a House and Goods makes a Lease thereof and after enters and enfeoffs I. S. the Lessee reenters Rent is in arrear I. S. brings his Action of Debt and hath Judgment because the Rent issues out of the House and not out of the goods A man was bound in a Bill Me teneri firmiter obligari in viginti libris solvendum in watches It was questioned whether the Action should be brought for the Watches or the Money But Resolved for the Money Otherwise if the number of Watches had been in the Bill For then it had been for so many Watches to the Value of 20 l. If a man had been indebted to me in a single contract and dyed I could have had no remedy at the Common-Law against his Executors For he might have waged his Law in his Life-time but his Executors could not But now I may have an Action upon the Case against his Executors Assault and Battery and Ejectment will lye both in one Declaration Where two Men are beaten together yet they ought to have several Actions because the Trespass is personal but otherwise it is in real trespasses If you bring your Action for live Cattle it must be Cepit abduxit But if it be dead Goods or Chattels then you must say cepit et asportavit so likewise you say for live Cattle pretii for dead things ad valentiam Divers persons may have an Action of Trespass joyntly for Goods taken or the like But of Battery or such personal Trespass the Action ought to be single unless it be a man and wife And if the man and wife bring an Action of Battery or for Goods taken The writ shall say the Goods of the Husband only For the Wife cannot have property in the Goods during the Coverture An Action lyes against an Executor upon a promise of the Testators upon consideration of forbearing to prosecute but altered since by the late Act to prevent Frauds and Perjuries If there be Three Executors named in the Testament and Two of them refuse the Third may prove the Will alone And yet the other Two may meddle with the Goods when they will and either of them when they will And if an Action be brought it ought to be in all their names notwithstanding such refusal Executors of Executors shall not have an Action of Debt or other Action for any thing due to the first Testator For that they are not Executors to the first Testator or privies to his Will but were Strangers by the Course of the Common-Law But by the Statute of 25 E. 3. Cap. 5. they may Sue and be Sued and shall answer for whatsoever comes to their hands of the first Testator Sr. O. C. seized of an House in Fee and possessed of an other House as Administrator for years Le ts them both for 10 years to the Lady S. who Covenants to keep them in Repair and so Leave them at the end of the Term. Afterwards Sr. O. grants the Reversion of both Houses by several Indentures to I. P. The Lease made to the Lady S. expires and the Houses are left Ruinous Whereupon I. P. brings his Action Nicholls for the Defendant said that the Plaintiff ought to have brought two Writs of Covenant for that the Houses are several and if the Case had been that the Lessor had Covenanted to repair them and had dyed yet the Lessee should have had one Writ against the Heir aad an other Writ against the Executor and when an Action is once severed it can never be joyned again and when Sr. O. hath granted the House of which he was seised in Fee by Deed to P. now the Action is severed and Sr. O. shall have an Action of Covenant for one House and P. for the other And for these Reasons he held the Action not to be well brought Doderidge è contra And first he agreed with the other that two Actions upon this Covenant are maintainable and that if Sr. O. had lett his House the Lessee shall have one Action upon this Covenant and the Lessor another But yet he said this Action will well lye for the Law is excellent in this Point for when the Ground upon which the Action is founded in one notwithstanding the things are several yet all shall be comprised in one Action for frustra fiunt per plura quae fieri possunt per pauciora and with this agrees 14 E. 3. If a man grant a Rent out of his Land to one and sells the same Land and afterwards the vendee grants another Rent-charge out of the same Land to the same person and he is disseised He shall have one Assise for both the Rents So if one distreyn for two Rents and the Tenant rescuos them He shall have but one Writ of Rescous 3 H. 6. 17. 13 H. 7. 12. b. There exception was taken because it supposed a Chasing in two Parks the which ought to have several Punishments Viz. for either Park Imprisonment for 3 years as it is given by the Statute W. 1. and because he joyns the chasing in two Parks together it is not good For a man cannot have a Writ of Ravishment de
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
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
pleaded it at first Also if the Plaintiff plead a Feoffment upon Condition to J. S. and that the Condition is broken and that thereupon he entred the Defendant may say that he released to J. S. after the Condition broken and then he enfeoffed him A Man pleads a Feoffment in Barr in Assize of the Plaintiff and the Plaintiff saith that he Let to him for Life and afterwards he made a Feoffment by which he entered the Tenant may well say that after the Lease and before the Feoffment the Plaintiff releas'd to him This is no Departure because that it is pursuant and yet it might have been said at first 1 E. 4. Quare Impedit against a Bishop he pleads that he claims nothing but as Ordinary and demands Judgment c. The Plaintiff replies that such a day he presented to him such a person whom he refused to which the Bishop rejoyns that the Church was void and shews how and that thereupon he collated by Laps Judgment c. This is no Departure 35 H. 6. In Assize the Defendant pleads a Lease of the Plaintiff for Years which is yet in being the Plaintiff shews the Alienation of the Tenant the Tenant saith that the Plaintiff released to him after the Lease This is a Departure by Marten 3 H. 6. Precipe quod reddat the Tenant pleads that J. S. was seized of the same Lands and that they were devised to him in Fee by Force whereof he entred and gives Colour c. The Plaintiff saith that J. S. was seized and that he died seized and that the Lands descended to him as Son and Heir and that he entred cum hoc that he will averr that the said J. S. was within the Age of 21 Years at the time of the Devise The Tenant rejoyns that the Custom is that every Infant of the Age of 15 Years may Devise and that he was of the Age of 15 Years at the time of the Devise The Court was of Opinion that it was a Departure 37 H. 6. In Assize the Tenant pleaded the Dying seized by Protestation of his Father The Plaintiff said that J. S. was seized and enfeoffed him and so seized c. To which the Tenant replied that his Father by Protestation died seized and that J. S. did abate and enfeoff the Plaintiff and