deux Guards nor Quare impedit of two Churches Yet by the Judges it was held good eonugh as of Trespaâ—s for a man may joyn Lands of twenty Titles in Trespass and Trespass lyes f Wood Pasture and the like and 4 E. 2. if a man hold Lands in Capite and dye having issue only two Daughters within age and they are ravished the Lord shall have but one Ravishment de Gard. and 31 H. 6. 14. if a stranger enters upon two Parceners they shall have but one Formedon and if the Lessor shall have one Writ of Covenant for those Houses the Assignce shall have the same For the Statute of 32 H. 8. ca. 14. gives the Assignee the power of the Lessor And the Lord Chief Justice Coke said If a man seised of Lands in Fee enfeoffs an other to the use of himself for Life the Remainder of part to one of his Daughters and â—he Heirs of her Body issuing the Remainder of the Residue to the other Daughter and the Heirs of her body issuing the Eldest Daughter dyes without Issue a Stranger enters upon the whole the other Sister shall have but one Writ Mich. 8. Jacobi in Communi Banco inter Pyot dominam St. John If an Infant Lets Lands for a Term of years rendring Rent he may at his Election have an Action of Debt for the Rent reserved upon the Lease or bring Trespass for occupying of the Land and so he may have an Action of Trespass for the use of of a thing sold by him And if an infant do give an Horse to one without actual delivery of the Horse into his hands at the time of the gift and the Donee taketh the Horse by reason of the gift the Infant may have an Action of Trespass against him 18 E. 4. 2. If an Infant makes a Lease for years or a Lease per dures if the Lessee enter the Infant may have an Assise but if the Infant makes a Feoffment and deliver seisin accordingly he shall have no Assise for by the Livery of seisin the Feoffee had a possession at Will at least but if he makes a Letter of Attorney to deliver seisin he may have an Assise 9 H. 7. 24. 8. 2. Mar. 109. Dyer Rug. Case If an Obligation be made to Husband and Wife the writ may be brought in the Husbands name only 12 R. 2. Breif 639. And so Where a Lease for years is made by Husband and Wife of the Lands of the Wife rendring Rent the Action of Debt must be brought in the name of the Husband only 7 E. 4. 5. But by 2 R. 2. in a Writ concerning a Chattel real they may joyn 2 R. 2. Breif 37. As to such things which concern the person of the Wife immediately there the Writ must be brought in both their names And therefore The Husband cannot sue a Writ of Appeal for the Rape of his Wife without naming the Wife 8 H. 4. 21. 1 H. 6. 10 H. 4. Brook Baron Feme 34. Husband and Wife brought an Action of Battery for the beating of them both the Writ was adjudged good for the Battery of the Wife but not as to the Husband 9 E. 4. 54. The Husband and the Wife shall both bring an Action of Trespass for the taking away the Goods of the Wife before Marriage 21 H. 33. In a Writ of Detinue of Chartres against Husband and Wife Declaration was upon a Trover and the Writ was abated 13 R. 2. Breif 644. A Writ of Covenant was brought by the Husband and Wife for that the Defendant had Leased to them Lands by Deed for Term of years and afterwards ousted them and the Writ was adjudged to be good for if the Husband dyes the Wife shall have the Term and in this Case they were both parties to the Covenant 47 E. 3. 12. An Action of Debt for the arrearages of Rent reserved upon a Lease for years made unto the Husband and the Wife shall be brought against them both and so shall a Writ of Wast for the Wife cannot waive the Lease during the life of the Husband 6 E. 4. 10 17 E. 4. 7. An Action upon the Statute of Laborers was brought against Husband and Wife supposing that the Wife had Covenanted with the Plaintiff to be waiting-woman to his Wife for a year and that she departed out of service within the year and the writ was adjudged to be good being brought against them both 8 R. 2. Laborers 59. A man may have a writ of Detinue of Charters and of Chattels joyntly because there one thing is the ground of the Action viz. the Deteyner 44 E. 3. 41 Breif 583. Likewise a man may have a writ of Debt where part of the Debt is due by Obligation and part by Contract because there the Debt is only occasion of the suit 41 E. 3 damage 75. 1 H. 5. 4. So in things of the like nature one writ may comprehend many wrongs and therefore an Action of the Case was brought for hindring the Plaintiff to hold his Leet 2. for the disturbance of his Servants and Tenants in the gathering his Tithe 3. for Threatning so that the people c. durst not come to a certain Chappel to do their Devotion and present their Offerings 4. for the taking of his Servants and Chattels 19 R. 2. Action sur le Case 52. When an Action is given by the Statute and the Statute doth not prescribe any certain form of the writ the writ framed at the Common Law shall serve for that purpose and the special matter shall be set forth in the Declaration Dyer 37. a. 83. Where a man shall have an Action against his own Deed. A man shall have an Action against his own Deed as if I disseise an Abbot and make Feoffment in Fee with waranty and afterwards I am made Abbot of the same House my Feoffment shall not be a Barr to me notwithstanding it was with warranty I shall have an Action against my Alienee because that I recover to the use of the House and not to my own use The same Law if I disseise Major and Commonalty c. The same Law of the Parson of a Church The same Law if I take a Horse of a Feme sole and Sell it and afterwards marry her I shall have an Action of Debt against my Alienee because that I recover to the use of my Wife tamen quaere A Monk shall have a Quo minus debitum Domini Regis solvere non potest for the advantage upon a Lease made by the King reserving Rent 14 H. 4. The same Law if a Villein be made executor to a man to whom the Lord is bound the Villein shall have an Action against his Lord. The same Law if a Monk be made Executor c. The same Law if an Abbot hath been disseised and afterwards the disseisor is desseised the Disseisor releaseth with warranty and after that is made Abbot he shall find against his own Deed
