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
c. The same law if an Abbot make a Feoffment in Fee and afterwards is deposed and sometime after is made Abbot now he shall have an Action against his Deed which he himself made when he was Abbot because that now he comes in as Successor and not in the place as he was before The same Law of Warden and Schollars But it would have been otherwise if he had disseised a Parson and made Feoffment in Fee with warranty or without warranty and afterwards is made Parson now if he will use an Action his own Feoffment shall be a Barr against him because that all that he shall recover by this Action is to his own use The same Law if a man disseise a woman and makes a Feoffment in Fee and afterwards he takes the woman to Wife in this case the Husband shall be Barred because that he will have advantage of this Recovery to his own use If a man hath right to have Land where his Entry is tolle and releaseth to the Tenant all manner of Actions and dye his Heir shall have his Action and recover the Land because that by such release no right is extinguished and if the Tenant makes Feoffment in Fee or dyes seised he that made the release shall have his Action against the Heir of the Tenant or his Feoffee against his own release and the cause is because that nothing is released but his Action against the same person and not any right If the Son disseise his Father and make a Feoffment with warranty or without warranty and after his Father dyes he cannot ouste his Feoffee because that it was his own Deed. A man hath good cause of Action sometimes and yet by matter ex post facto and by the Act of a Stranger his Action is destroyed As I am disseisee and he is disseisor and I release to the disseisor Also I bail or lend Goods to one a Stranger takes them the bailor sells them to a Stranger c. Action of Debt upon an obligation brought by an Executor the writ shall be detinet and not debet and for this cause they joyn in the same Action for an Horse delivered by themselves to the same Obligor The same Law if a man recover Lands by default in which I have an Estate for life and he recovers by another writ by default Lands wherein I have an Estate Tail I shall have a Quod ei deforceat because the conclusion of the writ serves me And so a man may joyn two or three things in his Action where the conclusion of his Action is pertinent to the several matters and doth not vary If two or three Acres are given severally in tail and the party discontinue the whole his Heir shall have Formedon for the whole because that the writ is le quel un I. dit S. dona and although the Acres are given severally that is not material forasmuch as the common Writ will serve in this case But if the Acres are given by divers or several men or that the one shall be given to the Heirs Males and the other to the Heirs Females and the third to the Heirs General in this case the Heir shall have several writs and not one writ because that one writ cannot serve for such several Gifts If I deliver Goods to one who is indebted to me and he dyes against his Executors I may have a writ for the Goods and for the Debt because that the writ is against the Executors for the Debt in the Detinet and for the detinue it is in the Detinet and therefore the writ well warrants the count to declare partly for debt and partly for Detinue but such an Action he could not have had against the Testator because that for the debt against him the writ ought to have been in the debet and detinet A Feoffment is made upon condition of payment by the Feoffor he commits Trespass and afterwards enters by force of payment c. yet the Feoffee shall have Trespass because his possession is affirm'd 43 E. 3. Assumpsit If he would relinquish such a debt to pay him 30 l. and sayes he did relinquish it c. and after Verdict for the Plaintiff Judgment stayed because he shews not how he relinquished it and it may be by parol which were void Gregory versus Lovell 3 Cro. 292. Assumpsit in Consideration he would discharge him from an Arrest and sayes that exoneravit ipsum moved in Arrest c. he shews not how he discharged him sed non allocatur for they might be per parol or for a time but in Pleading a discharge of a Rent or bond which must be by Deed and perpetual it must be shewed how King versus Hobs. 2. Cro. 930. 960. Assumpsit the Defendant pleads the discharge of the promise whereof Issue taken and found for the Plaintiff and divers defects in the Declaration moved in Arrest of Judgment but by Wrâ—y all these defects tending to the Assumpsit are cured by the collateral Plea Manwood v. Buston 2. Leond. 203 204. Assumpsit If he would make it appear c. and sayes he made it appear by the Court-Roll Good without saying what the Court Rolls were for the Infinitly So a Bond to save harmless from all Estreates good without shewing what for the same reason Vide 9 E. 4. 15. a. 22 E. 4. 41. a Mo. Pl. 1175. 3 Cro. 149 Pl 3. 919. Pl. 3. 3 Bulst 31. Latch 130. H. 2. H. 7. Pl 22. H. 6. H. 7. Pl. 8. 8. 22 E. 4. 15. ab 28. b. 29. a. Assumed he would assign Goods to pay c. and sayes he assigned and shews not how but per scriptum yet good Note after verdict Forth v. Yates Tr. 30 Car. 2. B R. Assumpsit against an Executor who Pleads solvit to such a one on a Bond of 100 l. and to another 100 l. on a Bond and so to divers others which he was forced to do the Payment being post exhibitionem Bille and Pleads a Recognizance in force not satisfied the Plaintiff Pleads non solvit to such a one 100 l. nor to such a one 100 l. Et si de ceteris hoc petit c. and to the Recognizance that it was satisfied and kept in force of Fraud the Defendant demurred quià replicatio multiplyed and double consisting of two matters where one goes to the whole but Judgment for the Plaintiff for the first objection to one 100 l. to another 100 l. make several Issues though que de hoc And in case of an Executor one may answer to every thing alledged by him H. 21 22. Car. 2. B. R. Jeffreys v. Dod. Assumpsit to permit Land to descend breach laid quod non permisit well being in the negative but in the affirmative it ought to be shewed how disposed though they could not descend H. 9. Jac. B. R. rot 3 Bulstr 18. Assumpsit to perform an Award and sets it forth the Defendant pleads