that the Tenant as Heir to his Father entered and was seized by Fortescue This is no Departure because the Tenant hath maintained his Barr and hath only added new Matter to maintain it 37 H. 6. If a Man plead a Gift in Tayl in Barr and the Demandant reply ne dona pas if he shew a Recovery in Value it is no Departure In Assise the Tenant pleaded hors de son Fee the Plaintiff shewed that the Tenant held of him issint de son fee and the Defendant shewed a Release of all Right This is a Departure because this plea was a Barr 5 H. 7. In Formedon the Tenant pleaded ne dona pas the Demandant shewed a Recovery in Value issint dona The Tenant shall not plead a new Barr because that that would be a Departure quod nota 21 H. 6. Reg. 12. In all Pleadings where you claim as Legatee you must surmise the Consent of the Executor as cui quidem dimissioni idem J. S. consentivit After Verdict the Plaintiff dies viz. before the day in Bank in Error brought this is assigned for Error and the Plaintiff per Attornatum suum pleads that he was alive 't was tried and found that he was dead Argued by Mr. Allen That there was no Tryal proper for the Cause for that the Issue was joyned by a Stranger and that there ought to be a Scire Facias against the Executors or Administrators of the Plaintiff and that the Writ of Error is discontinued But per totam Curiam the Tryal is good and the Judgment revers'd for that Error in fait Mich 14 Car. 2. in B. R. Dove vers ' Dinkey Quare Impedit IN Quare Impedit to present by Turns to an Advowson in Gross Three Judges were of Opinion that the Commencement how it came presentable by turns must be shewed But two Judges were of a contrary Opinion Leek against Coventry 3 Cro. 111. A Viccarage and none presented to it for one hundred and sixty Years Resolved that all Viccarages are taken out of the Parsonage and are not remitted to them by Non-usage without some Act. Robinson against Beadle 3 Cro. 873. Quare Impedit by the King against A. he pleads that the King made a Lease for Years to J. S. and during the Term J. S. presented him c. And it was moved that he being Incumbent could not traverse the King's Title without making one for himself but shew that he came in by Usurpation during the Lease but in the Writ it was excepted that the Patron and Ordinary are not named but only the Incumbent which they ought to be in all Cases but that of Collation but because the Defendant shews that he came in during the Term in which Term the King could have no Right it was adjudged for the Defendant Regina versus Middleton vide Co. 7. rep 26 27. 25 H. 6. 62. a. 3 H. 4. 2 3 11. Writ against the Incumbent only adjudged ill and abated by 46 E. 3. vide 7 E. 3 11. 7 H. 4 26. Writ against the Incumbent only good 1 Leon. 44 45 46. vide 47. E. 3. 10 11. Quare Impedtt and Counts of an Advowson appendant that 't is become void and he presented J. S. The Defendant pleads that 't is in Gross and Let to him and that he presented J. S. absque hoc that 't is appendant the Traverse is good but where the Count is of an Advowson in gross c. and the Defendant pleads that 't is appendant there the Presentment is traversable not that it appendant For the Presentment makes it in gross Seignior Buckhurst against Epm. Winton 1 Leon. 154. In a Quare Impedit by Tenant for Life Exception was taken because he counted of a Presentment only in himself and laid not any in his Lessor but adjudged good For the Lessor may lay a Presentment on his Lessee therefore 't is good for the Lessee Palmes versus Epm. Peterborough 1 Leon. 230. Co. 5. rep 57. b. 3 Cro. 518. vid. M. 7 E. 4. pl. 22. con 8 H. 5. 4 Accord Quare Impedit against the Bishop and J. S. and Judgment they joyn in a Writ of Deceit and avoid the Judgment for Non Summons and of that a Writ of Error brought and assigned that they could not joyn and Adjourned Guilliams against Blower sed vide 3 Cro. 65. They joyn in a Writ of Error on a Judgment in a Quare Impedit 1 Leon. 293. One that had a Benefice was presented to another and then purchased a Dispensation it came too late and so the first was void and if that be such as that it avoids the last quaere Vnderhill against Savage 1
because he cannot have the next Avoidance and so is the second part of Croke 691. Shelley's Case and that if one grants a third Avoidance and the Woman recovers that in Dower the Grantee shall have the fourth Co. 1. Inst agrees with three Cro. grantee of proximam Advocationem cannot have the second where one is granted before Dy. 35. a. b. 1 Inst 378. b. 379. a. 3. Cro. 790. 791. One had the Nomination of a Church to an Abbot and the Abbot to present the Church being in the King's hands he presented without nominating the Party may have a Quare Impedit against the Incumbent without naming the King for it lies not against the King and he that had the Nomination had the Patronage Vide Mo. pl. 147. Vide 14. H. 4. 11. He that has the Nomination brings the Writ Quod permittat nominari the Writ abated for it should have been nominare 1 H. 5. 1. b. Dy. 48. a. 1 Cro. Daviston against Yates F. N. B. 33. b. 14 H. 4. 11. Two Parceners the younger in Ward the Guardian marries the eldest and presents in both their Names the Church voids again and whether the elder Sister shall present as in her Turn for the younger quaere Dy. 55. a. The Jury finds the Church full of a Stranger presented by one not party to the Writ and that ex officio yet good Dy. 77. a. Co. 6. rep 52. a. In Quare Impedit one made Title to a fourth part of the Church in Grosle and that he presented and shewed that others were seised of the other three parts as appendant to certain Mannors and they presented and their Clerk dyed and so it belongs to him to present Dy. 78. b. Quare Impedit by the King the Bishop makes Title to a Stranger and he permitted a Lapse then the ordinary presented the Clerk pleads that he is Parson Imparsonee of the Presentment in causa forma preallegata It seems that the Plea by the Bishop that he presented c. is good enough though indeed he collated but the Clerk's Plea is per totam Curiam uncertain and void for in causa preallegata cannot refer to any thing in his own Plea because nothing alledged and to the Ordinary in cannot because to the Ordinary he is a Stranger not a Servant p. 14. H. 7. Pl. 4. Tr. 15. H. 7. Pl. 12. Quare Impedit by a Corporation the Defendant pleads that they are incorporated by another name and demands Judgment so where the Plaintiff goes but to the Right by Fitzherbert 't is ill sans doubt p. 26. H. 8. Pl. 3. a. In Quare Impedit he counts of an Avoidance by Deprivation and shews not how it became void or for what cause and that assigned for Error for it might be for Simmony or some such Cause that gives a Title to the King sed non alloc ' and Judgment was affirmed Episcopus Glouc ' against Veake 3 Cro. 678. Quare Impedit the Bishop claims nothing but as Ordinary the Writ good