a Chest By which he lost his Marriage with A. D. c. I. S. shall have an Action for these words 2 Cro. 323. Mathews Case Mich. 12. Jac. B. R. Sell against Fairee per Cur. To say to a Woman Thou art a Whore I will marr thy Marriage by which she loseth her Marriage an Action lyes Trin. 22 Jac. B. R. Tonson against Spring adjudged upon Arrest of Judgment In Action upon the Case if the Plaintiff declare that she hath many Wooers to marry her and that the Defendant said of her She is with Child and hath taken Physick for it whereby she came into Disgrace Et perdidit consortium vicinorum suorum c. Although that it be not alledged that she lost any Marriage thereby yet the Action lyes Mich. 21. Jac. B. R. Medhurst against Balam adjudged in Arrest of Judgment If a man saith to an other Thou wast found in Bed with J. S. his Wife by reason of the speaking of which words he lost his Marriage with A. S. c. Although that he might be in Bed with her without any ill done yet because that it sounds in Disgrace and he hath lost his Marriage by it the Action lyes Mich. 8. Car. B. R. Southal against Dawson adjudg'd in Arrest of Judgment If the Plaintiff in an Action of the Case for words declare that the Defendant said of him He had the use of my Wife's Body by Force by reason of which words he was brought before certain Justices c. and examined by them for a Rape committed by him upon the said Woman whereupon to purge himself thereof he expended divers Sums of Money an Action lyes upon this Deelaration for the temporal Dimage he had thereby Mich. 9. Car. B. R. Harris against Smith adjudged upon Writ of Error In Action upon the Case if the plaintiff declares that in London by the Custom a Common Whore ought to be carted and a Bason rung before her And that the Defendant spoke these words of the Plaintiff Thou art a Whore and a common Whore and art a Bawd to thy Mistress and I will have a Bason tinged before thee the Action well lyes upon this Declaration for these Words Trin. 15. Car. B. R. Hassell against Capcot adjudged in Arrest of Judgment In Action upon the Case if the Plaintiff declare that in London there is a Custom that a Bawd ought to be carted and the Defendant said these words of the Plaintiff She is a Bawd and I will have her carted Hill 15 Car. B. R. Riley against Lewes adjudged in Arrest of Judgment If the Plaintiff declares in an Action upon the Case that whereas he was a Parishoner of S. the Defendant being Vicar there to the intent to scandalize the plaintiff and to create an evil opinion of the plaintiff among his Neighbours so that they Abstraherent seipsos à consortio of the plaintiff tanquam ab homine excommunicato nulla fide aut credentia digno and to exclude the Plaintiff injustly from the Church and for a long time to deprive him of the benefit of hearing divine Service in the said Church the Defendant in time of divine Service in the Church in the hearing of the parishioners maliciously pronounced the plaintiff excommunicated Praetextu cujusdam Instrumenti by him received from the Ordinary whereas he never had any such Instrument of Excommunication nor was he excommunicated And also at another time to the same Intent aforesaid in time of Divine Service in the hearing of the parishoners maliciously pronounced the plaintiff excommunicated and refused farther to celebrate divine Service until the plaintiff departed out of the Church whereupon the plaintiff was compelled to go out of the Church whereas the plaintiff was not excommunicated whereby the plaintiff was scandalized and hindred from hearing Divine Service for a long time and for the clearing of this Scandal and of his Innocency therein Diversos corporis sui grandes labores capere diversas ingentes denariorum summas errogare exponere coactus fuit in extremam depauperationem ignominium maximum of the plaintiff This Action lyes notwithstanding he doth not shew that any person did avoid his Company or refused to trade or deal with him and notwithstanding he doth not set forth any temporal or spiritual loss for it is a great Scandal and malicious tho to his Soul and spiritual Mich. Car. B. R. Barnabas against Traunter Adjudged in Arrest of Judgment If a man saith of another who hath lands by discent That he is a Bastard an Action upon the Case lyes for it tends to his Disinheritance and disturbance by Suit Mich. 3. Jac. B. R. per Curiam In an Action upon the Case if the plaintiff declare that he was Heir apparent to his Father and B. his Brother and that either of them hath Lands in Fee to the value of 40 l. per annum and that they did intend to suffer the said Lands to descend to him or to convey the same to him yet the defendant intending to disinherit the plaintiff said to the plaintiff Thou art a Bastard whereby his Father and Brother intended to disinherit him and to convey