ad distringend ' d'per Ballivum Dni ' Regis The Limitation of this distress to the Kings Bailiff is void and it is good to give a power of distress to I. S. the Grantee and his Bailiffs Bacons Elem. of Law 15. Error IF a Writ of Error be brought and allowed And the Plaintiff in the Writ of Error dyes pendente breve Errore the Plaintiff in the Action may sue out a Scire facias against the Executors or Administrators of the Plaintiff in the writ of Error without mentioning the Writ of Error for that it is no Supersedeas but only to privies and not to Strangers When a Writ of Error is allowed Execution upon the former Judgment ought not to be awarded For by the writ of Error the Record it self is Removed and the Court hath nothing whereupon to award Execution Yet supersedeas the safest way If a man Levy a Fine sur Conusance de droit Come Ceo c. And suffer a Recovery of the same Lands and there is Error in them both He cannot bring Error first upon the Fine because by the Recovery his Title of Error is discharged and released in Law inclusively But he must begin with the Error upon the Recovery which he may do because a Fine executed barreth no titles that accrue de puisne tempus after the Fine levied and so restore himself to his Title of Error upon the Fine If a man levyeth a Fine where he hath nothing in the Land which inureth by way of conclusion only and is executory against all purchases and new titles which shall grow to the Conusor afterwards And he purchaseth the Land and suffer a Recovery to the Conusee and in both Fine and Recovery there is Error this Fine is Janus Bifrons and will look forward and Barr him of his Writ of Error brought of the Recovery And therefore it will come to the reason of the first case of the Attainder That he must reply that he hath a Writ also depending of the same Fine and so demand Judgment Execution IN Escape against the Sheriff The Case was That a Prisoner being in Executition the Gaoler lets him out of Prison about his occasions and after the Prisoner returns to the Goal and another Sheriff comes in and then the Prisoner escapes and comes no more It was held That an Action did not lye against the last Sheriff for the Prisoner was utterly discharged of the Execution by the first permissiom of going at large by the Gaoler The Sheriff may not break open the doors of any man to execute a Fieri facias much less a Landlord to distrain by the same reason Judgment in Debt against three and a Capia's ad satis faciendum against the Principal the Sheriff retorns non est inventus upon which issued a Scire facias against the Sureties and before the retorn the Principal came into Court and prayed his Body might be taken in Execution which was done accordingly Mich. 10 Jacobi in C. B. And with this agrees the Course of the Court of King's-Bench and divers Presidents of this Court A Writ of Error was brought 4 November retornable 10 January whereupon the Court was moved for Execution because it seemed to be but for delay in regard the Retorn is so long and with this agrees 4 H. 6. an Execution was granted by the Court Mich. 16 Jac. in C. B. Of Estoppels and Conclusions HE who claims nothing by him that was estopped shall not be estopped As two jointenants are disseised the disseisor lets to the one now he is stopped to say that he hath another Estate than for Life Afterwards he to whom the Land was so let dyes the other Jointenant shall have the Land and he shall not be by that Deed estopped for he claimed nothing by him who was estopped by the Survivor If I am named W. B. and I bring my Action by the name of I. B. and recover by that name afterwards if I will bring my Action against another person by my right name he shall not estop me by that Recovery of the same name for if I had been estop'd I should not have had my Action against the other person but he that is party may estopp me well enough 26 H. 6. 30 H. 6. et 10 E. 4. contr Where he in Reversion or Remainder claims nothing by Tenant for Life he shall not be estopped AS the Father disseiseth the Son and Levies a Fine thereof to a Stranger where Recovery is had against the Father and afterwards the Father dyes the Son enters or he that recovers or he that was party to the Fine between him and the Son brings an Assise and the other pleads the Fine or Recovery by way of Estoppel this is no Plea because that notwithstanding that the Son is privy to him that was estopped yet he claims nothing by him Where there is Lord and Tenant and the Lord lets his Seigniory to one for Life the Tenant for Life of the Seigniory distrains the Tenant and he bring an Action of Trespass against him and he justifies for that he holds of him by ten shillings of Rent and the other traverses it and it is found against the Lord for Term of Life This shall be no Estoppel to him in the Reversion If a man pleads a Plea in which he confesseth a thing that is not material it shall not be an Estoppel As if a man voucheth one as Son and Heir to such a person and when he comes he is bound to warranty by his own Deed yet may say afterwards in an Assise of Mortdancestor that the same person which I vouched before as Son and Heir is a Bastard for the words Son and Heir in his voucher are not material The same Law in a Writ of Trespass brought by one Executor of Goods taken out of his possession Where a writ of Debt is brought by an Executor who counts of a duty due to himself there the word Executor is not material and he shall not be estopped but he may say afterwards that he never was Executor nor ever administred as Executor If a man will plead a Record to estopp him that was privy he ought to shew what end the Action had AS if I bring an Action against you in which Action you plead that at anotheâ—â—ime viz. such a day c. I brought an Action of Trespass against you and the Defendant pleaded Villenage and the Plaintiff confest it he ought to shew further by force of which he was nonsuited and to shew what end the Plea had and demand Judgment if against that he shall be answered Where a man hath Judgment to recover Land by that Judgment he shall be estopped to claim any other Title than he hath by the Recovery AS if a man recover by Writ of Right Sur disclamer if the Tenant ceaseth afterwards he shall not have a Cessavit to recover the Land though he sues not out Execution for he shall be estopped to claim