if a Writ against him immediate quaere the Plaintiff says he presented A. whom he refused he says he presented to the Church because litig ' if a Departure semble 't is for he intended to have pleaded it at first Tr. 5. H. 7. Pl. 3. In a Quare Impedit the Plaintiff claims by a grant of a next Avoidance by A. the Defendant says that A. was Tenant in Tail held of D. by Knights Service and describes the manner whereto c. and then usurped upon the Description and dyed his Heir within Age and the Lord granted the Ward to him adjudged the Plea not double tho the Usurper had Writ Remitter which was one thing and though the Grantee of the Ward should have the first present against the Grantor of the next Avoidance which is no more than a Lease for years which the Guardian shall avoid for his time and he have it after the Ward comes of Age for with pleading both he could not shew his Title Tr. 5. H. 7. pl. 3. Quare impedit and makes Title as appendant and that A. as Ancestor presents B. c. the Defendant protests 't is not appendant says that he presented D. c. The Plaintiff says that at the time he presented D. it was in Lease to E. the Defendant rejoyns that before the Lease his Ancestor presented I. 't is a Departure for he might at first have laid the Presentment in I. p. 10. H. 7. pl. 6. Tr. 11. H. 7. pl. 15. p. 27. H. 8. pl. 11. Quare Impedit for the King the Defendant pleads the Statute 25 E. 3. 1. That the King shall not present to any living in Auter droit but such as fall in his own time and if he do the Court is not to hold plea Judgment Si Curia cognoscere vult per Thurning This is a plea to the Action not merely to the Jurisdiction For pleas for the Jurisdiction of one Court give Jurisdiction to another which this does not 11 H. 4. 8. a. Quare Impedit and Counts of an Advowson appendant and makes Title to a Gift in Tayl the Defendant pleads the Donee in Tayl was seized of it in Gross and granted per Curiam illam admit it once Appendant and not shew how it after came to be in Gross 44 E. 3. 15. b. Quare Impedit to present to a Church in Somersetshire the Defendant pleads that the Land whereto the Plaintiff supposed it to be reputed parcel of the Mannor of S. in Devonshire Issue of both Counties tryed it Bend ' 26. Release IF Money be due upon Recognizance and the Counsor pay part and the Counsee give him a Release if the Release mentions not the Recognizance it shall release so much as paid only For the Recognizance is entire and being destroyed in part is destroyed in the whole If a man be bound to pay an 100 l. to another on such a day and he tender the same at the day he is not bound to pay the same on any other day unless the Obligee will give him an Acquittance or Release Replevin IN a Replevin the Defendant avoyed to distrein for Rent Charge granted in Tayl the Plaintiff says that an Ancestor of the Defendant whose Heir he is was seized of the Lands discharged of the Rent and gave to him with Warranty No Assetts descended adjudged an illlegal plea First because he pleads Warranty from an Ancestor and shewed not what whether lineal or collateral Nor Secondly because he pleads that he was seized of the Lands discharged of c. and shewed not how viz. by Union or otherwise H. 21 H. 7. pl. 11. Replevin avows Damage feasant barr that the place where his Acre called A. whereof he is seized of 100 l. and has Common in the Residue after Verdict moved the Blank in the Declaration makes all uncertain quid resid ' est sed non alloc ' 't is found there is a Residue and be it what it will he
Father entred as in his Reversion and it descended to him and objected his plea double on the entry of the Father the dying seized and descent by Billing and Needham but Littleton and Cook contra M. 2. E. 4. pl. 15 Trespass by A. and B. for breaking their Close the Defendant to A. pleads a Title in Barr and to B. not guilty by Danby Mayle Cheke the plea ill for the Barr goes to all and the other makes it double Needham and Ashton contra each Plaintiff ought to have his Answer M. 2. E. 4. pl. 20. Trespass for cutting Subbosc ' and carrying away two Loads of Barley quoad the Barley the Defendant pleads a Lease at Will by one Tenant as Tenant in Common and quoad the Wood a License by him and the Plea not double for a Tenant at Will cannot cut c. without License M. 2. E. 4. pl. 25. In a Precipe the Tenant pleads a Release in Barr and it was in Barr of all the Lands in S. that he bought of J. S. ill not avering that he bought the Lands of J. S. the words being general viz. All the Lands c. not particular of bl Acre c. which will be otherwise M. 2. E. 4. pl. 26 Trespass on the Stat. R. 2. the Defendant pleads a Guift of the Land by Act of Parliament whereby he was seized temps ' H. 6. and the Plaintiff entred upon him temps E. 4. and he entred Choke Justice and Littleton held it double for the Gift and Seizin is one barr and the Entry of the Plaintiff and the Re-entry of the Defendant is another but Ardern Justice and Lason contra for 't is all pursuant Et ibidem by Choke and Needham Justice when the Defendant pleads that the Plaintiff entred so long after the Statute and says not by what Colour it shall be intended more strongly against himself and intended by Title Ardern Justic ' cont ' no Title shall be intended till the Plaintiff shews it Trin. 3. E. 4. pl. 1. Trespass for taking a bag of Money the Defendant pleads that the Plaintiff was indebted to him and says not how and delivered it him in payment the Plaintiff replies De injuria c. And per Littleton no Plea where the Defendant justifies by an Act of the Plaintiff himself Vide Trin. 20. E. 4. pl. 1. m. 9. E. 4. pl. 25. 12 E. 4. 10. 6 H. 19. E. 4. pl. 15. Trespass against the Lord vi armis he admits it and pleads a Distr ' for Services and the Issue of Views Arrear found for the Defendant yet no Judgment for the Court is not to admit him to recover against a Negative Statute other if it were affirmative and Election to proceed either way p. 10. E. 4. pl. 10. Trespass by J. S. for taking an Horse the Defendant pleads that J. S. de D. was possessed and gave him the Horse c. the Plaintiff replies that he is not the same person in the Barr and Dem ' and tho objected this ill in matter of Fact and Dem ' for matter in Law and it cannot be tryed by Court and Jury the Plea ruled good for by joyning in Dem ' 'tis confess'd he is the same Person and he might have taken Issue of it H. 13. E. 4. pl. 4. Trespass against three they all plead Not Guilty as to part and quoad resid plead a guift of the Goods and Issue and at Ni. pr. 2. make default the third pleads a Concord Prius Darr ' contin ' prayed to try the Issue against the two by Default because no contin ' can be made of it because they absent and if not tryed now 't will be discontinued Objected that goes but to part and there is now a Plea that goes to all which is to be tryed first for if that be against the Plaintiff though he should have Verdict on the other he can have no Judgment but for the Inconvemency and for that this Plea to the whole comes after the ven ' fa ' and the other was before therefore 't was tryed but if both had been before the ven ' fa ' it could not have been and they found for the Plaintiff and they had Judgment with a Cessat Executio till the other tried for the Concord was laid in another County so the Plaintiff released to him and took Execution tho' the Judgment on the First Plea Tr. 15 E. 4. pl. 11 3. vide 4 E. 3. 