your action which you call actionem iniuriarum that it may bee more certaine and manifest vnto me Codicgn I haue it here written in a Booke which I haue readie at hand Nomomath I praie you thē read it as distinctlie as you can for I meane diligently to obserue 1. The libel of an action of iniuries is fully set downe according to the forme of the Ciuill law the points and parcels of it Codicgn The libell stādeth thus in the booke Coram vobis clarissimo magno potenti viro c. dicit ponit asserit quatenus c. iustificare intēdit Titius quod ipse existēte die 19. mēsis Augusti proximè praeteriti hora tertia vel circa in arenis Nemāsensibus ante ecclesiā S. Petri in Comitiua pluriū nobiliū personarū pacificè conseruando neminique iniuriā inferēdo superuenit ibidem dictus Sempronius reus qui animo iniurioso ipsum actorem prouocauit incitauit per rixosas iniuriosas allocutiones quāquā dictus actor ipsum reum dulcibus placabilibus verbis refraenare mitigare niteretur dictus tamen reus semper magis atque magis insistebat iniurias prorūpebat et in tantū quòd in ipsum actorē talia verba seu in effectu similia bonorum nominis famae ipsius actoris denigratoria infamatoria iniuriosè protulit dicens Thou naughtie theefe thou doest nothing but robbe quia dictus actor talia sibi imponendo dixit quòd mentiebatur dictus reus non contentus de verbalibus iniurijs praefatis ad reales facti iniurias processit in personam ipsius actoris irruit cum pugno pluribus ictibus ipsum actorem in faciem percussit liuores concussiones fecit alias iniurias plurimas intulit quas quidem iniurias dictus actor mox illico incontinenti ad animum reuocauit iterum reuocat nolens tales tam atroces iniurias sibi illatas fuisse pro summa mille librarum coron quinimmo suadet tantum perdidisse quà m dictas iniurias sustinuisse vel passus fuisse et ad quam quidem summam dictas iniurias existimat iudiciali tamē vestra semper taxatione salua Quare ex his alijs ex processu result ātibus agit dictus actor contra dictū reum petit per vos vestramq definitiuam sentētiam pro suorum nominis famae redintegratione dictum reum ad publice dissonandum profitendum declarandum dicta verba diffamatorta iniurio sa fuisse per eum inconsultò contra veritatem dicta prolata pro satisfactione iniuriarum dictarum ad dandum soluendum eidem actori summam praedictam mille librarum coron iudiciali tamen vestra vt saepe dictum est taxatione salua vnà cum omnibus expensis factis fiendis de quibus dictus actor per expressum protestatur condemnari condēnatumque cogi cōpelli vijs iuris remedijs optimis et aliâs petit in omnibus ius iustitiā sibi fieri administrari vestrū benignū quod quale quātum decet officium humiliter etiā loco actionis si opus fuerit implorando Nomomath This is a very long circumstantiall libell to my vnderstāding many exceptions may be taken to it which you shall giue me leaue for argument sake and for my more vnderstanding in order to pursue First when you say 2. Exception is taken to the forme of the libell for vncertaintie in declaring the words which are the originall occasion of this action that he spoke talia verba seu in effectu similia me thinkes that should not be good forme for your libell being like to a declaration at the Common lawe should be certaine and without ambiguous or equiuocall tearmes but of this matter I require the censure of Anglonomophylax Anglonomoph Your exception is good and 3. The exception is approued by the common law maintenable by our Lawe for in an action vpon the case brought for calling the plaintife false Iustice of Peace vel his similia these words his similia were ordered by the Court to bee expunged or blotted out by reason of the vncertaintie t 4. E. 6. Br. Action sur le case 112. Nonomath Your libel likewise displeaseth me 4. Exception is likewise taken to the libell for mingling things of seuerall and diuerse natures in it in an other matter because if I conceiue aright you lay and alleage in your libell as the groūd of your actiō things farre distāt in nature which it seemeth to me might very well beare two seueral actiōs for whē as you say that the defendant vttered these words thou naughtie theefe c. me thinks that of it self should be are action whē you say further that in personam ipsius actoris irruit cum pugno pluribus ictibus ipsum actorem in faciem percussit liuores concussiones fecit I thinke vnder fauour that these wordes of them selues require a seueral and distincte action and not such an action as lyeth for vtterance of slaunderous wordes Anglonomoph Your opinion is good and sound 5 This exception likewise is maintained by common law in reason and as for seueral diseases