any other Title or to have any other Action to recover the Land than that by which he hath recovered and by the same reason that he shall not have a Cessavit he shall not have Eschete If a man hath Rent in Fee he may distrain or have a Writ of Annuity and if he brings a Writ of Annuity and hath Judgment to recover although that he sues not out Execution yet he shall never distrain for the Rent afterwards Tenant in Tail discontinues for Life and dyes and the Tenant for Life aliens in Fee and the Heir bring in consimili casu and recovers now by this Judgment he shall never have a Formedon of the same Land c. The disseisor enfeoffs the disseisee by deed indented upon Condition or makes a Lease for Life by Deed indented this is a good Conclusion to the disseisee to demand his Right and the Reason is that by the Deed indented the disseisee hath affirmed the Estate of the Disseisor which is as much as if he had confirmed his Estate before the Feoffment In Debt upon an Obligation the Defendant pleads a Release upon which the Plaintiff is Nonsuit afterwards the Plaintiff brings a new Action of Debt the Defendant shall be estopped to say that he was deins age or that the Obligation was made per minas But it is otherwise if the Plea be discontinued An Essoin is cast for the Tenant in a Writ of Dower yet the Tenant shall be received to say that he hath been allways ready to render Dower and because that an Essoin may be cast for a Stranger this Essoin is no Estoppel for an Estoppel shall be good to every intent but because an Essoin may be cast for a Stranger as well as for the Tenant himself it shall be said an Estoppel I bring an Assise of Mortdancestor and recover when in Truth I have no Right c. yet the Wife of the same Father shall be endowed c. Also in Avowry Tenant for life Aliens in Fee the Wife of Tenant for Life shall be endowed against the Feoffee Also Tenant in Tail is bound by Statute and makes Feoffment Execution against the Feoffee Of some Estoppels none shall have advantage but those who are parties or privies AS if I loose Land by Erroneous Judgment or false Verdict those that are Strangers shall have no advantage But of some Estoppels every one shall have advantage As Bastardy certified by the Bishop User of Action is no Estoppel to prejudice an other viz. Heir c. AS a man grants a Rent Charge in Fee to an Abbot and his Successors or to a Feme-Covert and her Heirs if the Abbot or Husband brings an Action it shall not prejudice the Successor or the Wife In no Case one person shall estopp another but in Dower AS where a Woman demands Dower and she hath Writings touching the Inheritance of the Heir for in debt it is no Plea to say that the Plaintiff is indebted to the Defendant in ten pounds because that it cannot be tryed by the Original 3 H. 6. In every Case where I am Barred of Land as if it be found that I am not next Heir this Estoppel shall pass with the Land and every one that claims the Land by me shall be Estopped but of other Lands it shall be no Estoppel against me 33 H. 6. IF I bring a Praecipe quod reddat by the name of Richard when my name is John and recover by default against the Tenant and afterwards I bring another Writ by my right name against the same Tenant he shall not estopp himself by that Recovery So if I have misnamed the Tenant in the first Record because he shall not be grieved by it Mich. 33 H. 6. contra per Prisot contra per Fortescue 34. By Prisot none shall be received to plead an Estoppel against another but he that pleads may be estopped by the same plea and this is where both parties are parties to the Record otherwise not For if I bring an Action by the name of Robert when my name is John against one that pleads with me if afterwards I sue him by the name of John he shall estopp me by that Record but against a Stranger I shall not be estopped by it by Prisott and by Fortescue 30 H. 6. 26 H. 6. 14 E. 4. contra Bastardy certified against me or found against me every Stranger shall estopp me because that every Stranger is estopped to say that I am mulier But if I am certified mulier a Stranger shall not be estopped by it to plead special Bastardy because that it may be that I am a Bastard in our Law and a mulier in the spiritual Law but not è contra No Stranger shall take advantage by an Estoppel but where the Estoppel extinguisheth the Right AS if a Man makes a Lease to me for Term of years of my own Land and the Term passeth and he enters and grants a Rent Charge in Fee and afterwards I recover against the Grantor the Land by default the Grantee shall not falsify the Recovery by Estoppel A Stranger shall not take advantage of an Estoppel in fait if it be in the Realty but by matter of Record it is otherwise A Man takes a Lease of Lands for years or for Life of which Lands he himself â—s seâ—sed in Fee or in Tail at the time of the Lease made if it be by Deed indented he is estopped to say that he had any Estate or Right in those Lands at the time of the Lease The same Law if a man be disseised and takes a Lease of the disseisor for a term of years of the same Lands by Deed indented But if a man takes a Lease for term of life of his disseisor he shall not be thereby estopped notwithstanding it be by Deed indented because that by the Livery he is remitted and the Lease is void ut dicitur quaere tamen for the Indenture is strong against him but if it be indented it is cleer Law but if it be by Fine it shall be an Estoppel because that the Estoppel takes effect before his Entry Or if Livery be made out of the Lands within View c. If a man makes a Lease by Deed indented to one of his own Lands now he is concluded after the Lease determines the Lessor enters by force of the conclusion and a stranger comes in aid of him the Lessee shall punish the stranger for this Trespass and he shall not conclude him by force of the Lease because he is wholly a stranger to the Judgment per totam Curiam 14 H. 6. But quaere if he justify as servant if he shall conclude himself Fines and Recoveries A Fine was Levied of Lands in two Counties and but one County mentioned in the Fine yet because it was for the uses declared in an Indenture which did mention the Lands in the other County all the Lands mentioned in the Indenture did pass If