42. Trespass the Defendant justified for Tithes severed the Plaintiff replies de son tort objected no plea no more than when in Trespass the Defendant makes Title and pleads son Franktenement or a Lease for years by Bryan and so it seems tho' Piggot says there he claims there the Occupation of the Land not so here P. 16 E. 4. pl. 9. 2 Cro. 224 225. Trespass Not Guilty and Issue the Defendant puis darr ' contin ' pleads a Release dated before the last Contin ' but delivered after the Plaintiff replies that was delivered the same day 't was dated Judgment against him for he did confess he did release so satisfied and no matter when but he might have pleaded that he did not deliver it puis darr ' Contin ' or that it was not his Deed puis ' darr ' contin by 78 H. 6. and 39. H. 6. 8 9. Tr. 16 E. 4. pl. 2. Trespass the Defendant pleads that the Plaintiff let to him for Years per Cur ' he must shew what Estate he had as that he was seized in Fee c. and let but by Kidwelly when one pleads a Lease from a Stranger 't is necessary to plead it so not when he pleads the Lease to the Lessor himself M. 22 E. 4. pl. 217. Trespass for Assault and Battery and Threatning c. de son Assault demesn Obj. in Error the plea ill not answering the minas but resolved well enough for the minas laid but in aggravation of damages Penruddock against Errington sed vide Hill 16 E. 4. pl. 8. contra M. pl. 983. In Battery the Defendant justifies by Warrant out of a Leet and though they plead not the day of the Leet nor that the House was within the Jurisdiction nor the Warrant yet all these being but Indictments adjudged good Curey's Case M. pl. 11. 47. Trespass for entring the Close and cutting so many Trees quoad all but cutting the Trees and entring the Close pleads Not Guilty et quoad fract ' Claus ' pleads matter in Law and justifies the cutting the Trees but because in the quoad c. nothing was said of the Trees the plea is ill and was amended and made et quoad fract ' claus ' Cutting c. Co. 4. rep 62. a. Trespass and Battery the Defendant pleads that he had a Lease for Years of an House and the Defendant would have put him out c. good without shewing by what Title his Lease or Commencement c. of it because said but as Inducement For whatever Title
Bustard against Collyer 3 Cro. 899. Trespass the Defendant prescribes for Estovers at all times except fawning times the Plaintiff made an ill Replication the Defendant demurrs though the Bar was ill the Defendant not shewing that at the time that he cut c. was not fawning time yet he having demurred on the Plaintiff's Replication the Court would not to the Bar but no Judgment of the Plaintiff's ill Replication Russel against Booker 2 Leon. 209. 210. Trespass for Battery the Defendant justifies Molliter manus imponendo in defence of the Possession of his House the Plaintiff replyes de Injuria sua absque c. Verdict for the Plaintiff and Judgment Replication good for the principal is the Battery Hall against Gerrard Latch 128. 3 Cr. 225. Laâ—ch 221. 273. Trespass the Defendant pleads the Plaintiff is a Recusant convict whom the Statute 3 Jac. 5. makes excom ' Judgment de billa because it wants Et hoc paratus c. per Recordum also the Conclusion is unapt for the Plea for the Plea is in Disability the Conclusion is barr but it seems the Conclusion is but form and used by general Demurrer And vide the form of several Conclusions Inde si Cur ' vult cognoscere 2. Al' person ' sit serra respond ' 3. Al' briefe Judgment ate ' Br. 4. Al' accon ' del briefe 5. In barr ' Com' apprest Bracton de excepc ' and differ Quando le ple al' br ' of perempt ' quando neme If the pleading to the Writ be tryable and tryed per pais is peremptory to the Defendant other if Demurrer upon respond ' but if the Plea be tryable by Certificate of the Ordinary 't is never peremptory and if the Plea to the Writ be to the Action of the Writ it seems peremptory so Plea to the Action of the Writ and Conclusion to the Writ peremptory if demurred one pleaded to the Action of Avowry he shall not resort to plead in Abatement after Imparlance one pleads Outlawry in the Plaintiff allowed Dr. Cudman against Grendon Vide 40 E. 3. 9 pl. Abatement Avowry and Conclusion the barr Latch 177 178 179. Co. 11. rep 52 a. and 1 Cro. 117. Trespass the Defendant justifies as Executor the Plaintiff says that the Defendant was annulled upon Appeal to the Court of Rome and so not Executor if the Conclusion good diverse of opinion semble as well as where one pleads a Divorse in the Spiritual Court and so not his Wife M. 2. R. 3. fo 22. pl. 51. In Trespass for Misprision the Defendant pleads that Robery had been done and that he being a Watch-man and the Plaintiff coming through the Town in the Night he stopped him to see what he was doubted if not double for he might stop him generally either under Suspition or particularly as a Night-Walker being a Watchman H. 4. H. 7. pl. 2. Trespass against two Defendants they Justifie Et hoc paratus ut Justific ' exceptionis taken because it should have been Et hoc parat ' sunt 1 Cro. 413. 414. Trespass for taking his Apprentice Plea that the Plaintiff discharged him not good for he cannot be Apprentice but by Indenture and then he cannot be discharged but by Deed no more than one Covenant to build me an House in Covenant to plead a Discharge of the Building unless he plead it by Deed 21 H. 6. 31 32. Trespass Defendant pleads a Lease at Will made to him by Vertue whereof he entred and was possessed and held good without shewing of what Estate he was possessed Idem in pleading a Feoffment c. For it may be doubtful in Law as if made by an Infant c. Therefore more safe to plead the Matter and to omit the Conclusion how he was seized and leave it to the Court 35 H. 6 63. b. Trespass the Defendant pleads that the Plaintiff had nothing but in Common with J. S. c. per Cur ' he ought to shew how Tenant in Common viz. the Feoffment c. if of a Joynt Tenancy personar c. but not after the Plaintiff stands not on it but says he was sole seized and some thinks the Law is he pleaded a Tenancy in Common of the adverse side but if he had pleaded on his own side then I agree I must shew how 3 H. 6 56. Trespass for Fishing in his several Fishings the Defendant pleads 't is not Freehold and by some the plea is good till the Plaintiff make a particular Title to the Fishing Idem in Case of Warren but per Yel and not denied but not so for Common because when one demands Common it must be intended in alieno solo But when one demands Fishing or Warren it may be intended in his own Soyl And so for the Defendant to plead un ' Fr ' Tent ' a good plea prima Facie till the other makes a Title but per Fortescue with a Traverse of Fishing c. 