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
and afterwards the Defendant said of him He is a forsworn Rogue in taking an Oath at the Sessions House an Action lyes for these words although it was objected in Arrest of Judgment that if he swore falsely before an Inquest of Office it is not within the Statute of 5 Eliz. for admit it were not yet they all agreed that for such forswearing at the common Law he may be indicted and therefore if it be out of the Statute yet an Action lyes for this Slander Mich. 13. Car. Pruer against Moadman If a man saith of an other He is a Perjurer he swore once for me and the second time hath perjur'd himself with J. S. a Stranger Action lyes Mich. 9. Car. in Camera Scaccarii Adjudg'd in Writ of Error If a man saith of J. S. I will prove J. S. forsworn and that ten men can justifie and I could prove him perjur'd if I would The Action lyes not for the first words but it lyes for the latter for it is a great Slander to be reputed that it is in the power of any man to prove him perjur'd Pasch 5. Jac. B. R. Whitacre against Loverden per Cur. If a man saith to another I did not know that Mr. W. was your Brother he hath forfworn himself and I will prove him perjur'd or else I will bear his Charges Action lyes for these words although they are spoken conditionally to beaâ— his Charges if he did not prove him perjur'd Mich. 37. 38 Eliz. Woodroffs Case adjudged If a man saith of an other That he was perjur'd and he would prove him so by two Witnesses Action lyes for these words although he doth not say in what Court he was perjur'd or how Trin. 39. Eliz. B. R. Rayners case adjudged If a man saith to an other Thou wast perjur'd in a Court of Tottenham Action lyes for it shall be intended a sufficient Court to hold Plea Pasch 40. El. B. R. If a man saith to another Thou art a forsworn Knave and wast indicted by twelve men and hast compounded for it Action lyes for all being laid together it appears that he intended a Perjury in a Court of Record Mich. 1. Car. Gilbertin against Row adjudged in Arrest of Judgment If a man saith to another Thou art a forsworn Knave and I will prove thee forsworn in the Ecclesiastical Court Action lyes for these words for the Ecclesiastical Court is a Court known Pasch 40. Eliz. B. R. Shaw's Case adjudged To say to a man Thou art a Whore master or to a Woman Thou art a Whore no Action lyes because that it is merely spiritual without any temporal loss Trin. 11. Jac. B. R. Matthew against Croze per Curium 2 Cro. 323. To say of marryed man He hath had two Bastards thirty six years agone and he should pay for keeping of them no Action lyes altho he aver that by force of those words there was Contention between him and his Wife and he was in danger to be divorc'd for there is not any temporal Loss and the Offence was pardon'd by many general Pardons it being 36 years before Pasch 16. Jac. B. R. Randal against Beal adjudged in Arrest of Judgment He had a Bastard-child by Jennings his Wife of Northampton by speaking of which words the Plaintiff saith in his Declaration that he refused to marry with A. S. whereas it ought to be that A. S. refused to marry with him The Action lyes not Mich. 11. Car. B. R. Carters Case per Cur ' If a man saith to a Feme Covert Thou bold Cullobine-bastard-bearing Whore thou didst throw thy Bastard into the Dock at White Chappel no Action lyes for these words altho it may be intended that she had a Bastard by the said Cullobine who in truth was her husband before Marriage inasmuch as there appears not to be any temporal damage by it by loss of any Marriage but only a Punishment by the Statute for having a Bastard which is not sufficient cause to maintain the Action Hill 10. Car. B. R. Cullobine ux ' against Vinor adjudged in Arrest of Judgment In an Action upon the Case if the plaintiff declare that whereas divers persons conabantur desiderabant to marry their Cosins and Friends to him the defendant being a woman on purpose to scandalize the Plaintiff and to hinder him from marrying with any Woman preferr'd a scandalous Libel against the Plaintiff in the Spiritual Court thereby charging him that he under colour of being a Suitor to her in the way of Marriage resorted often to her in the Night and lay with her and begot a Child of her body and after published and affirmed the same matter before divedrs persons falsly and maliciously whereby the plaintiff was so much scandalized that all honest persons having the fear of God before them aliquem mulierem de filiaâ—us aut consanguineis suis in legitimo Matrimonio cum quaerente copulari jungi semper postea hucusque omnino recusaverunt adhuc recusant And upon Not guilty pleaded the Jury found a special Verdict scil that the defendant preferred the said Famosum Scandalosum Libellum c. and that she afterwards at the Sessions of the Peace being examined who was the Father of the said Child begotten of her body said and affirmed that the Plaintiff was and that she did affirm it falso injuriose of the Plaintiff and that by reason thereof the Plaintiff was much scandaliz'd in his name and Fame and that all honest persons having the Fear of God before them Aliquam mulierem de filiabus consa guineis suis in legitimo matrimonio cum quaerente copulari jungi semper postea hucusque rccusaverunt adhuc recusant The Action in this case lyes not upon this special Verdict because here doth not appear any malicious Prosecution and here there is not alledged or found any loss of any particular Marriage or that he had any Communication of any particular Marriage and this general matter That all honest persons refuse by reason thereof to marry their Daughters or Cosins to him is too general Mich. 11. Car. B. R. intâ—r Norman and Simons per Cur. Adjudged in the Exchequer Chamber and the Judgment given è contra in B. R. reversed accordingly If a man saith of another that hath Land by Discent that he is base born no Action lyes for these words taken in mitiori sensu are not actionable Mich. 3. Jac. in B. R. per Curiam If a man saith of the Son and Heir apparent of J. S. that he is a Bastard no Action lyes because he hath no prejudice by it yet Mich. 3. Jac. in B. R. per Curiam If a man saith to a woman Thou hadst a Bastard no Action lyes because it doth not appear thereby that he intended that the Bastard was chargeable to the Parish in which Case a corporal punishment is to be inflicted by the Statute Hill 5. Câ—r B. R. Lightfoot against Pâ—got Rot.