Affidavit that he was sick yet no day but he pleaded al pais 3 Bulstr 316. on default Judgment and no day Ben. 151. Debt for Scavage and declares that the Mayor Aldermen c. time out of mind have so much for Scavage and the defendant brought so many Boards whereby so much was due defendant waged Law and on demurrer adjudged it lyes not on this debt grounded on a Custom Ma. c. of London against Delpester Tr. 26. Ca. 2. b. r. Wast DEvise to one for Life Remainder to A. in Fee Tenant for Life does wast he in Remainder shall have an Action of Wast but the Writ must be special and shew that he was the Reversioner by Devise not generally ex assignatione Hutton 110. Lease excepting wood and underwood Lessee cuts Timber it seems an Action of Wast lyes not because the Wood was devised and so not within the Statute Dyer 19. a. 1 Leon 61. In Wast it seems that the defendant if he never attorned may either say que riens passa and give in Evidence that he never attorned or plead it Dyer 31. a. 231. a. b. In Wast for cutting and selling Trees the selling must be answered as well as the cutting for that is traversable Dyer 75. b. 90. b. Co. 1. Inst 53. Hob. 104. If an house be ruinous at the Lessee's Entry 't is no wast to suffer it to fall but to pull it down 't is and 't is wast in the Lessee to cut Timber to re-edifie such an house per Dyer but I suppose not for if the house fall by Tempest the Lessee may cut Trees to repair by Co. 1. Inst 53. b. 54. a. contrary to Dyer 36. a. Co. 4. Rep. 63. a. 11. 81. a. The general property of Trees remains in the Lessor and the Lessee hath but particular Interest to take them and in Dyer 't is said the Lessor cannot grant them without the Lessee's License But Co. 11. Rep. 't is said 't is good to take effect after the Lease which is yet a doubt upon Waller and Pettit's Case Dyer 36. a. b. Co. 4. Rep. 36. b. 11. Rep. 48. b. 81. 1 Cro. 199. Wast assigned quòd amputavit decapitavit quadragiâ—ta Fraxinus viginti Vlmas and adjudged it well lyes Dyer 55. a. Wast assigned Succidendo quercus the Truth was he did not lop and top them he may plead Nul wast fait and give the special matter in Evidence Dyer 92. a. Upon the Retorn of the Summons 't was said quòd quer ' obtulit se quarto die per Attorn ' without naming him and though he was named in the assigning of the Wast yet 't was Error and so it was that the Estate was not set forth in the Writ though it was in the Action of Wast Also he shewed one Tenant for Life by way of use the Reversion to him and said not spectaâ— ' vel pertinen ' Dyer 93. b. Wast may be assigned in destroying the Planks and Managers in a Stable but then they must be averred fixed to the Free-hold And so of letting a Brick-wal fall but it must be averred that it was covered 1 Inst 53. a. Dyer 108. Wast by a Bishop moved to abate the Writ because 't was ad Exheredationem ipsius Episcopi where it should be ad Exheredationem Ecclesioe but no Resolution given Mich. 10. H. 7. Pl. 8. Ad Exheredationem ipsius A. B. Ecclesioe de S. Mich. 42. E. 3. 22. b. Dyer 129. a. Lessee of an house and Wood covenanted to repair the house at his proper Costs and took Timber to repair it he is not charged with Wast but in Covenant he is The same Law if the Lessor had covenanted to repair it and the Lessee had took Trees on his default Vide 21 H. 6. 47. a. Lessee may plead in Bar of Wast that the Lessor granted the Repair and he took the Trees to do it in his default Dyer 198. b. 314. a. Dr. and Stud 66. b. Perkins § 738. Plow Com. 29. Dyer 32 a. A. makes a Lease to commence in futuro and before the Lease commences infeoffs B. The Lessee does wast B. brings wast supposing quod tenet ad terminum c. ex Assignatione A. de quo idem defend ' tenuit c. and good there being no other forme though he never held of A. for his Term was never commenced in A's time Dyer 206. b. Hutton's Reports fo 110. Lessor grants the Reversion to A. who grants it to B. the Lessee assigns the Term to C. Form of the Writ denyed per Justic ' utriusque Banci Dyer 208. Scire facias of a Fine and Writ of Estrepement sued one that purchased wood long before the Scire facias is hindred to fell it Quoere what Remedy Dyer 110. b. In wast assigned in taking a Furnace fixed to the Soyl the defendant pleaded a Devise of it by the Termor and removal of it by the Executor's Assent It seems no Plea being doubted if the Plaintiff ought not to have Judgment for the wast confessed Dyer 272. b. Owen's Rep. 70. Wentworth's Office of Executors fol. 36. Quid Juris Clamat was brought upon a Fine and after Judgment and before Execution a Writ of Estrepement awarded Dyer 325. b. In wast for cutting Trees the defendant pleaded quòd fuerunt aridoe cavoe putridoe in culminibus non existentes sufficiens Maheremium pro edificiis Two Judges held it ill because not said non portantes fructus nec folia Dyer contra it tantamounts But agreed non existen ' sufficiens maheremium ad edificand alone ill for it may be fit for other uses And to other he justified to make Posts for Inolosures and that ill because not shewed that all those Trees were so employed Dyer 332. More pl. 246. A. and B. Joyntenants for Life Reversion to B. make a Lease they shall joyn in wast And so if Tenant for Life and he in Reversion make a Lease they shall joyn and Tenant for life shall recover Locum vastatum he in Reversion damages 1 Inst 42. a. b. 1 Leon 49 To cut down Timber is Wast to suffer the young Germina to be destroyed is Destruction so if one when he has cut a Sale-wood lets the spring be spoiled or stubs it up Cutting Willows Beech Maple c. that stand in defence of the house and stubbing up a quick set Hedge is destruction for all which an Action of Wast lyes 1 Inst 53. I. K. L. M. To suffer a ruinous house to fall down that was so at one's Entry is not wast ytt he may take Timber and re-edifie it but if he pull it down it is wast To destroy Glass Wainscot Doors Furnaces c. fixed to the Free-hold is wast Cutting Fruit-trees in the Orchard or Garden is wast otherwise not If a house be blown down by Tempest Lightning c. the Tenant must in convenient time repair it Destroying the Stock of Dove-houses Warrens c. is wast Where Timber is scant
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.