't is good else not no Resolution vide Title Forrest per tout And Title Fishing per tout plus de cest ' matter and vide 21 H. 6. 21 b. and the Plaintiff makes Title 18 H. 6. 29 30. Trespass Quare lib ' Warr ' fregit et Cuniculos cepit the Defendant pleads that the Plaintiff was seized and let to A. he by Command of A. took the Conyes Judgment le sans Title Mre ' and after waves that and pleads ut auter Judgment si Acco ' per Danby on plea because the Warren passed not by the Lease of the Land and one may have Warren in his own Freehold Note he may plead Title under the Plaintiff himself and Note the General Issue and Note after he pleads the Freehold in a Stranger who let ut supra and that he by Command of A. c. absque hoc pt ' the Plaintiff has any Warren there Jenny that is doubt the Freehold in a Stranger and traverse of the Warren and thereon he Demurrs L. 5 E. 4 54. Trespass for cutting Trees Defendant makes Title to the Lord in Right of his Ward and that he cut prout sibi bene licuit Danby Chief Justice and the Conclusion ill For it appears waste and unlawful Marle mal Opinion ut mihi videtur 't is Lawful quoad the Plaintiff and good For before the Statute of Waste Lessor or Ward had no Remedy against the Lessee or Guardian by Trespass and now 't is punishable only by Waste not in Trespass but it may be an Estoppel in Waste therefore better to plead he cut them for a Repair prout sibi bene licuit L. 5 E. 4 64 89. b. Trespass for taking beating and impounding his Cow Defendant quoad ven ' vi armis and pleads Not Guilty and quoad the taking and impounding justifies for a Distress ill not answering the Beating Copeley against Piercy Trin. 19 Car. 6. B. R. Trespass for taking Cattel Defendant justifies Plaintiff replies and avoided it hoc c. unde petit Judicium si
House c. he cannot but on a Lease of Goods or Chattels he may No Ley gager in Debt for dyet of a Pentioner P. 9. E. 4. Pl. 1. H. 15. E. 4. Pl. 2. Co. 9 R. 87. 6. 19 H. 6. 10. a. Debt on a Contract the Defendant pleads the Contract was made with him and Br. and abates the Writ yet in another Action he may wage Law though herein he confessed the Contract for he may have pleaded it after per Littleton and not denyed ibidem by him In Debt against Baron and Feme on a contract by the Feme dum sola both shall wage though he a Stranger to the Contract for by the Marriage he hath made himself lyable to it And to this last agrees M. 15. E. 4. Pl. 4 Sed vide 33 H. 6. 43. b. If she make default at the day 't is the Default of both and binds the Husband 9 E. 4. 2. 4. b. Debt and Counts of a Retainer to shape and make such Cloaths In this case the Defendant may wage his Law and in similiter not against a Labourer compel to wage by the Statute 1 H. 6. 23. b. Not wage in debt by a Servant for his Wages H. 16. E. 4. Pl. 3. Mo. Pl. 971. Co. 9. R. 88. a. b. Detinue of a chain of Gold of four ounces weight of the value of twenty pounds though the Defendant have and detain them yet if it be but two ounces weight he may wage Law as if it were a black Horse and the Suit for a white one but if the Count were of a thing certain in the quant or qual as six yards of cloath tho he mistake the Price as ten Shillings for eighteen Shillings yet the Defendant cannot safely wage law Count of a Contract for 500 l. It was for 500 l. to be paid in Jewels Defendant waged law 39 H. 6. 34 35. 3 H. 6. 49. b. Count of a Contract for 40. l. plead that it was for 20 l. and wage law for the rest P. 22. E. 4. Pl. 8. 9. Mo. Pl. 1. 48. Vide 39 H. 6. 34. 35. Debt by a Keeper of the Tower for Manger and Boyer for one committed there for Treason Defendant cannot wage law Et dict for debt by a Priest for his Salary Defendant may wage law 28 H. 6. 4. b. In Account of Receipt per auter maines no Wager lyes because the Receipt is the cause of the Action and that 's notorious al pais being per auter mains but in Detinue on a Delivery per auter mains Wager lyes because not the Livery but the Deteiner which is in a manner the cause of Action but in next Case 't is the Usage which makes the law of Wager therefore in debt it lyes in Trespass it lyes not 33 H. 6. 9. a. Debt on a Judgment in Court-Baron the Defendant pleads Nul tiel Judgment 't is no Record therefore tryable per Pais Defendant not wage Law 34 H. 6. 49. No Wager lyes in debt or Arrearages of Account before Auditors but that was not at the Common Law but is given by the Statute of Westminster 2 Ca. 11. But though the Statute gives it only in Case where the Lord sues for the Arrearages against the Receiver yet it seems by Needham and Prisot the Wager lyes not where the Bailiff or Receiver sues the Lord for Surplus on the Account 38 H. 6. 5. 6. Debt for Wages and on a Reteyner to serve in all Occupations the Master wages law because it may extend to other things besides Husbandry which the Reporter holds to be otherwise for the Service and Wages being entire and no Wager for part he thinks there should be none for the rest for Magis dignum trahit ad se minus 38 H. 6. 13. 14. Party wages Law and day given to make it either of the Parties at that day may be excused by Essoin but if either make default it is adjudged against him or if the Defendant do not bring twelve sufficient men 't is a default as if any of them prove Execution Attachment c. Et ibidem if in Replevin the Plaintiff say that the Defendant kept himself out of the way that he could not tender Amends and bring his Suit of it Defendant may wage law of it but if he bring no Suit he need not wage for against one single Voice he need not wage whereby since moy semble he means Proof and so Selden upon Fortescue expounds it vid. Brit. 60. a. Debt and Counts upon a Lease for three years of certain Sheep the Defendant wages law per Cur ' he may though not in a Lease of Land Vid. 9. E. 4. 1. b. 1. H. 6. 1. a. b. No Wager in Law lyes in debt by a Servant for his Wages sed quaere for that seems such a Servant only as is retained according to the Statute 3 H. 6. 33 B. 34. a. Debt and Counts of Reteyner to scald his Hogs and foul by the Year taking 100 s. The Defendant may wage his Law and so he may upon a Retainer to serve him at Plough a year and to find Ploughs c. for these not Reteyners according to the Statute and so of a Reteyner to be his Counsel for a year c. 3 H. 6. 42. One waged law and brought twelve with him one whereof was challenged for that he was under Age and he was tryed by Inspection of Court to be of full Age whereupon the Party made his Law and went quit 8 H. 6. 