there be diuerse medicines so for seueral wronges I meane such as are different in nature there should be seuerall Actions least the offeringe of these thinges iointly to the vnderstandinge which are different in substaunce there arise a great confusion and disproportionable Chaos Wherfore by our law if things of sundrie natures be mingled in one action and the action is good for the one not for the other in such case the writ shal abate as to that for which it was misconceiued for example in a writ of Trespas for breaking his close and taking away certaine lambes whereas the lambes were supposed to be tithe and the close to be the Churchyard parcell of the Vicarage brought by the Parson against the Vicar it was helde that the Court should be outed of iurisdiction as to the lambes and the defendant should aunswere to the residue u 13. R. 2. Iurisdict ' 19. and so in an action of Trespas brought against the Lorde for breaking his close and taking his horse vi armis it was ruled that the writte shoulde abate for taking the horse did not as to the breaking of the close x 48. E. 3. 6. For the Lord cannot iustifie the breaking of his tenants close a 20. E. 4. 2. 7. R. 2 Briefe 632. 8 H. 4. 16 8. E. 4. 15 10. E. 4. 7. So in an action of Trespasse for entering into a Warren brought by the tenant against the Lord of the soile and for chasing there taking of conies the writ shall abate as to the entre into the warren vi armis and shal stand good for the remnant b 3. H. 6. 13. if it appeare by the writ or the
declaratioÌ„ that the action wil not lye for somethinges mencioned in the writ yet the writ may be in force for the remnant as in a writ of Wast if a man assigne parcel of the wast in a thing which cannot properly be said to bee wast the writ notwithstanding shal not abate for the whole and so a writ of Dower shall not abate for the whole though the plaintife doe demaund Dower of something whereof she is not endowable c 9. H. 6. 10. 46 10. H. 6. 5. So in a writ of Accompt brought against one as Bailie if the defendant pleade to parcell that he was lessee for yeares and not Bailie this shal abate the writ onely for that parcel d 18. E. 3. 16. and 8. E. 4. in a writ of Entre brought vpon the statute of 5. of King Richarde the second for entring into a Mannor and into an aduowson because the action will not lie for the aduowson it was held by Lakin that the writ should abate for parcel e 8. E. 4. 3. likewise in an action of Trespas brought by the husband and wife for a batery done to theÌ„ both after verdict found that both of theÌ„ were beaten the writ abated as to the battery of the husband and as to the battery of the wife they recouered their damages f 9. E. 4. 54. and it is said 11. E. 3. that a man may not alleadge in a writ of Eiectment de gard quod blada sua apud B. nuper crescentia messuit blada alia bona c. cepit because proclamation lyeth for the one but not for the other g 11. E. 3. 471. but a man may haue a writ of Detinue of Charters and of Chattels iointly h 44. E. 3. 41. Briefe 583. because there one thing is the ground of the action namely the deteiner and so a man may haue a writ of Det where parcell of the debt is due by obligation and parcel by contract because there the debt is the onely occasion of suit and so in things of the like nature i 41. E. 3. Damag 75. 1. H. 5. 4. one writ may comprehende many wronges and therfore an action vpon the câ—se was maintained for the hindering of the plaintife to holde his Leete for the disturbance of his seruants and tenants in the gathering of his tithe and for threatning made so that the people c. durst not come to a certaine Chappell to doe their deuotion and to present their offeringes and for the takeing of his seruants and chattels k 19. R. ActioÌ„ sur le case 52. but in Adamses case it was ruled that whereas an action vppon the case was brought for speaking these words you haue made a false record I wil make you aunswere where you dare not shewe your face and you haue sought my death the defendant as to the falsifiyng of the recorde iustified because he did make a misentrie once into a rolle in a Court where hee was Stewarde and as to the rest he pleaded non Culpable and hee was founde guiltie of the whole and damages were assessed to twenty poundes and it was mooued for stay of Iudgement that some of the wordes would not beare action as namely to say that he sought his death because that may bee by due meanes in Lawe nor the other wordes that he woulde make him aunswere where he durst not shewe his face wherefore because no action will lie for part of the matter alleaged the assessement of the damages for the