their Lands to another The Action lyes upon this Declaration for the temporal damage which might come to him thereby Pasch 13. Car. B. R. Humfries against Stutfield Adjudged in Arrest of Judgment Where there was Grand-father Father and Son and the Son brought an Action upon the Case and declared that the Grand-father whose heir he is entailed certain Lands upon him and the Heirs males of his Body and the Defendant intending to scandalize his possibility that he hath to inherit this Land as Heir of the body of his Grand-father said that he was a Bastard notwithstanding that the Grand-father and Father were alive yet the Action brought as above by the Son did lye Humfries Case ubi supra In an Action upon the Case if the Plaintiff declare that he exhibited Articles in the Kings Bench against the defendant for the good abearing and swear the Articles to be true before Justice W. Innuendo the said Oath taken upon the said Articles although it be not averr'd that the Oath was taken of Record yet the Action lyes for it shall be intended the Articles exhibited in Court and sworn before a Justice of the Court Mich. 10. Car. B. R. Yolden against Wannel Adjudged in Arrest of Judgment If a man saith of an other He hath written a forged Will wherein I will prove him salse forsworn and perjur'd in a Will that he made of John Hunt an Action lyes for these words for it shall be intended that he was perjur'd in his Oath taken touching the said Will. Hil. 12. Car. in B. R. Cowley against Clough In an Action upon the Case if the plaintiff declare that there was a Writ to inquire of Damages between A. and B. in a Court of C. at the Sessions-house where he was sworn to give Evidence according to his Knowledge
423. per Curiam It being moved in Arrest of Judgment and the plaintiff never had Judgment in it Mich. 1650 inter Winter and Barnard â—djudged In Action upon the Case for words the plaintiff Thomas Bâ—owne declares that one A. G. had a Bastard Son begotten of her Body then living the Defendant knowing it of his Malice to defame him and to bring him in danger of the Statute of 18 Eliz. having Speech of the said Bastard and of the plaintiff said of the Plaintiff that Brown is the reputed Father of that Child whereby he was greatly prejudicâ—d in bargaining and selling and put to great Expences for the clearing of himself in hac parte the Action lyes not for these words upon this Declaration because it is not said by the plaintiff that he was to be punished by the said Statute for he was not to have corporal punishment or to be imprisoned unless the Bastard be some charge to the Parish Hill 11. Car. B. R. inter Salter and Brown Adjudged in Writ of Error In an Action upon the Case for scandalous words if the plaintiff declare that the Defendant said these words of the plaintiff being a Feme sole viz. This is that Whore that my man A. got a Bastard by and withal spent all my money And being asked by an other person standing by whether he were not mistaken for the Maid hath been but little above a year in Town the defendant replyed The Quean hath been too long to my Cost No Action lyes for these words for to say that a Woman had a Bastard is no cause of Action Trin. 1651. Inter Owen and Jevan Adjudged in Arrest of Judgment If a man saith of another He was the true Patron of the Advowsâ—n of S. but he hath lost that Patronage and Presentation by being a Symonist and a Recusant both which I will prove him to be yet no Action lyes for by the Symony only comes the loss of the Presentation pro hac vice by the Temporal Law and the Recusancy only toucheth him in Religion sor it doth not appear that he intends him to be a Recusant according to the Statute Trin. 16. Jac. B. R. Sir John Tasborough's Case adjudged in Arrest of Judgment Iâ— a man saith of an other He hath forsworn himself no Action lyes for these words Pasch 40. Eliz. B. R. To say to a man Thou hast forsworn thy self Leak Court no Action lyes without shewing what manner of Court it is because that it cannot be intended nor known whether it be such a Court as may compel one to swear or not Mich 8. Jac. B. R. Inter Law and Bennet per Curiam If a man saith of an other He did forswear me ineuendo the plaintiff 46 s. worth of Tithes in Canterbury Court no Action lyes for these words for there are divers Courts in Canterbury and it is not shewn in what Court nor before what Judge nor that the Judge had Authority to hold Plea of Tithes Pasch 43. Eliz. B. R. Inter Bray and Partridge adjudged If a man say of J. S. I had not been cast in that Action if it had not been for the Oath of J. S. and he was forsworn and I marvel that B. would marry his Daughter to such a forsworn man In an Action upon the case for these words if the Plaintiff aver that there was an Issue between him and A. and that Ad Curiam Baronis