two persons having several Interests in Lands acknowledg the note of a Fine before a Judg and then one of them dyes The Conusee may for all that proceed with his Fine against the other alone for the death of the other is no impediment for the Conusans of every one is against himself and shall work for so much as he can pass A man and his Wife acknowledged a note of a Fine before Commissioners the 26 th of March by Dedimus potestatem and the wife dyed 27 th of the same month and the next day being the 28 th Composition was made in the Alâ—enation-Office upon a Writ of Covenant Retornable in Hillary Term before and the Kings Silver was entred as of the same Hillary Term and so the Fine was past and ingrossed And in Easter Term the Heir of the Wife moves against the Fine But upon debate it was agreed the Fine should stand Tenant in Tail Levies a Fine with Proclamations and 5 years pass in his Life-time Yet this shall not Barr his Issue A man of full age and his Wife being but 19 Levy a the Fine of Inheritance of the Wife whereby an Estate is conveyed to the Husband and Wife in Tail and the Remainder to the right Heirs of the wife and many exceptions taken against the proceedings by the Heir to the Wifes inheritance viz. I. S. as that the said Feme was not of full age at the time of the Fine Levied and other undue means committed in getting out the Son Yet by the whole Court the Fine was held good Law for Facta valent multa que fieri prohibentur If there be Tenant for Life the Remander in Fee to an Infant and they both Levy a Fine and afterwards as to the Infant the Fine is Reversed yet the Conusee shall have the Land for the Life of the Tenant for each may pass and give what he lawfully may If there be two Jointenants and one of them suffer a Recovery declaring the uses of the whole this shall bind but only a Moiety unless the consent of the other Jointenant can be proved Heir IF an Heir be sued upon a Bond and Lands are proved to descend unto him from his Ancestor you must have a special Writ to enquire what those lands are worth to be delivered to the Plaintiff at a reasonable extent and price and if the Heir confess the Action and shew what Lands come to him by descent Then his Body and all other his Lands and Goods and Chattels are free from that Execution but if he deny the Action and plead Riens per descent or it go by default against him then Execution shall be against Body Goods or other Lands And the Declaration shall be in the Debet and Detinet as though it were his proper Debt Outlawries and Outlaws OVtlawry was pleaded in Barr and day given before when the Defendant reversed it the Defendant shall not be condemned for Failer of Record but Respondouster Green against Gascogne vide Title failer of Record Yel 36. Outlawry in the Kings Bench reversed by Error in the same Court but that is for Error in Fact not in Law as if no Outlawry lay in the Case and if Process of Outlawry lie in an Action upon the Case for turning a Water-Course vide P. 10. H. 7. pl. 15. Dy. 195. b. 196. Original in Debt called the Defendant Nuper de Lond. Exig called him de Lond. is erroneous for it must pursue the Original without Variance and the Original was against Lancelot the Exigent was against Lancelot ill 3 Cro. 49. vid. 50 95. 104. 116. 172. Error of a Judgment in Debt and Outlaw'd 2. on it against 2. where the Sheriff return'd quod non habent bona out catalla quod summon ' potuer it should have been per quod c. 2. it should be nec eorum aliquis het ' 3. the Original is against Lancelot A. and the Exigent is against Lancelot A. 4. 't is said in Hastings and it should be in Hustingis de Com. plac revocetur Lancelot vers ' Jones 3. Cro. 50. An Outlawry was reversed because it was against Lewellin with a single l and now the mean Process against Llewellin with a double Ll and it was against two and returned quod non sunt inventi and not nec eorum aliquis Llewellin against Watkins vide M. 2. R. 3 4 13. pl. 16. 3 Cro. 85. 104. 49. 50. 116. 198. 240. 248. 205. M. 21. H. 7. pl. 37. Exigent names no place where the Sheriff is to have the Body and that adjudged Error to reverse the Outlawry For the Sheriff cannot tell in what County to carry him Cesar against Stone 3 Cro. 104. Outlawry reversed because the Party was Indicted in Com. Somerset and supposed to be of London and the Capias awarded to the Sheriff of Somerset where it ought to go to the County where he lives Rorset's Case 3 Cro. 179. vid. Dy. 295. b. vid. M. 1 E. 4. pl. 2. One Outlawed of Felony assigned his Term and then reversed the Outlawry the Grantee shall maintain Trespass for the Profits taken in the mean time between the Assignment and the Reversal of the Outlawry For though it was then the King 's yet it is now as if no Outlawry had been at all Ognell's Case 3 Cro. 270. vide 218. Accord Outlawry is not reversed but by pleading without Writ of Error per tot Cur. though there be apparent Faults in it 3 Cro. 274. vide Co. 1. Inst 259. b. One is Outlawed and has his Term sold and then reversed the Outlawry he shall be restored to the Term it self not the Money Otherwise if sold on a Fieri Facias c. quod vide plus Title Exec. Eyre against Woodfare 3 Cro. 778. Co. 5. Rep. 90. b. 1. Acc. pl. 285. In Debt against an Executor the Defendant pleads that the Testator was Outlawed and doubted if a good Plea because the Testator may have some Goods not forfeited by Outlawry as simple Contract c. but on the other side such special Ass shall not be intended to Com. next he has nothing Wooley against Brade 3 Cro. 575. 851. Outlawry reversed because the Writ was Teste Edmund Anderson so wanting a Title had no Teste which is the Warrant of it Growdy and Juham 3 Cro. 592. Judgment against two in Debt C. and B and Capias only against one and he Outlawed whereupon was brought Error and reversed it because the Capins should have gone against both Also 't was not per Judiâ— ' Coron ' Beverly against Beverly 3 Cro. 648. Debt against the Sheriff on an Escape where the Case was that the Party was Outlawed after Judgment reversed it by Error within the Year and because he assigned not any Error the Plaintiff took out a Capias utlegatum and the Sheriff took him and let him go and resolved for the Plaintiff and in Co. 1. Report of this Case the difference is taken of an Outlawry
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
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
