Abatement of Writ or Count.

IN Debt by two Executors, one was sum­moned and severed, and dyed; and it was adjudged that it should not abate the Writ. Co. 10. Read and Redman's Case.

If there be two Joynt-Tenants, and the one is summoned and severed, and dyes, the Writ shall abate; but in a Stire facias the death of one after Summons and Severance, shall not abate the Writ, Co. ib. Where note the difference between a Writ Original, and a Judicial Writ.

Two Coparceners, one is summoned and severed, and hath Issue, and dyes, there the writ shall abate, for that his Issue hath Title to the Moiety. Co. ibid. But if one of the Coparceners takes husband, the writ shall not abate.

In all Actions personal or mixt where the intire thing is to be recovered, as in Quar [...] Impedit, Detinue of writings, and the like, there after summons and severans the death of one shall not abate the Writ. Also the death of one after Judgment in personal [Page 2] Actions shall not abate the writ, although there be no severans. Co. ib.

Where the Writ goes in discharge as an Audita Querela, and the one is summoned and severed, and dies, the Writ shall not abate, Co. ib.

Note, In all personal Actions where no severans lyes, there the death of one of the parties shall abate the Writ; but not, if it be a Judicial Writ after Judgment. Co. ubi su­pra.

In Formedon against divers, some plead Non tenure, and others take the Tenancy upon them intirely, the writ shall not abate, and those who plead Non tenure shall not have Judgment, 22 E. 4. 4. 4 E. 4. 33 a. Stat. 25 E. 3. 13.

Misnosmer in a Scire facias shall abate the writ, 9 E. 4. 35. a.

If a Praecipe be brought of a Mannor and 20 s. Rent, it is a good Plea to say, that the Rent is parcel of the Mannor. So in Formedon for Land, it is a good plea to say, that the De­mandant hath brought another Formedon of 20 s. Rent issuing out of the same Land, 3 H. 7. 3.

A Writ was brought against A. Rector of B. de placito debiti 100 s. The Defendant plea­ded, That die impetrationis predicti brevis he was commorant at C. in another County; but the Court would not allow the Plea, be­cause [Page 3] a Rector is always supposed to be resi­dent upon his Benefice; quod nota. So a man that hath two Benefices shall be intended to dwell upon them both, although he doth not deny that he is Parson. 10 H. 6. 8. Co. 11. Magdel. Colledg Case.

In a Writ of Right of Advowson against A. B. Dean of C. he pleaded, That by Autho­rity of Parliament the Corporation was de­feated and avoided; and it was held by Brian to be a good Plea, 4 H. 7. 7. Rast. Entr. 101, 182.

In Assise it is a good plea to the Writ to say that the Plaintiff was seised of the Freehold of the Lands in the Plaint; but in a Forcible Entry it is no plea to say that he was seised the day that the Writ was purchased, 5 H. 7. 41.

Death or Coverture at the time of pur­chasing the writ, shall abate the writ de facto; but Coverture afterwards makes it but abateable, 32 H. 6. 11. 3. Br. 138. Co. Entr. 173. Rast. Entr. 107, 108, 126, 161.

It is no Plea to the Writ to say that the Summons were of other Lands, for the De­fendant may wage his Law de non Sum. 37 H. 6. 26.

A Quare Impedit was brought, and the Plaintiff made his Title to the Advowson as appendant; The Defendant said, that a Moi­ety was in Gross, and it was doubted whe­ther [Page 4] this Plea should go to the Writ, or to the Action, 32 H. 6. 10, 11, 12.

A Quare Impedit is brought against the Incumbent without naming the Patron (he being alive) this makes the Writ only abate­able, and is not good upon a Writ of Error.

In a Writ of Quare Impedit or other Ori­ginal Writs, the death of the King before Judgment shall abate the Writ de facto, but it is otherwise where the Defendant dies. But in an Information for the King, or for the King and the Informer, upon the death of the King before Judgment, the whole Proceed­ings are discontinued, but the Information it self shall stand good, and Process shall be awarded against the party de novo. So of Indictments (that are not for Felony or Trea­son) for after Trial they are within the Sta­tute of 1 E. 6. ca. 7.

When the Original bears Teste before the cause of Action accrues, the Writ shall abate de facto propter defectum. Anderson 1. 241. a. 96. Rast. Entr. 459. Co. Entr. 624. Brown's Entries 1. Part, Tit. Abatement.

The death of the Plaintiff of Plaintiffs, or of one or more of the Plaintiffs, (where there be many) shall abate the writ. Rast. Entr. 416. Fitz. N. Br. 35. B.

Where it appears by the plaintiffs own shewing that he had not an Action for the whole, or for part, the Writ shall abate de [Page 5] facto, as in Quare Impedit, if it appears by the plaintiff's shewing that the Church is full by his own Presentation, the Writ shall abate de facto.

Some Pleas abate the Writ in the whole, and some but in part. As,

In Trespass against two, one appears and pleads that the other was dead die impetra­tionis brevis; or that there was no such per­son in rerum natura, there the whole Writ shall abate: But it is otherwise where one of the Defendants dyes after purchasing the Writ, 18 E. 4. 1. 2 H. 7. 16. Rast. Entr. 126.

Trespass against husband and wife, after Verdict and before the day in Bank the hus­band dyes, in Cro. Caroli 509. it is doubted, if the writ shall abate; but it is agreed there, That if the wife dyes it shall not abate against the husband. But in case for Slander by the wife the writ shall abate after Verdict. Heb. 129.

Account against two, one dyes after the first Judgment, the Writ shall abate only against him.

In Right of Advowson the Defendant pleads that the Plaintiff was seised of the sixth part die impetrationis brevis, this shall abate the whole Writ, 5 H. 7. 7.

In Debt upon an Obligation, the defendant pleads, That after the writ purchased, the plaintiff had received parcel, and shews an [Page 6] Acquittance, the whole writ shall abate; and yet it is a good plea in barr for that part. 5 H. 7. 41. a. Rast. Entr. 160. 7 E. 4. 19. 15 H. 7. 10. 3 H. 7. 3. Quere if in Debt upon simple Contract the plaintiff receives part pendente brevi, if it shall abate the writ.

In Debt upon an Obligation with Condi­tion to deliver 20 Quarters of Barley, the de­fendant pleads in Abatement, that pendente billa the plaintiff had accepted 15, parcel of the said 20; and adjudged to be an ill Plea, because it is collateral and not parcel of the Sum contained in the Obligation, 3 Cro. 253.

Where the defendant pleads matter that entitles the plaintiff or demandant to a bet­ter writ, it shall abate the other; as in a Writ of Ayel, Seisin of the Father. So in Mortd' an­cestor, his own Seisin, &c. But in Formedon, or Writ of Right, darrein Seisin is no Plea; for in Formedon the Gift and not the Seisin is the Title; and it is not within the Statute of 32 H 8. of Limitations to be brought within 50 years, 12 Eliz. Dyer 290. 4 E. 4. 32. b.

If the Tenant brings a Writ of Mesne of two Acres, and depending the writ he alien­eth one of them the writ shall abate.

The same Law in an Action of Wast brought of two acres, if the plaintiff aliens the Reversion of one of them, the writ shall abate.

Where it appears that the writ was never good in part, it shall abate in the whole.

As in Trespass against 3, if one be dead af­ter the writ purchased, the writ shall abate in the whole, per 7 E. 4.

The same Law, if Trespass be brought against three, and one saith, that there is no such Name in Rerum Natura as the third person's name, Judicium de Brevi, if it be found, the Writ shall abate in the whole; be­cause that I have joyned with me such a per­son who hath no colour or cause of affir­mance, my affirmance shall abate.

Where the writ is good for part, and for part shall abate.

As in Debt upon Obligation against two, they both deny the deed, and it is found the deed of one of them, and not of the other, yet the Plaintiff shall recover against him whose deed it is, 40 E. 3.

Praecipe quod reddat against Tenant for life, the Reversion descends to him depending the writ, the writ shall not abate.

Misnomer in Trespass shall not abate the writ but only against him who pleads the Plea, 5 E. 4 2. 13. 2 H. 7. 16. 33 H. 6. 23.

A Praecipe is brought by three joyntly, se­veral Tenancy in parcel, or in the whole, is pleaded by one of the Tenants, it shall abate the whole Writ, and against all. Rast. Entr. 248. 270, 1, 2, 3. 364, 5. 282.

In Right of Advowson against two as Join­tenants, the death of one shall abate the writ; but secus in Assise of Novel disseisin or Mort­d ancestor; for there it sufficeth, if there be any Tenant to the Freehold. Cro. Car. 574, 583 Rast. Entr. 107.

In an Appeal against two, no such person in Rerum Natura as to one shall abate the whole writ; but it is otherwise of the death of one as it seems. 29 H. 7. 21. 2 H. 7. 8.

But it is otherwise in an Assise, or Writ of Dower, as in Pollard's Case, Com' 89. b.

In Trespass in F. and H. the defendant said that there is not any such Vill or Hamlet in the said County; and the better Opinion was, That, this Plea shall abate the whole Writ. 4 E. 4. 33. a. Co. Lit. 155. b. Rast. Entr. 108, 298. Co. Entr. 121. But Quaere how it should have been tryed; for it seems by a Jury of the Visne or Neighbourhood of F.

Debt against two Executors, one said, That whereas he is nam'd of S. that he was of D. the day of the Writ purchas'd, and prayes Judgment of the Writ; and agreed, That if the Plea was found for him, that the Writ should abate against both, and yet the other shall answer: but the other plea shall be first tryed. 21 H. 6. 4. Rast. Entr. 108, 295, 298, 299. 160.

In Trespass against two, one pleads that [Page 9] the place in question is within his Fee; and demands Judgment of this writ quare vi et armis; the writ shall abate against him only. So where the one is Feme covert, Jointenan­cy in the Demandant or Coparcener shall be pleaded in Abatement. 22. E. 4. 4. 2 H. 7. 16. Cro. Eliz. 554. Rast. Entr. 615.

In a Quare Impedit against two, one pleads, that there was no such Church as was named in the Writ; the other pleaded, that there was no such Bishop of Lincoln as was there named; and Issue was joyned upon the first Plea, but to the second Plea the Plaintiffs demurred: and the first being found for the Defendant, the whole Writ did abate. Ho­bart 250.

In a Writ of Error, the death of one of the Plaintiffs shall abate the whole writ.

Some Pleas in Abatement go only to the person of the plaintiff or defendant; others to the Writ, or Action: As

Excommunication in the Plaintiff or De­mandant may be pleaded in disability of his person; but every Excommunication shall not disable. As if a Major, or Bailiffs and Communalty, or any other Body aggregate of many, bring their Action, Excommunica­tion in the Major or Bailiffs shall not disable them, because they sue and answer by Attor­ney; but it is otherwise of a sole Corpora­tion. So if Executors or Administrators be [Page 10] Excommunicated, they may be disabled; for every one that hath to do with a [...]person Ex­communicated, either by commerce 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, [Page 11] 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 [Page 13] 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 [Page 14] 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 [Page 15] 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 Plea, in Abatement of the Writ, before the default saved 40 E. 3. 2.

In a Writ of Aiel Besaiel and Cosinage, one shall not plead to the points of the Writ, after he hath pleaded in Barr; but it is other­wise in an Assise of Mortd' ancestor, as it seems. 40 E. 3. 19.

Where the Writ abates in part by the Act of the Court, and where it is abated by the Par­ties own Confession.

As if an Executor brings an Action de clau­so [Page 16] fracto, & de bonis asportatis, in this case the Writ shall abate for part, and as to the rest it shall be effectual.

But where the Writ is abated by the Plaintiff, it is reason (although that it be of his own Conusans) that if it abate, that the whole shall abate

In Assise against two, the one pleads in Barr as to a moiety, the other pleads jointe­nancy with a third person, the Plaintiff may choose him who pleads in Barr for his Te­nant, and confess that his writ is false for the other part.

In Assise against two, the one is Tenant, the other is Disseisor; which Disseisor makes default, the other accepts his Companion Te­nant with him, and pleads in Barr, the Plaintiff dissables the Tenant and doth not answer to the Barr, for in this case he hath accepted a Te­nant which is not Tenant. As if Praecipe quòd red­dat be brought by two where one is a Bastard, or by two persons as Heirs, where one of them in truth is not Heir; in these cases the whole Writ shallabate, because that that is meerly false whichis supposed to be true.

Two Executors bring an Action of Tres­pass of Goods carried away in the life-time of the Testator, and also of Trees cut down; here the Writ is good, notwithstanding that the Executors cannot have the Writ for the Trees cut down; and if they pray to have [Page 17] an other Writ for the Trees cut down then the whole Writ shall abate, quod nota.

A Defendant or Tenant cannot abate a Writ by his Act; but the Act of the Plaintiff or Demandant and the Act of God, and also the Act of an Estranger may abate the Writ.

In a writ of Ravishment de gard by the death of the Infant, the writ shall not abate.

Tenant by Statute-Merchant is disseised, the disseisor lets for life, the Tenant by the Statute brings an Assise, the Lessee dyes, the writ shall not abate, because he shall re­cover all in damages.

But it is otherwise where he is to recover the Freehold, because in that case he cannot have the effect of his Judgment.

A Writ of Admesurement of Common is brought by one against three, depending the writ, the Plaintiff and one of the Defen­dants exchange their Lands to which the common is appendant, if the writ shall a­bate? it seems not, because that notwith­standing the exchange, the Plaintiff may have the effect of his Suit, which is, that the Common may be admesured, and at all times pending the writ the Plaintiff and the Defendant who made the exchange were Tenants, and the Writ of Admesurement granted between them by reason of their Te­nure, [Page 18] for there was no mean-time between the parting from the Free-hold in one Acre and the taking the Free-hold in the other Acre, and that very instant that the Free­hold of the one Acre was parted from the o­ther was vested, so that there was cause of Admesurement between them as well after the exchange as there was before.

A Writ of Admesurement is brought a­gainst three, one hath nothing in the Com­mon, so that the Writ ought to abate, be­cause that non-tenure is a good Plea in this Action; yet if he that hath nothing before any exception be taken to the Writ purcha­seth an Acre of Land by which he ought to have Common in the same Land, the Writ is made good. As in Praecipe quod reddat brought against him that hath nothing, and pending the Writ he purchaseth the same Lands, the writ is good. So it seems the writ is good notwithstanding no time be­tween the exchange, ergo à forciori when there is no mean instant.

But by the better opinion it seems, that the writ shall abate notwithstanding that the party may have the effect of his Suit, for that ground is not obsolutely general; as Praecipe quòd reddat is brought against me, and I have nothing in the Land, and pend­ing the writ the Land descends, the writ shall abate.

I bring an Action of wast by reason of the re­version, or a Quid juris clamat, depending the writ I alien the same Reversion, and after purchase the Reversion again, yet the writ is abated.

If a writ of Partition or Nuper obiit be brought, and pending the writ the deman­dant aliens and retakes the Estate to him, yet the writ shall abate. And yet in all these cases the Plaintiff may have the effect of his Suit.

But that which causeth the writ to abate is the Act of the Plaintiff; for the writ depending he hath aliened that which gives him his cause of Action, and therefore the writ shall abate as in the cases aforesaid: for as to the Plaintaiff's part his own Act shall a­bate the writ, and not the Act of God, nor of the Law, except in some cases; and as for the Defendants or the Tenants part, his own Act shall not abate the writ, but the Act of God or of the Law may: for if the Tenant aliens depending the writ yet the writ shall not abate, but the Demandant shall recover, and he that comes in by the Tenant shall be bound by that Recovery. And if an exchange had been made by the Plaintiff with a stranger who had nothing in the Common, the writ should have been abated without question; So for that Acr [...] which he had when the writ was brought, [Page 20] he cannot maintain his writ; for put the case, that the day the writ was purchas'd, the Plaintiff had not any Land by which he ought to have common, and afterwards pen­ding the writ he purchas'd an Acre of Land to which the Common is appendant this shall not make the writ good which was nought from the beginning.

When the writ is made abatable by the Act of the Plaintiff or Demandant, Videli­cet by his aliening of that thing which gives to him the cause of Action, if he pending the writ doth purchase the same again it shall not revive the writ, nor make it good.

WHere the Grant shall be good ab initio although it was incertainat the commen­cement.

Note, If a Parson will Grant to me all the Wooll which he shall have for Tithe the next year to come, this Grant is good, and yet the quantity of the Wool is incer­tain at the time of the Grant; But be­cause it may be reduced to a certainty af­ter the Grant, it was held good enough. 21 H. 6. 43.

And so, if a man will Grant to me the Perquisits of his Court, this incertain Grant is good, causâ quâ suprà, 21 H. 6. 43.

The same Law is, where a Feoffment is made of two Acres, the one for Life, the other in Fee, without determining in certain in which he shall have Fee; this in­certain Feoffment may be reduced to cer­tainty, as if the Feoffee loose both the Acres by default, he may have a quod ei deforceat for the one, and a Writ of Right for the other Acre, and thereby the certainty of the gift shall be determined and known. Lit. Fo. 13. a.

And so, if one Grant a Rent-charge to one, now the Grantee may avow or have a writ of Annuity, and which of them he will use shall be maintainable, and yet at the Com­mencement it was incertain, and yet not­withstanding this incertainty the Grant was good. Lit. Tit. Rents Fo. 13. a.

In like manner, if a man Grant to one 20s. or a Robe yearly, the Grantee there cannot know the certainty of the Grant; for peradventure he shall have alwayes the 20s. or perhaps alwayes the Robe, and yet the Grant there shall be held good, because that it is reducible to a certainty by the Will of the Grantor. 9 E. 4. 37 en Dett. per Lit. Fo. 13. a.

And so, a Lease for so many years as I. S. shall name, is good, and yet it is incertain; but if I. S. name a certain number, then it is good ab initio. Lit. ib.

So, If I haue two Horses in my Stable, a black and a white, and I give to I. S. one of these Horses; now this gift is good not­withstanding the incertainty, because that by the circumstances, Viz. by his Election the certainty may be known. Lit. ib.

Also if a man Let all the Acres of Land which he hath in Dale to I. S. for years, rendring for every acre 12d. although that the number of the Acres were not known by the Lessor nor by the Lessee, and because the Rent is at the commencement incertain, yet upon mensuration or other Triall had, the Rent reserv'd may be known certainly, and then the Lessor may have a writ of Debt for the Rent, and so by this possibility of Tryall the reservation is made good, which at the commencement was void for the in­certainty.

So if a man Lett Black-Acre and White-Acre for Life, the remainder of one of the two Acres in Fee, now it is incertain which of the two Acres he in the remain­der shall have; but if he License the Les­see to cut down Trees in White-Acre, then he s [...]all be adjudged to have had the remain­der of that Acre ab initio, and so thereby that which at the commencement was incer­tain, is afterwards made certain.

And so was Wheelers case, sc. one Grants his Term to another, upon condition that [...] [Page 23] the Grantee shall obtain the Favour of the Lessor, and also pay so much as I. S. shall award; this was taken for a good Grant after the condition was performed. 14 H. 8. 17. 6. b.

In Trespass the case was, That the Defen­dant and the Plaintiff had bargained toge­ther that the Defendant should go to a place where certain Wheat grew, and to see the Wheat, and if he lik'd it upon the view, that then he should take it from thence pay­ing 40d. for every Acre; this there was held a good contract notwithstanding the incertainty of the quantity of the Wheat, and of the gross Sum which should be paid for it, because that upon the circum­stance the certainty may appear, for al­though it was a conditional agreement be­tween the parties, yet it is held a good Justi­fication if he presently paid for it at the time of his carrying it away. P. 17 E 4. Fo. 1. & Fo: 6 b.

Able and Disable.

SFe the diversity 17 H. 7. where Reg. 1. one sc. the Obligee was able at the time of the making of the Obligation and af­terwards he is disabled by his own Act, and where he was not able at the time of the ma­king of the Obligation.

For in the first case the Defendant shall be discharged, and if a man be bound to ano­ther by Obligation upon Condition, that if he pay to the Obligee an Annuity of 10l. at the Feast &c. Til he promotes him to a convenable Benefice, and afterwards the Obligee takes a Wife, or enters into Reli­gion, the Obligor shall be discharged of the Annuity, because he hath disabled himself from receiving a Benefice. But if he be dis­abled at first when the Obligation is made, it is otherwise.

Acceptance.

A Man is bound to make a Feoffment of a Mannor to the Value of 20l. per annum, the Obligee accepts a Mannor to the Value of 10 l. he shall have advantage notwith­standing the Acceptance. 32 H. 7

Action.

WHere the principal thing is de­vested, Reg. 1. yet the Plaintiff shall have an Action which is acrued to him by reason thereof.

If I disseise one, and a stranger does Tres­pass to me, the disseisee reenters, I shall have an Action of Trespass for the Trespass be­fore.

And so if a Lord does Trespass and after­wards recovers by Cessavit.

WHere the Husband shall have Reg. 2. an Action without naming his Wife, and where not.

IF a man be disseised of Lands in right of his Wife, he shall have an Assise in his own name.

Also he shall have a writ of Droit de gard in his own name without his Wife, Trin. 8 E. 3.

The same Law upon an Obligation to Hus­band and Wife, the Husband shall have the Action without the Wife. Trin. 12 R. 2. And in 3 H. 6. adjudged that he might name his Wife if he would.

The same Law, if the Cattle of the woman be taken in the name of distress, and I Marry her I shall have Replevin in my own name. Mich. 32 E. 2.

Also of the disturbance of Advowson which a man hath in the right of his Wife, he shall have a Quare impedit in his own name. Pasch. 7 E. 4.

If a man be bound to a woman, and af­terwards she takes Husband, both shall have Action. 11 H. 6.

The same Law, if a man be Receiver to a Feme sole, and afterwards she takes Husband, both shall have an Action of Account. Trin. 9 R. 2.

Where the Husband and Wife recover seisin of the Land and damages, for the damages, they shall join in the Action.

The same Law if a Feme sole makes a Lease reserving Rent, and afterwards takes Hus­band, they shall joyn in an Action for the re­covery of the Rent. 7 E. 4.

A writ of Droit de gard as of the right of the Wife ought to be brought in both their names, because it concerns the right and not the possession, by Choke Anno predi­cto.

If the Beasts of a Feme sole be distrained, and she takes Husband, the Husband Sues a Replevin in his own name, it seems the Action does not lye; for in every case where the cause of Action is given to a Feme sole and not to the Husband, the Husband ought to joyn his Wife with him, as if a contract be made with a Feme sole and she takes Husband, &c.

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, [Page 27] 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; [Page 28] 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, [Page 29] 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 [Page 30] 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, Lets 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 [Page 31] 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 deux Guards, nor Quare impe­dit of two Churches. Yet by the Judges it was held good eonugh, as of Trespa [...]s, for a man may joyn Lands of twenty Titles in Trespass; and Trespass lyes f Wood, Pasture and the like: and 4 E. 2. if a man hold Lands in Ca­pite and dye, having issue only two Daughters [Page 32] within age, and they are ravished, the Lord shall have but one Ravishment de Gard. and 31 H. 6. 14. if a stranger enters upon two Parceners, they shall have but one Formedon; and if the Lessor shall have one Writ of Cove­nant for those Houses, the Assignce shall have the same; For the Statute of 32 H. 8. ca. 14. gives the Assignee the power of the Lessor; And the Lord Chief Justice Coke said, If a man seised of Lands in Fee enfeoffs an other to the use of himself for Life, the Remainder of part to one of his Daughters and [...]he Heirs of her Body issuing, the Remainder of the Residue to the other Daughter and the Heirs of her body issu­ing, the Eldest Daughter dyes without Issue, a Stranger enters upon the whole, the other Sister shall have but one Writ. Mich. 8. Jacobi in Communi Banco inter Pyot & dominam St. John.

If an Infant Lets Lands for a Term of years rendring Rent, he may at his Election have an Action of Debt for the Rent reserved upon the Lease, or bring Trespass for oc­cupying of the Land; and so he may have an Action of Trespass for the use of of a thing sold by him. And if an infant do give an Horse to one without actual delivery of the Horse into his hands at the time of the gift, and the Donee taketh the Horse by reason of the gift, the Infant may have an Action of Trespass against him. 18 E. 4. 2. [Page 33] If an Infant makes a Lease for years (or a Lease per dures) if the Lessee enter, the In­fant may have an Assise; but if the Infant makes a Feoffment and deliver seisin accord­ingly, he shall have no Assise; for by the Live­ry of seisin the Feoffee had a possession at Will at least; but if he makes a Letter of Attorney to deliver seisin, he may have an Assise. 9 H. 7. 24. 8. 2. Mar. 109. Dyer. Rug. Case.

If an Obligation be made to Husband and Wife, the writ may be brought in the Hus­bands name only. 12 R. 2. Breif 639. And so,

Where a Lease for years is made by Hus­band and Wife, of the Lands of the Wife, rendring Rent, the Action of Debt must be brought in the name of the Husband only, 7 E. 4. 5. But by 2 R. 2. in a Writ concer­ning a Chattel real, they may joyn. 2 R. 2. Breif 37.

As to such things which concern the person of the Wife immediately, there the Writ must be brought in both their names; And therefore,

The Husband cannot sue a Writ of Appeal for the Rape of his Wife, without naming the Wife. 8 H. 4. 21. 1 H. 6. 10 H. 4. Brook Baron & Feme 34.

Husband and Wife brought an Action of Battery for the beating of them both, the [Page 34] Writ was adjudged good for the Battery of the Wife, but not as to the Husband. 9 E. 4. 54.

The Husband and the Wife shall both bring an Action of Trespass for the taking away the Goods of the Wife before Mar­riage. 21 H. 33.