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.
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
demands a Debt or any thing by Deed he shall not be Barred but by deed or a thing of as high a nature AS Trespass for taking of an Apprentice it is no Plea to say he discharged him â—â—â—â—out speciality Mich. 22 H. 6. The same Law in Debt upon an Obligation it is no Plea for the Defendant to say that the Plaintiff hath received parcel at such a place depending the Writ Judgment 7 E. 3. The same Law in Debt upon Arrearages of Account the Defendant Pleaded Arbitrement it is no Barr because that Debt upon Arbitrement is not of so high a nature as Debt upon Arrearages of Account for there he cannot wage Law The same Law in Debt upon an Obligation it is no Plea to say that he hath paid the Summ in demand to the Plaintiff because that he ought if he will avoid the Deed to say that he hath the Plaintiffs Release or Acquittance to shew The Disseisor Levies a Fine with Proclamations the Five years pass the Disseisee is bound afterwards the Disseisor reverseth the Fine by a Writ of Error then the Disseisee may enter and yet he was once Barred Vide Barr pro tempore Where a man shall Plead a Barr which shall comprehend one matter in fait and where it shall comprehend two matters IF a man Pleads in Barr an Arbitrement he ought to say where the Submission was and also where the Award was made and so to make the Plea certain But when he Pleads a Plea which comprehends two matters he ought not to shew the certainty until the Plaintiff hath Traversed one of them Of Barrs perpetual A Woman is bound to me in an Obligation and I afterwards take her to Wife I am once Barred and allwayes Barred Tenant in Tail leaves Assets which is Pleaded against him who is Heir both he and all his Heirs are Barred for ever A man is bound to pay the Abbot of Westminster and his Successors every year Twenty shillings the Abbey being dissolved he is discharged of the Twenty shillings for ever Also if a man be obliged to keep my Court in Dale I purchase all the Copy-holds and Free-holds of the said Mannor he is discharged from keeping the said Court for ever See Pleas and Pleadings Cinque-Ports AN Elegit to extend Lands within the Cinque-Ports was directed to the Constable of Dover But he would not extend so that the Plaintiff was compelled to have a Certiorari to remove the Record out of the Kings-Bench into the Chancery And from thence by Mittimus sent to the Constable to make Execution Custom 's and Prescriptions ALI Customes against Cannon-Law are to be Tryed at Common-Law and not in the Ecclesiastical Courts Customs are payable to the King by the Common-Law the Reasons why they are so paid see in Davies Rep. fo 9. ct 10. Le case del Customs See the difference between Malum in se etmalum prohibitum and how the King may Pardon it but not licence it to be done 11 H. 7. fo 12. et Davies Rep. fo 73. Where Debt or damages are recovered in a Court-Baron the Bailiff ought not to sell the Goods of the Defendant and deliver the money to the Plaintiff But to impound them and keep them as pledges until the Defendant makes his agreement but where it hath been the use of the Court to award a Levari facias it is good by Custome Where the younger son in Burrough-English dyes the Middle Son not the Eldest shall have the Land The same Law for Customary or Copy-hold Lands It was the Custom of the Kings-Bench every Term once or twice to send the Coroner of that place to the Marshal to view the Prisoners that are in the Marshals Custody by Commititur or matter of Record and if any of them are wanting that he could not find them there then to mark their names in his Coroners Book and to inform the Court thereof And thereupon the Court did pose the Marshal who was to inform the Justices what was become of those Prisoners And if he found not sufficient cause of excuse the Court would Record their escape against the Marshal And the abusing of an Office is the escape of Prisoners in the Marshal an abuse of his Office and just cause of Forfeiture If an Alien have a son that is also an Alien and after the Father is made free and then hath another Son and after purchaseth Lands and dyes The second Son born after the Freedom shall be Heir and not the Eldest by the Common-Law and usage of the Realm And also if there be three Brothers and the middlemost purchaseth Lands and dyes without Heir of his Body the Eldest Brother shall inherit and not the Youngest By the Custom of London a Feme Covert that is to say a Sole Merchant may sue and be sued in absence of her Husband Bulstrode part 1. fo 14. where you may read of three sorts of Customs that are void and against Law 1. a Custom against Justice 2. a Custom against the Benefit of the Common-Wealth and 3. a Custom that is to the Prejudice of a third Person Custom and usage in the intendment of the Law is such a usage as hath obtained the force of Law and is binding to such particular place as Gavelkind in Kent and Burrough-Euglish in many Corporations in England When the Custom of the Realm is the Common Law WHen it is the Common-Law a Custom ought not to be alleadged or Pleaded But an Action against a Carrier Hoyman Common Hosteler and for negligently keeping of Fire the Plaintiff may declare upon the General Custom of the Realm or not at his Election And note That a Custom is always Local and to be alleadged in one certain place but a Prescription is personal and ought to be alledged in some persons certain as in such a man his Ancestors or Predecessors or those whose Estate he hath 22 H. 6. 22. A Prescription is always to be of such a thing and in such manner as may be intended to have a lawful and legal commencement or otherwise it is not good but a Custom may be contrary to the Rules and Maxims of the Law as Borough-English Gavelkind Copy-hold Tenures So Lands devisable by Custom So that the Custom be reasonable Co. 6. Gatewards case lib 5. Perimans Case None can prescribe but who hath Fee but all other Estates derived out of the Fee as Lessee for years Life or at Will ought to prescribe in him who hath the Fee Gatewards case ubi supra A Lord prescribed that he and all those whose Estates he hath in the Mannor have hitherto used to have a Herriot after the death of any Tenant for life or for years within the Mannor and good notwithstanding the Estates of the Tenants have no continuance 21 H. 7. 15. Prescription ought not to be in the Negative but if it be in the Negative with an Affirmative it is good 14 H. 6. 3. 22 H. 6. 36. 11 E. 4