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
35 H. 6 36. In a Writ brought by one as Son and Heir to J. S. after Imparlance the Tenant cannot plead to the Writ that he is a Bastard or that he is not Heir but he may well plead it in Barr of the Action 22 E. 4 35. An Outlawry is a good Plea in Barr of an Action of Debt For by the Outlawry of the Plaintiff the Debt if it grow due by Specialty is vested in the King but secus of an Action of Debt upon Contract For in that Case the Debtor might wage his Law against the Debtee who is Outlawed 16 E. 4 4. By 10 H. 7. it seemeth that an Outlawry goeth rather in Barr of the Action than to the Writ for there it is said that where a Man cannot plead to the Writ but by shewing of a matter in Bar there he may shew it and conclude to the Writ For in an Action of Debt a Man may plead Outlawry in the Plaintiff and conclude to the person and yet the matter goeth in Bar and he may plead it also in Bar and conclude to the Action 10 H. 7 11. After a Voucher is counter-pleaded and the Tenant put to another Answer he may notwithstanding plead that the Demandant is Outlawed but after Voucher the Tenant cannot plead to the Form of the Writ 21 E. 4 64. 5 E. 3 223. If a Man pleadeth that the Plaintiff is an Alien born or a Villain or an Outlawed Person it is left to his Choice whether he will conclude these special Matters to the Writ or to the Action 32 H. 6 27. If the Husband and Wife bring an Assize and a Feoffment or Release of the Husband or the Wife or of some Ancestor of one of them be pleaded in Bar both of them shall be barred 21 R. 2. Judgment 263. An Exception taken to a Writ propter defectum Nationis vel potiùs defectum Subjectionis ligeantiae is peremptory and the Action cannot be revived by Peace or League subsequent Theloal Digest ' de Briefs Lib. 1. Ca. 6. The King may grant Licence to Aliens to implead and that such Aliens as come into the Realm by the King's License and safe Conduct may use Personal Actions by Writ though they be not made Denizens And Denizens lawfully made by the King's Grant and such Aliens born which are within the express words of the Statute of 25 E. 3. may use Actions Real by Original Writ Theoloal ubi supra If a Man be Excommunicated and he sueth an Action Real or Personal the Tenant or Defendant may plead that the Plaintiff is Excommunicated And thereupon he ought to shew the Bishop's Letters under his Seal testifying the Excommunication and then he may demand Judgment whether he ought to be answered But if the Demandant or Plaintiff cannot deny this the Writ shall not abate but the Judgment shall be that the Tenant or Defendant eat inde sine die because when the Demandant or Plaintiff hath purchased Letters of Absolution and they are shewed to the Court he may have a Re-summons or Re-attachment upon his Original according to the Nature of his Writ Lit. Lib. 2. Ca. 11. Sect. 42. An Action upon the Case was brought and the Plaintiff set forth that a Jury was Impannelled and Sworn and that one of the Jurors was challenged for that there were not 12 Jurors Talis de Circumstantibus was awarded and another Juror Impannelled and so legitimo modo acquietatus fuit but this was held Erroneous per totam Curiam For it doth not appear that he was legitimo modo acquietatus because he doth not say that this other Juror was sworn Mich. 8. Ja. in C. B. Reg. 10. If a Man plead a General Act of Parliament and mis-recite the same yet it shall not prejudice him because the Judges ought to take notice of it per totam Curiam and nul tiel Record ' cannot be pleaded against a General Act of Parliament although it cannot be found per Coke Chief Justice ubi supra Reg. 11. Note by all the Justices for a general Rule where a thing alleadged doth confess and avoid my Plea I may Traverse it 7 H. 6. 13 Eliz. Dyer A Copy-holder pleaded that per Licentiam Dominorum Manerii adtunc existentium he made a Lease for Years to J. S. and rul'd to be an ill plea because he hath not shewn what Estate the Lords have in the Mannor For they may be only Tenants at Will and so cannot give License to make a Lease for Years although they have Power to grant Estates by Copy A Man brought an Action of Trespass for his Horse taken The Defendant said that the Plaintiff gave him License to take his Horse and farther said that he was within Age at the time of the License c. Afterwards the Defendant said that he was not seised long time before that the Infant any thing had c. and so possessed until J. S. took and gave to the Infant This is a good Departure because that he doth not maintain his Barr sc his License 5 H. 7. Assise the Tenant pleads that his Tenant died without Heir he shall not be received to say that he committed Felony for which he was attainted because that it is new Matter and not pursuant An Obligation did bear Date the first day of May and was delivered the. 20 th day afterwards the Obligee releaseth the Second day of May which Release was delivered the same day This Release is no Barr quod nota If the Obligee brings an Action and declares upon a Bond bearing Date the first day c. and doth not say that it was afterwards delivered the 20 th day the Defendant shall barr him by the Release which was made after the first day and the Plaintiff shall not reply and shew the first Delivery of the Bond the 20 th day for that is a Departure and because that he might have alleadged it it at the Commencement By Keeble where the Defendant in Trespass