In a Writ of Detinue of Chartres against Husband and Wife, Declaration was upon a Trover, and the Writ was abated. 13 R. 2. Breif 644.

A Writ of Covenant was brought by the Husband and Wife, for that the Defendant had Leased to them Lands by Deed for Term of years, and afterwards ousted them; and the Writ was adjudged to be good; for if the Husband dyes, the Wife shall have the Term, and in this Case they were both parties to the Covenant. 47 E. 3. 12.

An Action of Debt for the arrearages of Rent reserved upon a Lease for years made unto the Husband and the Wife, shall be brought against them both; and so shall a Writ of Wast: for the Wife cannot waive the Lease during the life of the Husband. 6 E. 4. 10 & 17 E. 4. 7.

An Action upon the Statute of Laborers was brought against Husband and Wife, supposing that the Wife had Covenanted with the Plaintiff to be waiting-woman to his Wife for a year, and that she departed [Page 35] out of service within the year, and the writ was adjudged to be good being brought against them both, 8 R. 2. Laborers. 59.

A man may have a writ of Detinue of Charters and of Chattels joyntly, because there one thing is the ground of the Action, viz. the Deteyner. 44 E. 3. 41 Breif 583.

Likewise a man may have a writ of Debt where part of the Debt is due by Obligation and part by Contract, because there the Debt is only occasion of the suit. 41 E. 3, dam­age 75. 1 H. 5. 4.

So in things of the like nature one writ may comprehend many wrongs; and there­fore an Action of the Case was brought for hindring the Plaintiff to hold his Leet, 2. for the disturbance of his Servants and Tenants in the gathering his Tithe, 3. for Threatning so that the people &c. durst not come to a certain Chappel to do their Devotion, and present their Offerings, & 4. for the taking of his Servants and Chattels. 19 R. 2. Action sur le Case 52.

When an Action is given by the Statute, and the Statute doth not prescribe any cer­tain form of the writ, the writ framed at the Common Law shall serve for that pur­pose, and the special matter shall be set forth in the Declaration. Dyer 37. a. 83.

Where a man shall have an Action against his own Deed.

A man shall have an Action against his own Deed, as if I disseise an Abbot and make Feoffment in Fee with waranty, and afterwards I am made Abbot of the same House, my Feoffment shall not be a Barr to me, notwithstanding it was with warranty; I shall have an Action against my Alienee, be­cause that I recover to the use of the House and not to my own use.

The same Law, if I disseise Major and Commonalty &c.

The same Law of the Parson of a Church.

The same Law if I take a Horse of a Feme sole and Sell it, and afterwards marry her, I shall have an Action of Debt against my Alienee, because that I recover to the use of my Wife, tamen quaere.

A Monk shall have a Quo minus debitum Domini Regis solvere non potest for the advan­tage upon a Lease made by the King reserving Rent, 14 H. 4.

The same Law if a Villein be made execu­tor to a man to whom the Lord is Bound, the Villein shall have an Action against his Lord.

The same Law if a Monk be made Execu­tor &c.

The same Law if an Abbot hath been dis­seised, and afterwards the disseisor is dessei­sed, the Disseisor releaseth with warranty and after that is made Abbot, he shall find against his own Deed &c.

The same law if an Abbot make a Feoff­ment in Fee, and afterwards is deposed and sometime after is made Abbot, now he shall have an Action against his Deed which he himself made when he was Abbot, because that now he comes in as Successor, and not in the place as he was before.

The same Law of Warden and Schollars.

But it would have been otherwise, if he had disseised a Parson; and made Feoffment in Fee with warranty, or without warranty, and afterwards is made Parson, now if he will use an Action, his own Feoffment shall be a Barr against him, because that all that he shall recover by this Action is to his own use.

The same Law if a man disseise a woman, and makes a Feoffment in Fee, and after­wards he takes the woman to Wife, in this case the Husband shall be Barred, because that he will have advantage of this Recovery to his own use.

If a man hath right to have Land where his Entry is tolle, and releaseth to the Tenant [Page 38] all manner of Actions, and dye, his Heir shall have his Action and recover the Land, because that by such release no right is ex­tinguished; and if the Tenant makes Feoff­ment in Fee or dyes seised, he that made the release shall have his Action against the Heir of the Tenant or his Feoffee against his own release, and the cause is, because that nothing is released but his Action against the same person, and not any right.

If the Son disseise his Father, and make a Feoffment with warranty or without war­ranty, and after his Father dyes, he cannot ouste his Feoffee because that it was his own Deed.

A man hath good cause of Action sometimes, and yet by matter ex post facto and by the Act of a Stranger his Action is destroyed.

As I am disseisee and he is disseisor, and I release to the disseisor.

Also I bail or lend Goods to one, a Stran­ger takes them, the bailor sells them to a Stranger &c.

Action of Debt upon an obligation brought by an Executor, the writ shall be detinet and not debet, and for this cause they joyn in the same Action for an Horse deliver­ed by themselves to the same Obligor.

The same Law, if a man recover Lands [Page 39] by default in which I have an Estate for life, and he recovers by another writ by default Lands wherein I have an Estate Tail, I shall have a Quod ei deforceat, because the conclu­sion of the writ serves me. And so a man may joyn two or three things in his Action where the conclusion of his Action is perti­nent to the several matters and doth not vary.

If two or three Acres are given several­ly in tail, and the party discontinue the whole, his Heir shall have Formedon for the whole, because that the writ is le quel un I. dit S. dona, and although the Acres are gi­ven severally, that is not material, foras­much as the common Writ will serve in this case.

But if the Acres are given by divers or seve­ral men, or that the one shall be given to the Heirs Males, and the other to the Heirs Females, and the third to the Heirs General, in this case the Heir shall have several writs, and not one writ, because that one writ can­not serve for such several Gifts.

If I deliver Goods to one who is indebted to me, and he dyes, against his Executors I may have a writ for the Goods and for the Debt, because that the writ is against the Executors for the Debt in the Detinet, and for the detinue it is in the Detinet, and there­fore the writ well warrants the count to de­clare [Page 40] partly for debt and partly for Detinue; but such an Action he could not have had against the Testator, because that for the debt against him the writ ought to have been in the debet and detinet.

A Feoffment is made upon condition of payment by the Feoffor, he commits Tres­pass, and afterwards enters by force of pay­ment &c. yet the Feoffee shall have Trespass because his possession is affirm'd. 43 E. 3.

Assumpsit, If he would relinquish such a debt to pay him 30 l. and sayes he did re­linquish it &c. and after Verdict for the Plaintiff, Judgment stayed because he shews not how he relinquished it and it may be by parol which were void. Gregory versus Lovell. 3 Cro. 292.

Assumpsit in Consideration he would dis­charge him from an Arrest; and sayes, that exoneravit ipsum: moved in Arrest &c. he shews not how he discharged him sed non al­locatur; for they might be per parol or for a time but in Pleading a discharge of a Rent or bond which must be by Deed and perpetual, it must be shewed how, King versus Hobs. 2. Cro. 930. 960.

Assumpsit; the Defendant pleads the dis­charge of the promise, whereof Issue taken and found for the Plaintiff, and divers de­fects in the Declaration, moved in Arrest of Judgment; but by Wr [...]y all these defects [Page 41] tending to the Assumpsit, are cured by the collateral Plea. Manwood v. Buston. 2. Leond. 203, 204.

Assumpsit, If he would make it appear &c. and sayes he made it appear by the Court-Roll, Good, without saying what the Court Rolls were for the Infinitly. So a Bond to save harmless from all Estreates, good, without shewing what, for the same reason, Vide 9 E. 4. 15. a. 22 E. 4. 41. a Mo. Pl. 1175. 3 Cro. 149 Pl, 3. 919. Pl. 3. 3 Bulst 31. Latch 130. H. 2. H. 7. Pl 22. H. 6. H. 7. Pl. 8. 8. 22 E. 4. 15. ab. 28. b. 29. a.

Assumed he would assign Goods to pay &c. and sayes he assigned, and shews not how, but per scriptum yet good; Note, after verdict. Forth v. Yates Tr. 30 Car. 2. B R.

Assumpsit against an Executor, who Pleads solvit to such a one on a Bond of 100 l. and to another 100 l. on a Bond, and so to divers others which he was forced to do, the Pay­ment being post exhibitionem Bille, and Pleads a Recognizance in force not satisfied; the Plaintiff Pleads non solvit to such a one 100 l. nor to such a one 100 l. Et si de ceteris & hoc petit &c. and to the Recognizance, that it was satisfied and kept in force of Fraud; the Defendant demurred quià replicatio mul­tiplyed and double, consisting of two mat­ters, where one goes to the whole; but [Page 42] Judgment for the Plaintiff; for the first obje­ction to one 100 l. to another 100 l. make se­veral Issues though que de hoc. And in case of an Executor one may answer to every thing alledged by him. H. 21, 22. Car. 2. B. R. Jeffreys v. Dod.

Assumpsit to permit Land to descend, breach laid quod non permisit; well, being in the negative, but in the affirmative it ought to be shewed how disposed, though they could not descend. H. 9. Jac. B. R. rot. 3 Bulstr. 18.

Assumpsit to perform an Award, and sets it forth; the Defendant pleads that they did not Award modo et forma, &c. Et hoc paratus, &c. ill; there he should have concluded all pais. And on general demurrer ibidem where an Award was, That one bound with Sureties, assigns breach that he did not be­come bound modo et forma &c.. well, though the Award bind as to the Surety, 'tis good as to him. A breach assigned that he did not &c. and the modo et forma extends not to the Surety, but to himself only, though it be made modo et forma as Awarded. Cooke versus Whorewood H. 22, 23. Car. 2. B. R. rot. 116.

Assumpsit, If he would abate Ten Pounds and forbear the 90 l. till Michaelmas to pay it, and declares, that he abated the 10 l. but shews not how; but held ill on demur­rer [Page 43] per tot. Cur. Thornton v. Kempe. 3 Cro. 477.

In Conspiracy the Defendant justifies to carry in the Presentment found in a Leet be­fore the justification, and though there is no Conspiracy, yet he must plead que est ea­dem Conspiratio. P. 27 H. 8. Pl. 6.

Conspiracy, the Defendant pleads, the Plaintiff has another Writ, depending for the same; the Plaintiff replyes nul tiel record; and so 19 H. 6. 57. a Pleads, that he remo­ved; the other Pleads nul tiel Record of the removal. 9 H. 6. 14. a.

Amendment.

IF an Original Writ be defaced, it may be Amended at the discretion of the Justices. Hill. 25 et 26. Car. 2. B. R.

The Clerk in the Kings-Bench may amend the Roll until a Recordatur be thereof made either in Writ of Error, or by rule of Court. Trin. 26 Car 2. in B. R.

A Note was brought to a Clerk to make an Obligation, who for milite, writ gene­roso, upon which the Process issuing, the Plaintiffs Counsel came and prayed that this Misprision of the Clerk might be amended; and upon mature deliberation all the Court agreed, that it should be a­mended, and the Lord Chief Justice said, [Page 44] That at the Common Law no Original might be amended in this Court before the Statute of 8 H. 6. ca. 12. Which Statute ena­bles them to amend only Misprision; that is, when the Clerk takes one word for another, or where he writes a Latin word which is not Latin or false Latin, as hos breve, for hoc breve. 9 H. 7. 16. b. or imaginavit for imagi­natus fuit; Benlowes Reports, fo. 19. or in a Writ of Partition to say Ostensurus quare non fuit, for fuerit, or Henricus deigratia &c. when dei gratia should not be in the Writ; or if it be matter of Form, as Praecipe quod sol­vat, for reddat, 22 E. 4. in all which Cases last cited, there shall be no amendment. And the Lord Chief Justice Coke said, That if the Defenda [...]t had been sued to the Utlary, he would not have amended it; but the Principal not being so, it was amended. [See 11 H. 7. 2. 10 H. 7. 25. 11 H. 7. 1. & Co. 8. Black­mores Case, 156.] Mich. 8 Jacobi Regis in Communi Banco.

If one makes an Obligation, and Seal and deliver it and mistakes the day; yet by Coke Lord Chief Justice, it is good. Mich. 8. Ja. [...]bi supra.

If the Teste and the Retorn of a Venire faci­as be both upon one and the same day, it is no Error, (although the▪ Teste ought to bear date Fourteen days after) but sh [...]ll be a­mended; and 7 E. 4. a Venire facias was [Page 45] retornable Mense Michaelis; whereas it should have been Octabis Michaelis, and the Jurors appeared; It was agreed by the whole Court, That it should be amended, and that Error did not lye thereof. Co. 8. Blackmores Cases. fo. 156.

After Verdict in Ejectione firmae, these Errors were alledged in Arrest of Judgment, That, where the Declaration was prout prae­dictus Willielmus, which should have been Johannes. 2. praedictus defendens similiter, ponit se super patriam, which ought to have been querens; These are not Errors, but Mispri­sions of the Clerk, which by the Judgment of the whole Court shall be amended. So 11 H. 7. 2. b. per Brian praedictus defendens &c. was amended, and 10 H. 7. 23. b. per Townsend, a Barr was pleaded by the Tenant, which concluded with praedictus Johannes, is ready to averre &c. where it should have been Rogerus; It was amended by the Ad­vice of all the Justices; and Coke Lord Chief Justice said, That Misprisions were amendable at Common-Law in the same Term; for during the Term the Record is in pectore Judicis, as 1 H. 6. 29 in Brooks A­bridgment, Title Amendment 32. if Judg­ment be entred in the King's-Bench or Com­mon-Pleas otherwise then it is in Truth; Or if Tales be awarded and marked on the back of the Writ, or of a Scrowl, and not en­tred [Page 46] on the Roll, All these things may be a­mended in the Term (and the reason of the Book is) because that the Record is in the Justices, and under their care the same Term, and not esteemed to be on the Roll so absolutely, but that they may amend the same at their discretions; for they do not account it a Record until the next Term: And this Amendment is by the Common-Law, and not by the Statutes of Amend­ment of a Syllable or Letter. And per Cheine, ibid. The Justices of the Common-Pleas after a Writ of Error cannot at all amend the Roll where a Judgment was given the same Term, and is mistaken in the Entry, because the Roll is not a Record of that Term. And herewith agreeth 5 E. 3. That this was so at the Common-Law until the Statute of 14 E. 3. came, which gives Power to a­mend process in the other Term; and after 46 E. 3. the Case was, Et prae­dictus defendens similiter, whereas it ought to have been Querens, but it was not amend­ed, because it was an old Roll, and the Sta­tute gives Authority only for New of the same Term they are Entred; and then was made the Statute of 26 H. 8. which gives power to amend a Plea Roll, but no Omissions can be thereby amended but Misprisions on­ly. Mich. 9 Jacobi in Communi Banco, Weeks versus Blacksteed. Lessee de Cambden.

A Venire facias in Ejectment is a warded to the Sheriff, wherein the Plaintiff is named I. P. the Jury is retorned and give their Verdict by his true name viz P. P. and so is the Postea. The Court said, If the Re­cord be true, and not the Process, it may be amended as a Misprision of the Clerk; but contra if the Record be false and the Pro­cess true, but in the principal point the ve­nire facias was void, and therefore they would advise upon it. Mich. 10. Jacobi in C. B. Peircy versus Milton.

In Quare impedit the Writ was by the Mis­prision of the Clerk Bicaria, where it ought to have been Vicaria, and it was amended. After a Writ of Error brought in the Kings Bench, Serjeant Hutton moved that the Warrant of Attorney might be amended where the Christian name was omitted, but entred in the Clerk of the Warrants Office upon the Statute of 38 H. 6. and it was amended. Mich. 14 Jacobi in C. B.

A Judicial Writ shall be amended by the Record, because it came from thence. Paschae 15 Jacobi in C. B.

The Original Writ is primo Martii, and in the Declaration it is primo Maii, it is void; for there is no such Record, and it cannot be amended, because the Count cannot be amended. 4 E. 4. and Co [...]e Chief Justice said, That a Judgment given without an O­riginal [Page 48] is not void, but voidable. Mich. 10 Jacobi ubi supra.

Misprision shall be amended by the Sta­tute of 14 E. 3.

As upon Variance between the Count or Declaration and the Writ, if it be in default of the Clerk, it shall be amended.

The same Law, if an Exigent be awarded retornable Octabis Michaelis, and the Roll is Quindena Martini. 7 E. 4.

The same Law, in Trespass the Parties were at Issue, and Venire facias and Habeas corpora were served, and Distringas awarded with Nisi prius, the Roll was Quindena Mar­tini, and the Writ Mense Michaelis, at the day in pais the Justices took the Enquest, not­withstanding that it was brought without Warrant, the Writ of Nisi prius shall be a­mended. 7 E. 4

The same Law, Ravishment de gard was brought against one Banaster, and the Pro­cess was Vanastr', and for that it was amend­ded. Mich. 4 H. 6.

The same Law, if the Roll varie from the Original, the Process &c. 19 H. 6.

Amendment is properly where there is default in the Clerk, as where a man shews an Obligation to a Clerk of the Chancery, and the Clerk doth not make a good Origi­ginal upon it, now it shall be amended be­cause the Clerk had sufficient Instructions: [Page 49] but it is contrary if he shew the Clerk only a Copy of the Obligation.

The like Law if a man brings a Formedon, and these words, quam [...]lamat esse jus et here­dltatem suam, are omitted, there the Original shall be amended, for the Clerk ought to look to his Register, and there he might see in what Form he should make the said Writ.

So it shall be where the Original is good in any case, and the judicial Process naught, it shall alwayes be amended; for it appears to be wholly the default of the Clerk.

The like Law shall be, in Trespass the Defendant pleaded non cul. et ponit se super patriam, and the Clerk entred it Et def. simi­liter where it should have been, Et praedictus querens similiter; this shall be amended, be­cause it appears that the default is in the Clerk, as in other cases before.

But where no default is in the Clerk, o­therwise; as if in a Plea, that matter which he would a verre be omitted, it shall not be omitted, it shall not be amended, for it is part of the Plea.

The like, if a Colour be omitted in a Writ of Trespass or Assise. And so see the diversity.

In Assise brought against two or three where one is Tenant and the other is Dissei­sor, the Tenant takes the Tenancy upon [Page 50] him and Pleads in Barr, now if the Plaintiff makes Title and Traverseth the Barr, and concludes, et issint fuit il seisie tanque per les trois disseisie; this Plea is not good, for he ought to maintain his Writ, and there he shall have it pro falso clamore.

So it is in Trespass, a second Capias is a­warded, and then an Exigent, the Defen­dant appears upon the Exigent and shews the matter, now the whole Process is dis­continued and shall not be amended, for it was the fault of the Party, for he ought to pray his Process at his peril, and then the Office of the Clerk is to make it as it should be &c.

So if Summons be awarded in Precipe quòd reddat, and afterwards a petit cape or grand Cape be made, it shall not be amended for the cause rehearsed.

A Judgment given in a Writ of Annuity was reversed, for that the Writ of Annuity was Precipe quod reddat 26 marc' 6d 8 [...] que ei aretro sunt de annuo reddit' 4 marc' per annum, and the Count the 6^s 8^d were left out; and because that there was a disagreement and it is the warrant of the Writ, it was rever­sed, for the Count is by the Party and not by the Clerk. 9 E. 4.

Venire facias was made Vicecomiti, but Salop, was omitted, and the Sheriff of Salop impanelled the Jury, and it was amended [Page 51] a Tryal, and diversity taken whereby special Plea the issue shall be of another County, and the Award of the venire f [...]cias special, there it shall be ill: but where upon gene­ral Issue or within the same County the A­ward is fiat inde Jurata, there it s [...]all be a­mended. Yelvertons Rep. Lee vers Lacon 69. and 2 Cro. 73.

Appearance.

A Man is Arrested upon mean Process, and gives Surety to the Sheriff by bond to appear, and after Supersedeas comes to the Sheriff before the day of appearance; Yet the Defendant ought to appear, other­wise the Bond is not saved.

By the Statute of W. 2. a man of 70 years old shall not be amerced for not appearing upon the Jury. per tot. Cur. Mich. 9 Ja. in C. B.

Annuity.

AN Annuity is granted pro consilio impenso et impendendo to one Plumer an Attor­ney; There is a Suit depending between the Grantor and a Stranger; The Attorney gives Councel to the Stranger, That is adversary to the Grantor, But it is not re­quired to give Councel to the Grantor in [Page 52] that Cause; Whether this was against the effect and intent of the Grant aforesaid; And it was held not, by the Court, and that the Annuity should continue.

Note, in Annuity it is not necessary to express in the Declaration the Estate of the Grantor, but only to say, That the Grantor did grant the Annuity. Co. Entr. Fol. 49.

Arbitrement.

DEbt upon Obligation or upon arr [...]ar­ages of account cannot be put in arbi­trement with other Trespasses or such like, notwithstanding the submission be by Deed; but it is otherwise of a contract; quod nota.

Arbitrement is not good except that the party can perform it without the aid or li­cence of an other, as if Arbitrators award, that the one Party s [...]all enfeoffee the other of the Mannor of D. of which I. S. is sei­sed, this is a void Arbitrement, and yet it is possible, for he might disseise I. S. and make Feoffment &c. or might purchase the Mannor of I. S. and thereof make Feoffment according to the Award, but the party shall not be charged with these mischiefs and therefore the Arbitrement shall be void. Otherwise it is, if the Award was, that one of the parties s [...]all Enfeoffe the other of the [Page 53] Mannor of D. generally, without speaking of I. S. that he is there compell [...]d to make Feoffment thereof. And so note the diversi­ty where it appears upon the Award, and where not.

Further, if the Award be that he shall go to Pauls with an Estranger, this is void, and vet it is possible, but peradventure the Stranger will not go with him.

Note. if the Award be that one of the par­ties shall deliver to the other the Goods that is in the house of I. S. this is void, and yet it is not impossible, but because that he might do wrong to I. S. to enter into his house and to convey his Goods from thence.

But if the Property of the Goods be in the party that is to perform the Arbitrement peradventure it may be otherwise, forasmuch as his Entry is lawful.

Audita Quaerela.

A Statute is Acknowledged before the Major of Westminster and Recordor of London according to the Statute; The Cog­nizor being within the age of one and twen­ty (viz.) 20 years and upwards; And after his full age to the 23d he brings his Audita Quaerela upon this matter and Judgment, that he take nothing by the Writ, because it could not then be tryed by inspection, [Page 54] whether he were within age or not; And the form of the Writ in the Registors is to alleadge that he still is within age.

Audita Quaerela lyes upon Nihil facias, but not upon Sc [...]re facias, 21 E. 3. For vigilanti­bus et don dormientibus subvenient Leges, per Hutton, Mich. 11 Jacobi in C. B.

The Executor of the Conusee releaseth to the Conusor in a Statute Merchant, and af­terwards dyes, and one takes Administration of the Goods of the Conusee not Admini­stred, and hath Execution of the Statute, and against him the Conusor brings an Audita Quaerela. Trin. 28 Eliz. rotulo 2136 in C. B.

Avowry, vide Replevin.

AVowry for an Amerciament in a Court Baron quia presentatum fuit, that he was Summoned and came not, and alleadges in fact, that he was resident &c. as he must &c. for when tis only presentatum &c. and not alledged in fact, 'tis ill. Mo. Pl. 221.

In Avowry it was set forth, that a Dean and Chapter were seised in Jure Ecclesie, and not said seized in Fee, and held ill: for they might be seized per auter vie, and their Ti­tle ought to be certainly set forth, and this is but that they made a Lease for 99 years, per dodrige if it had been that they made a Lease for 200 years, it had implyed a Feoff­ment in Fee Pop. 163. Latch. 121. Avowry

Avowry for damage feasant, and shews a Lease from I. S. seized in Fee: the Plaintiff says I. S. was seized in Tayl, and conceives the Estate to himself as Heir; the Avowal seizes the Land rendring Rent, and that he had accepted it, Qu. If it be not a departure. 1 Jnst. 304. It seems a fortifying of the Avowry, and so not, Sti. 41. Taylors Case, Yelv. 134. Wood versus Haukshind. i. Cro. 156. 2 Cro. 121. 3 Cro. 404 Dy. 956. 1 Jnst. 304 Hob. 271 Dy. 103. 253 b. Yelv. 96 Leon. 32. 156.

Avowry on a New Grant of a new Rent-Charge in Fee, the Plaintiff pleads, that no­thing passes by the Deed; 'tis an ill Plea, he should have said that he did not grant by the Deed; for a thing not in Esse, could not pass though it was raised by the Deed, Stewards Case. 2 Leond. 13.

Avowry by an Executor for Rent reserved by her and her Husband upon a Lease for years derived out of a Lease; Exception ta­ken, because not shewed when the Husband dyed, so it appeared not due in his time but because all belongs to her, one way or other, Wellwood in Newman Latch 121 Pop. 163.

Costs to the Avowant upon 7 H. 8. c. 4 vide Common et Commoners, Sect 4.

Costs given to the Avowant for Damage-Fesant, by 21 H. 8. c. 19. Cro. 1. James vers Tutneg 532.

Replevin against 3, the one Avowes, and the other 2 makes Conusance, and Judg­ment against the Plaintiff; but reversed, because that those two did not make Conu­sance as Bailiffs to another. Yelv. Owen vers Williams, 108.

The Lord hath still his choice to avow as at the Common-Law, but if he will take the Benefit of the Statute, then the Privity on both sides is removed, and the Tenant shall Plead any discharge though he be a meer Stranger; for the Charge of the Land is only in question, though in that Statute 21 H. 8. there be no literal Provision so to be. Hob. Brown vers. Goldsmith 108.