whole is not good and therefore iudgement ought not to be giuen to which it was answered that when words are spoken to the disgrace of a man they cannot be otherwise vnderstood then in malam partem and therefore to say to one that he hath beene layed of the pockes is tâ— bee intended of the Frenche pockes and though action will not lye for some of the wordes which were vttered yet it must be intended that damages were assessed for these wordes which are of effect to beare action and this case hath bin adiudged that one called an other villaine and stronge theefe the defendant pleaded non Culpable and he was found guiltie to the damages of xl li. though action doe not lye for the wordes verie villaine yet iudgement was giuen that the plaintife should recouer the entier damages and so was iudgment giuen in the principall case l 25. Elizab. Adamses case Nomomat Wel no more of this giue me leaue 6 An other exception is taken for superfluous alleaging of the day and hower of the trespasse done further to obiect what need you say in your libel die decimo nono Augusti proxime praeteriti for it is not materiall when a wronge is done but mee thinkes it shoulde suffice to alledge that it was done and therefore much lesse neede you haue said hora tertia vel circa againe me thinkes your libel is too prolixe in setting downe the words and circumstances of the iniurie and likewise you haue vsed too many wordes in describing the assault and batterie which might haue bin briefly expressed by these words insultum in eum fecit eum verberauit neither doe I see the vse of these wordes pacifice conseruando neminique iniuriam 8 Exception is takeÌ„ for saying nemini iniuriam inferendo inferendo For what if Titius the plaintife had beene fighting with Seius a straunger is it therefore lawfull for Sempronius the defendant in this case to assault and beate Titius and what neede you say in your libell animo iniurioso for 9 Exception is likewise taken for vsing these words animo iâ—iurioso being taken for a surplâ—sage no wronge can bee done without an iniurious meaning and the secreate meaning must needes appeare by the open description of the wronge Codicgn Giue me leaue to satisfie you in all these particuler obiections and to render a reason of the allegations in the libell The very day 10 Codicgn answereth the exceptions wherein the wronge was done to beginne with your first obiection is necessarily to bee sette downe that the defendant may haue certaine notice of the wrong m §. atrox Institut de iniur and that it may appeare to the Court that the iniurie was committed within the yere c. for a verball iniurie is ended and ceaseth within the yeare c. n l. non solum §. 1. ff de iniur and whereas you disliked the multitude of wordes in discribing the wronge surely the wronge cannot better be discribed then by fulnesse of tearmes which are apte and significant to agrauate the iniurie o l. praetor §. sin l. vulneris l. si est questionis l. sed si vnus §. quidam ff de iniur and whereas you finde fault because it is alleaged in the libell that the plaintife did behaue himselfe peaceably nemini iniuriam inferendo they are to verie good purpose for if the plaintife
6. 1. p Newt Nomomath Whether ought he to whom the 3. Diuision goods be deliuered make them good if they be stolne and embeasilde from him or by some other mischance doe perishe Codicgn He is not to be charged if the goods 1 That the bailie is not to be charged with the losse of the goods which happeneth merely by casualty be lost by any casualtie but onely in such case where there is default deceipt and couin or apparant negligence in him x l. quod Nerua Iaco But in l. in re mandata C. Mandati Iustit quib mod re contra oblig §. penult Anglonomoph If a man deliuer to me his goods to keepe and I put them amongest mine owne they be embesiled I shal not be charged for the goods y 29. Ass pl. 28 and if a man be bounde to bring mee a summe of money and he is robbed of it by the way he shall be by Law excused z 40. E. 3. 6. But 9. E. 4. he shall not be excused vnlesse he vndertake to keepe it and to bring it as he wil his owne goods and then he may pleade this in discharge of accompt before auditors but not in barre of Accompt so that it appeareth by this Booke that if he vndertake generally to bring the goods he must bring them at his perill But 3. H. 7. is that if a 9. E. 4. 40. the Baily be robbed of the goods he shall not be further charged but if the goods be taken away by a trespassor whom the Baily doth know he shal be charged ouer to his Bailor because he may haue an action against the trespassor b 3. H. 7. 