15. b. Debt of a Box of Writings and Charters and Counts of one Charter in Special To which the Defendant pleaded non detinet and to the rest wages Law bon for if one Count of a box of Charters and shew not in Special he may wage Law as to all for unless one Charter be certainly set out the Box and all counted Chattels Vid. 14. H. 6. 1. a. Detinue of Goods and Chattels defendant wages Law quoad the Goods and pleads to the Charters 44 or 4 E. 3. 41 b. and 19 H. 6. 9. b. Debt Defendant having answered in Court that he bought c. to the use of the King waged Law and was admitted for notwithstanding he acknowledged the debt it being a Contract and he might have paid or pleaded it in pais the Wager allowed simile 11 H. 4. 28 and 3 H. 4. 40. 7 H. 4. 7. a. Account by the Husband or an Abbot and counts of Receipt per manus de Son feme or de Son Comoine good and needs not count of a Receipt by his own hand yet 't is as a Receipt by his own hand and the Defendant may wage Law And so vice versa in Account against Baron or Abbot Count of Receipt per manus del Feme oâ— Cemoine le Defendant and so is 2 H. 5. 2. b. vid. 47 E. 3. 16. 13 E. 4. 8. a. Debt against two one makes default the other wages law and at the day makes it The whole Writ is
Town but he may inquire at any Town and there cannot be less than twelve of the Jury Co. 2. Inst 140. or 146. Articuli super Chartas gives an Action of Wast against the Escheator or Sub-Escheator if they do wast in any thing that comes into the King's hands with a Respondeat superior ' Co. 2. Inst 571. Wast may be in distruction of the Game of Deer or Pigeons though all be not destroyed so to stop the holes of Dove-houses to stop Coney burroughs but to dig Stones Marle or stub up old Thorns or plough a Hop-ground is not Ow. 36. 67. Co. 1. Inst 51. K. 2. Leon. 222. Adjudged That if Houses or Ground-sills be putrified for not scouring a Ditch Wast lyes In Domibus pro non escurando c. Ow. 43. To stub up Thorns is not wast unless growing in a hedge-row or on a Wood or old Thorns of fifty or sixty years growth Ow. 67. 1 Inst 53. One made a Feoffment to the use of himself for Life and to another in Fee and was punishable in Wast by him in Remainder therein tho in the Dr. and Stud. 't is said if Feoffment be to one for Life he is not punishable for Wast Ow. 91. 25 Eliz. Com. Banco Rot. 603. Rayer con ' Durat One entred into Bond not to commit Wast and the permitting a house ruinous at the time of the Lease to fall was a Forfeiture of the Obligation such Wast is not punishable if there be no Bond nor Covenant against it Owen 29 Eliz. Glover against Pike It seems that a Quod ei deforceat will lye upon a Recovery by default in a Writ of Wast against Tenant in Dower c. But because the default was after Appearance and so a Contempt it lay not in Elmer's Case not because Damage on the Prin ' or that Wast is a personal Action Vide 3 Cro 263. 2 Rolls 102. 2. 104. 4. Damage Owen 101. p. 33. El. Co. Baneo Rot. 1125. Elmer against Thatcher 1 Inst 355. 198. 2. r. 68. b. Lessee for years waves Possession and a Stranger commits Wast the Lessor shall have wast against Lessee and so if Lessee assigns and continue in Possession and does wast the wast shall be against him Ow. 141. When the Writ to enquire of wast is Awarded upon Nichil dicit there the Command in the Writ that the Sheriff go to the place wasted and enquire c. is but Surplus and the Sheriff needs not go thither but may enquire of it in any place in the County because the wast is confessed but if the Writ be to enquire at the Grand Distress upon Westm 2. 24. There such Command is necessary and the Sheriff must go to the place because that must better appear upon the view yet the Entry in both cases is Per visum Juratorum Pop. 24. Dy. 204. a. Hutt 44. 3 Cro. 18. 290. When the Interest of the Inheritance is in one person and the Lease for years in another though by several Demises part at one time part at another time yet one Action of Wast lyes and so if Lessor have but two third parts of the house in which the wast is done he shall assign wast to be done in the whole for it cannot be done in part but 't is to all and though not in all yet it goes to each part But 14 H. 8. where one lets several Leases of the same Lands to one person not one but several Actions Pop. 24. 25. 3 Cro. 290. 14 H. 8. 12. b. Lease for Life without Impeachment of Wast Lessee has an Interest in the Trees c. and may give them and shall have them whoever cuts them and shall have Trespass against a Stranger that cuts them contrary to Co. 4. 63. a. Dy. 184. a. Hob. 132. Pop. 195. Co. 11. 82. b. Dy. 47. b. Co. 1. Inst 224 a. 2 Cro. 216. When the Wast is confessed by Nil dicit the Writ to enquire is not to enquire of the Wast as it is when the Judgment is upon the Distress by the Statute but only of the Damage Hutt 44. Tippin against Rives Trenching a Meadow whereby it is meliorated is not wast but building a new house is because it puts the Lord to more charge and so is planting a Hop-ground because it alters the Lord's Inheritance Dyer 361. b. Hutton 19. 103. Hob. 234. 1 Inst 53. f. By Fitzh and Baldwin Ch. Inst One Joynt-tenant shall have Wast against his Companion by the Equity of the Statute cum duo vel tres c. but not Parceners because they were compellable to make Partition and not denyed p. 27. H. 8. Pl. 37. Wast Et inter alios Arbores white Thorns each valued at 6 s. 8 d. Defendant pleads that they were for Hedge-boot and House-boot Plaintiff says there were black Thorns enough besides and as to the Hedge-boot is taken that there were not enough besides and found there were as to the House-boot the Defendant demurs and the Plaintiff enters a Nolle prosequi on the Demurrer and Cur. advisare vult on the Verdict and no Judgment given Co. Entr. 708 709. Pl. 11. Wast and Issue of a Confirmation and in the Venire facias was omitted Et Interim Terram illam videant wherefore obj they cannot take the Inquest Responds they may the Issue here being for a collateral thing and the Estate not to be enquired of P. 7. E. 4. Pl. 2. Wast against Baron and Feme and she received in his default pleads an Assignment by them and till then no Wast And it seems she shall have the Plea though it appear she can lose nothing And for Damages she shall not be received Trin. 9. E. 4. 15. Vid. 22. E. 4. 35. a. 21. H. 6. 46. 4. or 40. 42. E. 3. 22. 6. Wast brought by two and one summoned and severed and the other recovers the moyety of the place wasted and the Moyety of the damages quoad the VVillows Assize for wast Cur ' advisari vult P. 12. E. 4. Pl. 1. If one does wast and repairs before Action brought he may plead it and excuse himself but if the Condition of a Bond be not to do wast and he does wast and re-edifies yet Debt lyes for the Bond was once and ever forfeited 20 E. 4. 18. b. Lessor sells Trees Vendee cuts them Lessee's Cattel eat the Germines no Wast for he not bound to fence them in against the Lessor's own tortious Act. Tr. Mo. 9. Lease for years Remainder for Life Tenant for years does wast Action of Wast lyes So if Lessor covenant that he will not sue Lessee for wast within two years yet after the two years he may sue him for wast done within them But if Tenant for Life be Remainder to Baron and Feme in special Tail Feme dyes without Issue wast lyes not otherwise if the Remainder in Fee were to the Baron because the Tenants in Tail after Possibility were merged by the Fee per Browne quod tamen