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
adtunc Vicecomites suffered him to This is noo good Plea because there be three Years specified in the Declaration and it shall be hardest taken that it was 2 or 3 H. 8. when they were out of Office and yet it is nearly induced by the adtunc Vicecomites which should leave the Intendment to be of that Year in which the Declaration supposeth them to be Sheriffs but that sufficeth not but the Year must be alleadged in Fait For it may be mislaid by the Plaintiff And therefore the Defendants Meaning to discharge themselves by a former Escape which was not in their time must alleadge it precisely Dyer fo 66. Reg. 5. For uncertainty of Intendment if a Warranty Collateral be pleaded in Bar and the Plaintiff by Replication to avoid the Warranty saith he entred upon the Possession of the Defendant non Constat whether this Entry was in the Life time of the Ancestor or after the Warranty descended and therefore it shall be taken in the strictest Sence that it was after the Warranty descended if it be not otherwise averred 3 H. 7. 2 3 Plo. 46. a. For Improperty of Words If a man plead that his Ancestor died by Protestation serzed and that J. S. abated c. this is no Plea for there cannot be an Abatement unless there be a Dying seized alleadged in Fait and an Abatement shall not be improperly taken for Disseisin in pleading For Words make Pleas 38 H. 6. a. b. 39 H. 6. 5 6. Reg. 6. For Repugnancy in pleading if a Man in Avowry declare that he was seized in his Demesne as of Fee of 10 Acres and being so seized did demise the said 10 Acres to J. S. habend ' the Moiety for twenty one years from the Date of the Deed the other Moiety from the Surrender Expiration or other Determination of the Estate of J. D. qui tenet predict ' medietat ' ad terminum vitae suae Reddend 40 s. Rent This Declaration is insufficient because that the Seisin that he hath alledged in himself in his Demesme as of Fee in the whole and the Estate for Life of the Moyety is repugnant and it shall not be Cured by taking the last which is expressed to controul the former which is but general and formal but the plea is naught and yet the matter in Law had been good to have Intituled him to distrain for the whole Rent Reg. 7. A Bar may be good to a Common Intent tho' not to every Intent As if Debt be brought against Five Executors and Three of them make Default and two appear and plead in Barâ— a Recovery had against them two of 300 l. and nothing in their hands over and above that Summ If this Barr should be taken strongest against them it should be intended that they might have abated the first Suit because the other three were not named and so the Recovery not â—uly had against them but according to the Rule the Barr is good For that by Common Intendment it will be supposed that the two did only administer And so the Action well considered rather than to imagine that they would have lost the Benefit and Advantage of abating the first Writ Reg. 8. In pleading a Man shall not disclose that which is against himself and therefore if it be matter that is to be set forth on th' other side Then the plea shall not be taken in the hardest Sence but in the most Beneficial and to be left unto the contrary part to be alledged And therefore if a Man be bound in an Obligation that if the Wife of the Obligee does Decease before the Feast of St. John the Baptist which shall be in the Year of our Lord God 1598 without Issue of her Body by her Husband lawfully begotten then living that then the Bond shall be void And in Debt brought upon this Obligation the Defendant pleads that the Woman died before the said Feast without Issue of her Body then living If this Plea should be taken strongest against the Defendant then should it be taken that the Feme had Issue at the time of her Death but this Issue died before the Feast But this shall not be so understood because it makes against the Defendant and it is to be brought in on the Plaintiff's side and that without Traverse Dyer 16 17. Non dimisit to an Action of Debt upon a Lease in Writing was adjudged an ill Plea and a Repleader awarded thereupon by the Court Mich. 44 and 45 Eliz. Rot. 158. in Banco Reginae If J. S. Covenant to make me an Assurance I paying the Costs and Charges for making thereof he shall not barr my Action of Covenant by saying he was ready to do it unless he bring the Writings Ingrossed and ready to Seal and I refuse to pay the Charges accordingly Debt against an Executor who pleads three Judgments of an 100 l. a piece and that he had paid 40 l. in Satisfaction of two of the Judgments and that he hath not nor had c. praeterquam c. the said 40 l. and 20 l. more which is not sufficient to satisfie the other Judgment upon which the Plaintiff demurred and adjudged for the Defendant for it s but in effect a plene administravit specially Administrator durante minore etate if he wasts the Goods of the Infant he shall be punished as an Executor in his own wrong If an Administrator brings an Action of Debt and averrs in his Declaration how that Administration was granted to him at London and the Letters of Administration bear Date in another place and County the Plaint shall abate Upon a Scire Facias against two Executors the Sheriff returns nulla bona against both and Devastavit to the Value of the Debt against one of them whereupon another Scire Facias issued forth and Judgment was obtained only against him thereupon by Default and after that a Fieri Facias de bonis propriis against him alone If there be two Executors and the one of them confess the Action and the other lets it go by Default or pleads non est factum or plene administravit Judgment shall be against both de bonis Testatoris Divers Executors are but in the Nature of one Person For they all represent the Person of their Testator And if the Action had been brought against him in his Life he should have made but one Answer If Debt and Damages be recovered against one and before Execution he dies upon a Scire Facias against his Executor or Administrator you shall recover only de bonis testatoris and not de bonis propriis because the Prayer of the Scire Facias is only de bonis Testatoris and the Court will not exceed the Prayer of your own Writ Reg. 9. The Defendant may plead an Outlawry in disability of the Plaintiff before Imparlance but after Imparlance he cannot plead in disability of the Person but he may plead it in Barr of the Action 32 H. 6 33.