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
Tenant the Tenancy in Fee 2. Avowry upon my very Tenant by the manner as I make a Gift in Tail remainder over reserving Rent Also if Tenant by the Courtesy I avow upon him as before Also where a man dyes seised of three intire Mannors and if his Wife be endowed of one Mannor intire 3. Avowry upon my Tenant by the manner as Lessee for life rendring Rent Also if à Woman be endowed of the third part of a Mannor the Heir distrains her and avowes 4. Avowry upon the Land as a Rent-Charge is granted the Grantee avowes in the Lands charged with his distress 5. Avowry upon my matter as I am seised in Fee and let for years for certain Rent and so shew the whole matter Avowry for Homage or for Rent-service although that the Avowry be made upon the person incertain yet in this case he that is a Stranger cannot plead any thing but hors de son Fee or that which is Tantamount as a Release c. which prove the Land to be out of the Fee of the Lord. A Man cannot avow the taking of Beast for Rent arrear if those Beasts were taken by Night but for damage Fesant he may Pasch 10 E. 3. Where the Avowant shall justifie and where he shall make Avowry Where the Avowant is of right to have the thing for which he distrains he shall make Avowry although that the Estate of him upon whom he avows be determined as if I let Lands for term d'auter vie and I distrain for the Rent cestuy que vie dies the other sues Replevin I make Avowry for homage he that ought to do homage dyes his Executors sue Replevin now I ought to justifie because the thing for which the the distress was made by his death is gone and extinct As two Jointenants the one enfeoffs a Stranger of all that c. upon Condition the Feoffee gives notice to the Lord here he holds of the Lord pro particula illa and the Lord shall have several Rents of the Tenants And yet if the Lord grant the services of the Feoffee to a Stranger and he attorne and afterwards the Condition is broken by which the Feoffor who was jointenant enters again here the Jointure is reviv'd and they hold the grant of Services of his part and the other Jointenant holds of the Lord as he held before and yet they are Jointenants Avowry by the Lord for homage and alledgeth seisin by the Husband of Lands which he hath in Right of his Wife The Plaintiff alledgeth that the Husband hath nothing but in right of his Wife and although he alleadgeth seisin by the Husband c. yet he sheweth that the Husband was seized in his demesne as of Fee without that that the Wife hath any thing c. 11 H. 4. If a man makes Avowry upon one as Son and Heir of his Mother where he is in as Heir to his Father the Avowry is abated In Avowry for Rent Service or any other Rent except that he shews the Commencement of the Rent as a Gift in tail or a Grant of a Rent-Charge he ought to alledg no seisin of the Rent in his Avowry because he shews the Commencement of the Rent In Avowry for Homage or Escuage if he shew not the Commencement of the Tenure he ought to shew seisin of the Homage or otherwise it is not good Avowry for Releif or aid pur file marrier he ought not to alledg seisin of the Releif nor of the Aid because that they are no parcel of the Tenure as Homage or Escuage be but incident to the Seigniory Where in Avowry the Defendant shall answer to the seisin and where he shall traverse IN Avowry the Lord alledgeth seisin of the services the Tenant cannot traverse the Tenure in part but he shall answer to the seisin For in Avowry the Tenant shall not avoid encroachment of Services but in a Writ of Rescous or in Assife he may avoid the encrochment and not answer to the Tenure If the Lord encroch an other thing which was not part of the Tenure before the encrochment it is void and the party shall avoid it and Travers it notwithstanding seisin alledged as where the Tenant holds by Homage and Ten shillings the Lord encroches a Horse this encrochment is void because it is an other thing and other then the Tenure was before Also where the Lord avowes for Homage and Ten shillings Rent the Tenant may say that he holds of him by Homage Ancestrel without that that he holds of him by Homage and ten shillings in this case he shall not answer to the seisin because that he may traverse the entire Tenure of the same thing quod nota Where the Effect of the Plea shall be Traversed THe Avowant avows that I. S. was seised of an Acre of Land and so seised grants him Twenty shillings Rent in Fee The Plaintiff saith that the said I. S. had nothing but for Term of Life of the Lease of the Plaintiff the which I. S. is dead this is a good Plea and the Plaintiff shall not say without that that I. S. was seised in Fee and yet the Avowant alledgeth that he was seised in Fee and the Plaintiff saith that he had nothing but for Term of Life which is in a manner contrary and yet the plea is good and he shall not be compell'd to say without that that he was seised in Fee and the reason is because that seisin in Fee was not the effect of the Avowry but the Grant which is confessed and avoided and because Seisin in Fee is not the effect the Plaintiff may answer it by an Affirmative and shall not be compelled to travers with a without that The same Law is in Avowries when the Avowant saith that he was seised of an Acre in Fee and let the same to the Plaintiff for Life or for years reserving Rent and for Rent arrear he avows The Plaintiff saith that one I. S. was seised in his demesne as of Fee and let to the Avowant for the life of I. N. the which I. N. dyed and the said I. S. entred before whose Entry there was nothing arrear this is a good Plea and he shall not need to say without that that the Avowant was seised in Fee at the time of the Lease for if the Seisin had been the Effect of his Avowry he ought to have Traversed or Confessed and Avoided and this he hath notdone for the Avowant saith that he was seised in Fee and the Plaintiff saith that he was seised but for Term of Life the which is no direct Travers but Argumentative but the Plea is good enough because that the seisin is not the Effect of the Barr but the Lease quod nota Bail ALattitat is sued out against two in a Joint Action and both taken one puts in Bail as of Michaelmas and the other of Hillary Term The Court was moved That the Bail of Michaelmas Term might be taken