4. But 20. E. 4. it is said that if I. S. deliuer goods to one to keepe and a straunger taketh them out of his possession I. S. may haue an action against him or against his Bailie c 20. E. 4. 11. but in that case if the goods be stolne from the Bailie in the endictment of the felon the wordes must bee bona I. S. in custodia talis d 7. E. 4. 14. Lamb. Eirenar 494. 495. The tenth Dialogue of the forme of ordinarie proceeding in matters of Law NOmomat It remaineth Codicgn that 1. Diuision ye should now speak of the forme and manner of ordinarie proceeding in matters of Lawe which because it dependeth wholy vpon the practise and custome of Courts in which I haue imployed no great trauaile nor obseruance I must therefore request you to stretche your sinewes in this regarde and not onely to argue but open things vnto me and be not angrie with me if in the handeling of these matters I bring ye from the hil that is your high and intricate pointes to the valley or plaine that is to matters more plaine and easie and againe from the valley to the hill when I finde in my selfe strengthe of vnderstandinge to ascende First I pray you shew vnto me what is to bee done at the commencement or beginning of a suit or action Codicgn Because in euery controuersie of law 1 The things which are to be obserued of the plaintife at the beginning of a suit by the Ciuil law there must be a plaintife and a defendant it is not amisse nor impertinent to mention such thinges as ought to be obserued regarded of the plaintife when he draweth any man into suit and they are three in number the one concerning profit the other necessitie and the third vrbanitie It is a point of profit or warinesse for the plaintife before he commence suit against any to be well aduised and assured whether himselfe be a lawfull person to stande in iudgement and to demaunde that which he bringeth into question a l. 1. C. qui legit person standi in iud hab he ought likewise to be sure that he haue a good cause of controuersie or els in some cases hee must be adiudged to pay the costes to the defendant in other some he must beare the losse of the charges of the suit b l. eum quem temere ff de iudicijs likewise he ought to beware least he draw the defendant before an incompetent Iudge 2. It is a point of necessitie that the partie whom the plaintife sueth be cited or summoned before for against the partie not summoned nor heard nothing can bee determined c l. de vnoquo que ff de re iud c. 1. exc de caus poss ê“prietat Citation as we say is parcell or the 2 Citation is proued to be of the substaÌ„ce of the proceeding contrary to the opinion of some ciuilians Lawe of nature d Clem pastoralis de re iud therefore of necessitie the partie defendant must be summoned because in euerie action the iudgement hath a retrospect to the originall and to the summons and as we say in plaine tearmes to that part of the action which is de in ius vocando e Ext. de procurat C. in nostra in sin l. prolatam C. de sent interloq om iud otherwise the iudgemeÌ„t is erronious f Iusti de offic iud in princ in §. omnem in authen delitigios Gloss in cap prudentia §. 1. de offic de leg because Citation is of the substance of the proceeding for that is the beginning of the suit howsoeuer some holde opinion that the suit is not begun ante litis contestationem g d. authen de litigios §. si vero a preside l. apertisaimi C. de Iudic before the appearance of the party def and the libel exhibited in Court notice taken thereof by the def by by some responsory act because say they post litis contestationeÌ„ non potest forum declinari h ff de iudic l. 1. 2. C. de litis Contest the iurisdiction cannot be auoided after the apparaÌ„ce the exhibiting of the libel any kind of aunswere applied but others hold in my opinioÌ„ more agreable to the truth that it is one of the fundamentall beginnings of the suit and one of the essentiall and formall parts of the iudgement because the omitting of it doth frustrate the iudgement i l. de vno quoque ff de re iud in c. 1. de caus poss ê“prietat extra 3. The other point is a matter of ciuilitie or curtesie because humanitie doth require that before any man doe contende in suite and doe prepare and addresse himselfe ad experiendum summum ius that hee friendly and mildely doe admonishe him with whom he is to deale of his duetie that if by faire meanes he may be wonne the rigor of Law may not be exercised m l. quid vberius ff de seruitut vrban praed l. debitores C. de pign Anglonomoph These cautels which your Law 3 The cautch to be obserued at the commoÌ„ law in the coÌ„mencement of an action prescribeth to