the King presented and by some held that the party may traverse the Kings Title in this Action not traverse in Chancery and the Presentment not the Appendancy traversable unless where they claim from the same person but at last almost all were of Opinion that the Traverse of the Kings Title here and not in Chancery is void but vide Co. 9. rep 95. b. 96. a. the presentment is traversable here M. 20 E. 4. pl. 11 17. P. 21 E. 4. pl. 15. Quare Impedit the Defendant pleads ne disturba pas The Plaintiff presently prays a Writ to the Bishop and has it and so is the 5 H. 7. 22. a. M. 21 E. 4. pl. 42. A. B. and C. Joynt-tenants of an Advowson they present C. by a strange name to the Church and he is admitted c. by the Bishop and is held a good presentment sed vide 10 H. 8. 14 a. Corporation present their Head and 't is held a void presentation see Mo. 45. accord ' al principal case and P. 17 H. 8. pl. 28. M. 21 E. 4. pl. 48. Three Patrons of an Advowson agree to present by Turns if one usurps one the other presents in her Turn yet it puts her not out of Possession but if one be in Ward to the King and he usurps in Right of one of the Parceners it puts the other out of possession because he not privy to the Partition per Choke and Bryan sed Catesby contra because in Right of the Parcener P. 22 E. 4. pl. 3. Void or not Void is tryable at Common Law but Full or not Full by Certificate of the Bishop and so is 40 E. 3. 20. b. 11 H. 7. 18. a. M. 22 E. 4. pl. 3. Quare Impedit against A. as Patron and B. as Incumbent the Defendant pleads that C. presented him not named no plea For here the Plaintiff has named one Disturber and he shall not force him to name another and vide 9 H. 6. 30 31. a Disturber must be named but contrary of an Incumbent For that is at the Plaintiffs pleasure H. 22 E. 4. pl. 7. In Quare Impedit Title was made by Acceptance of a second Benefice contrary to the 21 H. 8. and Issue taken of the Jurisdiction And so it seems Admission and Institution makes not the Avoidance till Induction Mo. pl. 45. Hob. 166. Owner of an Advowson grants that whenever the Church is void J. S. shall nominate and he will present each shall maintain a Quare Impedit and if he that has the Nomination presents he that should present shall have a Quare Impedit and è contra and a Rent Charge granted must be confirmed by both but Aid shall be prayed only of him that has the Nomination for 't is in the Right Mo. pl. 147. vide H. 14 E. 4. pl. 2. Mo. pl. 1258. vide Mo. pl. 11 78. Quare Impedit against Parson Patron and Ordinary who make default the Plaintiff is forced to make Title and then has a Writ to the Bishop and another to enquire of the four points and recover Damages against them all because by the Default all supposed Disturbers Mo. pl. 214. Barroness retains Chaplains her Marriage after is no discharge of their Detainer unless the Husband actually discharge them but Attainder either in Man or Woman is a Discharge Rex vers ' Epm ' Peterborough Mo. pl. 924. Resolved the Advowson of the Viccaridge is properly appendant to the Rectory but may be to the Mannor as if the Mannor and Rectory were both in a Hand before Appropriation and at the Appropriation the Lord reserved the Advowson of the Viccaridge but that must be shewed either by the Appropriation or usual Continuance which is an Evidence of it Sir George Shirley against Vnderhil Mo. pl. 1258 Quare Impedit against the Bishop and another who demurred Judgment for the Plaintiff et Epus ' in Mia and Writ to enquire 7 E 3. 30. a. Writ to enquire of Damages on Demurrer and Judgment et Epus ' in Mia ' And that assigned for Error because he is twice amercied Resolved none for First The last is but a Recital of the first Secondly The first however is good at Common Law and the Plaintiff may take it at Common Law without Damages if he will wherefore 't is affirmed Specot's Case Co. 5. rep 58. b. 59. a. Quare Impedit and the Writ was Ad Ecclesiam and the Count was de Advocatione duarum partium and well For the Writ must be General but the Count must be according to his Title Windsor's Case vide Co. Ent. 489. a. 3 Cro. 687 688. Co. 10. rep 13. b. 1 Inst 17. b. 18. a. vide 2 Anderson pl. 16. Writ quod permittat presentare ad duas partes Ecclesiae and Counts of the Advowson that duae partes bene aliter if the Count had been de duabus partibus Co. 5. rep 102. A Tenant for Life Remainder to B. presents his Clerk c. and after sues him to Deprivation for not reading the Articles A. dies and two years after the King presents by Lapse and then the Clerk of A. dies and B. presents Resolved first That the Patron is not bound to take notice of the Deprivation though at his Suit but 't is to be given by the Ordinary to the Patron and not only a General but publick Notice Secondly Though the Church be so void for not Reading as a Parishoner may plead it against the Parson in Debt for the Tithes yet the Patron is not to take Notice before it be given Thirdly The King mistakes his Title his presentation is void Fourthly The Institution and Induction c. thereon had are void and the Church remains so void to that Hob. 203. Dr. Griffith's Case B. R. 14 Car. 1. Fifthly If a Common Parson usurp upon the King and his Clerk be inducted the King is put to his Quare Impedit but a double or treble Usurpation gives only the possession not the Right from them Sixthly Without presentation the Patron cannot be put out of Possession For Collation may put one that has Right to collate out of possession but not one that has Right to present And so 't is agreed after fo 50. in Boswell's Case And note if the Presentation be in the time of War though the Admission Institution and Induction be in Time of Peace all is void Green's Case 2 Cro 385. Quare Impedit against the Bishop and Clerk omitting the Patron Resolved it shall abate For the Patron only at Common Law could plead and must be named in every case unless where the King presents who cannot be sued and unless it be in such a case as the Patrons Right is not concluded but only the presentment recovered and if it be brought against the Clerk and Patron and the Patron does plead to the Writ it shall not abate nor shall it if brought by Baron and Feme or two Parceners or Joynt-tenants and the Feme and one Parcener