off and filed as of Hillary Term Else it would be Error to declare in a Joint Action upon Bail for one in Michaelmas and the other in Hillary Term quod concessum fuit per curiam If a Captas be awarded and Returned non est inventus against the Principal and the Bail bring him not in If the Principle dye although there be no Scire facias against the Bail Yet the Bail is chargeable For though the Court will excuse the Bail Yet the Bail if they bring in the Principle before the Return of the Second scire facias yet this is of grace and not of necessity If the Husband and Wife be Arrested for the Debt of the Wife and the Baron find Bail for himself yet he may be detained until â—e find Bail for his Wife but he shall not be detained until find Bail for her Husband or the Husband for himself Judgment was given against one in the Kings-Bench upon which he was in Execution and had another Judgment against him in the Common-Pleas in which Court his Sureties to save their Bail brought him to the Barr by Habeas Corpus to render his Body but before that he had brought a writ of Error in the Kings-Bench to reverse the Judgment in the Common-Pleas but the Record was not removed In this Case the Court said When a man comes in to save his Bail he shall not be committed if the party do not pray it but when Error is brought before that he be in Execution it is a supersedeas so that they cannot commit him at the Prayer of the party And Waller Prothonatory said That the Bail is to render his Body so that the Party may take it in execution but here he cannot in regard a writ of Error is brought and therefore the Sureties shall be discharged Mith. 14 Jacobi in Banco Communi In the Common-Pleas the Bail is bound in a certain summ but it is not so in the Kings-Bench and when a man enters Bail in the Kings-Bench in a cause they shall be charged in all Suits between the same partyes entred the same Term. The Bail shall answer for all Actions brought the same Term against the Party for whom he is Bail but if a man be bail for another and hath Lands in Fee and he declares and afterwards the Bail sells his Lands and an other commenceth a Suit against the party the same Term he shall not be charged with the other Actions Cro. lib 2. fo 449. Term. no Sci ' Hillarii Anno 15 Jacobi Regis One Gabriel Mihil was indebted to A. B. and put in Bail in the Common-Pleas to pay the same and afterwards A. B. Arrested Mihil in London for the same Debt whereupon Judg Forster the other Judges being in the Chancery awarded an Attachment against A. B. for this Contempt and herewith agrees 2 H. 7. Hill 15 Jac. in C. B. Bankrupt IF Creditors after a Commission of Bankrupt is sued forth although at the first they refused yet within three or four months they come and tender their proportion towards the charges of the Commission They shall be received to have their parts as the other Creditors if no distribution hath been made of the Bankrupts estate before The Commissioners of a Bankrupt may sell the Goods of a Bankrupt altho the Bankry had sold them or disposed of them to his Creditors if the sale or disposal thereof were after he became a Bankrupt The Commissioners may sell the Copy-hold Lands of a Bankrupt for and towards the payment of his Debts by Deed indenâ—ed and inrolled declaring how he was found a Bankrupt and expressing to the use of the Creditors and at next Court the vendee shall be admitted and have his Copy I. C. and R. C. brought an Action of Debt jointly upon a joint Debt assigned to them by Commissioners upon the Statute of Bankrupts and it was said by the whole Court that the Commissioners had not pursued their Authority by that joint Assignment for they ought prorata to have assigned to every one but quere if the joint Debt may be divided among the Câ—edâ—tors and the Lord Chief Justice said That a Custom may devide a Debt and then à fortiori an Act of Parliament may Mich. 10 Jacobi in C. B. A Bankrupt cannot make sale of any of his Goods after he becomes Bankrupt but Goods which he hath as Executor or a Legacy before it be invested in him or a Grant of a Reversion before Entry all these shall not be charged within the Statute But if a man sells those Goods which he hath as Executor and afterwards retakes an Estate to himself or converts them to his own use this is within the Statute Per dom Coke et alios justic ' Pasch 9. Jac. in Com Banco A man shall not Forfeit those Goods which he hath as Executor by Outlary ib. Barr. A Man may be Barred pro tempore and yet afterwards he shall have his Action IN Debt against an Executor he Pleads plene administravit and so it is found the Plaintiff shall be Barred and yet if Goods comes to his hands which were the Testators he shall have a Writ of Debt The same law in Debt against an Heir who pleads Riens per discent which is found so and afterwards he hath Lands by discent c. In Formedon the Tenant pleads the warranty of the Ancestor of the Demandant with that that he hath Assets by discent he pleads that he hath nothing and it is found that he hath he is Barred To plead a thing by way of Barr or Estoppel which the Demandant or plaintiff is to defeat or destroy by the Usageof his Action is no good Plea AS in Attaint brought upon a Verdict de nativo habendo Villenage is no Plea Also where Reversion and Rent pleaded for Assets is not Assets there the Heir is to defeat the Assets If a man sues a Prohibition and the Defendant alledgeth Excommunication in the Plaintiff he may say t is for the same cause If a Villein brings a Writ of Error upon Judgment had in nativo habendo Villenage is no Plea Where a man Pleads a Recovery in Barr he ought to add more to it or otherwise the Recovery is no Barr. ANd that is where the Tenant Pleads a Recovery by default against the Demandant he ought to add more to it viz. with that that he will averr that he was Tenant at the time of the Recovery The same Law if Tenant in Precipe quòd reddat will Plead a Recovery in a Writ of Cosinage by default he ought to shew how he was Cosin Also if the Tenant will Plead a Recovery in a Writ of Right against the Demandant by default he ought to shew of what possession his Writ of Right was conceived But otherwise it is if he will Plead a Recovery in Formedon by Action tryed this Recovery is a good Barr without adding any thing more to it where note the Diversity Where a man