fortifies his Bar and there is no other Matter but pursuant to the Barr and goes before the Barr in Conveyance of his Title This is no Departure but where the Barr is before the Matter shewn in his Rejoynder this is a Departure As in Assise the Defendant pleads the Dying seised of his Father and gives Color c. The Plaintiff pleads the Feoffment of the Defendant after that Descent the Defendant rejoyns and saith that Feoffment was upon Condition which Condition was broken and so he did re-enter Now this is a Departure for the Barr was before the Feoffment But if the Tenant in Assisse saith that J. S. was seised and enfeoffed him and gives Colour c. and the Plaintiff saith that J. S. disseised him and enfeoffed the Defendant upon whom he re-enter'd and was seized until c. if the Tenant rejoyn that after the Disseisin he releas'd to the said J. S. and then he enfeoffed him This is no Departure and yet he might have
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
So it is of a Lease for years made by a Feme sole reserving Rent and She takes Husband So of an Obligation made to a Feme sole and she takes Husband for otherwise the words of the writ are false But if a Feme sole make a Bailiff of her Mannor of Dale and takes Husband of all the Rent received by the Bailiff after Coverture the Husband shall have an Action of Account in his own name for there the words of the writ are true And when an Action personal is given to the Husband and also to his Wife during the Coverture it is at the Liberty of the Husband to bring the Action in both their names or in his own name if it be so that the Wife may have advantage of it When a thing is given to Husband and Wife by matter of Record then he ought to joyn with her But there is a Diversity when it is of the part of the Plaintiff and when it is on the Defendants part as a Feme sole disseiseth me and takes Husband the Assise lyes against both supposing that they both disseised me So it is of Trespass Note It is at the Election of the Plaintiff to bring his Action of Debt against the Heir or against the Executors A Man marrieth a Wife That hath a Rent Charge out of the Lands of another Rent is arrear before and after marriage The Plaintiff shall recover by Action of Debt against the Grantor or his Heirs Action of Covenant shall not go to the Heir but to the Executors As Action of Debt upon a Bond or a Lease for years the Term goes to the Executors and not the Heir or any thing where damages shall be only recovered for that every Heir may not have Chattels descend and so not this Action A man seized of a House and Goods makes a Lease thereof and after enters and enfeoffs I. S. the Lessee reenters Rent is in arrear I. S. brings his Action of Debt and hath Judgment because the Rent issues out of the House and not out of the goods A man was bound in a Bill Me teneri firmiter obligari in viginti libris solvendum in watches It was questioned whether the Action should be brought for the Watches or the Money But Resolved for the Money Otherwise if the number of Watches had been in the Bill For then it had been for so many Watches to the Value of 20 l. If a man had been indebted to me in a single contract and dyed I could have had no remedy at the Common-Law against his Executors For he might have waged his Law in his Life-time but his Executors could not But now I may have an Action upon the Case against his Executors Assault and Battery and Ejectment will lye both in one Declaration Where two Men are beaten together yet they ought to have several Actions because the Trespass is personal but otherwise it is in real trespasses If you bring your Action for live Cattle it must be Cepit abduxit But if it be dead Goods or Chattels then you must say cepit et asportavit so likewise you say for live Cattle pretii for dead things ad valentiam Divers persons may have an Action of Trespass joyntly for Goods taken or the like But of Battery or such personal Trespass the Action ought to be single unless it be a man and wife And if the man and wife bring an Action of Battery or for Goods taken The writ shall say the Goods of the Husband only For the Wife cannot have property in the Goods during the Coverture An Action lyes against an Executor upon a promise of the Testators upon consideration of forbearing to prosecute but altered since by the late Act to prevent Frauds and Perjuries If there be Three Executors named in the Testament and Two of them refuse the Third may prove the Will alone And yet the other Two may meddle with the Goods when they will and either of them when they will And if an Action be brought it ought to be in all their names notwithstanding such refusal Executors of Executors shall not have an Action of Debt or other Action for any thing due to the first Testator For that they are not Executors to the first Testator or privies to his Will but were Strangers by the Course of the Common-Law But by the Statute of 25 E. 3. Cap. 5. they may Sue and be Sued and shall answer for whatsoever comes to their hands of the first Testator Sr. O. C. seized of an House in Fee and possessed of an other House as Administrator for years Le ts them both for 10 years to the Lady S. who Covenants to keep them in Repair and so Leave them at the end of the Term. Afterwards Sr. O. grants the Reversion of both Houses by several Indentures to I. P. The Lease made to the Lady S. expires and the Houses are left Ruinous Whereupon I. P. brings his Action Nicholls