makes a Feoffment on Condition VVast is done and he enters for the Condition Lessor shall have wast fo if Lessee of a Bishop commits wast in time of Vacancy the Successor shall have the Action so if Tenant for Life be disseised and wast is done and the Tenant re-enters Lessor shall have wast yet he had no Reversion Note 't is no plea for Lessee in wast to say generally that Lessor had no Reversion c. but must shew how he lost it But in wast by Assignee of the Reversion such Plea general is good vid. 39 E. 3. 19. 20. Wast by Successor of a Bishop or wast done in the Predecessors time quaere sc bon for laid ad exheredationem Ecclesiae Co. 1. Inst 356. a. vid. 1. H. 4. 26. Opinion that Successor of an Abbot or Prior shall have wast for wast done in the Predecessors time or if a Bishop Parson c. that can make Executors Vid. 71 E. 3. 53. b. 43 E 3. 8. 49 E. 3. 26. Successor of an Abbot not chargable for wast of a Predecessor In wast if the Plaintiff's Reversion determine either before or pendant the Suit his Action is gone but if it be pendente the Suit it must be so specified Ewer against Moyle Yel 141. In Wast the Plaintiff declares Quod cùm seisitus fuit and let for years the Defendant had wasted and though not said of what Estate seised so it might be for Life yet being ad exheredationem and that alledging of Seizin but Surplus held by most good enough Sir Walter Astoâ— against Sweten hall 3 Cro. 47. Wast assigned in the house where it appears the Plaintiff has but two parts of the Reversion yet good he cannot assign it otherways Wast inquired of by the Sheriff where it was confessed by Nihil dicit yet no Error Warnford against Haydock 3 Cro. 290. Wast against a Husband Tenant for life in right of his Wife dead not being in the Tenet or Tenuit ill also the Writ is Quod fecit vastum and being in her right it should have been fecerunt vastum But by Co. 1. Inst this Wast is dispunishable by her death otherwise if it had been a term for years Co. 1. Inst 54. P. Note the Estate was made to the use of the Wife for Life yet Action lyes Sackervil against Bagnell Con. to Dr. and Student Co. 3. Cro. 356. 357. In wast the plaintiff prayed a writ of Etrepement against the Tenant and his Servants and at last a Warrant against both though doubted at first if it lye in this Action though it do in Writ of Entry c. Anderne against Anderne 3 Cro. 393. F. N. B. 61. In a Writ of Entry sur disseisin done to himself the plaintiff prayed a writ of Etrepement doubted if allowable because in that Action he is to recover Damages but because Non constat whether the Tenant be able to satisfie him if he pull down his Houses granted Wright against Pearcy 3 Cro. 484. 774. Tenant in cutting three hundred Oaks Defendant as to two hundred justifies that the House was ruinous and he cut and employed them in repairs and for the other hundred he cut them to have them ready to repair Tempore opportuno adjudged an ill Plea on Demurrer for so every Lessee might â—ut where there is no Necessity Grey against Stanfeild 3 Cro. 593. vid. 498. 499. Waâ—t the writ was general and that the woman held c. ex dimissione A. her former Husband and counted that A. enfeoffed B. to the intent a Rocovery be had against him to the use of A. for Life Remainder to the woman for Life which was done accordingly and for this Judgment against the Plaintiff for the writ ought to have been recited for the Husband could not let to the Wife but she is in by the Husband and so has the Estate from the Feoffee Green feild against Dennis 3 Cro. 722. A. le ts to B. B. assigns to C. and D. D. assigns to E. except the Trees then 't is enacted by Parliament that the Heir of the Body of A. shall have the Land A. being dead leaving three Daughters who took Husbands one of them dyes the other two and their Husbands quitt the Tenant by the Curtesie brings wast against C. and E. in the Term the Term being ended adjudged first the Writ good notwithstanding the setling the Estate by the Statute without shewing the special Title and secondly without joyning the Tenant by the Curtesie because he not intitled to the Damages non locum vastat And thirdly the Writ supposes quod tenuerunt which implies a Joynt-tenancy now they appear Tenants in Common good because the Land at first one and entire but if wast can be committed in the Trees excepted by the Lessee not agreed but in Co. 5. Rep. adjudged it does and the Exception void Sir Roger Leuknor against Freed 1 Leon. 48. 3. Cro. 17. Co. 6. Rep. 12. b. Lessee for Life and he in Reversion make a Lease wast is committed they shall joyn and Tenant for Life recover Locum vastatum and he in Reversion the damages Lessee for Life Sans Impeachment c. Wast is committed by a Stranger the Lessee in Trespass shall recover no Damages for the Trees cut but only for the Entry for the property of the Trees remaining in the Lessor 1 Leon. 49. Co. 1. Inst 42. a. p. 27. H. 8. p. 36. Lease of Lands exceptis arboribus grossis super Praemissa crescentibus Trees then little grow great and are cut if wast Semble non per Anderson for they were excepted whereas great and not only what were great at the time of the Lease Garrock versus Cliffe 1 Leon. 61. A. le ts to B. for years and during the Term le ts to C. for years by Indenture to commence presently B. commits wast A. brings a Writ against B. the Defendant cannot plead nul wast nor can he plead that the Lessor had nothing for the Plaintiff will estop him by the Indenture and though the Count be general of a Lease and says not per Indenturam yet a Replication that by Indenture is no departure but a coroborating of the Declaration 1 Leon. 156. Tenant for Life is disseised and Disseisor commits wast he in Reversion shall maintain an Action of wast against Tenant for Life yet note that by the disseisin the Reversion was out of him 1 Leon. 264. If wast be assigned in a whole wood sparsim if the Jury have view of the out-side of the wood 't is good without entring and viewing of every part and so of a house otherwise if the wast were assigned in certain part of the wood or Rooms in the house 1 Leon. 267. Feoffment to the use of himself and wife for Life Remainder to his own Heir he dyes she commits wast the Writ must be general Quas tenet de hereditate c. non ex dimissione for she comes in by the Statute 2 Leon. 222. vid. Co. Entr.