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
Dy. negat Tenant for Life Remainder for Life Wast is done he in Remainder surrenders Wast lyes Co. 5. Rep. 76. b. Mo. pl. 64. Co. 5. Rep. 76. b. 2 Cro. 68. b. Tenants in Common cannot joyn in Wast in the Tenet but Joynt-tenants or Parceners may and also Tenants in Common in the Tenuit being only to recover Damages Ibid. Mo. f. 383. Mo. pl. 110. 127. He in Reversion by way of use brings wast against the Feme Tenant for Life of the same use she pleads that the place was left so ruinous at the death of her Husband Quod reparare non potuit and adjudged a good Plea Mo. Pl. 158. Wast assigned in permitting Sea-walls to be ruined whereby c. if not done by sudden violence as if a small breach were and he permits it grow greater it seems wast Et per omnes the permitting Decay in the Banks of the River is wast Mo. 173. 187. 200. Dower Tenant pleads ne unque seisie que Dower and Issue of it Demandant prayed a Writ of Etrepement because great part of his Coppice wood and the Husband dyed not seized so she cannot have damages yet it seems Etrepement lyes not because Damage lyes in the Action Mo. Pl. 186. Wast and the Writ was quod fecit vastum in terr' In the Count assigns wast in cutting Trees and adjudged it maintained not the VVrit but if it had been assigned of digging Clay c. it had Mo. Pl. 200. VVast and Count of VVast done contra prohibitionem after the Estrepement sued upon a Formedon Defendant pleads Quod non fuit vastum contra prohibitionem Issue Verdict and Judgment pro querente Mo. Pl. 1. or 245. 'T is VVast to take away a Partition c. fixed by the Lessee to the Free-hold sic of Benches or Glass-windows to take away Doors of the Houses if they be outer doors for defence of the houses not in ward for Separation of Chambers Mo. Pl. 315. One that had power to make a Joynture of third part makes her Joynture of a third part undivided And this held by Popham not according to the Power which was to be sans impeachment of wast and against the Tenant in common wast lyes not so it should have been done in Severalty by Popham fo 374. But that is denyed by Mo. fo 387. 388. And that wast lyes against the Tenant in Common of a third part also by Popham the Proviso being to do it Sans Impeachment c. And he makes an Estate for Life with Remainder 't is disjunctive by reason of the Remainder whereto More answers that 't is but the effect of the Law not the word of the Party and then Remainder were created before so he must make it by operation of Law Sans Impeachment c. or make none Also 't is not eadem sans Impeachment c. but the Remainder does at present hinder the Action and it is not like Cases upon 32 H. 8. there Tenant in Tail shall not make a Lease for three Lives in Possession So another way to satisfie the Statute Perrot's Case Mo. Pl. 506. Tenant for Life Remainder for Life tho Wast in the Tenant for Life be dispunishable yet the Chancery will by Injunction bind him to do no wast and such a President cited temps R. 2. Mo. Pl. 748. Error to reverse a Recovery in Lancaster and pendant it a Writ of Estrepement granted and so resolved 't is grantable in a Scire Facias Holland c. against Jackson and Ogden sic vid. 2 H. 6. 13. Estrepement granted in Scire facias on a Judgment in a Formedon Mo. Pl. 850. Resolved that great Birch is used in the Country as Timber and esteemed in Law as Timber and 't is wast in the particular Tenant to cut them and so in Cro. are black Thorns in some Countrys Countess of Cumberland's Case Mo. Pl. 1099. 1 Cro. 283. 2 Cro. 126. Writ of Wast in two Towns Count of Wast in three Towns ill but è contra if less be in the Count than is in the Writ 't is good pro tanto Earl of Cumberland against Countess Dowager Cumberland Mo. Pl. 1185. To convert a Horse Mill to a Hand Mill or a Corn Mill to a Fulling Mill is though it be better for the Reversion and the reason seems because it alters the Evidence City of London against Groyme Mo. Pl. 1230. 2 Cro. 182. Lessee covenants to repair at his own Cost and the house being out of Reparation put Timber on the Land to do it and held a bar for the Covenant takes not from him the Liberty the Law gave him but it seems the Court was of another opion Mo. Pl. 80. vid. Dy. 196. b. 314. a. Lease except Trees Lessor grants and sells the Trees to Lessee he cuts them resolved first Lessee has but special Property in Trees till severed and then Lessor may take them be it by Wind or wilfully unless Doatards Secondly Sans Impeachment of wast gives no interest but that is contra to Co. 11. Rep. 82. 83. Popham 195. Dyer 184. b. Thirdly such Interest has Lessee in Timber of Houses if blown down to take to rebuild but if he pulls them down Lessor may take it Fourthly by the sale of Trees to the Lessee they are not so re-united but the Lessee is absolute Owner of them for he has not an equal Interest in them and the Land to extinguish as if Feoffor sells the Trees to Feoffee Fifthly Wast may be in Glass tho in the Lessee's own setting up fixed by Nails or otherwise and so in Wainscot set up by the Lessor or Lessee and fastned either by Nails or otherwise to remove it if nailed Harlakenden's Case Co. 4. Rep. 62. 63. 64. Lessee deviseth the Term Executors do wast and then assent to the Legacy Wast lyes against them in the Tenuit and so if the Grantee on Condition do wast and then the Grantor enters for the Condition yet wast in the Tenuit lyes against the Assignee on Condition And if the Lessee unlawfully open a Mine and not that Term except Mines if after the Assignee dig in it 't is wast in him though the first began it for the Exception is void And resolved first Lessee may dig in Mines opened before not open new Secondly if it be of the Land and all Mines he may open new Mines Sanders Case Co. 5. R. 12. b. Wast lyes against an Occupant for he is within the words of the Statute for he holds Pur Terme de auter vie and it is against all Tenants for Life But it lyes not against Tenant by Elegit Statute Merchant for they hold not but come in by Act in Law Co. 6. R. 37. b. Lessee for years Sans Impeachment of Wast accepts a Confirmation for Life the Priviledge is gone because the Estate whereto it was annexed is removed Co. 8. R. 76. b. If the Sheriff go and see the place wasted and cause the Jury to have the View he may
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.