for the Defendant said that the Plaintiff ought to have brought two Writs of Covenant for that the Houses are several and if the Case had been that the Lessor had Covenanted to repair them and had dyed yet the Lessee should have had one Writ against the Heir aad an other Writ against the Executor and when an Action is once severed it can never be joyned again and when Sr. O. hath granted the House of which he was seised in Fee by Deed to P. now the Action is severed and Sr. O. shall have an Action of Covenant for one House and P. for the other And for these Reasons he held the Action not to be well brought Doderidge è contra And first he agreed with the other that two Actions upon this Covenant are maintainable and that if Sr. O. had lett his House the Lessee shall have one Action upon this Covenant and the Lessor another But yet he said this Action will well lye for the Law is excellent in this Point for when the Ground upon which the Action is founded in one notwithstanding the things are several yet all shall be comprised in one Action for frustra fiunt per plura quae fieri possunt per pauciora and with this agrees 14 E. 3. If a man grant a Rent out of his Land to one and sells the same Land and afterwards the vendee grants another Rent-charge out of the same Land to the same person and he is disseised He shall have one Assise for both the Rents So if one distreyn for two Rents and the Tenant rescuos them He shall have but one Writ of Rescous 3 H. 6. 17. 13 H. 7. 12. b. There exception was taken because it supposed a Chasing in two Parks the which ought to have several Punishments Viz. for either Park Imprisonment for 3 years as it is given by the Statute W. 1. and because he joyns the chasing in two Parks together it is not good For a man cannot have a Writ of Ravishment de
Frauds and Perjuries 1. BY this Act it appears That if a Feoffment be made and Livery and Seisin duly executed although it were before many credible Witness as formerly the Law was yet unless it be put into Writing nothing shall pass thereby but an Estate at Will and in like manner all leases made by word for any longer time than three years or other Estates made or created without Writing are subject to the same Rule that is shall be only Estate at Will that are so made by Words without Writing after the 24 th of June 1677. 2. After the said 24 th of June 1677. No Executor or Administrator shall be charged with any special Promise to answer Damages out of their own Estates but only in Relation to the Testator having Assetts in their hands and that no other person shall be charged with any special promise to pay the Debt of another man or answer for the Default of any other or upon any Agreement of Marriage or for any Agreement for Lands or for any other commodity or thing not to be performed within one Year after the making of any such Agreement unless the same Promise Bargain or Agreement be set down in Writing and signed by the party to be charged therewith or by some other person lawfully authorised by him so to do 3. All Wills and Bequests of Lands Tenements c. after the said 24 th day of June 1677. shall be put into writing and subscribed by the Testator or some person else in his Presence and by his express Directions and attested and subscribed in the presence of three or four Witnesses other wise all such Gifts to be void all such Devises so made and subscribed by the Testatoror his Directions as aforesaid shall be good and stand effâ—ctual in the Law unless the Testator shall at any time cancell the Will or alter it by a subsequent Will 4. All Trusts shall be in Writing and signed by the Party declaring the Trust else to be void except such Trusts as arise by Implication of Law and Lands in Trust for the use of others shall be chargeable with the Judgment and lyable to the Execution sued out against Cestuque use 5. Aman seized of one Estate pur autre vie may devise the same by Will in manner afoâ—esaid and no such devise shall descend to the Heir that so died seized as Lands in Fee-simple should do and such Heir shall be chargeable therewith as a special Occupant and in case of no such special Occupancy then shall the Land descend to the Executors and Administrators 6. From and after the said day every Judgment shall be signed with the day of the Month and the Year in which such Judgment was Signed and the day of the Month and Year are to be entred on the Margin of the Plea-Role and they shall be accounted Judgments but from that day wherein they were so signed and not from the first day of the Term as formerly was used the like Rule for Recognizances 7. No Writ of Fieri facias or Writ of Execution shall after the property of Goods but from the day the Writ was delivered to the Sheriss to execute which day and year the Sheriff is to endoâ—se on the back-side of the Writ 8. No Bargain of Goods above the value of ten pounds shall stand good unless the Buyer take part of the Goods so sold into his Possession or give something in Earnest or that some Note or Memorandum be made thereof in Writing 9. No nuncupative Will whereby an Estate is bequeathed above the value of thirty pounds shall be good unless it shall be proved by three Witnesses at the least nor unless the Testator did bid the parties present bear witness that so was his Will or to such like effect nor unless such a Will was made in the time of the Testator's last Sickness and in his place of Habitation and unless he was surprised