dig to make a drayne in a Meadow Ibidem Owen 66. 67. Hutt 103. Dy. 37. a. Co. 1. Inst 53. 2 Leon. 174. Lessee builds a new house 't is wast to suffer it to decay not if the Lessor builds it after the Devise Ibidem Co. 1. Inst 35. s. Hutt 103. Whether Tenant by the Curtefie were punishable for wast by the Common Law Or not Vide Co. 2. Instit 299. 145. The first Statute that gave prohibition of wast and damages against Farmers was Marlbcapâ— 23. And where the Statute says vastum c. non facient 't is to be understood also non permittent vastum and so 't is in the Condition of a Lease Co. 2. Inst 145. None can claim to be dispunishable of wast in a particular Estate but by deed because 't is the Lessor's disherison Co. 2. Inst 146. Dyâ— 281. a. Lessee of a Mannor commits wast in a Tenement escheated the Lessor shall declare in wast of a Lease of the Tenement and maintain it by special Matter Co. 2. Inst 146. At the Common Law to prevent wast by Guardian Tenant in dower or by the Curtesie the Party might have a Prohibion to the Sheriff and by that he might have a posse Comitatus and so it may be done at this day And such Remedy as is against them at the Common Law is against Farmers c. by Marlb ca. 23. Co. 2. Inst 299. Vide Stat. 10 R. 2. c 14. If a Lease be made to A. for his own life Remainder to him for the life of B. or where a Remainder for years is upon an Estate for life there if A. does wast it shall be punished because himself had both Estates and in the latter case the Remainder shall not destroy the Term for years Co. 1. Instit 54. 2. Inst 301. The Husband that holds in Right of his Wife Lessee for life does wast the Wife dyes the wast is not punishable because the Husband held not but in his Wife 's Right and the Estate was her's Clifton's Case ibidem Co. 5. Rep. 75. b. Although Tenant in Tail after possibility of Issue extinct be dispun of wast yet if he grant over his Estate it is punishable in the Assignee ibidem 302. Tenant by Statute Merchant Staple or Elegit though they have but a Chattel are not within the Statute of Glocester 1. 5. Executors shall be punished for wast done in their own time not in the Testators He that holds a third or fourth part pro indiviso is within the Act. Tenant for years assigns upon Condition the Assignee does wast and he enters for that Condition the Action must be against the Assignee Ibidem Tenant for Years or Life assigns and takes the profits and does wast the Action lyes against the pernor of the profits by 11 H. 6. c. 5 Co. 5. Rep. Booth's Case 77. Tenant assigns the Term except the Trees Wast is done in the Trees the Action lyes against the Assignee Co. 5. Rep. Saunder's Case Lessee commits Wast and then assigns Wast in the Tenant shall be maintained against the Lessee and the place wasted and treble Damages shall be recovered against him Non Tenure general is no Plea in Wast but special non Tenure is Assignment and no Wast done before the Assignment or Wast done by the King's Enemies or Tempest or Lightning is not punishable Co. 2. Inst 302. 303. The Tenant shall answer for permissive Wast unless in such case where he could not prevent the Wast as where he is ousted by Cotssee of a Statute entred into before his Lease and that Cotssee does wast or by any precedent Title ibid. 303. Feme Tenant in Dower of a Mannor and Copy hold commits Wast the Action lies against the Tenant in Dower Ibid. 303. Femes Coverts and Infants shall answer for Wast done by Strangers though some have held the contrary and so shall the Wife for wast done by the Husband for Lease made to them for Life if she agree to the Estate Ibid. 303. Where the Wast is done Sparsim in houses Woods or Meadow there the whole shall be recovered ibid. 304. One may have an Action of Wast in the Tenct after the Term is determined by Expiration Death or the Act or Wrong of the Tenant and theresore if the Term end hanging the Writ it shall not abate because maintainable for the damages but if the Tenant surrender after the Wast done no Writ is maintainable for the Lessor cannot by his own Act alter the form of the Action Ibid. 304. The Heir cannot maintain an Action for Wast done to the Ancestor because the damage belongs not to him yet if two parceners be and wast is done and one of them dyes and wast is done again one Action shall be maintained for both and the Writ shall say both Wastes were to both their Disherison but the Judgment shall be for the place wasted to them both and for the damages severally in their several Tenures Ibid. 305. Guardian shall not be punished for Wast done by Strangers unless it be such as he might have prevented and would not for then qui non prohibet jubet ibidem 305. If the Gnardian commit Wast he shall by Gloue ' Ca. 5. lose the Wardship and single Damage and if it be done so near his Age as he could not bring his Action of Wast or had not notice of it then he shall recover treble damages upon the said Statute as a common person shall Ibidem 306. Wast upon the Stat. of Glouc ' Ca. 5. lyeth not in Ancient Demesne because they cannot award a Writ to the Sheriff to inquire Ibid. 306. Owen 24. contra In an Action of Wast by two in the Tenuit if one relinguisheth it barrs both not so of an Action in the Tenet Ibid. 307. A. has B. and C. in his Wardship Ratione Custodiae and commits Wast in the Lands of B. yet he shall not lose the Wardship of C. because the Wast was not to his Disherison Ibid. 306. At the Common Law there lay an Estrepement after Judgment Glouc. c. 13. gives it Pendente placito and may be sued out with the Original If the Tenant alien pendent the Plea the Estrepement may be against him and his Alienee and the Defendant shall not have his Age in it And tho the Statute says Du Tenement in demand yet in the Scire Facias to execute a Fine in a Quid juris clamat or in Wast an Estrepement may be had yet no Land is demanded in the Writ Upon the Statute the party shall recover damages after delivery of the Lands Co. 5. Rep. 114. b. It lyes before or after Judgment in Wast and the Sheriff may take the Posse Comitatus to prevent the Wast Co. 2. Inst 328. 329. In Wast the Process is Summons Attachment Distress and then upon default a Writ ad Inquirend ' and the Sheriff by the Statute is to go in Person and with the Jury view every place in every