706. Pl. 9. 700. Pl. 7. Feoffment to the use of A. for Life without Impeachment of wast and power to cut and sell Trees and make Leases Remainder for Life to B. with the same power Latch 163. 268. Poph. 193. 706. Pl. 9. A. makes a Lease and dyes quaere whether B. may cut the Trees not agreed but ' t is agreed that the Clause Sans Impeachment gave an Interest and A. might have done what he would with the Trees but not his Executor after his Death because it was an Interest annexed to his Estate and determined with it the doubt of the Remainder chiefly seems to be because the Lease ariseth partly out of the first Feoffment and partly of the Lessors Estate for Life Note the Lease was excepted the Trees and the Exception good because Tenant for Life had an Interest by the Sans Impeachment Secherval versus Dale Latch 163. 268. c. as before Lessor brings wast against Lessee for Trees of the Plaintiff the Lessor himself cut them 't is a good Bar and therefore in Trespass by the Lessee against Lessor for the cutting he shall recover only for the Fruit and Shade because not charged over as if a Stranger had cut them he should Co. 13. r. 96. 70. M. 10. H. 7. Pl. 3. 2 E. 4. 2. or 7. b. In wast for digging Gravel Defendant justifies by Command of the Lessor no plea for 't is the Lessee's Land pur temps not the Lessors so he could not command him also 't is per parol and without Deed and against the Tenant for Life yet dict such a Command to cut Trees good because not the Lessee's but Lessor's and that is agreed in Co. 11. R. 48. b. H. 2. H. 7. Pl. 20. M. 10. H. 7. Pl. 3. Feoffee to use Cestuy que use makes a lease for years according to the Statute R. 3. The Reversion remains in the Feoffee for the Statute does but give Authority to Cestuy que use to dispose as where one wills that his Executor shall sell if Lessee commits wast the Feoffee shall bring the Action tho no Privity because they could not have any so shall the Lord in Escheate maintain Wast yet he had not Privity Mi. 5. H. 7. Pl. 11. H. 8. H. 7. Pl. 1. Tr. 26. H. 8. Pl. 131. or 31. 'T is wast to pull down or suffer a wall to go to Ruine be it made of Wood Mud or Stone or be it within the house for Separation or without for Inclosure so to destroy wood of hasle or willow not to cut them Husbandly To cut Fruit Trees in an Orchard and destroy them is wast not if they grow in Hedges and Closures and if a house be ruinous at the Entry 't is no wast to suffer it to decay otherwise if not ruinous at the Entry but where 't is held ploughing Meadows is no wast 't is no Law Hob. 234. Ow. 66. M. 10. H. 7. Pl. 3. 4. In an Action of Wast in the Tenuit an Accord is a good Plea because only damages to be recovered not in the Tenuit because locum vastatum is to be recovered also Co. Entr. 706. 707. Pl. 9. H. 11. H. 7. Pl. 7. P. 13. H. 7. Pl. 3. Co. 6. R. 44. a. Upon Scire facias of a Judgment in wast one may have a Writ of Estrepement or in any Suit where no Damages are to be recovered but not Scire facias of wast committed after the first Scire facias because he might have had Estrepement at first But for wast after Estrepement a Scire facias lyes to shew Cause why he committed the wast and a Scire facias lyes in Assise for wast done after Judgment not before Judgment because he cannot recover Damages for its after verdict but in a Formedon not because he might have had Estrepement and Pl. 20. Error of a Judgment in Assise and the Piaintiff in the Error prayed an Estrepement and could not have it because he may it seems have Scire facias for damages done after the Judgment c. But questioned per Fennel because by the Statute he finds Security in the Writ specified to answer for all the Damages Mich. 14. H. 7. Pl. 20. but vid. 32 or 33 H. 6. b. a. In Scire facias of a Fine Estrepement lyes Lessee does wast in a corner of a Wood only the part not the whole shall be recovered but if he do in the whole Wood and there be plots of ground within the Wood that shall be recovered with the Wood. Tsin 15. H. 7. Pl. 21. Furnaces Fatts Posts Rails c. fixed to the Free-hold by Lessee for years 't is hâ—ld by some that if he remove them during the Term 't is no Wast quod qu. But agreed that if he leave them there till the Term ended he cannot remove them Vid. 42 E. 3. 6. a. 6. M. 20. H. 7. Pl. 24. Trin. 21. H. 7. Pl. 4. Owen 70. Lease Absque impetitionc vasti in Wast he shall plead that in Excuse but if the Lease at first were given and then a grant after that he shall not be punished in Wast it is not pleadable in Bar but to bind as a Covenant Vide divers such Cases 21 H. 7. 30. Tenant for life grants his Estate to one Parcener in Reversion and her Husband 't is no Surrender and if the Baron and Feme do wast the other Sister shall bring a Writ in all their names and the Baron and Feme shall be summoned and severed M. 2. H. 7. Pl. 60. In wast by Lessor the Lessee pleads not guilty and gives in Evidence a grant to cut c. to repair c. And per Brook Pollard and Elliot it was no wast but ought to have been pleaded and not given in Evidence for thereby the Advantage thereof is lost Ad quod Bradnet concessit but held it wast but not punishable Wast and he held that if a Lessor covenant to repair and do not Lessee may do it and deduct it out of the Rent And if one covenant to repair a ruinous house if he do not 't is wast but he may take Trees else it had not yet in that case he might have repaired it and taken Trees to do it though not bound to do it And at Common law Lessee might take Boots but if excessive it is Wast Lessee suffers Posts Pales c. to decay it is wast Trin. 12. H. 8. Pl. 1. or 4. Wills WIl ls and Testaments were originally proved at the Common Law as Perkins confesses and Leonard says they are by the Curtesie of England proved in the Spiritual Court not de communi jure nor in other Nations and in divers Mannors the Lords have the Probate at this day Co. 5. Rep. 73. b. 16. a. 9. Rep. 38. a. 5. Rep. 30. b. Issue at Common Law for Lands devised by Will and the question whether a Will or not and now they moved at the Spiritual Court to it which will blemish the Evidence at the