and taken sick from Home and that no Testimony shall be received to prove such Will after six Months unless the Testamentory Words were committed to Writing within six Days after the making of such Will 10. No words unless they are committed to Writing and read to the Testator and allowed by him and proved by three Witnesses to be his Will shall alter any Will in Writing concerning any Goods or Chattels or any Device or Bequest therein Trespass IF my Servant without my knowledge puts Beasts into another mans Ground the Servant is Trespasser and not the Master If a man beat my Servant I may have Trespass and my Servant another Action of Trespass diversis respectibus It is good to lay the Action some day after the Trespass committed yet it is not material or traversable if be laid before For it 's but a Circumstance As Trespass done the Fourth of May the Plaintiff alledgeth the First of May it 's sufficient if upon Evidence it be proved that the Trespass was done before the Action brought A Master is punishable for his Servant if he be about his Masters Business An Abbot for his Monk a Captain for his Souldier an Host for his Guess So a Sheriff for his Under-Sheriff and Bayliffs But a Master shall not be Punnished for Trespass of Battery or Entry into Lands or Felony or Murder or such like done by the Servant unless done by his Command If a Servant keeps his Master's Fire so negligent that it burns his Master's and the Neigbours House the Master is chargeable therewith A man is chargable with the Faults of his Family or of his Beasts If a Ship is perishing and the Marriners cast the Goods to save them on the Land next adjoyning yet this is Trespass and punishable by him that holds the Land A Servant may justifie the beating of another in Defence of his Master A Man shall not have his Action of Trespass for Threatning and recover Damage as well as in Assault and Battery The Law does not allow any man to strike in Revenge of Ill words and the reason is because there is no proportion between Words and Blows but he that is struck may strike again In Trespass he that consents and gives aid to the committing of Trespass is a Principal and no Accessary to the same Trespass If Tenant at Will commits voluntarily Waste Trespass lies against him notwithstanding his Possession so that if I deliver my Sheep to another to Fold or Dung his Land or a Horse to Ride or Oxen to Plow his Land If the Bailiff spoil or kill them I have an Action of Trespass against him notwithstanding the Delivery of them or Trover at his Election If a Man desseize me of my Land or dispossess me of my Goods yet I may enter upon the Land or take my Goods although I release to the party Disseizer or Trespasser all Actions yet this Release shall not Bar my Right No Trespass can be excused by Law but it may be justified as upon son assault demesne or
to cut Beeches is wast Lopping Oak Ash or Elme or any thing to prejudice Trees is wast Making Charcoal of wood is wast Felling Timber to repair voluntary wast is double wast To dig for Gravel Stone c. is wast unless for Reparation of the house To suffer a Sea-wall or against a River to decay is wast To take Timber c. to make new Fences is wast Tenant cuts Trees for Repair and sells them though he buyes them again and employs them 't is wast Burning a house by Negligence or Mischance is wast 1 Inst 53. 40. E. 3. 15. b. Willows cut in view of the House is wast 40 E. 3. 25. b. So to cut Hasels in a Wood where there is no other Timber If one grants in his Leafe that Wast shall be redressed by Neihgbours and not by Plea yet he may bring an Action of Wast for the place wasted is not otherwise recoverable 1 Inst 53. a. If the Tenant repair houses before any Action of Wast be brought the Action of Wast is not maintainable but he must not plead Quòd non fecit vastum but the special matter 38 Ass 1 Reparation after the Writ brought not pending the Action seems no Plea 1 Inst 55. D. None shall have wast unless he had the immediate Inheritance yet an other may joyn with him against Tenant by the Curtesie with the surviving Partner Joyntenant for life with him that hath the Fee Where the Estate is determinable the Wast is general as Tail becomes Tail after possibility c. The Heir cannot have it of Wast in his Ancestors time nor a Bishop of his Predecessor nor shall Executors be punished for Testators wast Aunt and Neece may joyn 45 E. 3. 8. b. Gift to two and the Heirs of one he that hath Fee cannot have Wast against his Joyntenant but his heir may if wast after if the other survive if the Reversion be not continued in the same it was at the time of the wast done the Action is gone though taken back again 1 Inst 53. D. Wast lyes against Tenant by the Curtesie and in Dower though they have assigned unless the Reversioner have assigned also All others shall answer for their own wast unless Guardians And if the Guardian assign it lyes against the Assignee Guardian shall not answer wast by an other because 't is poenal unless he is Joynt-Guardian If one recovers against him under Age he recovers the Land else only Damages Infants Feme coverts c. shall answer Wast c. done by Strangers and she for her Husband Co. 1. Inst 53 b. 54. a. Husband Tenant for Life in his Wives Right does wast she dyes 't is dispunishable but if tenant for years in her Right not because the marriage is a Gift of it to him Tenant for Life grants his Estate on Condition Grantee does wast Grantor entâ—rs Wast lyes against the Grantee and the place shall be recovered Lord not punishable for wast done by his Villein before Entry Occupant punishable generally or specially Tenant afsigns and takes the Profits wast lyes against the Tenant Wast done sparsim in Woods or Houses all is to be recovered No Action of wast lyes against Guardian in Socage but Trespass or Account 3 Cro. 357. If Lessee take Trees c. to repair houses 't is not wast though he was not bound to repair them as his Lessor covenanted to repair them for if it was sans Impeachment of wast for the houses as the house was ruinous at his Entry and this for that Favour the Law gives to houses of Habitation Co. 1. Inst 54. b. a. Dyer 194. 