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
take the Inquisition at another place Co. 8. R. 15 2. b. Lease for Life Sans Impeachment of Wast per parol mult ' alterâ—at ' and not resolved whether the Priviledge be good without deed but resolved if the Priviledge be void without Deed yet the Estate is good as an Estate without the Priviledge Co. 9. R. 9. a. 10. b. In Wast for cutting down a tree nothing shall be recovered but the Circuit of the Root and not according to the Latitude of the Branches Co. 11. R. 50. a. Lease for years Sans Impeachment c. Lessor confirms his Estate for Life the Term is merged and he punishable for wast so lease pur auter vie Sans Impeachment c. Remainder in him for his own Life it merges his first Estate c. he is bare Tenant for Life punishable for wast Co. 11. R. 83. b. Term expires Lessee continues in Tenant at Sufferance and does voluntary wast his Lessor also being Tenant for years brings Action upon the Case and adjudged it lyes and not Trespass as objected by Littleton it ought to be and the rather here because the Plaintiff being but a Termor subject to Wast ought to sue his Action to have as much in Damages as he may be charged over West against Trend 1 Cro. 135. vid. Co. 5. r. 13. b. Error of a Judgment in wast assigned first because the Wast being assigned in several things entire Damages are taxed which ought not to be for some of them be Pettits not punishable and the Court is to judge Sed non allocatur being found not intended any of them Pettit Secondly thirteen Jurors enquire and they not an Inquest of Office as Writ to enquire of Damages for Attaint lyes but that seemed well enough also Thirdly the Wast is assigned in cutting twenty Trees and the Jury found him guilty but of two and yet no Misericordia pro Resid ' But Barkley held it well for when they find any part of the same thing assigned there needs no Miserecordia pro resid ' But if they find wast in some things and no Wast in any part of one thing as if Wast assigned in Domibus Boscis and they find it in part in Domibus and none in Boscis he shall be in Misericordia pro Boscis but where they find a less number of trees than assigned Jones and Cro. doubted K. uxor against Fitzh 1 Cro. 299. 327. Eradication of white Thorns is wast not succidendo and vendendo unless they grow in places for defence of Cattel and it be so averr'd 2 Cro. 126. Lease for years with House-boot and Hay-boot sine impetitione vasti as good as sine impetitione vasti and traverse to the whole not the House-boot and Hay-boot Ley against Eyre 2 Cro. 226. or 216. Wast and Counts general of wast done ad exhered ' 't is found that the Defendant was Lessee for years Remainder to D. Sans Impeachment of Wast who is dead and if the wast was committed in the Life of B. yet good amover for though then no Action lay and B. might have licensed him to do wast yet now he may count of it as Wast immediately done to himself Bray against Tracey 2 Cro. 688. Wast and Counts of a Lease for Life Defendant pleads 't is part of an Hospital whereto the Plaintiff presented him for life it seems it lyes not for he is in from the Foundation and though in but for Life the person has the time no Revertion in him 21 H. 6. 2. Wast by an Abbot and Counts of a Lease by the Predecessor and assigns wast general without saying whether in the Predecessors time or his own and good for were the wast committed in the Predecessors time the Successor shall punish it and so is 42 E. 3. 22. And if the Predecessor had released it yet the Predecessor may punish it for being in the Realty the Predecessor could only release for his own Life eod Libr. E. 3. yet there 't is doubted if an Agreement had been made with the Predecessor for the wast if it had not been a Bar. And in 21 H. 6. where one justifies to cut Ashes for Fire-wood could be had and that per Curiam yet note in the end of the Case t is pleaded and that no under-wood was there And in this case 't is held by some that Ashes Oaks c. under twenty years growth may be taken for Fire-boot c. but denyed by others for they are Ashes and 't is held that Lessee Sans fait may take House-boot c. as well as if by Deed and that if Lessor in the Deed of Lease granted that he will require the House Lestue may take Trees in his default and pleaded it in Bar of the wast and so seems Dyer 198 b. 124. a 24 H. 6. 46. 47. 48. The Summons Attachment and Distress all retorned nihil and whether a VVrit to enquire of the VVast shall be awarded no VVrit being retorned served or an Alias distringas multum dubitatur alter catur but at last the VVrit was awarded To inquire of Wast vide 41. or 14. H. 6. 2. b per Roll. If Baron and Feme Tenants in Common of a Term be and wast is done wast lyes against her after his Death quod alii concesserunt Trav. denyed Et vide F. N. B. 59. Baron and Feme Tenants for Life she shall not be punishable after his Death for VVast done by him 46 E. 3. 25. vid. Case 21 H. 6 56. a. b. H. 6 25. b. VVast and assigns wast in cutting down so many Oaks and in cutting down the Springs that came up from the Roots again Resolved this is double wast and so may be double Assignment and is not a double Assignment of the same wast and treble Damages shall be given for each cutting tho by some it can be recovered but once 2 H. 12. a. b. Tenant in Dower or by the Courtesie grants over their Estate yet the Husband shall maintain an Action of Wast against them but if he assigned his Reversion his Assignee must have it against their Assignee Co. 1. Inst 316. a. F. N. B. 45. Two bring an Action of VVast one releases it bars both if it be in the Tenuit wherein Damages only are to be recovered not if in the tenet where locum vastatum is to be recovered also Co. 1. Inst 355. b. In Co. 1. Inst 't is held of one side and denyed by the other that an Attachment lyes upon an Inquiry of wast But 1 Cro. 't is held clearly that it does And F. N. B. fays it was fo resolved by the Court 2 H. 4. But his Opinion is contrary Co 1. Inst 355. b. 1 Cro. 299. F. N. B. 107. c. The Reversion must continue in him that brings the Action at the time of the Action brought because 't is said Ad Exheredationem and it must be in him at the time of the wast done unless in special Cases as Tenant for Life
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