Avowry for 5 l. and 80 l. nomine poenae, no demand of the Rent was alledged, which made it unsufficient for the penalty; but Retorne adjudged to him, for they appear­ed to the Court to be several. Hob. 133 How­el vers Samback.

If the Donee Alien, the Donor cannot Avow upon the Alienee Keilway. 130. b.

Prescription, that if one be chosen Con­stable at the Leet he must serve himself, or find a sufficient man to do it; and the Avow­ant saies, that the Plaintiff was chosen; and did not find a sufficient man to serve; upon which it was demurred, and Adjudged, That the Avowry was ill. Escot vers Stokes. 14 Car 2. in B.

One who is a Stranger to the Avowry shall not Plead any Plea but hors de son Fee, or some other which is Tantamount.

As Lord and Tenant, the Tenant makes a Lease, the Termor shall plead no Plea but hors de son Fee, because that he is a Stran­ger to the Avowry, and he cannot have a Writ of Mesne, because it is a Maxime, Where a man cannot be helped by way of Action, he shall be aided by way of Rever­sion.

He that is a Stranger to the Avowry can­not disclaim, for a man cannot disclaim in auter droit. An Abbot cannot disclaim, nor Tenant in Tail. Mich. 9 E. 4. fo. 34. Hill. 8 H. 5. Disclaimer 11. 26.

If a man hath common by Especialty, as in Land held of me, the Rent is not arrear, if I take the Beasts of the Commoner I do him wrong, and he shall recover damages; for he may Plead rien arrere, although that he be a Stranger to the Avowry.

If the Tenant be in arrearages with his Lord, and the Tenant makes a Feoffment in Fee, which was notice to the Lord; in this case the Lord may choose whether he will take him for his Tenant or not, if he will not tender him his arrearages; and the reason is, if he will accept him for his Tenant ge­nerally, he shall never be received to avow for the arrearages afterwards.

But if the Tenant dye, so that the Tenan­cy discends to his Son, or that the Tenancy is recover'd, or that the Tenant hath forjudg'd the Mesne, so that he is become Tenant to the Lord Paramount, in all these Cases he shall accept them for his Tenants, and make Avowry upon them for all the arrearages; and the reason is, because they are become Tenants to him against his Will.

As to Avowries 5 things are to be known.

1. AVowry upon my very Tenant, where the Lord hath the Rent in Fee sim­ple, and the Tenant the Tenancy in Fee.

2. Avowry upon my very Tenant by the manner, as I make a Gift in Tail, remainder over reserving Rent.

Also if Tenant by the Courtesy, I avow upon him as before.

Also where a man dyes seised of three in­tire Mannors, and if his Wife be endowed of one Mannor intire.

3. Avowry upon my Tenant by the man­ner, as Lessee for life rendring Rent. Also if à Woman be endowed of the third part of a Mannor, the Heir distrains her and a­vowes.

4. Avowry upon the Land, as a Rent-Charge is granted, the Grantee avowes in the Lands charged with his distress.

[Page 59]5. Avowry upon my matter, as I am sei­sed in Fee, and let for years for certain Rent, and so shew the whole matter.

Avowry for Homage, or for Rent-service, although that the Avowry be made upon the person incertain, yet in this case he that is a Stranger cannot plead any thing but hors de son Fee, or that which is Tantamount, as a Release &c. which prove the Land to be out of the Fee of the Lord.

A Man cannot avow the taking of Beast for Rent arrear, if those Beasts were taken by Night, but for damage Fesant he may. Pasch. 10 E. 3.

Where the Avowant shall justifie, and where he shall make Avowry.

Where the Avowant is of right to have the thing for which he distrains, he shall make Avowry, although that the Estate of him upon whom he avows be determined; as if I let Lands for term d'auter vie, and I distrain for the Rent, cestuy que vie dies, the other sues Replevin, I make Avowry for homage; he that ought to do homage dyes, his Executors sue Replevin, now I ought to justifie because the thing for which the the distress was made by his death is gone and extinct.

As, two Jointenants, the one enfeoffs a Stranger of all that &c. upon Condition the Feoffee gives notice to the Lord, here he [Page 60] holds of the Lord pro particula illa, and the Lord shall have several Rents of the Tenants. And yet if the Lord grant the services of the Feoffee to a Stranger, and he attorne, and afterwards the Condition is broken by which the Feoffor who was jointenant enters again, here the Jointure is reviv'd, and they hold the grant of Services of his part, and the other Jointenant holds of the Lord as he held before, and yet they are Jointenants.

Avowry by the Lord for homage, and al­ledgeth seisin by the Husband of Lands which he hath in Right of his Wife. The Plaintiff alledgeth that the Husband hath no­thing but in right of his Wife, and although he alleadgeth seisin by the Husband &c. yet he sheweth that the Husband was seized in his demesne as of Fee, without that, that the Wife hath any thing &c. 11 H. 4.

If a man makes Avowry upon one as Son and Heir of his Mother, where he is in as Heir to his Father, the Avowry is abated.

In Avowry for Rent Service, or any o­ther Rent, except that he shews the Com­mencement of the Rent, as a Gift in tail or a Grant of a Rent-Charge, he ought to al­ledg no seisin of the Rent in his Avowry, because he shews the Commencement of the Rent.

In Avowry for Homage or Escuage, if he shew not the Commencement of the Tenure, [Page 61] he ought to shew seisin of the Homage, or otherwise it is not good.

Avowry for Releif or aid pur file marrier, he ought not to alledg seisin of the Releif nor of the Aid because that they are no parcel of the Tenure as Homage or Escu­age be, but incident to the Seigniory.

Where in Avowry the Defendant shall answer to the seisin, and where he shall traverse.

IN Avowry the Lord alledgeth seisin of the services, the Tenant cannot traverse the Tenure in part but he shall answer to the seisin; For in Avowry the Tenant shall not avoid encroachment of Services; but in a Writ of Rescous or in Assife he may avoid the encrochment, and not answer to the Tenure.

If the Lord encroch an other thing which was not part of the Tenure before the en­crochment, it is void, and the party shall avoid it and Travers it notwithstanding sei­sin alledged; as where the Tenant holds by Homage and Ten shillings, the Lord encro­ches a Horse; this encrochment is void be­cause it is an other thing, and other then the Tenure was before. Also where the Lord avowes for Homage and Ten shillings Rent, the Tenant may say that he holds of him by Homage Ancestrel, without that, that he holds [Page 62] of him by Homage and ten shillings; in this case he shall not answer to the seisin, because that he may traverse the entire Tenure of the same thing, quod nota.

Where the Effect of the Plea shall be Traver­sed.

THe Avowant avows, that I. S. was seised of an Acre of Land, and so seised grants him Twenty shillings Rent in Fee; The Plaintiff saith that the said I. S. had nothing but for Term of Life of the Lease of the Plaintiff, the which I. S. is dead; this is a good Plea, and the Plaintiff shall not say, without that, that I. S. was seised in Fee, and yet the Avowant alledgeth that he was seised in Fee, and the Plaintiff saith that he had nothing but for Term of Life which is in a manner contrary, and yet the plea is good, and he shall not be compell'd to say, without that, that he was seised in Fee, and the rea­son is, because that seisin in Fee was not the effect of the Avowry, but the Grant which is confessed and avoided; and because Seisin in Fee is not the effect, the Plaintiff may an­swer it by an Affirmative, and shall not be compelled to travers with a without that.

The same Law is in Avowries, when the Avowant saith that he was seised of an Acre in Fee, and let the same to the Plaintiff for [Page 63] Life or for years reserving Rent, and for Rent arrear he avows. The Plaintiff saith that one I. S. was seised in his demesne as of Fee, and let to the Avowant for the life of I. N. the which I. N. dyed, and the said I. S. entred, before whose Entry there was nothing arrear; this is a good Plea, and he shall not need to say, without that, that the Avowant was seised in Fee at the time of the Lease for if the Seisin had been the Effect of his Avowry, he ought to have Tra­versed or Confessed and Avoided, and this he hath notdone, for the Avowant saith that he was seised in Fee, and the Plaintiff saith that he was seised but for Term of Life, the which is no direct Travers, but Argumenta­tive, but the Plea is good enough because that the seisin is not the Effect of the Barr but the Lease, quod nota.

Bail.

ALattitat is sued out against two in a Joint Action, and both taken, one puts in Bail as of Michaelmas and the other of Hillary Term; The Court was moved That the Bail of Michael­mas Term might be taken off and filed as of Hillary Term, Else it would be Error to de­clare in a Joint Action upon Bail for one in Michaelmas, and the other in Hillary Term, quod concessum fuit per curiam.

If a Captas be awarded and Returned non est inventus against the Principal, and the Bail bring him not in, If the Principle dye, although there be no Scire facias against the Bail, Yet the Bail is chargeable; For though the Court will excuse the Bail, Yet the Bail if they bring in the Principle before the Re­turn of the Second scire facias, yet this is of grace and not of necessity.

If the Husband and Wife be Arrested for the Debt of the Wife, and the Baron find Bail for himself, yet he may be detained un­til [...]e find Bail for his Wife; but he shall not be detained until find Bail for her [Page 65] Husband, or the Husband for himself.

Judgment was given against one in the Kings-Bench, upon which he was in Execu­tion, and had another Judgment against him in the Common-Pleas, in which Court his Sureties to save their Bail brought him to the Barr by Habeas Corpus to render his Body; but before that he had brought a writ of Error in the Kings-Bench to reverse the Judg­ment in the Common-Pleas, but the Record was not removed. In this Case the Court said, When a man comes in to save his Bail, he shall not be committed if the party do not pray it, but when Error is brought be­fore that he be in Execution, it is a super­sedeas, so that they cannot commit him at the Prayer of the party. And Waller Pro­thonatory said, That the Bail is to render his Body so that the Party may take it in exe­cution, but here he cannot, in regard a writ of Error is brought, and therefore the Sureties shall be discharged. Mith. 14 Jacobi in Banco Communi.

In the Common-Pleas the Bail is bound in a certain summ, but it is not so in the Kings-Bench; and when a man enters Bail in the Kings-Bench in a cause, they shall be charged in all Suits between the same partyes entred the same Term.

The Bail shall answer for all Actions brought the same Term against the Party for, [Page 66] whom he is Bail; but if a man be bail for a­nother, and hath Lands in Fee, and he de­clares, and afterwards the Bail sells his Lands, and an other commenceth a Suit against the party the same Term, he shall not be charg­ed with the other Actions. Cro. lib 2. fo. 449. Term. no Sci' Hillarii Anno 15 Jacobi Regis.

One Gabriel Mihil was indebted to A. B. and put in Bail in the Common-Pleas to pay the same, and afterwards A. B. Arrested Mihil in London for the same Debt, where­upon Judg Forster (the other Judges being in the Chancery) awarded an Attachment against A. B. for this Contempt; and here­with agrees. 2 H. 7. Hill. 15 Jac. in C. B.

Bankrupt.

IF Creditors after a Commission of Bank­rupt is sued forth, although at the first they refused, yet within three or four months they come and tender their proportion to­wards the charges of the Commission, They shall be received to have their parts, as the other Creditors, if no distribution hath been made of the Bankrupts estate before.

The Commissioners of a Bankrupt may sell the Goods of a Bankrupt, altho the Bankry, had sold them or disposed of them to his Cre­ditors, if the sale or disposal thereof were after he became a Bankrupt.

The Commissioners may sell the Copy­hold Lands of a Bankrupt, for and towards the payment of his Debts by Deed inden [...]ed and inrolled, declaring how he was found a Bankrupt, and expressing to the use of the Creditors, and at next Court the ven­dee shall be admitted and have his Copy.

I. C. and R. C. brought an Action of Debt jointly upon a joint Debt assigned to them by Commissioners upon the Sta­tute of Bankrupts and it was said by the whole Court, that the Commissioners had not pursued their Authority by that joint Assignment; for they ought prorata to have assigned to every one; but quere if the joint Debt may be divided among the C [...]ed [...]tors: and the Lord Chief Justice said, That a Custom may devide a Debt, and then à for­tiori an Act of Parliament may. Mich. 10 Jacobi in C. B.

A Bankrupt cannot make sale of any of his Goods after he becomes Bankrupt; but Goods which he hath as Executor, or a Le­gacy before it be invested in him, or a Grant of a Reversion before Entry, all these shall not be charged within the Statute. But if a man sells those Goods which he hath as Exe­cutor, and afterwards retakes an Estate to himself, or converts them to his own use, this is within the Statute. Per dom. Coke et alios justic' Pasch. 9. Jac. in Com Banco. A [Page 68] man shall not Forfeit those Goods which he hath as Executor by Outlary. ib.

Barr.

IN Debt against an Executor he Pleads plene administravit, and so it is found, the Plaintiff shall be Barred; and yet if Goods comes to his hands which were the Testators, he shall have a Writ of Debt.

The same law in Debt against an Heir who pleads Riens per discent, which is found so, and afterwards he hath Lands by discent &c.

In Formedon the Tenant pleads the war­ranty of the Ancestor of the Demandant, with that, that he hath Assets by discent; he pleads that he hath nothing, and it is found that he hath, he is Barred.

To plead a thing by way of Barr or Estoppel which the Demandant or plaintiff is to defeat or destroy by the Usageof his Action, is no good Plea.

AS in Attaint brought upon a Verdict de nativo habendo, Villenage is no Plea.

Also where Reversion and Rent pleaded for Assets, is not Assets, there the Heir is to defeat the Assets.

If a man sues a Prohibition, and the De­fendant alledgeth Excommunication in the Plaintiff, he may say tis for the same cause.

If a Villein brings a Writ of Error upon Judgment had in nativo habendo, Villenage is no Plea.

Where a man Pleads a Recovery in Barr, he ought to add more to it, or otherwise the Re­covery is no Barr.

ANd that is where the Tenant Pleads a Recovery by default against the De­mandant, he ought to add more to it, viz. with that, that he will averr that he was Te­nant at the time of the Recovery.

The same Law if Tenant in Precipe quòd reddat will Plead a Recovery in a Writ of Cosinage by default, he ought to shew how he was Cosin.

Also if the Tenant will Plead a Recovery in a Writ of Right against the Demandant by default, he ought to shew of what posses­sion his Writ of Right was conceived.

But otherwise it is, if he will Plead a Re­covery in Formedon by Action tryed, this Recovery is a good Barr without adding any thing more to it; where note the Diver­sity.

Where a man demands a Debt or any thing by Deed, he shall not be Barred but by deed, or a thing of as high a nature.

AS Trespass for taking of an Apprentice, it is no Plea to say he discharged him, [...]out speciality. Mich. 22 H. 6.

The same Law in Debt upon an Obligati­on, it is no Plea for the Defendant to say, that the Plaintiff hath received parcel at such a place depending the Writ. Judgment, 7 E. 3.

The same Law in Debt upon Arrearages of Account, the Defendant Pleaded Arbi­trement, it is no Barr, because that Debt upon Arbitrement is not of so high a nature as Debt upon Arrearages of Account; for there he cannot wage Law.

The same Law in Debt upon an Obliga­tion, it is no Plea to say that he hath paid the Summ in demand to the Plaintiff, because that he ought (if he will avoid the Deed) to say that he hath the Plaintiffs Release or Ac­quittance to shew.

The Disseisor Levies a Fine with Procla­mations, the Five years pass, the Disseisee is bound, afterwards the Disseisor reverseth the Fine by a Writ of Error, then the Dis­seisee may enter, and yet he was once Barred. Vide Barr pro tempore.

Where a man shall Plead a Barr which shall comprehend one matter in fait, and where it shall comprehend two matters.

IF a man Pleads in Barr an Arbitrement, he ought to say where the Submission was, and also where the Award was made, and so to make the Plea certain.

But when he Pleads a Plea which compre­hends two matters, he ought not to shew the certainty until the Plaintiff hath Traversed one of them.

Of Barrs perpetual.

A Woman is bound to me in an Obliga­tion, and I afterwards take her to Wife, I am once Barred and allwayes Barred.

Tenant in Tail leaves Assets, which is Pleaded against him who is Heir; both he and all his Heirs are Barred for ever.

A man is bound to pay the Abbot of West­minster and his Successors every year Twenty shillings, the Abbey being dissolved, he is discharged of the Twenty shillings for ever.

Also if a man be obliged to keep my Court in Dale, I purchase all the Copy-holds and Free-holds of the said Mannor, he is dischar­ged from keeping the said Court for ever.

See Pleas and Pleadings.

Cinque-Ports.

AN Elegit to extend Lands within the Cinque-Ports was directed to the Constable of Dover; But he would not extend, so that the Plaintiff was compelled to have a Certiorari to re­move the Record out of the Kings-Bench in­to the Chancery, And from thence by Mit­timus sent to the Constable to make Execu­tion.

Custom's and Prescriptions.

ALI Customes against Cannon-Law are to be Tryed at Common-Law, and not in the Ecclesiastical Courts.

Customs are payable to the King by the Common-Law: the Reasons why they are so paid, see in Davies Rep. fo. 9. ct 10. Le case del Customs.

See the difference between Malum in se, etmalum prohibitum, and how the King may Pardon it, but not licence it to be done, 11 H. 7. fo. 12. et Davies Rep. fo. 73.

Where Debt or damages are recovered in [Page 73] a Court-Baron, the Bailiff ought not to sell the Goods of the Defendant and deliver the money to the Plaintiff, But to impound them and keep them as pledges until the Defen­dant makes his agreement; but where it hath been the use of the Court to award a Levari facias, it is good by Custome.

Where the younger son in Burrough-English dyes, the Middle Son (not the Eldest) shall have the Land. The same Law for Custo­mary or Copy-hold Lands.

It was the Custom of the Kings-Bench e­very Term once or twice to send the Coroner of that place to the Marshal to view the Pri­soners that are in the Marshals Custody by Commititur or matter of Record, and if any of them are wanting that he could not find them there, then to mark their names in his Coroners Book, and to inform the Court thereof. And thereupon the Court did pose the Marshal who was to inform the Justices what was become of those Prisoners; And if he found not sufficient cause of excuse, the Court would Record their escape against the Marshal; And the abusing of an Office, is the escape of Prisoners in the Marshal, an abuse of his Office, and just cause of Forfei­ture.

If an Alien have a son that is also an Alien, and after the Father is made free, and then hath another Son, and after purchaseth Lands [Page 74] and dyes; The second Son born after the Freedom shall be Heir and not the Eldest by the Common-Law and usage of the Realm. And also if there be three Brothers, and the middlemost purchaseth Lands, and dyes without Heir of his Body, the Eldest Bro­ther shall inherit and not the Youngest.

By the Custom of London a Feme Covert, that is to say, a Sole Merchant, may sue and be sued in absence of her Husband. Bul­strode part. 1. fo. 14. where you may read of three sorts of Customs that are void and a­gainst Law, 1. a Custom against Justice. 2. a Custom against the Benefit of the Com­mon-Wealth, and 3. a Custom that is to the Prejudice of a third Person.

Custom and usage in the intendment of the Law, is such a usage as hath obtained the force of Law, and is binding to such par­ticular place, as Gavelkind in Kent, and Burrough-Euglish in many Corporations in England.

When the Custom of the Realm is the Common Law.

WHen it is the Common-Law, a Custom ought not to be alleadged or Pleaded. But an Action against a Car­rier, Hoyman, Common Hosteler, and for negligently keeping of Fire, the Plaintiff [Page 75] may declare upon the General Custom of the Realm, or not, at his Election. And note, That a Custom is always Local, and to be al­leadged in one certain place, but a Prescrip­tion is personal, and ought to be alledged in some persons certain, as in such a man, his Ancestors or Predecessors, or those whose Estate he hath. 22 H. 6. 22.

A Prescription is always to be of such a thing, and in such manner as may be intend­ed to have a lawful and legal commencement or otherwise it is not good; but a Custom may be contrary to the Rules and Maxims of the Law, as Borough-English, Gavelkind, Copy-hold Tenures. So Lands devisable by Cu­stom, So that the Custom be reasonable. Co. 6. Gatewards case, & lib 5. Perimans Case.

None can prescribe but who hath Fee, but all other Estates derived out of the Fee, as Lessee for years, Life, or at Will, ought to prescribe in him who hath the Fee. Gate­wards case, ubi supra.

A Lord prescribed, that he and all those whose Estates he hath in the Mannor have hitherto used to have a Herriot after the death of any Tenant for life, or for years within the Mannor; and, good, notwithstand­ing the Estates of the Tenants have no con­tinuance. 21 H. 7. 15.

Prescription ought not to be in the Negative, but if it be in the Negative [Page 76] with an Affirmative, it is good. 14 H. 6. 3. 22 H. 6. 36. 11 E. 4 2.

A Prescription by Que Estate ought not to be of things which lye in Grant, as Rents, Villein, &c. but ought to be made only in him, who prescribes and his Ancestors, or otherwise he ought to shew the Deed and Grant by which he claims. But a man may alledg a Que Estate of a thing which lyes in Grant, when it is but a Conveyance to an­other thing; as to say that he and all those whose Estates he hath in an Hundred have used alwayes to have a Leet: So a man may alledge a Que Estate in another of a thing which lyes in Grant, although not privy to the Conveyance, as the Plaintiff in Replevin may alledg a Que Estate in the Seigniory in the Avowant. Co. Lit. 121.

Such things as cannot be forfeited or sei­sed, before the Encheson of the forfeiture be found by Record, cannot be claimed by Prescription, as Bona et Catalla Felonum, &c. Co. Lit. 113. & Lib. 9. Abbot de Strata Mar­cella's Case.

When one hath Common by Prescription, paying for it such a Summ of money, he may prescribe generally; and if the Money be not paid, it may be shewn of the other side, and also is a Condition subsequent; but when a Custom is for one to have Pot-water &c. paying a peny for it, Quaere if it may [Page 77] be claim'd generally, because that the other part hath not any Remedy for the peny. Co 5. Rep. Grayes Case.

In Replevin the Avowant said, That the Plaintiff and his Ancestors and those whose Estate he hath in such Lands &c. have Com­mon in locus in quo &c. being the Land of the Avowant, and that he and his Ancestors &c. have paid 10 s. per annum for the same, and so avowes; and good per curiam. 26 H. 6. 5.

When a Corporation (which hath any thing by Prescription) be changed and in­corporated by an other name &c. how they ought to prescribe, see Co. Lib. 6. fo. 66. & 7 E. 4. 32. & Co. Lib. 8. fo. 64.

Inhabitants of a Town cannot prescribe, but they may alledg a Custom. 18 E. 4. 3.

A man prescribes that he and his Ance­stors and all their Tenants at Will have Com­mon of Turbary, it is not good. (See the Pre­scription in the Bishop of Winchesters Case. 2 Rep. 1. That he and his Predecessors, Bi­shops there have used time out of mind for himself and their Tenants to hold the De­mesnes of the Mannor discharged from Tithes.) 9 H. 6. 62.

A Benefit or Profit apprendre cannot be claimed by Custom in the Lands of another, except in Cases of necessity; as in the Case of a Copy-holder, when he claims Common [Page 78] or other profit in the wasts of the Mannor, or in other Lands of the Lord with the Man­nor. But when he claims it in the Lands of any other within or out of the Mannor, he must prescribe in the Lord; and the thing where &c. be it aliened and severed from the Mannor, or comes again to the Lord, al­though the Copy-holder in such Cases may alledg the Custom. Co. 6. Gatewards Case. Lib. 4. 31. Co. 8. 64. Swains Case.

An Action upon the Case for stopping a Water-course que currere consuevit, was brought against one, and held good: But if it be against a Terretenant, or when a Quod permittat or an Assise is brought, there he must prescribe and shew his Title.

A Custom pro bono privato cannot be al­ledged in an Upland Town, which is neither City or Burrough: But Customs which are pro bono publico, as to have a Way to the Church, to make By-Laws for Reparations of a Church, Highways, or Bridges, or for the good ordering of a Common, may be alledged in an Upland Town or Hamlet. Co. Lit. 110.

A Copy-holder ought not to alledge a Custom to make a Surrender, because it is the Custom throughout England; so of a Lease for a year; for by the general Custom of England Copy-holders may make Leases for a year. Co. 9. 751. Combes Case. Co. Entr. 576.

But particular Customs of particular pla­ces may be alledged, as the Custom of Gavelkind, and of Burrough-English, which Customs must be precisely pleaded, and al­ledged. 28 H. 8. Dyer 27 b. Rast. Entr. 143. Co. Entr. 602. But the Lord Coke in his Commentary upon Littleton, fo. 175. b. is of Opinion, that it is sufficient to say that the Land is of the Custom of Gavelkind, or of Burrough-English, for that the Law takes no­tice of the Quality of the Customs.

How, and in what manner a Custom may be plead­ed; and when it shall be a good plea, and when not.

SEE James Bags Case in the Lord Cokes Reports, lib 11. fo. 94. where in the Margin of the Pleading in Action upon the Case against the Major and Burgesses of Plimouth, it is said, that in the Plea of the Major and Burgesses, they ought to have first prescribed that they were a Corporation of a Major and Burgesses time out of mind, &c. Co. 11. 94.

Note, The Parishoners may prescribe to Choose two Church-Wardens, and may put them out of their Office if they see cause. The Parishioners may not bring an Action of Account against the Church-Wardens; But they may choose other Church-War­dens, [Page 80] and they may have an Action of Account against the former.

No man can prescribe to have a Pew or Seat in a Church, but in an Isle adjoyning to the Church which he hath used to repair at his own Charge.

If a man dwell in one Parish, and hold, Lands in another Parish, he shall be Taxed towards the repair of that Church where the Lands lye; For he is accounted a Parishi­oner there in respect of the Land, and the person and not the Land is chargeable. But if a man lets Land to another, the Lessor is not chargeable in respect of the Rent he re­ceives.