198. b. Brook 463. Tit. Wast Lease of lands he may dig in open Mines and if it were of lands and mines if any were not open he can open none new but if none were then open he may open new ones Co. 1. Inst 54. b. 5 R. 1. 2. Tenant for Life makes Feoffment wast is done 't was upon Condition Lessee enters for Condition broken Lessor shall have wast So Successor of a Bishop shall have Wast on his Predecessors Lease for wast done in time of Vacation So if Lessee for Life be disseised and wast done if he enters he shall be charge able for the rest yet in none of these cases had the Lessor any Reversion in him at the time of the wast as regularly he ought but these cases stand upon their particular Reasons 1 Inst 13. b. The Aunt and Neece joyn in Action of Wast done in the old Sisters Life the Aunt alone recovers the damages Co. 1. Inst 233. b. Tenant for Life makes a Lease for years and enters upon his Lessee and consents to a Recovery in Wast against him the Lessee for years shall be for ever excluded for of necessity the place wasted must be recovered but if he had granted a Rent charge and committed Wast and the land recovered the Rent had continued Co. 1. Inst 233. b. Perkins 844. Tenant for Life does wast and grants over his Estate Lessor releaseth all wast to the Grantee it shall discharge the Lessee Idem of Tenant in Dower or by the Curtesie for besides the Privity that endures if the Lessor should maintain his Action he should recover Locum vastatum against the Grantee contrary to his own Release Co. 1. Inst 269. b. Lessee does wast and then surrenders 't is said the Lessor shall maitain wast but the Book seems to be misprinted and that it should be shall not maintain c. for by his own Act he hath determined his Action in part Co. 1. Inst 285. 5 Rep. 12. b. Wast brought against Tenant pur auter vie in Ass he dyes pending the Writ it shall not abate but proceed for the damages because altered by Act in Law but if Baron and Feme Tenants in Tail special bring Wast and she dies without Issue pendente brevi so as the Husband becomes Tenant in Tail apres possibility d'issue extinct it shall abate because all wast must be ad exheredationem And note that Release of actions real bar wast and so doth Actions personal for he shall not apportion his own Action Co. 1. Inst 285. a. One devises Lands by the general words Bosc ' Maherem ' Miner ' Carbon ' in tam amplis modo forma as the Lessee habuit or habere potuit the Lessee opens a Mine and cuts Trees to use about it the cutting is wast for the Trees were not granted it being a Lease nor do they pass as incident to the Mine it not being open And Hobard holds that if the Mine had been open at the time of the Lease it had been wast Hobard 234. Darcy against Ashwich Hutton 190. 191. Lessee cannot change the nature of the thing devised and therefore not turn Meadow into Arrable or Wood into Pasture dry up an ancient Poole suffer a Park pale to decay destroy a stock of Deer Fish c. but may better a thing in the same kind and therefore may
Common Law wherefore prohibition prayed but granted only quoad the lands and that it be proved quoad bona Hill against Thornton 1 Cro. 118. Debt on a Bond conditioned he permit his Wife to make a Will to the value of 50 l. and 't is found on Issue Nullum fecit voluntatem c. that she did make a Will of 50 l. but was covert 't is for the Plaintiff for though properly a Feme-Covert can make no Will in Law yet 't is a Will within the Intent of the Condition and the Husband is bound to perform it Marriot vers Kinsman 1 Cro. 159. And so Tilly and Parryes Case 273 274. Bond to pay 300 l. to such Persons and Uâ—es as the Wife should appoint she appoints in form of a Will he is bound to pay it And 433 Bond to permit her to make a Will and pay c. Plea that he permitted c. without pleading payment not good Action upon the Case lyes not for Non-payment of a Legacy for no Duty in our Law so it cannot take notice of the wrong in Non payment Mich. 18. Car. 2. Nicholson against Sherman in Banco Regis Bond conditioned that the Wife shall make a Will of 300 l. in presence of the Husband if he will be present if not in his Absence she makes it and it appears not that he was requested to be or that he was present of 250 l. to several persons and not an entire Legacy yet after Verdict the Plaintiff had Judgment for the Intent was that she should make a Will whether he would or not and she needed not devise all to one nor devise the whole 300 l. for Cui licet quod majus c. Mich. 14. Car. 2. Harris against Bury in Banco Regis Debt by A. as Executor the Defendant prays Oyer of the Will which was thus Memorandum Quòd A. B. fecit Testamentum Nuncupativum in hunc modum viz. Constituit C. D. fore Executorem suum And this was under Seal of the Ordinary and resolved