de Geton Soca Domini Regis tenta apud S. in Comitatu praedicto He himself was produced as a Witness and sworn about the matter of the Issue and afterwards the defendant having Communication of this Issue spoke the words aforesaid No Action lyes upon this Declaration because that it is not alledged that S. is within the Soke of Geton and so peradventure the Court was held out of their Jurisdiction and also because that it is not alledged that he was sworn about a matter pertinent to the Issue Miâ—h 11. Jac. B. R. Inter Crawford and Brice adjudged If a man saith of an other he is a forsworn Knave for he swore that the wood was worth 40 s. where it was dear of 13 s. 4 d. No Action lyes for those words though he aver that there was Communication between them of the matter at the Assises where the Plaintiff was sworn as a Witness because that he did not say directly that the Wood was not worth 40 s. but that it was dear of 13 s. 4 d. Also it doth not appear that the Defendant intended it sworn at the Assises Hill 13. Jac. B. R. Inter Stephen Apthorpe and Cockerel adjudged If a man saith to an other Thou wert forsworn in B Court which is but a Court-Baron no Action lyes because it is no Court of Record Pasch 8. Jac. in Scaccario Inter Perie and Rock agreed per Curiam If a man saith to another Thou art forsworn and didst take a false Oath at the Assises at Hereford against J. S. No Action lyes for these words without an Averment that it was at a Tryal or before the Court or Jury for it might be at the Assises in a private house or other place Pasch 15. Car. B. R. Inter Prichard and Smith Adjudged per Curiam If a man saith to an other Thou deservest to be hanged no Action lyes for these Words because it only expresseth his Opinion and Judgment of him Trin. 4. Jac. Inter Hake and Molton adjudged If a man saith to J. S. Thou art a scurvey bad Fellow and hast done that thou deservest to be hanged No Action lyes Mich. 11. Car. B. R. inter Fisher and Atkinson adjudged per Cur. in arrest of Judgment after Verdict for the plaintiff If a man saith to another You are no true Subject to the King no Action lyes for these words because they are too general for it might be he had not paid his Taxes Mich. 5. Jac. B. R. inter Smith and Turner adjudged If a man saith to another Thou art a Rogue and an arrant Rogue and I will prove thee to be a Rogue no Action lyes Mich. 41. 42. Eliz. B. R. adjudged FINIS THE TABLE Abatement WHERE the Death of one of the Parties after Summons and Severans shall abate the Writ and where not page 1 2. What shall be a good Plea to a Writ what not p. 2 3. In what Cases the Writ shall abate de facto p. 4. What Pleas shall abate the Writ in the whole and what in part p. 5 6 7 8 9 What Pleas in Abatement go only to the person and what to the Writ or Aâ—tion p. 9 10. How matters of Record shall be pleaded in Abatement p. 12. 13. Who shall be admitted to plead in Abatement who not p. 14. Where the Writ abates in part by the Act of the Court and where by the Parties Confession p. 15 16. That a Defendant or Tenant cannot abate a Writ by his own Act but the Act of the Plaintiff or Demandant Act
or conversation are also Excommunicated Co. Lit. 134. If a Bishop be defendant an Excommunication by the same Bishop shall not disable the plaintiff and if no other matter be shewn it shall be intended for the same cause Co. Lit. ib. The Writ shall not abate for Excommunication in the Plaintiff or Demandant But the Judgment shall be that the Tenant or Defendant shall go quit without day because when the Demandant or Plaintiff hath purchased Letters of Absolution and they are shewed to the Court he may have a Resummons or Reattachment upon his Original according to the nature of his Writ Lit. lib. 2. ca. 11. Sect. 42. If an Alien brings an Action personal or mixt in his own right the Defendant may plead it in Abatement in disability of his person or in bar to the Action with this difference that in Actions personal or Trespass for breaking his house the defendant ought to aver that the plaintiff is an Alien born at such a place under the Allegiance of such a Prince who is Enemy to our Soveraign Lord the King for an Alien Friend as he may Traffick and have a House for a habitation so he may have an Action personal and Trespass for breaking his house as he may have a Writ of Error for necessity And the Opinion of the Lord Coke in his Commentary upon Littleton is That if an Alien Friend brings an Action it ought to be pleaded in disability of his person and not in barr to the Writ or Action but if he be an Alien Enemy the Defendant may conclude to the Action And therefore Mr. Theloal in his Digest of Writs well observeth That an Exception taken to a Writ propter defectum Nationis vel potius defectum subjectionis vel Ligeancie is peremptory and that the Action cannot be revived by Peace or League subsequent and that the King may grant Licence to Aliens to implead and likewise that such Aliens as come into the Realm by the Kings Licence or Safe Conduct may use personal actions by Writ though they be not made Denizens and that Denizens lawfully made by the Kings Grant and such Aliens born as are within the express words of the Statute of 25 E. 3. may use actions real by Original Writ Co. Lit. 129. a. b. 130. b. Co. 7. 