If a man comes to a Common Inn, and delivers his Horse to the Hostler, and re­quires him to put him out to Grass, and he doth it accordingly, and the Horse is stolen; the Inn-holder shall not answer for it.

Tythes shall be paid for the second mow­ing of Grass, unless there be a prescription to be discharged by payment for the Tythes of the first Mowing: But after Tithes are paid for the first Mowing, it is thereby dis­charged for that year; for all after pasture for Tythes shall not be paid two ways in one year for the same thing.

No prescription in Lands maketh a Right; Therefore a man must shew some other mat­ter to prove his Right; but a prescription [Page 81] of Rents or Profits out of Lands makes a Right.

A Woman may prescribe, that all the Women within such a Town have been en­dowed of the moiety of all the Lands of their Husbands, of which they were seized as of Fee, yet she shall not be endowed of the Moiety of the Rent.

Where there is a Custom, That if the Father be hanged for Felony his Son shall Inherit, and the Land shall not escheat to the Lord; yet if the Father shall abjure the Realm for Felony, or be outlawed of Felony, the Land shall escheat, and the Son shall not inherit, and yet both are Attainders in Law.

But every Custom that is against the Common-Law shall be taken strictly.

Debt.

DEbt super obligationem in London, the De­fendant Pleads Delivery as an Escroul in Midd super Conditionem &c. et Issint non est factum, by the Issint &c. the special mat­ter is weighed and amounts to the general Issue to be tryed in London per distre in Midd. et issint Rien luy doit, is a waver of the special matter, and tender of the general Issue. P. 27 H. 8. Pl. 34.

Debt against two Executors, one Pleads [Page 82] plene administravit, the other Pleads non est factum Testatoris; and if they sever and have those several Pleas in Barr multum altercatur, Choke, they may, Moyle, they may not. Danby, Executors may sever, but if they shall have these several Pleas, doubted, vide I'. 37 H. 6. one Pleads Misnomer, the other, that he is Administrator, doubted if Plead­able, and ibidem the Authorites they are cited, and vide 21 E. 3. 10, 11, 12. Defendants plead not, Executors cannot plead severally in dilato­ries but in Barr they may, P. 7 E 4. Pl 19 Debt upon Obligation to perform Covenants, all being in the Affirmative, he Pleads Per­formance general; and by Inglefield and Fitz he ought to shew how he performed each specialty. Sed vide Co. 1 Jnst. 303. a. b.

In Debt upon an Obligation conditioned to discharge the Sheriff, Plea, That he dis­charged the Sheriff without shewing how M. 5 E. 4. Pl. 21.

Debt super Obligationem conditioned to pay to the Chamberlain of London, and his Successors, he Pleads Payment to A. Cham­berlain and his Successors; he must Plead how he came out of his Office, and how the Successor came in; Else A. shall be intended to continue in M. 4. E 4. Pl. 30.

Debt against three Executors who Plead several Pleas, and each goes to the whole; [Page 83] per Danby, Moy'e and Clark, the Plaintiff may elect which he will have Tryed first, Needham contra, the most peremptory shall be Tryed first. Hill. 8 E. 4. Pl. 3.

Debt against Executors, they Plead a Judgment against the Testator by A. for 200 l. and another by B. for 100 l. And that they have not Assets, but to satisfie the 200 l. per Bryan the Plea is double, having Pleaded 2 Judgments, and rely upon one. 9 E [...] 4. 12. a.

Bond to pay 20 l. when A. comes into England from Venice, Plea, That A. was not at Venice, not good; for where part is to be done within, part without, the Tryal must be within. Tr. 19. El. et B. Hales Case. Ow. 6.

One bound to save another harmless, Pleads that he had saved him harmless, and shewed not how; 'tis not good; but non fuit damni­ficat, generally, is good; et Pop. 297. dictum per Jones, If the first be generally demurred on the advantage of it is lost, for which I think it not Law; for in Mansels Case, Co 2. the Demurrer is general upon such a Plea, and Judged ill. et 2 Cro. 165. 363.

One Action against several Defendants for one Debt &c. they may sever in Barrs, but not in Dilatories. Hatton 26 Hob. 245.

In Debt upon a Lease for years, the De­fendant pleads non habuit nec occupavit, ad­judged [Page 84] no Plea other then Tenant at Will, by Fitz Herbert. Dy. 14.

In Debt upon an Obligation with Con­dition payment is a good Plea with Acquit­tance, as appears, Dyer 15 b. 1 Cro. 55. 2 Cro. 59. 360. 558. but payment on a single Bill Obligatory is no plea without Acquit­tance, nor it seems upon an Indenture to pay so much for a forfeiture, Dy. 6. a. 51. a. Co 5. rep. 43. 2 Cro. 86. 377. 3 Cro. 157. 3 Cro. 455.

Debt upon a Statute of Usury, and mis­recites the Statute of Usury, and sayes in the Action, the Defendant lent money usu­riously, and received the principle, and so much for Usury, and that is Traversed and found against the Defendant, and moved to be a Jeofail; but it seems both Surplus, and he need not shew the Cause of Action in the Writ; And shewing the Receipt was more then received; for the very lending usurious­ly is against the Statute though he never received it.

Where one has special matter and pleads it, and concludes with the general Issue; It waves not the matter precedent, as in Debt to plead unlettered, issint non est factum, or a special Payment issint Riens [...]uy doit, or for one to Plead that he was Joyntenant with his Feoffee at the time of the Feoffment et issint Riens passe per le fait, 10 E. 4. 3. b. M. 9 E. 4. Pl. 15. et fo. 19 b.

Debt on a Bond against an Abbot, he pleads, Predecessors imprisoned the Prior, and threatned the Monks to imprison them if they would not seal it double, one, the Im­prisonment of the Prior; the other the threatning of the Monks: And if both should be traversed and one found for the o­ther against the Plaintiff, the Court should not know for whom to give Judgment. M. 15. E 4. Pl. 2.

In Debt of 100 l. the Administrator pleads Judgment of 200 l. to another So plene administravit, and that he had not goods pre­terquam non attingen' ad 200 l. the Plaintiff demurrs generally, because he shewed no certain summ whereto the goods amounted, according to Co 9. Merriel Treshams Case, 109 b. Hob. and Winch held performance the substance. Hob 133 Moore vers Andrews.

The King brought an Action of Debt, and averdict upon non est factum pleaded, and after pardoned the Debt; which Debt he at the day in Bank pleaded, and was allowed to do it because he could have no Audita Querela or sei. facias against the King Co. 3. J [...]st 135.

Debt, and shews, that he made a Lease for years Rend. &c. the Lessee was thereby possessed, and devised it to the Defendant, and he entred, and Null possession &c. ill, first, because he shewed not that any was [Page 86] made Executor, or that he entred by his Assent; nor 2 that vir [...]ute legationis he en­tred, and then it might be for another Title. Dy 254. b 3. Cro 537.

Debt of an Obligation conditioned, that he and his Wife should appear; he pleads that at the time of the Obligation he was so­lus and innuptus, Rolls held it did not a­mount to ne unque Loyalment accouple and ru­led for Judgment upon Demurrer nisi Causa Yeane vers Skelton H 23 Car. 1. B. R. Sti. 17.

Debt to perform an Award made 10 May, ready to be delivered the 11th of May, Nul Award pleaded; he replyes, that the Award was made the 10th of May, to be delivered the same 10th day of May; The Defendant demurred for doubtfulness or departure; Resolved not: yet being a thing whereof Issue is to be of the Award, not of the day of the Award Tyers Case. Trin 23. Car. 1. B. R. Sti 4.

Debt upon an Obligation, he pleads, that he pay'd at such a day, the Jury find he did not pay at that day, the Truth was, the [...]e were two dayes of payment, and he payd one part the one day, and the other at the other day; the Court seemed he is condemned by the Verdict and his own Plea, P 24. Car 1. B. R. Sti. 93, 94.

Debt upon Obligation to perform Arti­cles, the Defendant pleads Covenants per­formed; Issue and Verdict for the Plaintiff, [Page 87] who moved for a new Tryal to prevent Er­ror, because no Issue joyned; but the Court said it was a good issue, but ill plea where­on he might have demurred; and ruled: the Defendant shews Cause why a Replica­tion should not be. Weights Case M 24. Car 1. B. R. Sti. 139, 140.

In Debt upon a single Bill, the Defendant pleads he had paid, and the other accepted part since the Action brought; ruled a good Plea in Abatement of the Writ, not in Barr of the Action as here 'tis Hillingworth versus Whetstone. P. 1649. B. R. Sti. 112 163 Co. 9 Jnst. 303. 2 Cro. 304. 959. H. 10. H. 7. Pl 3. M. 21. E. 4. Pl. 38.

Debt for 40. l. against an Executor, he pleads, that he received but 10 l. and 40 l. was due to him; the Plaintiff replies, that he is Executor de tort, and has more goods Et hoc parat &c. where it should be Et hoc petit, &c. ill, and that discontinues the whole Plea. Alexander versus Lane.

In Debt for Rent, Lessee pleads, that Les­sor nil habet &c. he replyes quod habet; 'tis ill, not shewing what estate, but cured by Verdict, if Issue be joyned and found quod habet, Hill versus Glassey. Yel. 227. 2 Cro. 312.

Debt upon two Bonds, whereof one is not due, the Defendant pleads a Release of that, and another Plea to the other, both found against him, and this shewed in Ar­rest [Page 88] of Judgment, yet shall not be stayed; for by his pretending a false Release, he passed over that Advantage. So in Debt by an Executor, the Defendant pleads he has a Co-Executor who has released to him, and found against him, the Plaintiff has Judg­ment Friths Case. 3 Cro. 68, 69. 4041. 110. 111.

In Debt on an Obligation the Defendant pleads al jour, and issue of it puis darr. contin. he pleads that the money was attached in his hands in London. Pel versus Pel 2. Cro. 101.

Debt upon two Bonds, the Defendant demands Oyer of the Condition, one of which was to pay &c. after performance of a Will; the other was to pay &c. within two years after the Devisor's death and perform­ance &c. and pleads, that the Will was that he should make a Release, and alledges the death to be at such a day which is within two years, and that he required the Defen­dant to make a Release, and he refused, Issue of the death and all found for the Plaintiff, moved in Arrest &c. one day is not come and damages intire, so no Judg­ment to be; but per Cur. 'tis only the Al­legation of the Defendant, that he dyed at such a day, which if true, the Defendant would have rested on it and not have pleaded a false Plea whereon the Issue is taken, and found against him. Thurbettle versus Reeve [Page 89] and Tye, 3 Cro. 110. 111. 40. 41. 68, 69.

Debt upon an Obligation, the Defendant pleads non est factum, 'tis found that he Seal­ed, &c. and the Seal was torn off, after the Plea pleaded, but on atthe time of the Plea, 'tis against the Plaintiff. Mirral versus Sce­brith. 3 Cro. 120 Co. 5 Rep, 119. b.

Debt for Rent against an Executor, he pleads Levy per distress and sans Detinet, void, find no Levy by distress, but that an assign­ment was made by the Testator, and the Rent paid by the Assignee, and adjudged for the Defendant, for the substance is on the new Detinet, and the rest but circumstance. S. Tho. Cecil versus Harriot 3 Cro. 140.

Debt on a Bond, conditioned to save harm­less against another Bond of Fifty two pounds, And so he saved him harmless; but because that he shews not that he was not damnified before. ill; Denis versus Thomas 3 Cro. 156.

In Debt on a Bond by A. and B. the De­fendant pleads the Obligation was made to them and B. And that all three have an Action depending against him, Judgment is got, but because the Bond to three cannot be intended, And that the Plea goes in A­batement and he has concluded in Barr, ill; Isumet Priscot versus Hitchcot 3 Cro. 102.

Debt on Obligation, conditioned, If such Lands be four miles distant &c. the Defen­dant [Page 90] pleads that 'tis four thousand paces di­stant, the plea Ruled good, for a thousand pa­ces is a mile, So it tantamounts the Condition; but how a mile or the spaces shall be reckon­ed per communem viam or strait as a Bird could Fly qu. Mirige versus Eat. 3 Cro. 212. 267.

Debt super Obligation, conditioned to pay 35 l. at Michaelmas and 33 at Lady-day, he pleads payment of the 70 l. secundum for­mam Conditionis, good, though objected, he should have pleaded several payments, for the several Conditions do implye it. Lox versus Lee 3. Cro 256.

In Debt a good plea in Barr, replication ill, Judgment by nil dicit, because the Defen­dant never rejoyned shall not be reversed, for that ill till all be made up; herewith a­grees Co 5. Rep. 55. a, Princ. & Boyer versus Jen­nings, 3 Cro. 284.

Debt against an Executor, the Defendant pleads, that pending the Action, another brought an Action for a true Debt of the Testator, which he confessed, and that he has nothing wherewith to satisfie the Judg­ment; the Plaintiff protestando, that was a true Debt pro placito, replyes, that the Re­covery was by Covin to deceive him; Defen­dant demurrs; and adjudged against him for the Covin is not Issuable, but reversed in Error, nor could the Recovery be by Covin, [Page 91] if the Debt true. Greene versus Wilcox 3. Cro 462 463.

Obligation, conditioned to appear in the Kings-Bench, the Defendant pleads, that the Court was adjourned to Hartford, and that he appeared there; ill, not saying prout [...]atet per Recordum. Corbet versus Cooke 3 Cro 466.

Debt super Obligation covenanted to ap­pear in the Kings-Bench such a day, and there elect two Arbitrators who with two more to be elected by the Plaintiff shall Award &c. the Defendant pleads, that he appeared there at the day, and there elected two, the Plaintiff was not there time enough for the Award to be made nor that he had his Arbitrators there. Edwards versus Marks. 3 Cro 549.

Debt upon Obligation conditioned, that if he upon request deliver the Plaintiff all the Tallow that shall be made before Michaelmas of all Beasts killed by him or his servants, then &c. the Defendant pleads generally prout in Condition; the plaintiff demurred, supposing he ought to set out particularly that so many Beasts were killed, which were all &c. As Maleveres Case cited, Bond to pay all Rents of a Mannor, they must set forth that such Rents be paid, which were all; but resolved good; for where the length [Page 92] of particulars would cumber Records, 'tis allowed to plead generally to all affirmatives as performance of all Covenants &c. and the Case cited doubted of, unless it being certain, may be set down in short. Mints versus Bethell 3 Cro 749.

Debt upon Obligation the Defendant pleads quod factum predict' was sealed with­out date, and the Plaintiff put in a date af­ter Et sic non est factum, and on demurrer adjudged against him, for by saying factum praedictum he has confest his Bond, but he should have pleaded non est factum. Cospee versus Turner 3 Cro. 800.

Debt super Obligation, conditionee to re­deem Lands mortgaged; the Defendant Pleads, that they were not mortgaged; the Plaintiff replyes, that they were mort­gaged, and sayes not how, by Feoffment, Bargain and Sale &c. yet well, being a stran­ger to it. Baley versus Tayler 3 Cro. 899.

Debt upon Obligation made to perform a Will which was to pay 20 l. to the Poor, and the Church-Wardens of such a Parish, he Pleads payment to the Church-Wardens and Poor; without naming of them; yet good. [...]ring versus Laws. 1 Leon. 17.

Debt on an Obligation to perform an A­ward to deliver up all the Houses that he had, he pleads that he delivered up all &c. with­out shewing what they were, and adjudged [Page 93] ill; and where it was awarded he should discharge and save harmless A. from such an Obligation, he pleads non damnif.; ill, for he was not only to save him harmless, but to discharge him of the Bond, and that ought to be shewed now. Bret versus Andrew. 1 Leon. 71 M. 2. R 3. b. 17.

Debt in Wast of a Lease for years general­ly, the Defendant pleaded, that the Lessor nil habet; the Plaintiff replies, that the Lease was by Indenture; a good Estoppel no Departure, for it corroborates the De­claration. 1 Leon. 257.

Debt super Obligation, Condition, That I. S. shall not disturb the Plaintiff in his possession by any indirect means, but by due course in Law, objected the plea ill, because not shewed how by due Course, viz. what suit, 'tis agreed the plea had been good if he had said only not disturbed by any indi­rect means; but doubted if not ill, because he pleads over by any Lawful means, and shews not what, so it might be tryed. Digh­ton and Clark's Case 2 Leon. 199.

Debt upon Obligation conditioned (inter alia) to account, the Defendant pleads con­ditions performed; the Plaintiff replyes, he had not accompted; ill, not shewing what he had to accompt for, and difference taken when the Condition is in the negative, not to do a thing, 'tis sufficient to say he [Page 94] did not do it. And when in the Affirma­tive to do, as to perform his office, and to Enfeoffe him of all his Land &c. there he might shew what his office was, and what Lands he had; And that he did &c. M. 2. R 3. fo 17. Pl. 44 vide Latch 16. 1 Leon. 136. Tr. 4 H. 7. Pl. 6.

In Debt on an Obligation the Defendant pleads payment, and the Obligee delivers up the Obligation in nature of Acquittance, and after Retainsit by force, the Plea not▪ dou­ble, as objected; the payment not being now issuable but only the delivery of an Ac­quittance, also the delivery is pursuant e­nough, and though difference taken in Debt on a contract to plead Payment and Acquit­tance as double, yet in Debt on a Bond not. H 1. H 7. fo 15, 16.

Debt upon Obligation conditioned to ga­ther all the Amerciaments of the County &c. the Defendant pleads that he collected all &c. without shewing what they were; yet good as well to prevent infiniteness, as for that they are not in fact and in the Affir­mative, otherwise if matter of Record, as to be nonsuit in all &c. there he must shew the several suits. per Bryan. H 2. H 7. Pl. 22 p 13. H 7. Pl 1. m 21. E 4. Pl 37.

Debt to perform an Obligation condition­ed to perform an Award, Ita quod &c. The Defendant pleads, that the Arbitrators made [Page 95] no Award nor demanded it; 'tis a double Plea; one, that they made not &c. and the other, that they did not &c. m 5. H 7. Pl 15.

Debt upon Obligation to make Assurance as Councel should advise, pleads, that Coun­cel advised, and he gave notice &c. not double, though the advice and notice be two things; traverse, for without notice, no sufficient breach Tr. 6. H 7. Pl. 5.

I am bound to perform all Covenants of an Indenture, if they be all Affirmative and matter in fact, I may alledge perform­ance generally, without shewing how or what they be, otherwise of matter of Record: but if the Covenants be in the negative, I must plead negatively to them, particularly if the Covenant be disjunctive, I must shew which part I have performed and if the Co­venants be in the Affirmative, and the Ob­ligee to do an Act towards the performance, I must answer it particularly; as Covenant in sale of Woods, to leave six Trees standing at the appointment of the Bargainer, & must shew what he did or did not appoint: so if the Covenant be an Affirmative that implyes a negative, as to save harmless, I may plead the negative non damp [...]ificatus P. 10 H 7. Pl 3. P. 16. H 7. 11, 1. Co Jnst. 303 b. a. b. 13 H. 7 pl. 1. M. 21. E 4. pl. 18.

Debt, the Defendant pleads the Statute [Page 96] of Usury, and that the Plaintiff lent him &c. 12 July, and shews no usurious contract; the Plaintiff replyes, and shews the lending to be for a longer time and so not usury Absque hoc quod corrupta &c. the Defendant rejoyns, that it was but for the shorter time absque hoc, that upon the 12th of July was a­greed for a longer time; the traverse tying him up to the 12th of July and so make the day material, ill, Nevison versus Whitby 1 Cro. 260.

In Debt against an Executor he pleads quod non habet nec hab [...]it die impetrationis bille bona que fuerum Testator' tempor [...] mortis s [...]e preterquam &c. Exceptions that tempore mortis is ill, for he may have Goods that were not his tempore mortis, and damages recovered, Lands devised to be sold, and sold, and yet are disal­lowed for not intended still shewed. Se­condly, because he sayes non h [...]b [...]t tempore bille, but sayes not unquam post [...], 'tis incu­rably ill; for if he had the day of the Ple [...] pleaded 'tis Assets. Green versus [...]olls. 2 Cro. 131, 132.

Debt on a Statute Merchant, the Defen­dant pleads that the Clerk mentioned, was no Clerk at the time, but did not insist on it, and seems not Pleadable, for a Statute is a Record, and 'tis against a Record. Fo [...] versus Iucks. 2 Cro. 13 [...].

In Debt against an Executor he pleads [Page 97] a Judgment in Barr, and because he did not plead prout patet per Recordum, it was resol­ved to be ill. 2 Cro. 226.

Defendant in Debt to perform an Award which was to enfeoff or Release, or pay 20 s. pleads performance; ill, not shewing which; for performance of any one is good excuse; wherefore he must shew what he hath performed. 27 H. 6. I. b.

In Debt against an Executor or Admini­strator he pleads a Judgment, and that he hath not Goods preterquam que non &c. Co. 9. Rep. 109, 110. 'Tis held ill on general demurrer, not shewing what summ he has; but Hob. 133. More versus Andrews, 'tis held but form, and good on general demur­rer, and Vide Co. Entr. 446. a. 148. Pl. 27. 152. a. 269. a. 617. b. It is oftner plead­ed in the general, then to plead a particular summ &c. here the Court held it but a form, and cured by General demurrer. Davies versus Davies. Tr. 16. Car. 2. B. R.

Debt on a Bond conditioned to pay all &c. Defendant pleads he paid all without shew­ing what; the Plaintiff replied he received some summs and has not paid; the replica­tion good, for the knowledg is on the De­fendants side what he received, therefore to have been set out by him and not by the Plaintiff in the Replication, and therefore [Page 98] the Barr ill. Woodcock versus Cole. Tr. 16. Car. 2. B. R.

Debt super Obligation conditioned to de­liver such Letters by such a day; plea, that he delivered them secundum Conditionem; ill, for being to do a particular thing by a particular day, he ought to have pleaded particularly, and not generally secundum conditionem Brook versus Deane. P. 16 Car. 2. B. R. Rot. 451.

Debt upon a Bond at London conditioned, that if a ship do not miscarry &c. Defendant pleads she miscarryed in Cornwall, ill, for he cannot plead transitory matter in another County then the Action is laid, and so alte­red the Trial, and if he have local matter to plead, he must shew it Collings versus Sutton. Tr. 16 Car. 2 B. R. rot. 1666. 11 H. 4. 50. a. b.

Debt, and counts that one possessed of a Term, granted him a Rent, by mean Con­veyances is come to the Defendants, and shews not how; yet ruled good aliter: if the Term be pleaded to come to himself or any that he is privy to. Note, This was after Verdict, but no advantage taken of the Ver­dict. Cotes versus Wade. m. 18. Card. B. R.

Debt for an Escape, and begins with the Writ of Execution and Arrest; ill, not shew­ing the Judgment quod cum recuperasset &c. Jones versus Pope M. 18. Car. 2 B. R.

Debt on a Bond conditioned to save against another Bond, Defendant pleads that he did save, not shewing how; the Plaintiff sayes he was sued at Law pro eo quod, the mo­ney was not paid, and pleads not the Writ &c. as he ought, the Defendant rejoynes, he had not notice, which is a departure and not material, the Plaintiff demurrs. Resol­ved, the Barr ill, but if not to have it speci­ally assigned for cause Secondly, the eo quod affirmative, and Traversable as well as if said in facto. Thirdly, the Replication ill, not pleading the Writ &c. Fourthly, be­cause the rejoyner is a departure and ad­mits it being but ill, for incertainty and cir­cumstance has cured it. Cather versus Peirce Soutbres and Falker M 18. Card. 2. in Sci.

Debt against an Executor who pleas three Judgments in debt had against him; and sayes nor pro vero debo, and concludes prout patet per seperalia recorda et inde exeeution ta­to it; for both Cases no resolution. Palmer verses Lawson M. 18. Car. 2. R. R. Rot. 302.

Debt on a Bond to perform an Award, Ita quod, it be made before 25 March pleads nul Award; replication, that ante 27 May they made an Award, good; without saying infra tempus limitat they may traverse nul­lum &c. without traversing the day, if not [Page 100] before the day, the Jury is to find it Skinner versus Andrews, Hill 20. Car. 2. B. R. Rot. 292.

Debt against two Executors, they plead a Judgment had against one as Administra­tor, who ultra to satisfie hath not Assets et bene. Parker versus Amy. Hill. 20, 21. Car. 2. B. R.

Debt on a Bond against an Executor who pleads a Judgment and a Bond, the Plaintiff replies the Judgment satisfied, and satisfa­ction given Et hoc paratus est verificare; And to the Bond assets ultra, Et hoc petit quod in­quiratur per Patriam. Defendant demurrs, and adjudged for the Plaintiff, though not said to the first per Recordum for but form, and cured by the general demurrer; also he has not answered the last issuable Plea. Han­cock versus Proud M. 21. Card. 2. B. R.

Debt on a Bond conditioned to do several things; Defendant pleads performed gene­rally and demurr, adjudged ill, he should have answered to all the particulars expres­sed in the Action; aliter where 'tis to perform Covenants, Winbleton versus Helderup. Trin. 22 Car. B. R. rot. 704.

Debt on a Bond conditioned to perform Covenants which were within two years to deliver a Mapp of all Land in D. in the pos­session of A. Lessee of B. and B. pleads performance, repl. Assigns breach, that Les­see [Page 101] did not deliver a Mapp within two years of all the Lands in D. in his Occupati­on; and in the occupation of B. and C. and the replication seems ill, first because he does not say Lessee nor his Executors: Se­condly, in his occupation, is uncertain what is meant by it. Thirdly, he ought to shew what Lands were in the possession of B. and C. Q. If the recital not an Estopel to say none were. Palmer versus Greenhil, Execu­tor of Greenhil Pa. 11 Jac. Rot 688 Bridg. 46.