a good Will and he Executor and well able to sue and so was it decided upon Appeal to the Delegates Mich. 16. Car. 2. Lewis against Shaw in B. R. Witnesses HE that is attainted of a false Verdict Conspiracy or convicted of Perjury Premunire or Forgery upon 5 Eliz. or Felony or that has stood in the Pillory lost his Ears been stigmatiz'd c. whereby he becomes infamous or Recreant in a Writ of Right or an Infidel under Age of Discretion or interessed ought not to be a Witness nor a man's Wife for or against her Husband But one outlawed in personal Actions may be a witness Co. 1. Inst 6. b. 25. J. K. Witnesses are not to prove a Negative ibid. Where Tryal is by Witnesses there ought to be two at the least ibid. A Juror may give Evidence as a Witness to his Companions but it must be publickly by Examination in Court not privately to his Fellows Stiles Rep. 233. Bail for the Defendant being a Witness for him upon motion was taken off the File and new Bail filed Idem 385. A Felon that has been burned in the hand may be a Witness for he may purchase and his Punishment has satisfied his Offence Idem 385. In Ejectment he that had the Inheritance of the Land was admitted as a Witness where note the Plaintiff and Defendant both claimed under one person Idem 482. A Counsellor at Bar being examined as a Witness for his Clyent was denyed to be examined on the other side for he shall not be put to discover the Secrets of his Clyents Cause Idem 449. Debt on 5 Eliz. 9. because the Wife did not appear whereas he served her and tendred to her her Charges c. to his Damage And though not laid what Damage yet being for the 10 l. upon the Statute not for his damages for her not appearing and a Feme Covert being within the Statute 't was held good enough 3 Cro. 130. 1 Leon. 122. Note she being the person who was to appear the Charges are to be tendred to her or her Husband Iidem ibid. Debt for 10 l. against a Witness that being Subpenaâ—d appeared not moved first 't is not shewed that the Subpena was left resolved it needs not for it might be for more Witnâ—sses 2. There was but 12 d delivered but resolved since he promised to pay the rest and the Witness accepted the 2 d. 't is good else the Witness had not been bâ—â—nd 'till the whole Charges had been tendred But thirdly because he avâ—rred not that he was damnified by the Non-Appearance of the Witness though the Action be but for the ten pound Pâ—nalty and not for the Damages over Râ—â—olved it lyes not 1 Cro. 376. 388. Judgment staid because the Verdict was had upon the Testimony of one Witness and he since convict of Pâ—rjury in the very same thing Pasch 17. Car. 2. Banco Regis In Deceipt for forging a Will one that took a Legacy by the same Will was allowed and sworn as a Witness in a Tryal for the Forgery for this makes nothing to the Probate of the Will or Recovery of the Legacy in the Spiritual Court nor do they take notice of it Moved to examine a material Witness that lay dying and it was said by the Court that if the adverse party did consent it might be done else they could not compell him Mich. 13. Car. 2. B. R. A Councellor may be examined as a Witness against his Clyent so far as it is of his own Knowledge not what he knows by the revealing of his Clyent Pasc 15. Car. 2. B. R. One shall not justifie what he heard an other say ibid. In an Indictment for beating one of the King's Messengers the Witnesses for the Defendant were sworn because though against the King and criminal yet not Capital Pasch 17. Car. 2. B. R. One that was a Witness indorsed to the Livery upon a Feoffment having part of the Lands as Tenant at Will was allowed as a Witness in the Tryal on the Feoffment afterwards in a Tryal at Bar. Bulstrodes Rep. 202. A Person attainted of Felony though afterwards pardoned by the King is uncapable after of being a Witness and therefore a Suggestion being proved only by two such a Consultation was granted 2 Bulstr 154. Words TO say of a Woman that J. S. did beget her with Child and she had a Child by him by speaking whereof she lost a Marriage with I. D. Although these words are a Spiritual Slander yet the loss of Marriage is Temporal and therefore the Action lyes for them Co. 4. 16. b. Ann Davis against Gardner adjudged So if a Man saith of a Woman that J. S. had the use of her Body by which she loseth her Marriage an Action lyes Pasch 5. Jac. B. R. Dame Morison against Case adjudged If a man says to J. S. Thou art a Whore-Master for thou hast lain with B's Wife and hadst to do with her against
of God or of an Estranger may abate the Writ p. 17 18 19 20. Ab Initio Where the Grant shall be good Ab Initio although it was incertain at the Commencement p. 20 21 22 23. Able and Disable Where an Obligee was able at the time of the making the Obligation and afterwards disabled by his own Act è contra p. 23 24. Acceptance Where it shall be no Prejudice to the Acceptor p. 24. Action Where the principal thing is devested yet the Plaintiff shall have an Action which is accrued to him by reason thereof ibid. Where the Husband shall have an Action without naming his Wife and where not p. 25 26 27 29 33 34. Where the Plaintiff hath Election to bring his Action against the Heir or Executor p. 27. Bill teneri c. in 20. l. solvend in Watches Action shall be brought for the Money not the Watches but if the number had been express'd contra p. 28. Assault and Battery and Ejectment will both lye in one Declaration ib. Of bringing Actions of