1. Theloal Digest de Breifs Lib. 1. ca. 6. 32 H. 6. 23. An Alien may be Administrator and have Leases for years as well as personal Chattels and Debts Cro. Eliz. 683. Cro. Car. 8. 9. One brings an Action as Executor Utlary in the plaintiff is no Plea because he sues in auter droit but it is otherwise of Excommunication 21 E. 4. 49. 34 H. 6. 14. 14 H. 6. 14. If the defendant plead that the plaintiff is an Alien born and conclude to the person yet it seems he may demand the View 3 H. 6. 55. For the Pleading of Matters of Record in Abatement observe That in Formedon for a Mannor another Formedon depending for 20 s. Rent out of that Mannor is a good Plea 3 H. 7. 3. That where in Trespass the defendant pleaded that the plaintiff had brought Replevin against the Mayor and Commonalty of A. for the same cause and that he was one of the Commonalty die Captionis c. Necnon die impetrationis Brevis and it was there agreed That in Trespass a Replevin depending for the same Cause is a good Plea if there be not more Defendants in the Replevin than in the Trespass 8 H. 7. 27. A Quare Impedit is brought against the Bishop and another as Incumbent the Defendants plead that the plaintiff hath brought another Quare Impedit against the said Bishop for the same Presentation which was then depending undetermined and demands Judgment of the Writ and it was adjudged a good Plea But the plaintiff might have brought divers Quare Impedits against divers Defendants Hobart 138. 9. So in an Assise of Darrein Presentment it is a good Plea to say That there is a Quare Impedit depending for the same Presentation Hobart 184. But where an Assise is brought of Lands in one County an Assise for the same Lands in another County and Judgment thereupon cannot be pleaded So of a Recovery in Ancient Demesne because it cannot be intended that the Lands recovered in the Assise or in Ancient Demesne are the same Lands 4 H. 6. 24. Rast Entr. 65. In Formedon in le Diseender it is no Plea to say that the Plaintiff at another time brought a Formedon in the Remainder of the same Lands except both the Counts be of one and the same Gift 40 E. 3. 31. Where the Heir brought two several Formedons upon one and the same Gift although the last did vary from the first Gift yet it is no Plea in Abatement for he might claim by two Ancestors sub dono 4 E. 3 8. If the Defendant in a personal Action pleads another Action depending at the time of the purchasing the last Writ he ought not to say that it is yet depending for the last Writ is abated in Law notwithstanding he is afterwards non-suited in the first Writ Co. 6. Ferrers Case Where Note the diversity when the writ is general as Covenant Detinue Assise c. and the Certainty is in the Declaration for there if the Plaintiff is nonsuited in the first before he counts or declares the last shall not abate and when the writ is special and the thing demanded is specified therein as in Praecipe quod reddat c. What persons shall be admitted to plead in Abatement and what not Note One Defendant may plead the death of the other before the Writ purchased or that there is no such person in rerum natura 20 H. 6. 30. b. But in Replevin if the Defendant avow upon an Estranger the Plaintiff in the Replevin cannot plead in Abatement of the Avowry 22 E. 4. 35. b. If the Cognizee of a Statute sue execution against one Terretenant only without the other he cannot plead in Abatement but is put to his Audita Quaerela against the other because that the Cognizee is not bound to take Notice of all the Terretenants 16 Eliz. Dyer 331. a. Nota That after a Continuance the Defendant shall not be admitted to plead that the Plaintiff was made Bishop or that the Woman Plaintiff took Husband depending the Writ except that he pleads it after the last continuance but it is otherwise of the death or Coverture of the Plaintiff at the time of the Writ purchased because these Pleas do abate the Writ de Facto 32 H. 6. 10. 11. In a Replevin where the Plaintiff admits the Avowry the Priee shall not plead in Abatement but as Amicus Curiae and not then except it be apparantly known per totam Curiam 34 H. 6 8. In a Praecipe against I. S. the Son of W. Edmond at the retorn of the Grand Cape the Defendant said that his Father was named Esmond and by Thorpe it is a good
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