a man to bring an actiō vpon the case for a slaunder and therefore if one man call an other bankerupt an action vpon the case will lie n 6. E. 6. 72. Dy. or if one say to an other that he is infected of the robberie and murder lately committed and smelles of the murder an action vpon the case will lie for these wordes o 15. Elizab. 317. Dy. and the Duke of Buckingham brought an action de scandalis magnatū against one Lucas because he said that the said Duke had no more conscience thē a dogge and so he had goods he cared not how he came by them p 4. H. 8. rotul 659. infinite other cases might be brought tending to this purpose Nomomath I wil trouble you no further herein 2 Diuision but tell me Codicgnostes whether by your law may the husband haue an action for the wrong doneto his wife the father for a wrong done to his sonne and the maister for an iniurie done to 1. That by the Ciuill law an action of trespasse lieth by the father husband maister for a wrōg done to the sonne wife seruant his seruant Codicgn They may and the Praetors edict in our Law to that intent is very manifest and notorious q L. 1. ff de iniur Anglonomoph To that our law accordeth and first to shew that the husbād may haue an action 2. That by the Common law the husband may haue an action for a wrong done to his wife for a wrōg done to his wife it seemeth that these words cam cūbonis catallis praedicti A. mariti ad valentiā c. abduxit are necessarie in the writ for as to the taking and deteining onely of the woman it seemeth that the suit will onely lie in the spirituall Court where things any waie touching matrimonie or to be decided yet I wil not be peremptorie herein because M. Fitzherh opiniō is r Fitzh N. B. 52. K. that the suit for the taking of the woman onely without mentioning any other thing in the writ is maintenable at the Common lawe howbeit he putteth this case that if a man sue in court Christian for the taking and deteining of his wife which was lawfully maried to him if the other sue a prohibition hereupon hee may haue a consultation quatenus pro restitutione vxoris suae duntaxat prosequitur ſ Fitzh ibid. and if the woman do lie asunder from her husband the suit will lie in the spiritual Court to haue againe the fellowship of mariage and to dwell together as may appeare by these wordes of the statute t D. Cosins in li. de iurisdict ecclesiastic vnlesse he wil receiue her without ecclesiastical cōpulsiō u 13. E. 1. c. 34 Westminst 2. but where a man bringeth an actiō at the cōmon Law de muliere abduct a cum bonis viri he must be sure that his wife hath atteined to age of consent that she hath actually cōsēted to the mariage for where a mā marrieth a wife before she be of the age of 12. yeares after she commeth to the age of 12. yeares before she assent or disassent one taketh or carieth her away the husband in this case cānot haue a writ of trespasse cū muliere abduct a cū bonis viri by some authority because it is not properly a mariage till she assent x 47. E. 3. Br. Trespasse 420. yet M. Brooke doubteth hereof rather thinketh vpon very good reason the contrary because it shall be intēded a good mariage vntill the womā do disassēt a Brooke ibid. but where the mariage is cōplete without all daunger of contradiction though the wife be dead or diuorced at the time of the actiō brought yet the action is maintenable for the husband b 43. E. 3. 22. but the worde rapuit must be in the writ as well as the word abduxit and therefore it will not lie against a woman because one woman cannot rauish an other c 43. E. 3. 23. and if a man do carie 3. In wh◠cases by the Cōmon lawe an action will lie for the maister for a wrong done to his seruant away a woman by the licence of her husband this writte will not lie d 1. E. 4. 1. for it is vi armis and as to the bringing of an action by the maister for some hurt done to his seruant it is frequēt in our bookes for by the beating or maiming or woūding of the seruant the maister hath the losse of his seruice e 3. H. 6. 53. therefore if any man take the seruāt of an other mā out of his seruice an action of trespas wil lieagainst him that taketh him f 39. E. 3 38. Fitzh N. B 91. I. 21. H. 6. 31. but if a mā find an other mās seruant wādring abroad and reteyne him this is lawfull if he knew nothing of the fist reteiner But though by the common law an action of trespasse quare vi armis did lie against him that tooke an other mans seruant out of his seruice yet if he did only procure him to go out of seruice thē reteined him the maister could haue had by the Common law no action but only an action vpō the case but now by parliamēt an action is giuē vpon the statute of labourers g 11. H. 4. 