Trespass and what words are most proper to be used therein upon several occasions p. 28 29. How Executors and Executors of Executors shall sue and be sued p. 29. Of bringing Actions of Covenant p. 30 31 32. Of Infants bringing their Actions p. 32 33. Where several things may be put into one Declaration p. 35. Of bringing Actions upon the Statute ib. Where a man shall have an Action against his own Deed. p. 36 37 38. Where a man hath good cause of Action sometimes and yet by matter ex post facto and by the Action of a Stranger his Action is destroyed p. 38 39. Of bringing Actions upon the Case Sur assumpsit p. 40 41. Amendment In what Cases the Court will suffer an Original Writ Venire Facias Quare Impedit Habeas Corpora or Writ of Nisi prius c. to be amended p. 43. to 51. Misprisions of the Clerk no Errors shall be amended p. 45 46. Appearance The Defendant having given Bond to the Sheriff to appear if supersedeas comes to the Sheriff before day of Appearance yet he must appear to save his Bond. p. 51. By W. 2. a man of 70 not bound to appear upon Juries ibid. Annuity Grantee in Annuity pro Consilio c. not bound to give Counsel to the Grantor unless required p. 51. How to declare in Annuity p. 52. Arbitrement Where good where not p. 52 53. Audita Querela Brought by an Infant who was non-pros'd and why p. 53 54. It lies upon Nihil Facias not Scire Facias ibid. Brought by Conusor in Stat. Merch. against Administrator of Executor of the Conusee after Release p. 54. Avowry Avowry for Amercement in Court Baron ill and why ibid. Set forth in Avowry that Dean and Chapter were seised in Jure Ecclesiae not saying in Fee ill and why ibid. Pleading in Avowry Damage fesant and on a new grant p. 55. Exceptions to an Avowry by an Executor ibid. Costs to Avowant ibid. Judgment for Avowant revers'd and why p. 56. The Lord hath Election to avow at Common Law or upon the Statute and which most beneficial ibid. Avowry for two Sums nomine penae without alledging Demand of Rent insufficient c. ibid. Donee aliens Donor cannot avow upon Alienee ibid. Avowry adjudged ill upon Demurrer and why ibid. Stranger to Avowry shall plead nothing but hors de son fee or matter tantamount p. 57. Stranger to Avowry cannot disclaim nor any person in auter droit ibid. Five things to be known in Avowries p. 58 59. Where in Avowries the Defendant shall answer to the Seisin and where he shall traverse p. 61. Where the Effect of the Fee shall be traversed p. 62. Bail UPON Latitat 64. Vpon Capias ib. for Husband and Wife ib. Vpon Writ of Error p. 65. Difference of being Bail in King's Bench and Common Pleas. ibid. Bail sells his Lands if chargeable p. 66. If one puts in Bail to a Debt in C. B. and be afterwards arrested in London for the same Debt he shall have an Attachment ib. Bankrupt Creditors after refusal may upon Tener of their Proportions towards the Charge of the Commission be received to have their parts as other Creditors if no Distribution hath been made of the Bankrupt's Estate before ibid. Commissioners may sell Bankrupt's Goods if by him before disposed to his Creditors after he became Bankrupt ibid. They may sell his Copy-hold Lands p. 67. Two brought Debt joyntly as assigned to them by Commissioners per Cur. they ought to have assigned pro rata to every Creditor ibid. A Bankrupt cannot sell his own Goods after he becomes Bankrupt but Goods which he hath as Executor or a Legacy before it be invested in him or a Grant of a Reversion before Entry he may ibid. Barr. A man may be barred pro tempore and yet afterwards he shall have his Action p. 68. To plead a thing by way of Barr or Estoppel which the Demandant or Plaintiff is to defeat or destroy by the Vsage of his Action is no good Plea ibid. Of pleading Recoveries in Barr. p. 69. Where a man demands a Debt or any thing by Deed he shall not be barred but by Deed or something of as high Nature p. 70. Where a man shall plead a Barr which shall comprehend one matter in Fact and where it shall comprehend more p. 71. Of Barrs perpetual ibid. Cinque-Ports HOW Lands shall be extended in the Cinque-Ports p. 72. Customs and Prescriptions Customs against Canon Law how to be tryed p. 72. Customs payable to the King by the Common Law and why ibid. Difference between malum in se and malum prohibitum ibid. Bailiff ought not to sell Goods taken in Execution for Debt or Damages in a Court Baron but impound and keep them as Pledges till the Defendant makes his Agreement but where the Court hath used to award a Levari Facias 't is good by Custom p. 73. Custom of Burrough English ibid. Custom for the Court of King's Bench every Term to send the Coroner to the Marshal to view the Prisoners that the Coroner might mark the Names of those were wanting in his Book and inform the Court thereof who would record their Escape against the Marshal as an Abuse of his Office and cause of Forfeiture ibid. The Law and Vsage of the Realm concerning Aliens and their Issue p. 74. Custom of London concerning Feme sole Merchant ibid. Custom and Vsage binding to particular places ibid. In what Cases the Custom of the Realm is the Common Law ibid. Prescription what and how to be alledged p. 75 76 77. Profit Apprendre cannot be claimed by Custom in the Lands of another except in Cases of Necessity p. 77. Where a man may have an Action upon the Case for a Tort and where he must prescribe and shew his Title p. 78. How and where Customs pro bono privato and pro bono publico are to be alledged ibid How