Debt by two Barons and their Femes on an Obligation made to their Femes when sole, and say, the money was not paid them, good, and though not said vel licaui eorum; for payment to one, is payment to both. Sparmer versus Stone et ux' vide Pa. 77 et Latch 49 and Pop. 161 ibm. 3. Count joint­ly and severally in Action against one, suf­ficient to say he paid not; but if against all, that they nec aliquis eorum Noy. 69.

Executors sue on a Bond Testat. plea, non est factum, after Verdict for the Plaintiff, moved, yet he had Judgment. Noy. 79.

A. and B. joyntly and severally bound to stand to an Award betwixt them and I. S. Arbitrators, awarded A. to pay B. 3 s. B. to pay 10 s. to I. S. in debt on the Bond in Plea for A. to say he had performed [Page 102] the Award, without shewing how, and how, B. had performed it, for he is bound to him also. Bendlo. 5.

Debt on a Contract, Defendant pleads payment in a Forraign County; and on de­murrer adjudged ill, he might have pleaded in the County: and so was the Opinion of Twisden in the King's-Bench H. 22, 23. Car. 2. That if a Forraign plea which is not local be pleaded, the Plaintiff may demurr upon it; but if it be local, he cannot demurr up­on it, but then the plea must be sworn.

Debt on a Bond to account, he pleads he accounted; Plaintiff Assigns breach in 30 l. received not accounted for. Defendant re­joynes and saies Robbed of it, and gave no­tice Et hoc paratus &c. good, and not Et hoc pet it &c. for now he leaves the other to traverse the Robbery, though it makes a ne­gative and affirmative. Vere versus Smith P. 23. Car. 2 B. R. Cook versus Whorewood.

Debt on a Bond to perform Covenants to enjoy such Land against A. and B. Defen­dant pleads Covenants performed; Plain­tiff replyes and sayes, A. and B. habentes jus virtute tituli eis inde fect' ante Burg. predicta' entred, the Defendant demurrs because the breach Assigned too general; but per Hall good enough, he being a Stranger. Twisden doubted. Proctor versus Newton Trin. 23. Car. 2. B. R. Rot. 826,

Debt on a Bond to save harmless from pay­ment of Legacies, and Assigns breach, that A. sued in Chacery for a Legacy, first, not shewing were the Chancery was. Secondly, saying, he sued for a Legacy, and saies not in fact, a Legacy was given. Dainty versus Faire Mich. 10. Jac. B. R.

Debt upon an Obligation dated at Ham­burgh was brought in London, and good; for Hamburgh in that sence shall be taken for a place, as Antwerp Tavern in London, not for the Town of Hamburgh in Germany, and it was brought in the Detinet only; and yet good, because of Forraign Coyne, But naught, if for English money.

A man may bring an Action of Debt up­on a Statute-Merchant, but not on a Statute-Staple.

Debt against a Prisoner for Debt, or for an Attorney for Fees, no Wager of Law lyes: But a Prisoner for Lodging and Dyet may wage his Law. It lyes not for Rent, it lyes upon a simple contract if it be brought in Debt; But if it brought in Case, the De­fendant cannot wage his Law.

A man brings an Action of Debt against two, and hath Judgment, and two Precipe's against them, and Arrests one by Fieri facias, and the other by Capias ad satisfaciendum it is vicious, per totam Curiam; But he may Arrest one by one Capias, and the other by another [Page 104] Capias; and if one of them satisfies the Judg­ment, the others Body is free: and with this agrees 36 H. 6. Hillary's Case, and 4 E. 4 it is said that the Plaintiff shall have but unicam executionem i. e. unicam satisfactio­nem. Mich 11 Jacobi in Communi Banco.

An Action of Debt ought to be brought in the Debet et Detinet against an Heir, but against Executors only in the Detinet. per Coke, Lord Chief Justice. ib.

A man brings a Writ of Debt upon a Deed, and declares de octinginta Libra; the Defen­dant prays oyer of the Deed, and hath it, and it was octogesima Libra, and good per to­tam Curiam: and with this agrees 9 H. 6. et Pasch 12 Jacobi, where yginta for viginti was adjudged good. Mich. 13 Jacobi in C. B.

Detinue.

IN Detinue of a Box of Writings the De­fendant pleads that A. B. and C. have each of them severally brought their Writ of Detinue against him; and brought the Writings into Court ready to deliver to whom the Court shall award; they shall interplead, and the interpleader shall be on the eldest Original (viz.) A. shall inter­plead with the Plaintiff to Barr his Title, and B. shall plead against them all; But [Page 105] vide if there be variance of the Writings, &c. in the Declaration when no interpleader shall be. P. 4. E. 4. Pl. 11. 11. E 4. 11. a. 3 H. 6. 20. a. 32 H. 6. 25. b. 25 H. 6. 20. a. Trin. E. 4. Pl. 2.

Detinue, and counts of a purchase of an Annuity and the deed; the Defendant pleads non Detinet; Jury find the sale &c. but it is not agreed that the Defendant should detayne the Deed till the money payd, which is not before the plea; but on the general Issue he ought not to have given, that in Evidence, but should have pleaded it; for upon the general Issue that which would make a special Barr cannot be given in Evidence, or if found by the Jury is it ma­terial. vide Cest Case title Averment, 22 H. 6. 37.

Detinue of Charters and Counts of a writing Cont' that I. S. infeoffed &c. And though he said but in facto a Deed whereby I. S. infeoffed, &c. but Cont' that &c. And so for ought appears no Livery might be; yet per curiam, well; for 'tis a deed though nothing passed, and the Action lyed. But Princ. it may work by Confirmation. 39 H. 6. 37. b.

In Detinue, after Verdict, 'twas moved in Arrest of Judgment, that Sattago was not good, but Sartago, and igneum ferrum anglice a firegrate, improper: yet the Court [Page 106] adjudged the Declaration good enough. Smith versus Warder 13 Car. 2. in B. R.

Of Disclaimers and Discontinuances of Actions.

ONe brought an Action of Covenant, and had Judgment and a Writ of En­quiry of damages, and afterwards it was discontinued by Rule of Court. Trin. 10 Jac. in communi Banco.

If a man brings an Action of Trespass in 3 Towns, and mentions, but 2 Towns where the Trespass was committed, the whole is discontinued. 16 E. 4. 11. So 9 E. 4. 51. A man brought an Action of Debt and demanded by his Writ 10 l. 6 s. 8 d. and his Declaration was but of 10 l. and his Writ did abate.

An Action of Trespass was brought in the Court of Common-Pleas o [...] several things, one of which was discontinued, and by Warberton Justice, the whole Action was thereby discontinued, adjudged in Sir Fran Pawmes Case.

If two are bound jointly and severally, and an Action of Debt is brought against them both, and it was discontinued against one of them, it shall abate against both. 7 H. 4. Fitzh. Tit. Breif. 279. 5 E. 4. 107. But by Hobart Chief Justice, a man may put more in the Writ than in the Declara­tion, [Page 107] but not more in the Declaration than in the Writ. Hill. 12. Ja. Pl. 4 in C. B.

In Audita quaerela scire facias or Attaint by 2, the Nonsuit of one shall not be Nonsuit of both, and his Release shall only Barr him­self; and the reason is, because they are compell'd by the Law to joyn in the Action, and the cause of Action accrues not by their deed but by Act in Law, and for that the Law is favourable to them; So that if one will not sue, the other may sue by himself. But if a debt be due to two by reason of Con­tract or by Obligation, or two Jointenants have cause to have an Action of Trespass, in this case the Nonsuit of the one, or the Release of one shall Barr the other, because it was their fault to take such a joint Estate, or that the Obligor was bound to them joint­ly. 35 H. 6. 23. a.

In Replevin Verdict is given for the A­vowant, and the plea is discontinued after­wards by the death of the King, or other­wise, and the Avowant sues a Scire facias against the Plaintiff; in this case the plain­tiff may plead a Release of the Avowant af­ter Verdict of all Actions, or he may plead other matter to discharge himself. 5 E. 4. 19.

In Trespass the Defendant pleads two pleas, and the Plaintiff demurrs to one and doth not plead over to the other, it is a dis­continuance, [Page 108] as it appears by two Presidents in the Books of Entries, and Holcrofts Case, Co, Lib 4. where it is pleaded accordingly.

In Precipe quòd reddat the Tenant disclaims the Judgment shall be, that the Demandant nihil capiat per breve, and if the Tenant will make a Feoffment in Fee, the Demandant may enter upon him, and if the Tenant will discontinue, the Demandant may say that he hath nothing in the Land but by disseisin which he made to I. S. and put him from the disclaimer, because that by the disclaimer he hath nothing but his Right; and the En­try of the disseisee is lawful upon him, be­cause that he hath nothing until by that dis­continuance he perfects the Recovery.

In Replevin the Defendant makes Conusans as Bailiff to an Abbot upon an Estranger as upon his very Tenant. The Plaintiff prays aid of this Stranger because he let for years; they join in aid and process is continued un­til his Term, at which time the Term ends, they both disclaim to hold of the Abbot; the Court awarded that the Plaintiff sue forth a Writ of Inquiry of Damages. 29 H. 6.

No man can disclaim against a Termor, because that if his Lessor will not bring his Writ of Right upon disclaimer, he hath no Remedy. 9 E. 4.

Husband and Wife cannot disclaim in A­vowry, [Page 109] for if they do, the Lands of the Wife shall be lost by it. 10 E. 4. per Cur'.

In Replevin the Defendant avows upon Plaintiff, and he disclaims to it, he shall not be received, for you have made a Feoffment of the Lands, so that we cannot have a Writ of Right, Sur disclaimer; held a good plea; To which the Plaintiff saith, that he was seised of those Lands in Fee, without that, that he hath made a demise.

In a Writ of Entry in le quibus of the dissei­sin of the Demandant or his Ancestor against two, one would disclaim, and could not because he was in of his own wrong.

Distress vide Trespass.

IF a man distrain Household-Goods, That will take hurt by wet or weather he ought to impound them in an House within three miles within the same County where they were taken; But if he put them in an open place were they perish, the distreynor shall not answer for them.

If a man distreyn a Horse, and the Horse leaps out of the Pound, and after the distrey­nor Retakes him and tyes him to a Post, and in strugling the Horse strangles himself, the Distreyner shall be punished inan Action of Trespass.

So if a man distrain a Cow, he ought not [Page 110] to milk her although it be for the good of the Cow; for you must not do good in such a Case without the Owners consent: For Peradventure the Owner might come in time and milk her himself; and if the Cow perish for want of milking, The Distrayner may distrayn again and so be at no damage.

An Officer of the Sheriff cannot justifie the breaking open of doors to distrayn for the Kings Rent, much less a Landlord.

A man shall not use things distreyned, be­cause he hath them but as Pledges in the Law.

No man shall drive a distress out of the Hundred it was taken in or to any Pound a­bove the space of three miles, or into several Pounds, whereby the party shall be driven to take out several Replevins.

None shall drive a distress out of the County, Nor shall distrain in the High-way; None shall drive distress into a Castle or Hold to withhold them from the Owner upon his Replevin.

If a man come to distrain and the party seeing his purpose drives the Cattle off the Land or put the goods out of the house, to the intent he shall not take them upon the ground for a distress; Then I may lawfully pursue, and if I take the same upon the High­way or upon the ground, the taking is law­ful as if I had taken it upon the ground or house out of which the rent issues to [Page 111] whomsoever the property of the goods or Cattel do belong.

A man cannot distrain for an amerciament in a Court-Baron, but for an amerciament in a Court-Leet he may.

If a man grants a Lease to B. rendring Rent to be paid at four several Quarters, and if it be behind and lawfully demanded, That then it shall be lawful for the Lessor to distrain &c: If a man comes to distrain, and the Tenant inclose the ground or shuts the doors of the house, That the Landlord cannot distrain for his Rent, it's a disseisin; For the Landlord may not break the doors or Fences to come at the Distress.

Also Forstallment, That is lying in wait or threatning a Landlord, whereby he is disturbed, and hindred of the means to come by his Rent, is a disseisin of the Rent, viz. to hinder the taking of his Rent.

A man brought Yarn to the house of his Neighbour on Horse-back, to the intent to weigh the same by his Neighbours Beam, the Landlord comes and distrains the Horse and Yarn for Rent due out of the house to which the Yarn was brought; and by the whole Court adjudged an unlawful di­stress.

A man cannot distrain for Rent but on the Land or House out of which it becomes due, [Page 112] and there he may take what he finds to whom soever the same belongs.

If a man distrains Beasts without cause and impounds them in a Pound overt, it's not lawful for the Owner to break the Pound, but must bring his Replevin.

If Beasts dye, or goods distrained for Rent perish, the Landlord may distrain a­gain for the same Rent, and the loss of such Beasts so dying shall be loss of the Tenant if it be in a Pound overt.

If the Landlord be in view of Cattel, he intends to distrain for Rent, and the Te­nant to avoid the Distress, drives the Cat­tel out of the Landlords Fee; Yet the Land­lord may take them in or out of his Fee. And it seems the same Reason if a man comes to a house to distrain for Rent, and be in the house and have [...]ight of the Goods, and the Tenant to hinder the distress shuts up the Roomes, The Landlord may force o­pen the doors, if the Tenant will not open them upon request.

If I grant a Rent to I. S. and his Heirs out of my Mannor of D. Et obligo Maneri­um et omniabona et Catalla mea super Maneri­um predict. existentia ad distringend' d'per Balli­vum Dni' Regis; The Limitation of this distress to the Kings Bailiff is void, and it is good to give a power of distress to I. S. the Grantee and his Bailiffs Bacons Elem. of Law. 15.

Error.

IF a Writ of Error be brought and al­lowed, And the Plaintiff in the Writ of Error dyes pendente breve Errore, the Plaintiff in the Action may sue out a Scire facias against the Executors or Admini­strators of the Plaintiff in the writ of Error, without mentioning the Writ of Error, for that it is no Supersedeas, but only to privies, and not to Strangers.

When a Writ of Error is allowed, Exe­cution upon the former Judgment ought not to be awarded; For by the writ of Error the Record it self is Removed, and the Court hath nothing whereupon to award Executi­on; Yet supersedeas the safest way.

If a man Levy a Fine sur Conusance de droit Come Ceo &c. And suffer a Recovery of the same Lands, and there is Error in them both, He cannot bring Error first upon the Fine, because by the Recovery his Title of Error is discharged and released in Law in­clusively; But he must begin with the Er­ror upon the Recovery, which he may do, because a Fine executed barreth no titles [Page 114] that accrue de puisne tempus after the Fine levied, and so restore himself to his Title of Error upon the Fine.

If a man levyeth a Fine where he hath no­thing in the Land which inureth by way of conclusion only, and is executory against all purchases and new titles which shall grow to the Conusor afterwards, And he purchaseth the Land and suffer a Reco­very to the Conusee, and in both Fine and Recovery there is Error; this Fine is Janus Bifrons, and will look forward and Barr him of his Writ of Error brought of the Recovery; And therefore it will come to the reason of the first case of the At­tainder, That he must reply that he hath a Writ also depending of the same Fine, and so demand Judgment.

Execution.

IN Escape against the Sheriff, The Case was, That a Prisoner being in Executi­tion, the Gaoler lets him out of Prison about his occasions, and after the Prisoner returns to the Goal, and another Sheriff comes in and then the Prisoner escapes and comes no more; It was held, That an Action did not lye against the last Sheriff, for the Prisoner was utterly discharged of the Execution by the first permissiom of going at large by the Gaoler.

The Sheriff may not break open the doors of any man to execute a Fieri facias, much less a Landlord to distrain by the same rea­son.

Judgment in Debt against three, and a Capia's ad satis faciendum against the Principal, the Sheriff retorns non est inventus, upon which issued a Scire facias against the Sureties, and before the retorn the Principal came into Court and prayed his Body might be taken in Execution, which was done accordingly. Mich. 10 Jacobi in C. B. And with this agrees the Course of the Court of King's-Bench, and divers Presidents of this Court.

A Writ of Error was brought 4 Novem­ber retornable 10 January, whereupon the Court was moved for Execution, because it seemed to be but for delay, in regard the Re­torn is so long, (and with this agrees 4 H. 6.) an Execution was granted by the Court. Mich. 16 Jac. in C. B.

Of Estoppels and Conclusions.

HE who claims nothing by him that was estopped, shall not be estopped. As, two jointenants are disseised, the dis­seisor lets to the one, now he is stopped to say, that he hath another Estate than for Life. Afterwards he to whom the Land was so let, dyes, the other Jointenant shall [Page 116] have the Land, and he shall not be by that Deed estopped, for he claimed nothing by him who was estopped, by the Survivor.

If I am named W. B. and I bring my Acti­on by the name of I. B. and recover by that name, afterwards if I will bring my Action against another person by my right name, he shall not estop me by that Recovery of the same name; for if I had been estop'd, I should not have had my Action against the other person, but he that is party may e­stopp me well enough. 26 H. 6. 30 H. 6. et 10 E. 4. contr.

Where he in Reversion or Remainder claims nothing by Tenant for Life, he shall not be estopped.

AS, the Father disseiseth the Son, and Levies a Fine thereof to a Stranger, where Recovery is had against the Father, and afterwards the Father dyes, the Son en­ters, or he that recovers, or he that was party to the Fine between him and the Son brings an Assise, and the other pleads the Fine or Recovery by way of Estoppel; this is no Plea, because that notwithstanding that the Son is privy to him that was estop­ped, yet he claims nothing by him.

Where there is Lord and Tenant, and the Lord lets his Seigniory to one for Life, the [Page 117] Tenant for Life of the Seigniory distrains the Tenant, and he bring an Action of Trespass against him, and he justifies, for that he holds of him by ten shillings of Rent; and the o­ther traverses it, and it is found against the Lord for Term of Life; This shall be no Estop­pel to him in the Reversion.

If a man pleads a Plea in which he con­fesseth a thing that is not material, it shall not be an Estoppel.

As if a man voucheth one as Son and Heir to such a person, and when he comes he is bound to warranty by his own Deed, yet may say afterwards in an Assise of Mort­dancestor, that the same person which I vouched before as Son and Heir is a Bastard for the words Son and, Heir, in his voucher are not material.

The same Law in a Writ of Trespass brought by one Executor of Goods taken out of his possession.

Where a writ of Debt is brought by an Executor, who counts of a duty due to him­self, there the word Executor is not material, and he shall not be estopped, but he may say afterwards that he never was Executor, nor ever administred as Executor.

If a man will plead a Record to estopp him that was privy, he ought to shew what end the Action had.

AS if I bring an Action against you in which Action you plead, that at ano­the [...] [...]ime, viz. such a day, &c. I brought an Action of Trespass against you, and the Defendant pleaded Villenage, and the Plain­tiff confest it; he ought to shew further, by force of which he was nonsuited, and to shew what end the Plea had, and demand Judgment if against that he shall be an­swered.

Where a man hath Judgment to recover Land, by that Judgment he shall be estopped to claim any other Title than he hath by the Reco­very.

AS if a man recover by Writ of Right Sur disclamer, if the Tenant ceaseth afterwards, he shall not have a Cessavit to recover the Land though he sues not out, Execution; for he shall be estopped to claim any other Title, or to have any other Action to recover the Land, than that by which he hath recovered; and by the same reason that he shall not have a Cessavit, he shall not have Eschete.

If a man hath Rent in Fee he may distrain or have a Writ of Annuity, and if he brings a Writ of Annuity and hath Judgment to recover, although that he sues not out Exe­cution, yet he shall never distrain for the Rent afterwards.

Tenant in Tail discontinues for Life, and dyes, and the Tenant for Life aliens in Fee, and the Heir bring in consimili casu and recovers, now by this Judgment he shall never have a For­medon of the same Land &c.

The disseisor enfeoffs the disseisee by deed indented upon Condition, or makes a Lease for Life by Deed indented; this is a good Conclusion to the disseisee to demand his Right; and the Reason is, that by the Deed indented the disseisee hath affirmed the Estate of the Disseisor, which is as much as if he had confirmed his Estate before the Feoff­ment.

In Debt upon an Obligation the Defen­dant pleads a Release, upon which the Plain­tiff is Nonsuit, afterwards the Plaintiff brings a new Action of Debt, the Defendant shall be estopped to say that he was deins age, or that the Obligation was made per minas: But it is otherwise if the Plea be disconti­nued.

An Essoin is cast for the Tenant in a Writ of Dower, yet the Tenant shall be received to say that he hath been allways ready to ren­der [Page 120] Dower, and because that an Es­soin may be cast for a Stranger, this Essoin is no Estoppel; for an Estoppel shall be good to every intent, but because an Essoin may be cast for a Stranger as well as for the Te­nant himself, it shall be said an Estoppel.

I bring an Assise of Mortdancestor, and recover, when in Truth I have no Right, &c. yet the Wife of the same Father shall be endowed &c. Also in Avowry.

Tenant for life Aliens in Fee, the Wife of Tenant for Life shall be endowed against the Feoffee.

Also Tenant in Tail is bound by Statute and makes Feoffment, Execution against the Feoffee.

Of some Estoppels none shall have advantage but those who are parties or privies.

AS if I loose Land by Erroneous Judgment or false Verdict, those that are Stran­gers shall have no advantage.

But of some Estoppels every one shall have ad­vantage.

As Bastardy certified by the Bishop.

User of Action is no Estoppel to prejudice an other, viz. Heir &c.

AS a man grants a Rent Charge in Fee to an Abbot and his Successors, or to a Feme-Covert and her Heirs; if the Abbot or Husband brings an Action, it shall not prejudice the Successor or the Wife.

In no Case one person shall estopp another but in Dower.

AS where a Woman demands Dower, and she hath Writings touching the Inheritance of the Heir; for in debt it is no Plea to say that the Plaintiff is indebted to the Defendant in ten pounds, because that it cannot be tryed by the Original. 3 H. 6.

In every Case where I am Barred of Land, as if it be found that I am not next Heir, this Estoppel shall pass with the Land, and every one that claims the Land by me shall be Estop­ped, but of other Lands it shall be no Estop­pel against me. 33 H. 6.

IF I bring a Praecipe quod reddat by the name of Richard, when my name is John, and recover by default against the Tenant, and afterwards I bring another Writ by my [Page 122] right name against the same Tenant, he shall not estopp himself by that Recovery.

So if I have misnamed the Tenant in the first Record, because he shall not be grieved by it. Mich. 33 H. 6. contra per Prisot, contra per Fortescue. 34.

By Prisot none shall be received to plead an Estoppel against another, but he that pleads may be estopped by the same plea; and this is where both parties are parties to the Record, otherwise not;

For if I bring an Action by the name of Robert (when my name is John) against one that pleads with me, if afterwards I sue him by the name of John, he shall estopp me by that Record; but against a Stranger I shall not be estopped by it; by Prisott and by Fortescue, 30 H. 6. 26 H. 6. 14 E. 4. contra.

Bastardy certified against me or found a­gainst me, every Stranger shall estopp me, because that every Stranger is estopped to say that I am mulier.

But if I am certified mulier, a Stranger▪ shall not be estopped by it to plead special Bastardy, because that it may be that I am a Bastard in our Law, and a mulier in the spi­ritual Law, but not è contra.

No Stranger shall take advantage by an Estop­pel, but where the Estoppel extinguisheth the Right.

AS if a Man makes a Lease to me for Term of years of my own Land, and the Term passeth, and he enters and grants a Rent Charge in Fee, and afterwards I recover against the Grantor the Land by default, the Grantee shall not falsify the Re­covery by Estoppel.

A Stranger shall not take advantage of an Estoppel in fait, if it be in the Realty, but by matter of Record it is otherwise.

A Man takes a Lease of Lands for years or for Life, of which Lands he himself [...]s se [...]sed in Fee or in Tail at the time of the Lease made, if it be by Deed indented he is estopped to say that he had any Estate or Right in those Lands at the time of the Lease.

The same Law if a man be disseised, and takes a Lease of the disseisor for a term of years of the same Lands by Deed indented.

But if a man takes a Lease for term of life of his disseisor he shall not be thereby estop­ped, notwithstanding it be by Deed indent­ed, because that by the Livery he is remit­ted, [Page 124] and the Lease is void, ut dicitur, quaere tamen, for the Indenture is strong against him; but if it be indented, it is cleer Law: but if it be by Fine, it shall be an Estoppel, because that the Estoppel takes effect before his Entry; Or if Livery be made out of the Lands within View, &c.

If a man makes a Lease by Deed indented to one, of his own Lands, now he is conclu­ded, after the Lease determines the Lessor enters by force of the conclusion, and a stran­ger comes in aid of him, the Lessee shall pu­nish the stranger for this Trespass, and he shall not conclude him by force of the Lease, because he is wholly a stranger to the Judg­ment. per totam Curiam, 14 H. 6. But quaere if he justify as servant, if he shall conclude himself.

Fines and Recoveries.

A Fine was Levied of Lands in two Counties, and but one County mentioned in the Fine; yet be­cause it was for the uses declared in an Indenture which did mention the Lands in the other County, all the Lands mentioned in the Indenture did pass.

If two persons having several Interests in Lands acknowledg the note of a Fine before a Judg, and then one of them dyes; The Conusee may for all that proceed with his Fine against the other alone; for the death of the other is no impediment; for the Co­nusans of every one is against himself, and shall work for so much as he can pass.