23. Br. Trespasse 92. Lastly it is plaine by our law that the 4. In what cases by the Cōmon law an action will lie for the father for a wrong done to the sonne father may haue an action for the taking away of his sonne and heire but in the writte he must say cuius maritagium ad ipsum pertinet for this writte is giuen vnto the father because the mariage of his sonne and heire or of his daughter and heire doth of right appertaine vnto him and if the father haue maried his heire before so that he hath once enioyed the fruite and benefite of the mariage which the law allotted vnto him he shall not haue this writte h 12. H. 4. 16. 8. E. 2. Trespas 235. 32. E. 3. Garde 32. and if a man take away an other mans sonne and heire apparāt and bestow vpon him good apparell and the father seiseth his sonne as he lawfully may he shall not be impeached for the taking of the apparell for in that he may make a good iustification for the taking of the body the iustificatiō must needs extēd to the apparell of the bodie because the law considereth not bare and elementall bodies but bodies apparelled And Haukf with others resoneth well that if a man put an other into apparell and speaketh nothing of the loane of it neither by expresse acte reserueth the propertie to himselfe this is a gift in law and if an aduowterer do take a woman from her husband and apparelleth her with good attire the husband may take the wife againe
such as enter into suit ar not vtterly reiected of our law for as to the 2. first which concerne profit and necessitie our law doth rigorously exact them as to the other it is not against it for it doth not forbid nor hinder any man to be curteouse to an other but it being a science rather politike then morall doth more respect the Iustice of causes then the curteous gestures of men our law doth vrge men to deale well and honestly if they do otherwise it doth punish thē but curtesy is a free spontaneal ingenious quality to which no inforcement may be vsed but I wil first examine by your patience how farreforth our law regardeth the abilitie of the person which is to impleade an other and then by course will examine all the partes of your precedent speech inquiring by our bookes howe they may sort and be sutable to our law First it hath beene receiued of vs as a currant rule from all antiquitie that the desendant may 4 Disablemēts in the person of the plaintife at the comon Law plead outlawrie in disablement of the plaintife but if he doe imparle nowe he cannot plead outlawrie to the disablement of his person but yet he may well plead it in barre of the action n 32. H. 6. 32. 35. H. 6. 36. so in a writ brought by one as sonne and heire to I. S. after imparlance the tenant cannot pleade to the writte that hee is bastarde or that hee is not heire but he may verie well pleade it in barre of the action o 22. E. 4. 35. and so outlawrie is a good plea in barre of an action of debt for by the outlawrie of the plaintife the debt if it growe by especialtie is vested in the Queene otherwise it is of an action of debt vpon a contract p 16. E. 4. 4. for in that case the debtor might wage his lawe against the debtee who is outlawed and as it seemeth by 10. Hen. 7. the outlawrie goeth rather in barre of the action then to the writte for there it is sayde that where a man cannot pleade to the writte but by shewing of a matter in barre there he may shewe it and conclude to the writte for in an action of debt a man may pleade outlawrie in the plaintife and conclude to the person and yet the matter goeth in barre and he may pleade it also in barre q 10. H. 7. 11. and conclude to the action and after that a voucher is counterpleaded and the tenant put to an other aunswere hee may notwithstanding plead that the demaundant is outlawed r 21. E. 4. 64. but after voucher the tenant may not plead to the fourme of the writte ſ 5. E. 3. 223. and 32. Hen. 6. is verie playne that where a man pleadeth that the plaintife is an alien borne or a villaine or an outlawed person it is left to his choise whether he will conclude these special matters to the writte or to the action t 32. H. 6. 27. and though the defendant haue made an attourney in a repleuin yet he may afterward alleadge that the plaintife is his villaine u 29. E. 3. 