Copy-holders ought to alledge Customs ibid. Of alledging Customs in particular places p. 79. In what manner Customs shall be pleaded ib. Of Prescription by Parishoners ib. 80. Custom of England concerning Inn-keepers ib. Of Tithes ibid. No Prescription of Lands makes a Right but of Rents or Profits it doth p. 81. Women may prescribe to be endowed of a moiety of the Lands of her Husband but not of the Rent ibid. Gavelkind Lands shall escheat if the Father abjure or be outlawed for Felony ibid. Every Custom against Common Law shall be taken strickly ibid. Debt SEE variety of Pleading in Debt from 81. to 104. Detinue Inter-pleader in Detinue p. 104. Vpon general Issue in Detinue that which would make a special Barr cannot be given in Evidence or if found by the Jury is it material p. 105. Detinue will lye of Chartres not specially and particularly named what they are ibid. Improper words in Detinue adjudged good enough after Verdict Disclaimers and Discontinuances of Actions Action of Covenant discontinued after Judgment and Writ of Inquiry by Rule of Court p. 106. Action of Tresp in three Towns and mentions but two Towns where it was committed the whole is discontinued ibid. So in Debt for that the Writ was 10. l. 6. s. 8. d. and the Declaration but 10. l. ib. So if the Declaration be of several things and it be discontinued as to one it shall be discontinued as to all ibid. Debt brought against two Joyntly and Severally bound it being discontinued against one did abate against both ibid. In what Cases where two Persons bring their Action the Non-suit of one shall not be the Non-suit of them both è contra p. 107. If after Verdict for the Avowant in Replevin the Plea be discontinued and he sues a Scire Facias the Plaintiff may plead a Release of the Avowant after Verdict of all Actions or other matter to discharge himself ibid. Trespass Defendant pleads two Pleas Plt ' demurrs to one and doth not plead over to the other it is a discontinuance ibid. In Pr. quod reddat if the Tenant disclaims the Judgment shall be that the Demandant nihil capiat per breve p. 108. Writ of Inquiry awarded upon Disclaimer in Replevin ibid. No man can disclaim against a Termor ib. Husband and Wife cannot disclaim in Avowry ibid. In Replevin the Defendant avows upon the Plaintiff and he disclaims to it he shall not be received 109. He that is in of his own Wrong shall not disclaim in a Writ of Entry in le quibus ib. Distress If Houshold Goods be Distrained they ought to be preserved in an House from the Injury of the Weather but if put in an open place where they are spoiled the Distrainor shall not answer for them ibid. If an Horse Distrain'd happen to strangle himself the Distrainor shall be punished in an Action of Trespass ibid. A man shall not milk a Cow he hath distrained without the Owners Consent and if the Cow perish for want of Milking he may distrain again and so be at no Damage ibid. 110 112. Sheriffs Officer cannot justifie breaking open Doors to distrain for the King 's Rent much less a Landlord's ibid. Things distrained shall not be used because but Pledges in Law ibid. Distress not to be driven out of the Hundred or to a Pound above three Miles or to several Pounds or out of the County No Man shall distrain in the High-way nor drive Distress into a Castle or Hold ib. The Tenant shall not disturb the Landlord in taking his Distress or hinder him of the Lawful Means to come by his Rent ib. Distress of a Strangers Goods for the Tenants Rent unlawful ibid. Owner must bring Replevin not break the Pound tho' the Distress be unlawful p. 112. Where Limitation of Distress void ibid. Error WHere the Plaintiff in the Action may sue out a Scire Facias against the Executors or Administrators of the Plaintiff in the Writ of Error p. 113. After Writ of Error allowed Execution upon the former Judgment shall not be awarded and why ibid. Where there is Fine and Recovery of Lands and Error in them both a Writ of Error cannot be brought first upon the Fine but upon the Recovery ibid. In what case a Fine shall barr a Writt of Error brought of a Recovery p. 114. Execution Action lies not against the Sheriff for Escape of a Prisoner in Execution in the time of his Predecessor ibid. Sheriff may not break open Doors to execute Fieri Facias p. 115. Ca. sa against Principal return'd non est invent ' then Sci. Fa. against Sureties before the Return whereof the Principal Surrenders his Body in Execution allowed per Cur ' ibid. Execution granted by the Court upon Motion after a Writ of Error brought because the Retorn was too long ibid. Estoppels and Conclusions He who claims nothing by him that was estopped shall not be estopped by his Act. Where he no Reversion or Remainder p. 115. claims nothing by Tenant for Life he shall not be estopped p. 116. If a Man pleads a Plea in which he confesseth a thing that is not material it shall not be an Estoppel p. 117. If a man plead a Record to Estop him that was privy he ought to shew what end the Action had p. 118. Where a Man hath Judgment to recover Land by that Judgment he shall be Estopped to claim any other Title than he hath by the Recovery ibid. Of some Estoppels none shall have Advantage but Parties or Privies 120. And of some every one shall have advantage ibid. Vser of Action no Estoppel to prejudice another ibid. In what case one shall estop another ibid. Where I am barred of Land the Estoppel shall pass with it but of other Lands it shall be no Estoppel against me ibid. None shall be received to plead an Estoppel against another but may be estopped by the same Plea and both must be Parties to the Record otherwise not p. 122. In what cases a Stranger shall take Advantage by an Estoppel p. 123. Fines and Recoveries SEveral Cases of Fines and Recoveries p. 125 126. Heir The manner of Suing an Heir upon a Bond entred into by his Ancestor p. 159. Outlawries PLeaded in Bar and Disability p. 161 163 165 175 177 181 196 197. Reversed for several causes p. 161 162 163 164 165 168 170 171 172 173 178 179 181. Partition TWo Tenants in Common of a Mannor before Partition one of them is said to have dimidium Manerii but after Partition medietatem Manerii and an Indictment of forceable Entry after Partition it shall be Medietas not Dimidium Manerii p. 183 Priviledge Lost by Chancery Clerk by suing out Supers ' in C. B. Parson Parsonage becomes void by Acceptance of a Bishoprick p. 183. And Acceptance of a second Benefice makes the first void p. 184. Tith of things proceeding from the Earth as Corn Hay c. shall be severed upon the Ground but secus of Sheep