A man and his Wife acknowledged a note of a Fine before Commissioners (the 26th of March) by Dedimus potestatem, and the wife dyed 27th of the same month; and the next day being the 28th, Composition was made in the Al [...]enation-Office upon a Writ of Co­venant Retornable in Hillary Term before, and the Kings Silver was entred as of the same Hillary Term, and so the Fine was past [Page 158] and ingrossed, And in Easter Term the Heir of the Wife moves against the Fine; But upon debate it was agreed the Fine should stand.

Tenant in Tail Levies a Fine with Procla­mations, and 5 years pass in his Life-time, Yet this shall not Barr his Issue.

A man of full age, and his Wife being but 19, Levy a the Fine of Inheritance of the Wife, whereby an Estate is conveyed to the Hus­band and Wife in Tail, and the Remainder to the right Heirs of the wife; and many ex­ceptions taken against the proceedings by the Heir to the Wifes inheritance, viz. I. S. as that the said Feme was not of full age at the time of the Fine Levied, and other un­due means committed in getting out the Son; Yet by the whole Court the Fine was held good Law, for Facta valent multa que fieri prohibentur.

If there be Tenant for Life, the Reman­der in Fee to an Infant, and they both Levy a Fine, and afterwards as to the Infant the Fine is Reversed, yet the Conusee shall have the Land for the Life of the Tenant; for each may pass and give what he lawfully may.

If there be two Jointenants, and one of them suffer a Recovery declaring the uses of the whole; this shall bind but only a Moiety, unless the consent of the other Jointenant can be proved.

Heir.

IF an Heir be sued upon a Bond, and Lands are proved to descend unto him from his Ancestor, you must have a special Writ to enquire what those lands are worth to be delivered to the Plaintiff at a reasonable extent and price; and if the Heir confess the Action, and shew what Lands come to him by descent, Then his Body and all other his Lands and Goods and Chattels are free from that Execution; but if he deny the Action and plead Riens per descent, or it go by default against him, then Execution shall be against Body, Goods, or other Lands; And the Declaration shall be in the Debet and Detinet, as though it were his proper Debt.

Outlawries and Outlaws.

OƲtlawry was pleaded in Barr, and day given before when the Defendant reversed it, the Defendant shall not be con­demned for Failer of Record, but Respond­ouster. Green against Gascogne. vide Title failer of Record. Yel. 36.

Outlawry in the Kings Bench reversed by Error in the same Court; but that is for Error in Fact, not in Law, as if no Outlawry lay in the Case; and if Process of Outlawry lie in an Action upon the Case for turning a Water-Course, vide P. 10. H. 7. pl. 15. Dy. 195. b. 196.

Original in Debt, called the Defend­ant Nuper de Lond. Exig. called him de Lond. is erroneous; for it must pursue the Origi­nal without Variance, and the Original was against Lancelot, the Exigent was against Lan­celot ill. 3 Cro. 49. vid. 50, 95. 104. 116. 172.

Error of a Judgment in Debt, and Out­law'd. 2. on it against. 2. where the Sheriff return'd quod non habent bona out catalla; quod [Page 162] summon' potuer. it should have been per quod, &c. 2. it should be nec eorum aliquis het' 3. the Original is against Lancelot A. and the Exigent is against Lancelot A. 4. 'tis said in Hastings, and it should be in Hustingis de Com. plac. & revocetur Lancelot vers' Jones. 3. Cro. 50.

An Outlawry was reversed, because it was against Lewellin with a single l, and now the mean Process against Llewellin, with a double Ll, and it was against two, and re­turned quod non sunt inventi, and not nec eo­rum aliquis. Llewellin against Watkins vide M. 2. R. 3, 4, 13. pl. 16. 3 Cro. 85. 104. 49. 50. 116. 198. 240. 248. 205. M. 21. H. 7. pl. 37.

Exigent names no place where the She­riff is to have the Body; and that adjudged Error to reverse the Outlawry: For the She­riff cannot tell in what County to carry him. Cesar against Stone. 3 Cro. 104.

Outlawry reversed, because the Party was Indicted in Com. Somerset, and supposed to be of London; and the Capias awarded to the Sheriff of Somerset, where it ought to go to the County where he lives. Rorset's Case. 3 Cro. 179. vid. Dy. 295. b. vid. M. 1 E. 4. pl. 2.

One Outlawed of Felony, assigned his Term, and then reversed the Outlawry, the Gran­tee shall maintain Trespass for the Profits ta­ken [Page 163] in the mean time, between the Assign­ment and the Reversal of the Outlawry: For though it was then the King's, yet it is now as if no Outlawry had been at all. Ognell's Case. 3 Cro. 270. vide 218. Accord.

Outlawry is not reversed but by plead­ing without Writ of Error, per tot. Cur. though there be apparent Faults in it. 3 Cro. 274. vide Co. 1. Inst. 259. b.

One is Outlawed, and has his Term sold, and then reversed the Outlawry, he shall be restored to the Term it self, not the Money: Otherwise, if sold on a Fieri Facias, &c. quod vide plus Title Exec. Eyre against Woodfare. 3 Cro. 778. Co. 5. Rep. 90. b. 1. Acc. pl. 285.

In Debt, against an Executor, the Defen­dant pleads, that the Testator was Outlaw­ed, and doubted if a good Plea, because the Testator may have some Goods not forfeited by Outlawry, as simple Contract, &c. but on the other side, such special Ass. shall not be intended to Com. next he has nothing. Wooley against Brade. 3 Cro. 575. 851.

Outlawry reversed, because the Writ was Teste Edmund Anderson; so wanting a Title, had no Teste, which is the Warrant of it, Growdy and Juham. 3 Cro. 592.

Judgment against two in Debt, C. and B, and Capias only against one; and he Out­lawed; whereupon was brought Error, and reversed it, because the Capins should have [Page 164] gone against both. Also 'twas not per Judi [...]' Coron' Beverly against Beverly. 3 Cro. 648.

Debt against the Sheriff, on an Escape, where the Case was, that the Party was Out­lawed after Judgment, reversed it by Error within the Year; and because he assigned not any Error, the Plaintiff took out a Ca­pias utlegatum, and the Sheriff took him, and let him go, and resolved for the Plaintiff; and in Co. 1. Report of this Case the differ­ence is taken of an Outlawry after Judgment, where the Plaintiff hath not over-stayed his Time, viz. the Year; but many have Habeas Corpus, or Fieri Facias, without Scire Fa­cias: If the Prisoner be taken by Capias ut­legatum, he shall be in Execution for the Par­ty, without the Prayer of the Party, or Ac­cord of the Court, if he will; but if it be af­ter the Year, not without Prayer; 'tis the Course upon Outlawry after Judgment, if Error be brought to award a Capias utlega­tum, if he does not assign Error; but if it be before Judgment, and the Defendant brought in, the Plaintiff must declare against him de Novo; and if one Outlawed after Judgment, bring Error, and comes to assign Error, he shall be committed to the Marshal­sey, and find Security to reverse the Outlaw­ry, and answer the party. Lishton against Garpores. 3 Cro. 706, 707, 850. Co. 5. rep. 88. 89. vid. 1 Leon. 51. 263. stat. 1 H. 7. pl. 6. Mo [...] pl. 772. 817.

One recovers in Quare impedit against the Kings Presentee, and is Outlawed, the King shall have a Scire Facias, to have the Pre­sentment; for the Church was immediately revested in him before any Writ to the Bi­shop; and though the King be not Party to the Judgment, he shall maintain the Scire Fa­cias being Intitled by Act in Law, but the Scire Facias must mention the whole Record of the Outlawry: And so in Debt on a Bond and Judgment to recover, the King shall have a Scire Facias. Beverley against Cornwall. 1 Leo. 63, 64.

In Debt on a Bond, the Defendant pleads, that the Plaintiff was Outlawed by the name of J. S. of D. the Plaintiff replied, that at that time he dwelt at S. absque hoc, that he dwelt at D. he avoids the Plea of Outlaw­ry; for he shall be intended another Per­son. 1 Leo. 87.

Upon an Exigent to Lond. it was return'd that he had proclaimed the party de Com' in Com' and for that the Outlawry on Felony was reversed: For it should have been de Hustin­go in Hustingum. Marshes Case. 1 Leo. 326.

Outlawry of Murder, the King seizes Lands; and because the Outlawry was ill for the quinto Exact', and was ad comitat' omitting meum: Wherefore to affirm the King's Title, the Attorney General prayed a Certiorari to the Coroner, to certifie what [Page 166] County (and on such a President shewed) granted. Fumes Case. Latch. 210.

Where one is Outlawed before the Justi­ces of Assize or Justices of Peace, on an In­dictment of Felony, the same Justice may award a Capias utlegatum: For they that have Process of Outlawry, have power also to a­ward a Capias utlegat' per omnes Justic' Co. 1 [...]. rep. 103.

Appeal of the Death of her Husband, and because some of the Defendants lived in ano­ther County, a Capias with a Proclamation issued to that County. The King dies, and Re­attachment sued: If it be General, then a new Capias and Proclamation must go into the Foreign County, if Special, not; for the Sta­tute has been once satisfied. Vid. Co. 7. rep. 30. a. b. 1 E. 5. 43. a.

In Appeal of Robbery, the Defendant was Outlawed, and Sued a Pardon, and Scire Facias thereupon. Dicitur, he ought to shew a Release of the Appeal before the Sci­re Facias be granted; then the Pardon to he Special, not General; but the Appellor, not appearing at the day of the Scire Facias returned, the Pardon was allowed; but at another day came the Appellor, and prayed Execution; but his Default being Recorded, could not have it. Note sometimes, the Pardon is General, sometimes▪ Ita quod stet rectus, &c. M. 2. R. 3. fol. 8. pl. 17. M. 9 H. 7. pl. 1.

One Outlawed of Felony, ductus ad Bar­ram, to say why Execution, &c. pleaded that he was in Oxford Castle all the time; and because he did not say in what County Oxford is, nor did not say he was in any Bo­dies Custody there, the Plea adjudged ill. H. 11. H. 7. fo. 13. pl. 27.

Baron and Feme Outlawed in Debt; he brought Error; and after a special Pardon, Ita quod stet rectus a Scire Facias, and prays it may be allowed; but the Court would not till his Wife came in also, that the Plain­tiff may declare against both; and then it seems he may declare against them in the Kings Bench, within the Equity of the Sta­tute of 5 Ed. 3. tho' it say rendre al Court donec le Exigent fiat sher', it went out of the Co. B. but now 'tis in the Kings Bench by Writ of Error. P. 1 H. 7. pl. 7. H. 1. H. 7. pl. 19.

One taken by Cap' utleg', an Appellee of Felony came in, and pleaded, that it was against J. S. Gentleman, and he is but a Yeo­man, and the plea allowed and a Scire Faci­as against the Appellor, who not coming in he was discharged; so 21 H. 7. pl. 16. Out­lawry against J. S. de D. he pleaded that he lived at S. good without Error. Vide 21 H. 6. 20 and 23 H. 6. 4. a. Outlawry when re­versed by plea, when by Writ of Error, 37 H. 6. 16. vide M. 21. E. 4. pl. 61. 21 E. 4. [Page 168] 37. H. 5. H. 7. pl. 7. M. 6 H. 7. pl. 2. M. 21 H. 7. pl. 27. Co. Ent. 689. 4 E. 4. pl. 15.

A. takes the Goods of B. who was Out­lawed, if the King may seize the Goods of B. vide M 6 H. 7. pl. 4. vers. finem and pl. 5. One that reversed an Outlawry, had a Writ de bonis restituend' to the Bayliff of Westmin­ster, who returned, that he was not Bayliff, not good; he must answer to the having the Goods, and must deliver them, tho' gone out of his Possession, or shew Cause, M. 6 H. 7. pl. 5. b. H. 4. E. 4. pl. 3.

An Outlawry was reversed, because the Sheriff said, ad Comitat' tent' such a day, in Comitat' Midd', and said not Comitat' meum, seems Error of Outlawry, because the Exi­gent was in R. 3. Time, and two Proclama­tions then, and the other three in H. 7. So the Exigent abated; but being in Felony, he must have Scire Facias against all the Lands, tho' dicitur he had no Lands: For that must appear Judicially, and upon Scire Facias, though the Outlawry were reversed for the Default of the Exigent, he must answer for the Felony; otherwise if at Suit of the par­ty he were discharged against him, H. 6. H. 7. pl. 7. M. 11. H. 7. pl. 33. M. 7. H. 7. pl. 7.

Writ of Error delivered before the Exi­gent awarded, and the Plaintiff Outlawed; yet it is not void, but voidable by Error, and Issue shall be joyned to try Delivery [Page 169] before the Exigent, but not by Jury, P. 10. H. 7. pl. 25, 31.

One may avoid an Outlawry, as well by saying he was beyond Sea, by the King's Command, as that he was a Souldier at Calais under such a Captain, and shall not shew the Patent; if the party appear upon Scire Facias, it shall be tryed in one Case by the Natives, in the other, by the Certificate of the Captain, M. 11. H. 7. pl. 17. P. 21 E. 4. pl. 4.

The Sheriff returns the Exigent thus, Ad Comitat' tent' apud C. in Comitat' Somerset. 5. Exactus non comperuit, because 'tis not said ad Comitat' Somerset, nor Somerset, set in the Margin: 'Tis held to be ill, because it might be the County Court was not held in the County of Somerset, but in another County, sed adjornatur, M. 11. H. 7. pl. 33. H. 6. H. 7. pl. 7.

One taken upon a Capias utlegat' by the Name of J. S. Gentleman, says, he is a Yeo­man, and was &c. Scire Facias against the Plaintiff, and issue, that he is and was a Gen­tleman, and the party was bailed; the King dies before the Issue tried; the party comes in Court, temps the next King, and is com­mitted; for the Bail was determined, and the Cap' utlegat' also, and a new utlegat' awarded and returned; and then he plead­ed the same plea again, and issue, for before [Page 170] he could not, all being determined, M: 1. E. 4. pl. 7.

Original against W. B. Cap' against J. B. and Outlawry shall be reversed by Moyle. Danby contra. Et sic per Moyle, if all the three Cap' had been against J. B. for then no Cap' had been against W. B. quod Danby denied, M. 15. E. 4. pl. 17.

Trespass and Judgment for the Party, and Fine for the King, and Exigent at the Suit of the King; and after two or three Courtiers of the King send a Supersed' under the Privy Seal, they proceed to Outlawry, but shall not prevail: for though the King have this Fine, by reason of the parties Suit; and if the party be taken, he shall be Imprisoned, and not discharged at the Parties Suit, if he will; yet, till he be taken, 'tis only the King's Suit, and the Parties have no Interest in it; and if the Defendant be Outlawed after the Supersedeas, 'tis Error, and shall be reversed. P. 4. E. 4. pl. 24, 36. Tr. 4. E. 4. pl. 4. M. 4. E. 4. pl. 14. H. 4. E. 4. pl. 3. vid. Co. 5. rep. 88, 89.

The Sheriff returns the Copy of the Exi­gent, and not the Writ it self, with Procla­mation, &c. he shall be Amerced for the Im­bezlement of the Writ; and if the Party ren­der himself to the Chief Justice in Vacation time, and get a Supersedeas, whether he shew­ed it to the Sheriff or not, it shall be enter­ed [Page 171] in the Term, and the utlegat' discharg'd, 1 Inst. 128. and idem ibid. 43. b. If Error be brought of an Outlawry, and it appear doubtful, a Special Supersedeas shall go to the Sheriff, quod capiat securitatem que les bi­ens ne serront illoine, vide 9 H. 6, 44. a. b. utlegat' after Supersedeas void, and 7 H. 4. 1. a. if void, and the party shall be restored to his Goods, 7 H. 4, 5, b. Supersedeas and Exigent; rules at the day, and a new Exigent and a Supersedeas, the Outlawry after void, H. 4. E. 4. pl. 3. Tr. 5. E. 4. pl. 13. le Amer­ciamt' 37 H. 6, 17. vide 3 H. 4, 5. a. 8 H. 4. Cas. Prin. 8 H. 4, 7. a. 11 H. 4, 34. a.

Audita Quarela, by one in Execution, and he offered in Mainprize the other, ut amicus Curiae, surmised, that the Plaintiff is Out­lawed; wherefore he ought to stay in Pri­son for the King's Fine; wherefore he was put to reverse the Outlawry, or sue a Par­don, H. 6. E. 4. pl. 1.

The Plaintiff had sued three several Exe­cutions against the Defendant, and brought Supersedeas for every one; but there was granted a [...] Exigent with Precept, that if a­ny Supersedeas come to the Sheriff, he should not allow it, P. 7. E. 4. pl. 20.

Error of an Outlawry in Debt, after Judg­ment, because no Proclamation went into the County where the party inhabited; but being after Judgment, resolved, it need not, [Page 172] but only in Outlawry and Process before App' but because in all the Proceedings she was named, A de B. and in the Exigent she is named nuper de B. and because it was recu­peravit versus eum for eam, it was reversed, Lady Gargrave against Markham, 2 Cro. 516.

Exigent in London, and 'tis returned quod ad Husting', &c. and recites a Form which was ad Husting' de Com' plit', and that assigned for Error. 2. The Exigent is, that he non comperuit, and 'tis returned the same day it bears Teste; and that was held Er­ror, Archer against Dalby, 2 Cro. 660.

Outlawry reversed, because the Exigent supposes, that Robert the Plaintiff did sue the said Robert, whereas the Plaintiff's name was Thomas; and Defendant being ready in Court, it was reversed immediately, Jonson against Kite.

One enters a Judgment, and then is Out­lawed in a personal Action, then makes a Feoffment of the Lands; and he that has the Judgment, extends the Lands in the Hands of the Feoffee, and well: For by this Outlawry, the King has but a pernancy of the Profits, of which he is prevented by the Feoffment before Seisure, not if after Seisure; and if by Feoffment, after Inquisition found, before it be returned & ibidem Opinio, if the Seisure be Virtute Officii, Tenant after [Page 173] puts the King out, not if seized Virtute, Windsor against Savel.

Outlawry against two reversed, because it's entred ideo Ʋtlegat' sunt, and not uter­que eorum Ʋtlegat' P. 15 Caroli Secundi B. R.

One Outlawed after Judgment, comes and pleads Misnomer, and has Fieri Facias against the party, and he returned Mort [...] Another Scire Facias is awarded after, against the Executors, and Tryal of Misnomer in this Case shall not be by Averment taken for the King; but the Executors shall be made parties, because it Trenches to the whole Duty; but upon mort' ret', no Scire Facias goes against the Executors; but the Misno­mer is tried between the King and the De­fendant, 21 H. 6, 21. a. 22 H. 6, 7. a.

In detinue of Charters, and other Wri­tings: As to the other Writings, the King waged Law; and then as to the Charters, he pleaded in Bar, by Att' nolens volens the pl. For of them concerning the Freehold, no Process of Outlawry lies, but Distress infinite, and 8 H. 6. 23, 30. Ʋtlegat' lies not in Detinue for Charters and other Goods; for the Charters, draw the other Goods to them, 21 H. 6. 42. a. 30 H. 4. b.

Upon a Cap' utlegat' before Judgment, the Sheriff may break open an House; but the Plaintiff sending a Process in another Man's Name, feigned an Outlawry where his Writ [Page 174] was but a Latitat, 'tis an abuse of Process, and he Fined 50 l. Hob. 263. Waterhouse against Saltmarsh.

If one that is Outlawed for Treason, Peer or Peasant, be out of the Realm, at the time of the Outlawry, yet he cannot for that a­void it by Error, since the Stat. 26 H. 8. and 5 E. 6. as he might at Common Law, 3. Inst. 32.

By 26 H. 8. 13. Outlawry in Treason a­gainst persons beyond Sea, shall be as good, as if they had been in England at the time of the Outlawry, by 5 E. 6. 11. if within a Year after, the Outlawry pronounced, the party come in to the Chief Justice, and tra­verse the Indictment, and be found not guil­ty, he shall be discharged of the Out­lawry.

By the Award of the Exigent in Case of Felony, the Goods are forfeited; but that may be avoided by matter in Law, as if the Indictment, &c. be sufficient; or by Matter indeed, or Record he may excuse his Ab­sence, as that he was beyond Sea, &c. 3 Inst. 232, 233.

If one taken by Cap' utleg' plead a plea triable per pais, for avoiding the Outlawry, as that he was commorant in another Coun­ty, he shall be Bail'd, 4 Inst. 179.

No Goods are forfeited by the Judgment of the Court, till the Outlawry appear of [Page 175] Record, nor is the party disabled by Out­lawry, till the Exigent be returned also; not does any Writ of Error lie of it then 1 Inst. 288. a. 4 Inst. 266. Dy. 223. a. b.

When Outlawry is pleaded in Debt upon a Bond, it goes upon a Bond, because there­upon the King is to have the Obligation; but in Trespass, Contract, &c. not; because after the Outlawry pardoned, the party may have those Actions; and when Outlawry is pleaded in Bar, and failer of Record at the day, the Judgment is absolute; but in the 1. of Cro. in Dawson's and Lee's Case per Barkley, the Party might pray only, that he should answer over; and 2 Cro. Iron against Gray, if it be reversed before the day, &c. a respond' Ouster; and 1 Inst. when 'tis plea­ded in Bar, day is given; but when in Dis­ability, it must be shewed presently sub pede sigilli, and such Outlawry to disable the Plain­tiff, must appear of Record; and the Exigent be returned, vide 8 E. 4, 6. b. Ow. 22. Bar­nard's Case. 1 Cro. Dawson against Lee. 2 Cro. Iron against Gray. 1 Inst. 128, 5. 4 Inst. 286. M. 4 H. 7. pl. 3.

Outlawry in Chester and Durhan [...] cannot disable the party at Westminster; Outlawry not pleadable in Attaint, nor in Writ of Error, to reverse the same Outlawry, 1 Inst. 128.

Return upon the Exigent, that he made Proclamation after Divine Service, ill, not [Page 176] shewing, there was no Sermon: For the Stat. appoints it to be done after Sermon, and if none, after Divine Service, Ow. 49.

The Sh. made a Lease to one Outlawed; and that he was Outlawed again; then came the General Pardon, resolved he was capable of a Lease, and by the Pardon, the Term forfeited, by the Second Outlawry revived; for a person Outlawed and par­doned, has property in his Goods, Ow. 116. Knowles against Powel.

All Outlawries are by Judic' Coron' naming them, excepting Lond', else they are void but in Lond', 'tis ideo utlegat' of the principal Judg­ment ipso facto reverses the Judgment of Out­lawry, 1 Inst. 288. b. Pop. 185. 2 Cro. 358, 528, 531, 521. 4 Inst. 247. Dy. 317. a.

Exigent against Baron and Feme; the Wife comes in, and prays a Supersedeas; doubt­ed if she shall have it: For the Process must continue against the Baron and be stayed as to the Feme, till he be Outlawed, and then she shall be discharged, sans jour, and vide divers Proceedings in Outlawry against Baron and Feme, Dy. 271. b. 3 Cro. 611. Hutt. 86. 1 Cro. 42. Smith against Ash. 2 Cro. 445.

Per Statute 5 Edw. 3, 12. None Out­lawed shall be pardoned, till the Party, at whose Suit be warned; yet upon two Nich­ils, or a Scire Facias, he shall be discharg­ed; but then quid remedium parti? Quaere [Page 177] when he is pardoned of an Outlawry before Judgment, with an ita quod stet, because he is to Answer to the Party; but when 'tis after Judgment, 'tis ita quod satisfac' parti, because he is to pay the Condemnation, Dy­er 172.

Trespass by J. S. plea that he was Out­lawed by the name of J. S. de D. he pleads, that he lives, and ever did, at S. it seems good: for it must be intended another per­son by Little': vide M. 41 H. 6. pl. 19. in an Action brought by J. D. plea that he was Bail for one by the name of J. D. Gen­tleman, and Outlawed on it: He replies, that he is a Yeoman, and held no plea: for if he entred the plea by that Name, he is Estipped; but the better Reason seems to be, that no Addition needed in the Recogn'. because the Statute speaks of Original, Tr. 10 E. 4. pl. 10.

An Outlawry in Chester or Durham, is not pleadable at Westminster; for they have but­private Jurisdiction per [...]sett'; but an Outlaw­ry in Lanc' here per les Serjeants Com' lower Jurisdic' sit per Outlar' de Parliam', 12 E. 4. 76. a.

One taken by Cap' utlegat', pleaded that his Name is J. Stokes, not J. Stoke, as na­med; and prays Scire Facias; for the Plain­tiff says, he is known by the one and the other Name, issue of it, and he left to Main­prize, Tri. 14. E. 4. pl. 6.

If there were no Add' in the first Writ, there must be none Exig'; for they must not vary, Tr. 16 E. 4. pl. 15.

Outlawry in an Indictment of Forestalling, reversed, because Parties of Outlawry lie not in that Case, P. 22 E. 4. pl. 13.

One Outlawed of Felony, comes in by sepi Corpus, and pleads Misnomer, and if he shall have it by plea, or be put to Writ of Error, and sue Scire Facias against the Mesn Lord', doubtful by some he shall not avoid it by plea, for the disadv' of the Lords alii he may have Scire Facias on this plea; and if he should bring a Writ of Error, it must be by the same Name in the Record, which will be an Estoppel, M. 22 E. 4. pl. 22.

If a Supersedeas be sued, though not deli­vered to the Sheriff before the 5. Exit', the Outlawry shall be reversed; and so if deli­vered to the Sheriff who certifies the Coro­ner so; and yet because he appears not for him, they Outlaw him; shall be reversed; for the Supersedeas is of Record, 4 E. 4, 42. a. b. Mo. pl. 199.