24. So 21. R. 2. in Assise brought by the husbande and wife against diuerse persons the tenantes sayde that the wife of the plaintife was entred into religion in the house of B. and there was a Nun professed demaunded iudgment if she should be aunswered and the Assise was adiorned into the common place and a writte was sent to the Bishoppe to certifie who certified that she was professed wherefore the defendants praied that the husband and wife might be barred foreuer and it was helde by the whole Court that forsomuch as the pea did stretche onely to disable the wife of the plaintife and if the husbande and wife had purchase iointly that the baron should notwithstanding the disablement haue an Assise of the whole but otherwise it is if the husbande and wife bring an Assise and a feoffement or release of the husbande or the wife or of some auncestour of one of them bee pleaded in barre both of them shall be barred therefore in this case it was helde that the iudgement ought not to be that the husbande should be barred but by the aduise of the whole Court it was awarded that the husbande and the wife nihil capiant per breue suum sed essent in misericordia x 21. R. 2. Judgem̄t 263. and in the thirde yeare of Henry the sixth it was held a good plea to say that the demandant was an alien borne in Portugall which is out of the Kings legeance with conclusion sil serra respondu a 3. H. 6. 11. and therefore Master Theloall in his Digest of writtes well obserueth that an exception taken to a writ propter defectum nationis vel potius defectum subiectionis vel ligeantiae is peremptorie and that the action can not bee reuiued by peace or league subsequent and that the King may graunt lycence to aliens to impleade and likewise that such aliens as come into the Realme by the Kinges licence and safe conduite may vse personall actions by writte though they bee not made denizens and that denizens lawfully made by the Kinges graunt and such aliens borne which are within the expresse wordes of the statute of 25. of Edward the thirde may vse actions reall by originalll writte b Thelo Digest de briefes lib. 1. ca. 6. And where a man is excommunicated and hee sueth an action reall or personall the tenant or defendant may pleade that the plaintife is excommunicated and hereof he ought to shewe the Bishoppes letters vnder his seale testifying the excommunication and then he may demaunde iudgement whether he ought to bee aunswered c Litt ' lib. 2. ca. 11. sect ' 42. but if the demaundant or plaintife cannot denie this the writ shal not abate but the iudgement shal be that the tenant or def shall go quite without day because when the demandāt or plaintife hath purchased letters of absolution and they are shewed forth to the Court he may haue a resummons or reattachement vpon his originall according to the nature of his writte d Litt ' ibid. and whereas you say that it behoueth the plaintife to be sure that he haue a good cause of action least he pay the costes that now by statute is made common Law for by the statute of 23. H. 5 The statute of 23. H. 8. of giuing damages to the defendant is cōpared with the rule of the ciuil Law 8. it is enacted that if any person or persons commence or sue in any Court of Recorde or elsewhere in any other Court any action bille or plaint of trespasse vpon the statute of King Richarde the seconde made in the fifthe yeare of his raigne for Entries into landes or tenements where no entrie is giuen by the Law or any action bill or plaint
it were present it to the eye Quadrupedante putrem cursu quatit vngula campum And Persius decently maketh his verse to rise and swell with the matter Torua Mimalloneis inflarunt cornua bombis But not to digresse from our purpose in an appeale of mayheÌ„ the wrong must be in this forme or the like set downe Iohannes Nan propria persona sua hic instanter appellat W. G. de eo quòd cum idem querens tali die et anno fuit in pace dei dominae Reginae nunc apud talem villam in tali comitatu circa horam sextam c. ibi venit pÌ„dictus W. vi armis viz. baculis vt felo insidiando et ex insultu premeditato adtunc ibideÌ„ in dictuÌ„ Io. insultum fecit adtunc ibidem cum quodam baculo pretij c. quem praedictus W. adtunc ibidem in manibus suis tenuit praedictuÌ„ querentem super brachium dextrum felonice tunc percussit per quod venae nerui brachij sui praedicti restricti fuerunt ac sicct mortificati deuenerunt c. e Lib. de diuersit des Courts 115. Here you haue the Mayhem described from the beginning to the end in ful termes and yet euery of them or at least almost all so necessarie that if you take away one of these flowres ye marre the whole garland and so in a writ of trespasse for the hurting of his sheepe though briefes be shorte comprehensions of things the wronge is fully set downe in this sort Quare vi armis centuÌ„oues ipsius A. apud T. inuentas cum quibusdam canibus fugauit canes illos ad mordendum oues praedictas intantùm incitando quod per fugationem illam morsus canum praedictorum oues praedictae multipliciter deterioratae fuerunt magna