Common Law wherefore prohibition prayed but granted only quoad the lands and that it be proved quoad bona Hill against Thornton 1 Cro. 118. Debt on a Bond conditioned he permit his Wife to make a Will to the value of 50 l. and 't is found on Issue Nullum fecit voluntatem c. that she did make a Will of 50 l. but was covert 't is for the Plaintiff for though properly a Feme-Covert can make no Will in Law yet 't is a Will within the Intent of the Condition and the Husband is bound to perform it Marriot vers Kinsman 1 Cro. 159. And so Tilly and Parryes Case 273 274. Bond to pay 300 l. to such Persons and Uâ—es as the Wife should appoint she appoints in form of a Will he is bound to pay it And 433 Bond to permit her to make a Will and pay c. Plea that he permitted c. without pleading payment not good Action upon the Case lyes not for Non-payment of a Legacy for no Duty in our Law so it cannot take notice of the wrong in Non payment Mich. 18. Car. 2. Nicholson against Sherman in Banco Regis Bond conditioned that the Wife shall make a Will of 300 l. in presence of the Husband if he will be present if not in his Absence she makes it and it appears not that he was requested to be or that he was present of 250 l. to several persons and not an entire Legacy yet after Verdict the Plaintiff had Judgment for the Intent was that she should make a Will whether he would or not and she needed not devise all to one nor devise the whole 300 l. for Cui licet quod majus c. Mich. 14. Car. 2. Harris against Bury in Banco Regis Debt by A. as Executor the Defendant prays Oyer of the Will which was thus Memorandum Quòd A. B. fecit Testamentum Nuncupativum in hunc modum viz. Constituit C. D. fore Executorem suum And this was under Seal of the Ordinary and resolved a good Will and he Executor and well able to sue and so was it decided upon Appeal to the Delegates Mich. 16. Car. 2. Lewis against Shaw in B. R. Witnesses HE that is attainted of a false Verdict Conspiracy or convicted of Perjury Premunire or Forgery upon 5 Eliz. or Felony or that has stood in the Pillory lost his Ears been stigmatiz'd c. whereby he becomes infamous or Recreant in a Writ of Right or an Infidel under Age of Discretion or interessed ought not to be a Witness nor a man's Wife for or against her Husband But one outlawed in personal Actions may be a witness Co. 1. Inst 6. b. 25. J. K. Witnesses are not to prove a Negative ibid. Where Tryal is by Witnesses there ought to be two at the least ibid. A Juror may give Evidence as a Witness to his Companions but it must be publickly by Examination in Court not privately to his Fellows Stiles Rep. 233. Bail for the Defendant being a Witness for him upon motion was taken off the File and new Bail filed Idem 385. A Felon that has been burned in the hand may be a Witness for he may purchase and his Punishment has satisfied his Offence Idem 385. In Ejectment he that had the Inheritance of the Land was admitted as a Witness where note the Plaintiff and Defendant both claimed under one person Idem 482. A Counsellor at Bar being examined as a Witness for his Clyent was denyed to be examined on the other side for he shall not be put to discover the Secrets of his Clyents Cause Idem 449. Debt on 5 Eliz. 9. because the Wife did not appear whereas he served her and tendred to her her Charges c. to his Damage And though not laid what Damage yet being for the 10 l. upon the Statute not for his damages for her not appearing and a Feme Covert being within the Statute 't was held good enough 3 Cro. 130. 1 Leon. 122. Note she being the person who was to appear the Charges are to be tendred to her or her Husband Iidem ibid. Debt for 10 l. against a Witness that being Subpenaâ—d appeared not moved first 't is not shewed that the Subpena was left resolved it needs not for it might be for more Witnâ—sses 2. There was but 12 d delivered but resolved since he promised to pay the rest and the Witness accepted the 2 d. 't is good else the Witness had not been bâ—â—nd 'till the whole Charges had been tendred But thirdly because he avâ—rred not that he was damnified by the Non-Appearance of the Witness though the Action be but for the ten pound Pâ—nalty and not for the Damages over Râ—â—olved it lyes not 1 Cro. 376. 388. Judgment staid because the Verdict was had upon the Testimony of one Witness and he since convict of Pâ—rjury in the very same thing Pasch 17. Car. 2. Banco Regis In Deceipt for forging a Will one that took a Legacy by the same Will was allowed and sworn as a Witness in a Tryal for the Forgery for this makes nothing to the Probate of the Will or Recovery of the Legacy in the Spiritual Court nor do they take notice of it Moved to examine a material Witness that lay dying and it was said by the Court that if the adverse party did consent it might be done else they could not compell him Mich. 13. Car. 2. B. R. A Councellor may be examined as a Witness against his Clyent so far as it is of his own Knowledge not what he knows by the revealing of his Clyent Pasc 15. Car. 2. B. R. One shall not justifie what he heard an other say ibid. In an Indictment for beating one of the King's Messengers the Witnesses for the Defendant were sworn because though against the King and criminal yet not Capital Pasch 17. Car. 2. B. R. One that was a Witness indorsed to the Livery upon a Feoffment having part of the Lands as Tenant at Will was allowed as a Witness in the Tryal on the Feoffment afterwards in a Tryal at Bar. Bulstrodes Rep. 202. A Person attainted of Felony though afterwards pardoned by the King is uncapable after of being a Witness and therefore a Suggestion being proved only by two such a Consultation was granted 2 Bulstr 154. Words TO say of a Woman that J. S. did beget her with Child and she had a Child by him by speaking whereof she lost a Marriage with I. D. Although these words are a Spiritual Slander yet the loss of Marriage is Temporal and therefore the Action lyes for them Co. 4. 16. b. Ann Davis against Gardner adjudged So if a Man saith of a Woman that J. S. had the use of her Body by which she loseth her Marriage an Action lyes Pasch 5. Jac. B. R. Dame Morison against Case adjudged If a man says to J. S. Thou art a Whore-Master for thou hast lain with B's Wife and hadst to do with her against