The King makes a Lease to a person Out­lawed; for the Render' of Rent makes him capable as a Farmer; then he is Outlawed again; then comes a General Pardon; and it seems that restores him by the word Da­mus in it, against the Forfeit on the last Outlawry, and ibidem, the King makes a [Page 199] Lease to Commence from the Forfeiture, End or Determination of a former Term, the 1. Lesse is Outlawry, yet the 2. Term shall not begin, Mo. pl. 378.

One recovers in Quare Impedit, and be­fore Execution is Outlawed, the King shall have a Scire Facias to present; for he can­not present, but is to prosecute the Execu­tion of the Judgment; sed he is not privy to it. Beverleys Case, Mo. pl. 378.

If one forfeit a Presentation fallen by Out­lawry, and the King presents, and he rever­ses the Outlawry, he shall have a Scire Fa­cias and outs the King's Clerk: For by the Reversal he is restored to all that he lost as Principal, not Accessaries; therefore if the Advowson were appendant, and it becomes void, whilst the Mannor is in the King's Hand for Outlawry, and the King presents, he shall not avoid it, tho' he reverse by Error, nor Rent-Copy-holders put in by the King; and if it were an Advowson in Gross, and becomes void, whilst in the King's Hands, and the King presents, it seems he shall avoid it after Reversal, because the Advowson is the Principal thing, and the Pre­sentment, but the usage of it. Beverly a­gainst Cornwall, Mo. pl. 421. 3 Cro. 44.

The Sheriff ret' ad Com' Lanc' tent' ibidem, &c. where it should be ad Com' Lanc' tent' apud Lanc', or other place cert', and for [Page 180] that the Outlawry was reversed, though dict' many Presidents that passed subsilenter', Co. 4. rep. 95. a.

My Lord Co. says, the better Opinion of Books is, and so is his, that Debts by simple Contract, or for which one may wave Law, are forfeited by Outlawry, and with him his Heirs, agree the Judges Pop. And. and others, 1 Inst. 128. b. he says Debts, &c. which are cetain are forfeited, not Damage, &c. un­cert'; but so 10, 22. tis said, in Debt, on a Contract, Outlawry in Plaintiff, Abatement, because the Defendant not forfeited; but on a Bond 'tis pleaded in Bar, because the Defendant forfeited, Co. 4. rep. 93. a. 95. a.

My Lord Cook says, that at Common Law, if the Party was Outlawed, he was at an end of his Suit, and put to his New Origi­nal; yet he granted no Capias lay in Debt at Common Law; so it seems Outlawry lay where no Cap' lay at Common Law. Gar­ner's Case, Co. 5. rep. 58. a.

One Outlawed in Debt, after Judgment dies after the General Pardon, wherein 'tis provided none take Advant' of the Party that is Outlawed after Judgment, without satisfying the Plaintiff, and having the Par­don allowed in Scire Facias, yet resolved. First, here the Outlawry was pardoned, quoad the King, and may make Execu­tors, and take Advantage of the Pardon. [Page 181] Secondly, Here being no Capias ad satis­fac', which he against the Executors, nor no Scire Facias; therefore the Executors satisfying the Party, may plead it without Scire facias. Sir Edward Fetton's Case, Co. 6. rep. 79, 80.

Outlawry reversed, because the Exigent required the Sheriff to Arrest ita quod ha­beat Corpus, in Cro. Trin. and St. is of no signification: Dr. Drurie's Case, Co. 8. rep. 141. a.

One Arrested that had Priviledge, sues a Supersedeas, and after is Outlawed; there is a Nullity in all Proceedings, and the Outlawry declared void, without suing any Writ of Error, Co. 8. rep. 143. b.

Outlawry by Asst' being avoided by Plea, 'tis held by Cro. that its no Deter­mination of the Original; but he might have proceeded in the Original, suing a­nother; but the first Original should have excused within the Statute of Limitations. Sir Thomas Finch against Lamb. Citer. Just. sembl. con. 1 Cro. 214, 215.

Exigent against three Men, and two Wo­men, ret' non comperuer', ideo per Judic' Com' utlegat' existant, ill; and reversed, be­cause not said, nec eorum aliquis comperuit.

2. The Women ought to have been waviati. Middleton's Case, 2 Cro. 358.

It seems one cannot assign for Error, that he was beyond Sea at the time of the Outlawry pronounced; but time of the Exi­gent: For if after Exigent one fly, he can­not assign for Error, that he was beyond Sea; and if he do, the Attorney General may reply, that he departed after the Exi­git. Carter's Case, 2 Cro. 464.

Partition.

IF two have one Mannor in Common before Partition, the one is said to have dimidium Manerii; but after Partition, he is said to have medietatem Manerii: And so after Partition, if one of them be ousted by Force, the Indictment shall say, me­dietatem, not dimidium Manerii.

Priviledge.

ONe of the Clerks of the Chancery lost his Priviledge, by suing out a Super­sedeas in the Common Pleas: For by that Writ, he submitted to the Court there; and then his Priviledge shall not be allowed there.

Pars [...]n.

IF a Parson that hath a Benefice, be made Bishop of the same Diocese, and he acccepts of the Bishoprick, the Parsonage thereby becomes void; for that he cannot Visit himself: So that a Man cannot have [Page 184] two Benefices with Cure of Souls, Simul & Semel; but the first is void by Acceptation of the Second.

Tith. The Tith of those things which pro­ceed from the Earth, as Hay, Corn, Apples, and such like, ought to be severed upon the Ground (or place where they grow;) but not so of Sheep, Pigs, &c. because they are of another Nature: And if a Man have Sheep in two Parishes, the Parsons of both Parishes shall have Tith of them. Willows, Horn-bane and Sallows are Titheable; but Timber-Trees, as Oak, Ash, Elme, &c. are not, nor the Loppings of them, contra, if they be fell'd or lopp'd before the Growth of Twenty Years, per totam Curiam, Hill. 8. Jacobi in Communi Banco.

Plea. If a Parson makes a Parol Agree­ment of his Tithes for his Life, and after­wards grants the same to another, who sues for the Tithes, Concord is no Plea in this Case; but by Warberton Justice, a Parson may grant his Glebe Corn before it be Sow­ed, and good for a Year. Trin. 10. Jacobi in C. B.

If a Parson gives 10 l. to the Patron, to present him to the next Avoidance, (the Church being full) it is Simony: So if the other give it to such intent. Mich. 14 Jacobi in Communi Banco: But if the Parson who is in by Simony dies, if the King shall present. [Page 185] quaere, et vide ibid' in Quare impedit inter Winscomb, et Episcopum Winton', et alios.

Of Pleas and Pleading.

A Bond was made and delivered as the Act and Deed of A. to B. for the use of C. which Bond B. offered to C. but C. re­fused to accept the same from B. yet B. left the same with C. to take, and the Bond being sued, A. pleads the whole Matter, and so not his Deed: And upon a Demurrer, Judgment and Quaer'.

If the Condition of an Obligation be to pay 20 l. 7. Maii, and the Obligor pleads solvit ad diem, although he paid the said 20 l. to the Obligee, the 8th. of April before, it's a good Plea to say he paid it the 7th. of May: For if it be paid before, it's paid at the day in the Condition mentioned; and the Intent and Substance of the Condition, is observed and discharged.

Three are bound in one Bond, and every of them joyntly in the whole; the Obligee afterwards gets Judgment against one of them, and brings his Action against the o­ther: This Recovery is no Barr; for it is no Satisfaction of the Debt; but an Execution is a good plea in this Matter.

Obligation dated 8th. of December (78.) and doth not say the Year of our Lord God, [Page 186] nor the Year of the King's Reign, the Date is void, and the Obligation good without Date: and the Plaintiff may count how the Bond was delivered to him any day when he pleases.

Reg. 1. Acts and Statutes in pleading need not be recited wholly, only the parti­cular Branch that concerns the Matter in Hand, because every Branch is an Act of it self. Secus of a Record, for that is ground­ed upon an Original, and Judgment; and ought therefore to be entirely recited, when pleaded in Bar.

If Tenant in Tail of a Manor, whereunto a Villain is Reguardant, discontinue and die, and the Right of the Intail descend to the Villain himself, who brings Formedon, and the Discontinuee pleadeth Villanage. This is no Plea, because the Devesting of the Manor, which is the Intention of the Suit, doth include this plea, because it de­termineth the Villanage.

Reg. 2. Pleadings must be certain, that the Adverse Party may know whereunto to an­swer; or else he were at a Mischief; which Mischief is remedied by Demurrer.

If tenant in Ancient Demeasne be disseized by the Lord, whereby the Seigniory is suspen­ded, and the Disseizee bringeth his Assize in the Court of the Lord. Frank Fee is no plea, because the Suit is brought to undo [Page 187] the Disseison, and so to revive the Seigniory in Ancient Demesne.

If a Man be Attainted and Executed, and the Heir bring a Writ of Error upon the At­tainder, and the Corruption of Blood by the same Attainder be pleaded, to interupt the conveying in of the same Writ. This is n [...] plea; for then he were without Remedy, ever to reverse the Attainder.

If Tenant in Tayl discontinue for Life, rendring a Rent, and the Issue brings a For­medon, and the Warranty of his Ancestor with Assets be pleaded against him, and the Assetts is laid to be no other, but his Re­version with the Rent. This is no plea, be­cause the Formedon, which is brought to undo the Discontinuance, doth inclusively undo this new Reversion in Fee, with the Rent thereunto annexed.

If a Man be attainted of two several At­tainders, and there is Error in them both, there is no reason but that there should be a Remedy open for the Heir to reverse those Attainders, being Erroneous, as well if there were twenty as one.

And therefore, if in a Writ of Error brought by the Heir of one of them; the Attainder should be a plea peremptorily: And so again, if in a Writ of Error brought of the other, the former should be a plea, these were to exclude him utterly of his [Page 188] Right; and therefore it should be a good Replication to say, That he hath a Writ of Error depending of that also: And so the Court shall proceed, but no Judgment shall be given until both Pleas be dismissed; and if either Plea be found without Error, there shall be no Reversal, either of the one or the other; and if he discontinue either Writ, then shall it be no longer a plea: And so of several Outlawries in a Personal Action.

If Tenant in Tayl of two Acres, make two several Discontinuances to several persons for Life, rendring Rent, and bringeth a Formedon of both; and in the Formedon, brought of W. Acre, the Reversion and Rent reserved upon B. Acre; and so contrary, it seems to be a good Replication, that he hath a Formedon also upon that depending, where­unto the Tenant hath pleaded the Descent of the Reversion of W. Acre; and so neither shall be a Barr: And yet there is no doubt, but if in a Formedon, the Warranty of Te­nant in Tayl with Assetts be pleaded, it is no Replication for the Issue to say, that a Precipe dependeth by J. S. to evict the As­setts.

An Attorney may plead not informed to an Action, if his Client doth not give him or­der to plead otherwise: For this will save the Attorney Damages in a Writ of Deceit, if it should be brought against him.

In an Action of the Case, if the Defendant plead to issue upon one part, and Demurrer to the other part, the Demurrer ought to be argued first, because the Jury at the Tryal, may give Intire Damages for the whole.

Scire Facias against Manucaptor', they plead, that after Judgment against the Prin­cipal, (viz. 6th. die & anno) the Principal brought a Writ of Error, whereby the Re­cord was removed into the Exchequer, and that pendente br' de Errore, the Principal rendred himself to the Marshal, and there died; and this he is ready to prove, &c. This Plea is nought, because the Renditi­on ought to be tried by the Record. Second­ly, The plea is double, and imports two Is­sues, the one the Rendring, and the other the Death. 3. The bringing the Writ of Er­ror, is a Supersedeas to the Execution (and the Execution being suspended, during the Error, undetermined, and depending the Bail) was not sufficient Authority to bring them in: So that his Rendition is in vain, and nothing worth, and the Death is only answerable; which if true, is a Discharge of the Bail.

Reg. 3. In all Imperfections of Pleading, whether it be in Ambiguity of Words, and double Intendments, or want of Certainty and Averments, the plea shall be strictly and strongly taken against him that pleads it.

For Ambiguity of Words, If in a Writ of Entry upon Disseisin, the Tenant pleads Joynt-Tenancy with J. S. of the Guift and Feoffment of J. D. Judgment, del brief, the Demandant says, That long before J. D. any thing had, the Defendant himself was seized in Fee Quousque predict' id super posses­sionem ejus intravit, and made a joynt Feoff­ment; whereupon he the Demandant re-en­ter'd, and was seized, until by the Defen­dant alone he was disseized. This is no Plea, because the word intravit may be un­derstood, either of a Lawful Entry, or of a tortious, and the hardest against him shall be taken, which is, that it was a lawful En­try; therefore he should have alleadged pre­cisely, that J. D. disseisivit.

Reg. 4. So upon Ambiguities that grow by References; if an Action of Debt be brought against J. F. and J. B. Sheriffs of London, up­on an Escape, and the Plaintiff doth declare upon an Execution, by Force of a Recove­ry, in the Prison of Ludgate, sub Custodia J. S. and J. D. then Sheriffs in 1 H. 8. and that he so continued sub Custodia J. B. and J. G. in 2 H. 8. and so continued in Custodia J. F. and J. P. in 3 H. 8. and then was suffered to escape: J. F. and J. P. plead, that before the Escape at such a day, Anno superius, in narratione specificat', the said J. S. and J. D. adtunc Vicecomites, suffered him to [Page 191] This is noo good Plea, because there be three Years specified in the Declaration; and it shall be hardest taken, that it was 2, or 3 H. 8. when they were out of Office; and yet it is nearly induced by the adtunc Viceco­mites, which should leave the Intendment to be of that Year, in which the Declarati­on supposeth them to be Sheriffs; but that sufficeth not, but the Year must be alleadg­ed in Fait: For it may be mislaid by the Plaintiff: And therefore the Defendants Meaning to discharge themselves by a for­mer Escape, which was not in their time, must alleadge it precisely, Dyer fo. 66.

Reg. 5. For uncertainty of Intendment, if a Warranty Collateral be pleaded in Bar, and the Plaintiff by Replication to avoid the Warranty, saith, he entred upon the Possession of the Defendant, non Constat whe­ther this Entry was in the Life time of the Ancestor, or after the Warranty descended; and therefore it shall be taken in the strictest Sence, that it was after the Warranty descen­ded, if it be not otherwise averred, 3 H. 7. 2, 3 Plo. 46. a.

For Improperty of Words, If a man plead, that his Ancestor died, by Protestation ser­zed, and that J. S. abated, &c. this is no Plea; for there cannot be an Abatement, un­less there be a Dying seized, alleadged in Fait; and an Abatement shall not be impro­perly [Page 192] taken for Disseisin in pleading: For Words make Pleas, 38 H. 6. a. b. 39 H. 6. 5, 6.

Reg. 6. For Repugnancy in pleading, if a Man in Avowry, declare, that he was seized in his Demesne, as of Fee of 10 Acres; and being so seized, did demise the said 10 Acres to J. S. habend' the Moiety for twenty one years, from the Date of the Deed, the other Moie­ty from the Surrender, Expiration, or other Determination of the Estate of J. D. qui te­net predict' medietat' ad terminum vitae suae Reddend 40 s. Rent. This Declaration is insufficient, because that the Seisin that he hath alledged in himself, in his Demesme, as of Fee in the whole, and the Estate for Life of the Moyety is repugnant; and it shall not be Cured by taking the last, which is ex­pressed to controul the former, which is but general and formal; but the plea is naught, and yet the matter in Law had been good, to have Intituled him to distrain for the whole Rent.

Reg. 7. A Bar may be good to a Common In­tent tho' not to every Intent: As if Debt be brought against Five Executors, and Three of them make Default, and two appear, and plead in Bar [...] a Recovery had against them two of 300 l. and nothing in their hands o­ver and above that Summ: If this Barr should be taken strongest against them, it should be intended, that they might have [Page 193] abated the first Suit, because the other three were not named, and so the Recovery not [...]uly had against them; but according to the Rule, the Barr is good: For that by Com­mon Intendment, it will be supposed, that the two did only administer: And so the Action well considered, rather than to ima­gine, that they would have lost the Be­nefit and Advantage of abating the first Writ.

Reg. 8. In pleading, a Man shall not dis­close that which is against himself; and there­fore, if it be matter that is to be set forth on th' other side. Then the plea shall not be taken in the hardest Sence, but in the most Beneficial; and to be left unto the con­trary part to be alledged.

And therefore, if a Man be bound in an Obligation, that if the Wife of the Obligee, does Decease before the Feast of St. John the Baptist, which shall be in the Year of our Lord God 1598, without Issue of her Body by her Husband, lawfully begotten, then living; that then the Bond shall be void: And in Debt brought upon this Ob­ligation, the Defendant pleads, that the Woman died before the said Feast, without Issue of her Body, then living: If this Plea should be taken strongest against the Defen­dant, then should it be taken, that the Feme had Issue at the time of her Death; but this [Page 194] Issue died before the Feast: But this shall not be so understood, because it makes a­gainst the Defendant; and it is to be brought in on the Plaintiff's side, and that without Traverse, Dyer 16, 17.

Non dimisit to an Action of Debt upon a Lease in Writing, was adjudged an ill Plea, and a Repleader awarded thereupon by the Court, Mich. 44, and 45 Eliz. Rot. 158. in Banco Reginae.

If J. S. Covenant to make me an Assu­rance, I paying the Costs and Charges for making thereof, he shall not barr my Acti­on of Covenant, by saying, he was ready to do it, unless he bring the Writings Ingros­sed, and ready to Seal, and I refuse to pay the Charges accordingly.

Debt against an Executor, who pleads three Judgments of an 100 l. a piece; and that he had paid 40 l. in Satisfaction of two of the Judgments; and that he hath not, nor had, &c. praeterquam, &c. the said 40 l. and 20 l. more, which is not sufficient to sa­tisfie the other Judgment, upon which the Plaintiff demurred and adjudged for the De­fendant; for its but in effect, a plene administra­vit specially.

Administrator durante minore etate, if he wasts the Goods of the Infant, he shall be pu­nished as an Executor in his own wrong.

If an Administrator brings an Action of Debt, and averrs in his Declaration, how that Administration was granted to him at London, and the Letters of Administration bear Date in another place and County, the Plaint shall abate.

Upon a Scire Facias against two Executors, the Sheriff returns nulla bona against both, and Devastavit to the Value of the Debt a­gainst one of them; whereupon another Scire Facias issued forth, and Judgment was obtained only against him thereupon by De­fault, and after that a Fieri Facias de bonis propriis against him alone.

If there be two Executors, and the one of them confess the Action, and the other lets it go by Default, or pleads non est factum, or plene administravit, Judgment shall be against both, de bonis Testatoris. Divers Executors are but in the Nature of one Person; For they all represent the Person of their Testa­tor: And if the Action had been brought a­gainst him in his Life, he should have made but one Answer.

If Debt and Damages be recovered against one, and before Execution he dies; upon a Scire Facias against his Executor or Admi­nistrator, you shall recover only de bonis testatoris, and not de bonis propriis, be­cause the Prayer of the Scire Facias is only de bonis Testatoris; and the Court will not [Page 196] exceed the Prayer of your own Writ.

Reg. 9. The Defendant may plead an Out­lawry in disability of the Plaintiff, before Imparlance; but after Imparlance, he cannot plead in disability of the Person; but he may plead it in Barr of the Action, 32 H. 6, 33. 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 [Page 199] 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. 20th. 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 20th. 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 20th. 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, [Page 201] 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 pleaded it at first.

Also, if the Plaintiff plead a Feoffment upon Condition to J. S. and that the Con­dition is broken; and that thereupon he en­tred, the Defendant may say, that he relea­sed to J. S. after the Condition broken; and then he enfeoffed him.

A Man pleads a Feoffment in Barr, in As­size of the Plaintiff; and the Plaintiff saith, that he Let to him for Life, and afterwards he made a Feoffment, by which he entered; the Tenant may well say, that after the Lease, and before the Feoffment, the Plaintiff re­leas'd to him: This is no Departure, because that it is pursuant; and yet it might have been said at first, 1 E. 4.

Quare Impedit against a Bishop, he pleads, that he claims nothing but as Ordinary, and demands Judgment, &c. The Plaintiff re­plies, [Page 202] that such a day he presented to him such a person, whom he refused; to which the Bishop rejoyns, that the Church was void (and shews how) and that there­upon he collated by Laps, Judgment, &c. This is no Departure, 35 H. 6.

In Assize, the Defendant pleads a Lease of the Plaintiff for Years, which is yet in be­ing; the Plaintiff shews the Alienation of the Tenant; the Tenant saith, that the Plain­tiff released to him after the Lease. This is a Departure, by Marten, 3 H. 6. Precipe quod reddat, the Tenant pleads, that J. S. was seized of the same Lands, and that they were devised to him in Fee; by Force whereof he entred, and gives Colour, &c. The Plain­tiff saith, that J. S. was seized, and that he died seized; and that the Lands descended to him, as Son and Heir; and that he entred cum hoc, that he will averr, that the said J. S. was within the Age of 21 Years, at the time of the Devise. The Tenant rejoyns, that the Custom is, that every Infant of the Age of 15 Years may Devise; and that he was of the Age of 15 Years at the time of the De­vise. The Court was of Opinion, that it was a Departure, 37 H. 6.

In Assize, the Tenant pleaded, the Dying seized by Protestation of his Father: The Plaintiff said, that J. S. was seized, and enfeoffed him, and so seized, &c. To which [Page 203] the Tenant replied, that his Father (by Pro­testation) died seized; and that J. S. did a­bate, and enfeoff the Plaintiff; and that the Tenant, as Heir to his Father, entered, and was seized by Fortescue This is no De­parture, because the Tenant hath maintain­ed his Barr, and hath only added new Mat­ter to maintain it, 37 H. 6.

If a Man plead a Gift in Tayl in Barr, and the Demandant reply, ne dona pas; if he shew a Recovery in Value, it is no Depar­ture.

In Assise, the Tenant pleaded hors de son Fee; the Plaintiff shewed that the Tenant held of him issint de son fee, and the Defen­dant shewed a Release of all Right. This is a Departure, because this plea was a Barr, 5 H. 7.

In Formedon, the Tenant pleaded, ne dona pas; the Demandant shewed a Recovery in Value issint dona; The Tenant shall not plead a new Barr, because that that would be a Departure; quod nota, 21 H. 6.

Reg. 12. In all Pleadings, where you claim as Legatee, you must surmise the Consent of the Executor, as cui quidem dimissioni idem J. S. consentivit. After Verdict the Plaintiff dies, viz. before the day in Bank; in Error brought, this is assigned for Error, and the Plaintiff per Attornatum suum, pleads, that he was alive; 'twas tried, and found that he was dead.

Argued by Mr. Allen, That there was no Tryal proper for the Cause; for that the Is­sue was joyned by a Stranger; and that there ought to be a Scire Facias against the Exe­cutors, or Administrators of the Plaintiff; and that the Writ of Error is discontinued.

But per totam Curiam the Tryal is good, and the Judgment revers'd for that Error in fait, Mich, 14 Car. 2. in B. R. Dove vers' Dinkey.

Quare Impedit.

IN Quare Impedit, to present by Turns to an Advowson in Gross, Three Judges were of Opinion, that the Commence­ment, how it came presentable by turns, must be shewed: But two Judges were of a contrary Opinion, Leek against Coventry, 3 Cro. 111.

A Viccarage, and none presented to it for one hundred and sixty Years: Resolved, that all Viccarages are taken out of the Par­sonage, and are not remitted to them by Non-usage, without some Act. Robinson against Beadle, 3 Cro. 873.

Quare Impedit by the King against A. he pleads, that the King made a Lease for Years, to J. S. and during the Term J. S. present­ed him, &c. And it was moved, that he be­ing Incumbent, could not traverse the King's Title, without making one for himself; but shew that he came in by Usurpation during the Lease; but in the Writ, it was except­ed, that the Patron and Ordinary are not named, but only the Incumbent, which they ought to be in all Cases, but that of [Page 206] Collation; but because the Defendant shews, that he came in during the Term, in which Term the King could have no Right, it was adjudged for the Defendant. Regina versus Middleton: vide Co. 7. rep. 26, 27. 25 H. 6. 62. a. 3 H. 4. 2, 3, 11.

Writ against the Incumbent only adjudged ill, and abated, by 46 E. 3. vide 7 E. 3, 11. 7 H. 4, 26. Writ against the Incumbent on­ly good, 1 Leon. 44, 45, 46. vide 47. E. 3. 10, 11.

Quare Impedtt, and Counts of an Advow­son appendant, that 'tis become void, and he presented J. S. The Defendant pleads, that 'tis in Gross, and Let to him; and that he presented J. S. absque hoc that 'tis appen­dant, the Traverse is good; but where the Count is of an Advowson in gross, &c. and the Defendant pleads, that 'tis appendant, there the Presentment is traversable; not that it appendant: For the Presentment makes it in gross. Seignior Buckhurst against Epm. Winton, 1 Leon. 154.

In a Quare Impedit by Tenant for Life, Exception was taken, because he counted of a Presentment only in himself, and laid not any in his Lessor; but adjudged good: For the Lessor may lay a Presentment on his Lessee; therefore 'tis good for the Lessee. Palmes versus Epm. Peterborough, 1 Leon. 230. Co. 5. rep. 57. b. 3 Cro. 518. vid. M. 7 E. 4. pl. 22. con. 8 H. 5. 4 Accord.

Quare Impedit against the Bishop and J. S. and Judgment; they joyn in a Writ of De­ceit, and avoid the Judgment for Non Sum­mons; and of that a Writ of Error brought and assigned, that they could not joyn, and Adjourned. Guilliams against Blower; sed vi­de 3 Cro. 65. They joyn in a Writ of Error on a Judgment in a Quare Impedit, 1 Leon. 293.