pars ouium illarum faetus abortiuos fecit f Fitz. na br 89. L. Nomom Wel what say you to these words animo iniurioso whether are they needles or not Anglonomoph These words carry sense in their foreheads for they amount to as much as malitiose in our Law and that ought to be set downe to distinguishe it from iocose as Codicgn hah before verie well reasoned and when the action soundeth to malice the worde malitiose or the like in substance is to be vsed as well as when the action soundeth to deceite the worde fraudlenter or some equiuolent tearme is of necessitie to bee expressed Nomomat Of these matters then I know what to thinke and will moue no other doubt or question of them Now Anglonomoph because I think at the coÌ„mon law an action vpon the case conceiued vpoÌ„ a slander doth most reseÌ„ble this actioÌ„ of iniury before discribed let me therfore know the forme of the declaratioÌ„ which is fit for that actioÌ„ Anglonomoph You haue conceiued in this a 13 The forme of a declaratioÌ„ vpon an action vpon the case resembling actionem aniuâ—iarum right opinion and I wil roundly shew vnto you the forme of the declaration whereof you spake because it is verie plaine and much in vse it is thus W. C. queritur de P. L. in custodia Marr ' pro eo videlicet quod cum predictus W. bonorum mominis ac fame ac honest arùm conuersationis gesture conditionis fuerit vt verus ligeus domine Regine nunc absque illo scandalo ac sine quacunque macula latrocinij furti falsitatis vel cuiusuis alij criminis ac sine vllo scandalo earundeÌ„ macularuÌ„ ab omnibus huiusmodi fallacijs dolis malis ille sus intactus et immaculatus a teÌ„pore natiuitatis sue hucusque se gesserit habuerit gubernauerit huiusmodi status conuersationis honestatis apud vicinos suos vniuersos fideles dominae Reginae nuÌ„c subditos quibus idem W. cognitus erat sine aliqua criminosa nequitia latrocinij furti cuiuscunque insignis fraudis aut huiusmodi criminis hucusque immaculatus fuerit praedictus tamen P. L. praemissorum non ignarus ex eius diabolica instigatione peruersa malitia machinans statum honestatem necnon famam opinionem dicti W. laededere funditus deprauare ac eundeÌ„ W. de tam malis conuersatione coÌ„ditione gestura apud omnes dominae Reginae fideles subditos acceptare vt idem W. omnino periret ac totaliter destrueretur ac vt vniuersi fideles subditi dictae dominae Reginae a consortio ipsius W. penitus se subtraherent 25. die Septembris anno c. apud L. in presentia audientia A. B. aliorum multorum fide dignorum dicte domine Reginae eodem W. notorum de eodem W. dixit retulit publicauit alta voce pronunciauit asseruit in haec verbain Anglicis verbis sequentibus videlicet Thou art a theefe and thou hast receiued xx poundes of my goodes quorum quidem verborum propalationis relationis pretextu predictus W. de suo statu bono nomine in negocijs suis quibus cum honestis personis dictis domine Regine subditis vsus fuit consortium habuerit multipliciter laesus deterioratus existit vnde dicit quod deterioratus est et damnum habet ad valentiam ducentarum libraruÌ„ c. Nomomath These two proceedings doe little differre in substance there is in them me thinketh great redundancie of wordes which might wel be spared but tell me I pray you is there such necessity of these formall termes that if they be wanting or changed the declaration or proceeding shall abate Codicgn Surely because the tedious and odious 14 The cutting off of delaies by the ciuil law protracting of suites did greatly offende iustice therefore to cut off delaies and that suits might not be endles and immortal for matters of forme and the exceptions to them were growne to such an excessiue heap infinite number that the whole age of man did scaresely suffice for the triall of one suit and he that failed in a sillable failed in the cause our lawmakers therefore that Iustice might walke in a shorter and more compendious way did therefore verie willingly roote vp the thornie groue of cauils and sophisticall wrangelinges which had mingled themselues with good and reasonable exceptions and scouring the streame of such weedes and sedges they haue nowe made a smooth and more easie passage for Iustice g In rubr nigr C. de form impetrat action Iublat Anglono Vpon like consideration to the very 15 The diminishing of delaies by the common law same purpose our lawmakers haue made lawes for amendement of writs declarations and other proceedings in matters of forme as may appeare by seuerall statutes made for the establishing of such amendements as namely 14. E. 3. ca. 6. 9. H. 5. c. 4. 4. H. 6. c. 3. 8. H. 6. c. 12. 15. 32. H. 8. c. 30. 18. Eliz. c. 14. 27. Eliz. c. 5. and by