One that had a Benefice was presented to another, and then purchased a Dispensation; it came too late, and so the first was void; and if that be such as that it avoids the last quaere. Ʋnderhill against Savage, 1 Leon. 316.

Queen Mary seized of a Rectory impropri­ate, granted Advocationem Ecclesiae; the Ad­vowson passed not: For being appropriate, it cannot be disappropriate, and the Recto­ry it self could not pass: For by the Appro­priation, the Advowson is gone, and not in esse. Eadem Lex, if it were the Grant of a Common person. Regina against Lord Lum­ley, 2 Leon. 80.

A Common person presents to a Church, before Institution he may revoke it, and present another: But the King may revoke it after Institution, and before Induction, wherewith agrees F. N. B. 34 C. but says, a Common person having presented cannot re­voke at all: And Mr. Bacon in his Reading on the Statute of Simony, in August. 14 Car. 2. [Page 208] held clear, that a Common person may re­voke his Presentation; and so is 14 E. 4, 2. b.

By the Common Law, Filius non potest suc­cedere Patri in Ecclesia; and therefore where the Patron presented the Son of the last In­cumbent, the Bishop refused him; but that holds not in England; but the Patron pre­sented another, whom the Bishop instituted, &c. The first got a Dispensation of the Ca­non, and sued the Bishop in the Delegates, and he prayed a Prohibition, and had it, though both Parties claim by one Patron; I suppose, because the latter Presentment was a Revocation of the first: If the Bishop will not Institute, &c. duplex quaerela lies, Stoke against Sykes, Latch. 191, 192.

A. brings a Quare Impedit against B. pen­ding which B. was instituted and inducted; Then A sues in the Spiritual Court to remove him, prohibition prayed; first, because he sues in duplici foro. Secondly, 'tis after In­duction granted, Oliver and Hussey, Latch 205.

Quare Impedit and Counts of an Avoidance. The Defendant pleads, that the Avoidance was by Resignation; and that he had notice the Church continued void six Months, where­by he presented by Laps, ill; not shewing, that it was void six Months without notice, as it must be, not after the resignation; where­fore he amended it, H. 1 H. 7. fo. 9. pl. 8.

The Defendant in a Quare Impedit rever­sed a Judgment had against him for De­fault of a Letter of Attorney, and prayed a Writ to the Bishop, and could not have it till he made Title, H. 1 H. 7. fo. 13: pl. 28.

Three Mannors descended to three Sisters, to one of which an Advowson is appendant; they make Partition of all, except the Advow­son, and assigned the Mannor, whereto, &c. to one, and another to each of the other, and say nothing of the Advowson; and if it be Appendant, or in Gross alternis vicibus, viz. Appendant when the Sisters Turn comes that has the Mannor, or in Gross pro toto: doubted; but the Opinion seems, that 'tis in Gross pro toto: For the Partition is as a Sale, excepting the Advowson; and if the Advow­son had not been excepted, then clearly it had been in Gross: vide Dyer 205. A Church may be Appendant and in Gross, alternis vicibus, M. 2 H. 7. pl. 16.

In a Quare Impedit against a Bishop, he claims nothing but as ordinary: The Defen­dant pleads, that he presented A. and he refused him: The Plaintiff replies, that such a day before the Presentment, J. S. present­ed one, and then he presented, &c. whereby the Church became litigious. The Plaintiff Demurrs. The plea of the Bishop good. Se­condly, If the Plaintiff thereupon might pray a Writ to the Bishop, quaere; but the Court divided; but it was agreed, that the Bishop [Page 210] might have pleaded this at first; and now has put the Plaintiff upon Title with a Stran­ger, whereas perhaps before he might have prayed a Writ to the Bishop, either himself, or the Metropolitan; but which quaere: It seems a Departure, 34 H. 6, 11, 12. a. P. 5 H. 7. pl. 1.

Quare Impedit against a Bishop, and counts that he presented A. who was admitted, &c. and died, and the Church continued void for Six Months; the Bishop collated B. by lapse, and that A. died, so as it belonged to him, &c. The Defendant pleads, that J. S. presented B. to him, and traverses the Col­lation; and whether the Bishop in Suit a­gainst him, might set up a Title in a Stran­ger, to avoid the Plaintiffs Suit, was the Question? And it seems, he having the Cure of the Church, and to see that the Rightful Patrons do present, may; and hereby the Usurpation of J. S. the now Patron, is out of Possession. Quaere if a Disturber may plead such a plea? Tr. 5 H. 7. pl. 2.

One grants Omnia tenta', if an Advowson passes, 'tis doubted: For it seems it cannot be held, because no place for a Distress; and therefore no Tenure of it can be: vid. Trin. 5 H. 7. 3. & Co. 1 Inst. 6. a. 19. b. 154. a. by what Name, Rents, &c. do pass; and vide P. 6 H. 7. pl. 5. some doubt if an Advowson may pass by Livery and Seisin, semble non, because a thing meerly in Grant; but the [Page 211] son may take Livery by the Ring of a Door, for his Induction, by way of Seisin: vide H. 5 H. 7. fo. 37. a. pur le livery and 12 H. 7. 16. Tr. 26 H. 8. pl. 1.

Usurpation in the time of a Lessee for years of the Mannor, wherein, &c. it seems puts not the Patron out of Possession after the Lease, nor makes not the Advowson continue in force after the Lease ended, P. 10 H. 7. pl. 6. Tr. 11 H. 7. pl. 15.

Quare Impedit declares, that he presented A. to the Church, being void, &c. the De­fendant pleads, that long before he present­ed A. and that he being in Possession, the Plaintiff presents him: it seems not good without a Traverse, that the Church was void when the Plaintif presented him, P. 11 H. 7. pl. 1.

Quare Impedit, and lays a Presentation in J. who was seised, and that his Lands came to the King by the Stat. and the Church voided, and he granted to the Queen, the immediate Presentment, and also the next Avoidance: The Queen presents, and 'tis void again, and was disturbed. It seems, the laying these Presentments, makes the Declaration double; for one of them well makes a Title; but at last they judged not: And it seems, because the Statute is so high, that no Title can be precedent to it; so that what was laid in J. only was Surplussage. [Page 212] H. 13 H. 7. pl. 7. P. 16 H. 6. pl. 11. P. 13 H. 8. pl. 2.

In a Quare Impedit against the Parson, Pa­tron, and Ordinary, they all joyn and plead one plea; and Exception taken by Keeble, that they have several Interests and Rights; and so ought to have severed in the Plain­tiff; and none can plead to the Right of Pa­tronage but the Patron, H. 13 H. 7. pl. 24.

In a Quare Impedit against two, one ap­pears at the Distress, and the other made Default, and a Writ was awarded to the Bi­shop, immediate quoad him, and the Plain­tiff proceeded with the other Defendant to Tryal, P. 14 H. 7. pl. 1.

If the Ordinary refuse a Clerk for disabi­lity, he is to give Notice to the Patron, if he be a Lay-man; but not, if he be a Spiri­tual Man, P. 14 H. 7. pl. 3.

In a Quare Impedit by the King, the Ordi­nary pleads, that such a one presented his Clerk to him, and he came to him as he was taking Horse, and bid him come again in three days, and he never came, and so per­mitted a Lapse: Resolved the Ordinary not bound immediately to examine the Clerk, but may take convenient time to do it in: for it may be at the present time, he is busi­ed in aliis agend'; and though he pleads, that he presented (whereas his Collation) yet it seems well enough, P. 14 H. 7. pl. 4. Tr. 15 H. 7. pl. 2.

That the Clerk has one or two Benefices already, is no cause of Refusal: For 'tis a Priviledge to the Clerk, and the Bishop is not to meddle in it; but Villein is a cause of Refusal, whereof Notice must be given, be the Clerk Lay or Spiritual, Tr. 14 H. 7. pl. 2.

Grantee of the next Avoidance, brought a Quare Impedit against the Patron and Or­dinary, and recovers; but pendente lite, the Parson resigned, and another is admitted. This the Bishop returns on the Writ unto him; Scire Fac' Issue against the new Incum­bent; objected it lies not; for he was to have only the next, not the second Avoid­ance; but resolved that the Church, quoad him, remains always void. Note Co. 6. rep. 52. that the Bishop ought to admit the Clerk on the Writ; and then the Tryal of Right, shall be between him and the Clerk, admitted pendente lite, and no Scire Fac' to be sued; but 2 Cro. 93. is contrary to that; vi­de Dyer 260. Hob. 201, 320. H. 2 H. 7. pl. 7.

He that pleads presentation by a Corpo­ration, needs not to plead it by Deed, be­cause it may be without Deed: For a pre­sentation is but as a Letter Commendato­ry.

In Quare Impedit, 'tis enough to say, his Clerk was Instituted and Admitted without Induction, but in a Writ of right Induction, is [Page 214] necessary, because he must lay the Esplees in taking the Tythes, Tr. 26 H. 8. pl. 7.

Two Joynt-tenants brought a Quare Im­pedit; one will not prosecute, he shall be summoned and severed; but if he come and make another Title, all is gone; for they must joyn in the Title, Trin. 26 H. 8. pl. 22.

Quare Impedit by three Joyn-tenants, and make Title by a Grant to them, and J. S. And J. S. presented, and the Church is void, so it be­longs to their Presentment; so they make Title of the presentment of one Joynt-tenant, quod nota: vide Co. 1 Inst. 186. b. Accord. M. [...]1 E. 4. pl. 28. Mo. pl. 14. P. 27 H. 8. pl. 28.

Quare Impedit, and counts that A. was sei­zed, and presented, and gave in Tayl to the Ancestors of the Plaintiff, who presented, &c. And the Declaration adjudged not double, laying one presentment in the Donor, ano­ther in the Donee, 18 E. 3. 15. a. ad idem, no more than if the Heir counts in a Quare Impedit of a presentment, by the Ancestors, and another by his Guardian. Quaere if one lays a Presentment in the Feoffer, and another in the Feoffee, P. 4 E. 4. pl. 3. M. 7 E. 4. pl. 21. 11 E. 4. 10. b. Co. 5. rep. 98. a. 14 H. 6. 15. b. 1 H. 5. 16. 40. E. 30. 10. b.

Quare Impedit, and counts, that he presen­ted the Defendant, and he deprived, &c. the Defendant pleads, that the Church was [Page 215] full of him by 6 Months before. No plea without traversing the Resignation; but what a Traverse 'tis, see 5 E. 4. 3. b. and 12 H. 4. 11. He needs not say, 'twas full by 6 Months before; for if he had, his presentment be­fore, or pending the Writ, it shall abate, and he shall not have an Action for his Present­ment, where he has had the Fruit of it be­fore P. 4 E. 4. pl. 37.

If two present severally, the Ordinary is not bound to award his Jure Patronatus, with­out Prayer of the party, H. 8 E. 4. pl. 6.

In Annuity, the Defendant pleads, that, he was presented by the King, and prays in Aid of him and the Ordinary: Oyer deman­ded of the presentment. Resp' It belongs to the Ordinary. Danby, There is a difference between the Bishop's Collatee, and the King's Presentee, Trin. 9 E. 4. pl. 14.

Composition, that if the Patron of a sine Cura present not within a Month, the Ordi­nary shall, if the Patron be disturbed, so as the Month past, he shall recover Damages for the two Years: For afterwards he hath lost his presentment, though the Ordinary has not presented; and so 'tis not like a Lapse at six Months at the Common Law, M. 13 E. 4. pl. 5.

One to name the other to present; he that names the Nomination, shall have the Quare Impedit; but if it be to name two, whereof [Page 216] the other is to present one, the Presentor is Patron, because of his Election. Quaere if he that has the Nomination name one, and revoke, can afterwards name another? And it seems he may, H. 14 E. 4. pl. 2. Mo. pl. 147.

Quare Impedit, the Incumbent pleads, that the Church is full, and has been 6 Months before the Writ: Judgment del' brev', if no plea: Nor to the Action by an Incumbent, nor no other; but him against whom a Writ of Right of Advowson lies, H. 16 E. 4. pl. 6. vide 48 E. 3. 19. b. 22 H. 6. 14.

The Plaintiff hath Judgment in Quare Im­pedit, and a Writ to the Bishop; and before the Clerk is admitted, a Stranger brought a Quare Impedit against the Plaintiff, and has a ne Admittas to the Bishop; doubted which Writ he is to obey; and by Littleton and Va­vasor, the first, because it is an Execution of a Judgment. Fairfax contra, the last is a Su­persedeas, P. 18 E. 4. pl. 36.

Quare Impedit, the Plaintiff is Non Suit, af­ter appearance, the Defendant makes Title, and has a Writ to the Bishop, H. 19 E. 4. pl. 12.

One may in some cases maintain a Quare Impedit, without alleading any presentment: As one erects a New Church, and presents to it, and is disturbed; yet the Quare Impe­dit lies per Billing' & per omnes Justic', he that recovers in a Writ of Right of Advowson, [Page 217] shall maintain a Quare Impedit, without al­leadging any presentment; so if enacted by Parliament, that one shall have such an Ad­vowson: For, if a Church lapse, the Ordina­ry shall collate and maintain Quare Impedit, without alleadging presentment, 21 E. 4. 3. a. b. and 17 E. 3. 13. b. 14. b.

Quare Impedit by the King, counts that A. was seized of a Mannor and Advowson Ap­pendant, and Attainted of Treason, and Of­fice found, that the King presented, &c. the Defendant makes Title to himself in Gross, absque hoc, that the King presented, and by some held, that the party may traverse the Kings Title in this Action, not traverse in Chancery, and the Presentment, not the Appendancy traversable, unless where they claim from the same person; but at last, al­most all were of Opinion, that the Traverse of the Kings Title here, and not in Chancery is void; but vide Co. 9. rep. 95. b. 96. a. the presentment is traversable here, M. 20 E. 4. pl. 11, 17. P. 21 E. 4. pl. 15.

Quare Impedit, the Defendant pleads, ne disturba pas: The Plaintiff presently prays a Writ to the Bishop, and has it; and so is the 5 H. 7. 22. a. M. 21 E. 4. pl. 42.

A. B. and C. Joynt-tenants of an Advow­son, they present C. by a strange name to the Church, and he is admitted, &c. by the Bishop, and is held a good presentment; [Page 218] sed vide 10 H. 8. 14 a. Corporation present their Head, and 'tis held a void presentati­on; see Mo. 45. accord' al principal case, and P. 17 H. 8. pl. 28. M. 21 E. 4. pl. 48.

Three Patrons of an Advowson, agree to present by Turns, if one usurps one, the o­ther presents in her Turn; yet it puts her not out of Possession; but if one be in Ward to the King, and he usurps in Right of one of the Parceners, it puts the other out of possession, because he not privy to the Parti­tion; per Choke and Bryan, sed Catesby con­tra, because in Right of the Parcener, P. 22 E. 4. pl. 3.

Void or not Void, is tryable at Common Law; but Full, or not Full, by Certificate of the Bishop; and so is 40 E. 3. 20. b. 11 H. 7. 18. a. M. 22 E. 4. pl. 3.

Quare Impedit against A. as Patron, and B. as Incumbent, the Defendant pleads, that C. presented him not named; no plea: For here the Plaintiff has named one Disturber, and he shall not force him to name another; and vide 9 H. 6. 30, 31. a Disturber must be na­med; but contrary of an Incumbent: For that is at the Plaintiffs pleasure, H. 22 E. 4. pl. 7.

In Quare Impedit, Title was made by Ac­ceptance, of a second Benefice, contrary to the 21 H. 8. and Issue taken of the Jurisdi­ction: And so it seems Admission and Insti­tution [Page 219] makes not the Avoidance till Inducti­on, Mo. pl. 45. Hob. 166.

Owner of an Advowson grants, that when­ever the Church is void, J. S. shall nominate, and he will present; each shall maintain a Quare Impedit; and if he that has the No­mination presents, he that should present, shall have a Quare Impedit, and è contra; and a Rent Charge granted, must be confirmed by both; but Aid shall be prayed only of him that has the Nomination; for 'tis in the Right, Mo. pl. 147. vide H. 14 E. 4. pl. 2. Mo. pl. 1258. vide Mo. pl. 11, 78.

Quare Impedit against Parson, Patron and Ordinary, who make default; the Plaintiff is forced to make Title; and then has a Writ to the Bishop, and another to enquire of the four points, and recover Damages a­gainst them all, because by the Default, all supposed Disturbers, Mo. pl. 214.

Barroness retains Chaplains; her Marriage after is no discharge of their Detainer, unless the Husband actually discharge them; but Attainder either in Man or Woman, is a Dis­charge, Rex vers' Epm' Peterborough, Mo. pl. 924.

Resolved, the Advowson of the Viccaridge is properly appendant to the Rectory, but may be to the Mannor; as if the Mannor and Rectory were both in a Hand before Ap­propriation; and at the Appropriation, the [Page 220] Lord reserved the Advowson of the Viccaridge; but that must be shewed either by the Appro­priation, or usual Continuance, which is an Evidence of it, Sir George Shirley against Ʋn­derhil, Mo. pl. 1258,

Quare Impedit against the Bishop and ano­ther, who demurred Judgment for the Plain­tiff, et Epus' in Mia, and Writ to enquire, 7 E 3. 30. a. Writ to enquire of Damages on Demurrer and Judgment, et Epus' in Mia': And that assigned for Error, because he is twice amercied: Resolved none; for, First, The last is but a Recital of the first. Second­ly, The first however is good at Common Law, and the Plaintiff may take it at Com­mon Law, without Damages if he will; wherefore 'tis affirmed. Specot's Case, Co. 5. rep. 58. b. 59. a.

Quare Impedit, and the Writ was Ad Ec­clesiam, and the Count was, de Advocatione duarum partium; and well: For the Writ must be General; but the Count must be ac­cording to his Title. Windsor's Case, vide Co. Ent. 489. a. 3 Cro. 687, 688. Co. 10. rep. 13. b. 1 Inst. 17. b. 18. a. vide 2 Anderson pl. 16. Writ, quod permittat presentare ad duas partes Ecclesiae, and Counts of the Advowson, that duae partes & bene aliter, if the Count had been de duabus partibus, Co. 5. rep. 102.

A Tenant for Life Remainder to B. pre­sents his Clerk, &c. and after sues him to [Page 221] Deprivation for not reading the Articles. A. dies, and two years after, the King pre­sents by Lapse; and then the Clerk of A. dies, and B. presents. Resolved first, That the Patron is not bound to take notice of the Deprivation, though at his Suit; but 'tis to be given by the Ordinary to the Patron; and not only a General, but publick No­tice. Secondly, Though the Church be so void, for not Reading, as a Parishoner may plead it against the Parson, in Debt for the Tithes; yet the Patron is not to take No­tice before it be given. Thirdly, The King mistakes his Title, his presentation is void. Fourthly, The Institution and Induction, &c. thereon had, are void, and the Church re­mains so void; to that Hob. 203. Dr. Griffith's Case. B. R. 14 Car. 1. Fifthly, If a Com­mon Parson usurp upon the King, and his Clerk be inducted, the King is put to his Qua­re Impedit; but a double or treble Usurpati­on, gives only the possession, not the Right from them. Sixthly, Without presentation, the Patron cannot be put out of Possession: For Collation may put one that has Right to collate, out of possession; but not one that has Right to present: And so 'tis agre­ed after, fo. 50. in Boswell's Case. And note, if the Presentation be in the time of War, though the Admission, Institution and Indu­ction, be in Time of Peace, all is void. Green's Case, 2 Cro 385.

Quare Impedit against the Bishop and Clerk, omitting the Patron. Resolved, it shall a­bate: For the Patron only at Common Law could plead, and must be named in every case, unless where the King presents, who cannot be sued; and unless it be in such a case as the Patrons Right is not concluded, but only the presentment recovered; and if it be brought against the Clerk and Patron, and the Patron does plead to the Writ, it shall not abate, nor shall it if brought by Ba­ron and Feme, or two Parceners, or Joynt­tenants, and the Feme, and one Parcener or Joynt-tenant dies. Hall vers' Epm' Bath, and Martin, Co. 7. rep. 25, 26, 27.

Quare Impedit, the Defendant pleads, that he had been in 6 Months, and traverses the Avoidance; Issue of it: Jury find for the Plaintiff, and enquire of the three points: First, That the Church was full of J. S. a Stranger. Secondly, That 'tis of Eighty pounds value. Thirdly, That the Action was brought within six Months after the A­voidance, and Judgment, quaer', and Writ to the Bishop, to admit his Clerk nomina­ted. The Plaintiff by J. S. pending the Writ, and resolved in Error on it, first at Common Law, if an Usurper presented, and had his Clerk admitted and instituted, the plenarty shall be tried by Certificate, because no In­duction, the Patron had lost his presentati­on [Page 223] pro hac vice; for the Clerk could not be removed, and was put to his Writ of Right for the Advowson; but at Common Law, the King might remove the Incumbent of an U­surper by a Quare Impedit; for nullum tempus occurrit Regi; but could not present: No removing him without Quare Impedit, if in­ducted. Then comes the Statute, and ex­cuses the Infant, and Feme Covert, that they should not be bound by an Usurper; but after the Disability removed, they may have the same Action the last Ancestor might have had. Eadem Lex, if Tenant in Tail, in Dow­er, by Courtesie or for Life suffer an Usur­pation, he in Reversion claiming by Descent has the same remedy: So in case of Usurpa­tion, in time of Vacancy of a Bishop, &c. But the Statute revests not the Right; but gives a possessory Action, to recover the presentation thereof. Where one usurped on an Infant, who at Age Aliened the Mannor, his Alienee could have no Action for the next Avoidance, because the Advowson pas­sed not, nor had himself any Remedy after; but where Tenant for years brought Quare Impedit, and was barred, yet it barred not the Right of him that had the Freehold. Secondly, it makes plenarty no Barr in Qua­re Impedit, or Assise de darrein. Present­ment, if brought within half a year after the Avoidance, though not so soon ended. [Page 224] Thirdly, It gives Damages. Infants, &c. by purchase are not within the first, and the Is­sue of Tayl is within the Equity of the first Branch: because Tayl made the same Parl. which divided the Estate, and takes away his Writ of Right at Common Law, the three points were not enquirable; but now they are ex officio at the Common Law. No Plain­tiff recovers Damage, nor the King now, be­cause not within the Statute, which was made to help them that lost the presentment. Si tempus semestr' transivit, which the King did not; yet the Declaration for the King ever counts for Damages at the Common Law, if the Defendant present pend' the Writ, his Estate was to be removed: So if a Stranger usurp, pend' the Writ; and in all cases, he that came in pending the Writ, if not by good Title, though by presentment from the King; and since the Statute no Incum­bent made before the Writ shall be removed by it, unless named in it, and in the case at Bar resolved the Incumbent that came in pen­dente lite, is to be removed, viz. the Writ is to be to the Bishop, to admit the Plaintiffs Clerk, and he cannot return plenarty; and then the parties shall try it between themselves viz. if he that came in pend' lite, had good title he shall stay, else be removed; but in Cro. rep. of this case, 2, part 33. 'tis held the Bi­shop ought to return plenarty; and there­on [Page 225] Sci' Fa' go against the Incumbent, and therein to shew his Right, Boswell's Case; but 1 Cro. 423. Writ to the Bishop for the Plain­tiff, and to remove the Incumbent inducted. Co. 6. Rep. 49, 50, 51, 52.

If the Plaintiff be Nonsuit, or discontinue 'tis Peremptory, and a Barr in another Quare Impedit; First, because the Defendant on Title, is to have a Writ to the Bishop; but if it be abated for false Latine or Insufficien­cy, found by the Clark's Fault, within six Months he shall have a Note; so if the Plain­tiff or Defendant be misnamed, and the Plain­tiff confess it, for it may be the Clerk's Fault; but if he take on him the Order of Knight­hood, 'tis peremptory. Sir Hugh Portman's Case. Co. 7. rep. 27. b.

Quare impedit ad Medietat' Ecclesiae, good: When there are two Patrons and two Par­sons in one and the same Church, yet it seems he may have it also ad Ecclesiam; but when there is but one Parson, though the Patro­nage be in two several hands, it must be ad Ecclesiam, and in a Writ of Right of Advow­son. When the Church is divided amongst Parceners, the Writ of Right shall be ad Me­dietatem Advocationis; but where two seve­ral Persons are to present two several Par­sons to one Church, each whereof is to have the half, the Writ must be Advocationem Me­dietatis, for the Advowson is entire, but the [Page 226] possession several, which make the Diffe­rence between the Quare impedit, and the Writ of Right of Advowson. Richard Smith's Case, Co. 12. rep. 136. vide Co. 5. rep. 102. 1 Inst. 17. b. 18. a. vide 33 H. 6. 11. 6.

Quare Impedit, The Defendant pleads, that he is Persona Impersonata, good; with­out saying that he was so the day of the Writ purchas'd, for it shall be intended to relate to the Writ; and if he was not so at the time of the Plea, 'tis good, and has made the Writ good. Lady Chichesley against Thompson, 1 Cro. 75.

Assise de Darrein presentment in Wales; The Jury fine the Church 80. l. value, and Tempus semestre modo praeterit, but say not how long since, yet good, and forty pounds Damages given; the Court of Grand-sessions Writ to the Arch-bishop, to admit &c. and Quia Episcopus est pars, doubted if they may; but it seems, now they may, since the Court of Grand S [...]ssions is one of the King's Courts, but when they were in the Marches they could not. Ʋrse against Epm' St. David, &c. 1 Cro. 249.

Quare Impedit, The Defendant pleads, that he was admitted, instituted, and inducted, &c. and the Plaintiff traverseth the Admis­sion and Institution, and for that was forced to reply, and traverse the Induction alledg­ed; for that must be where 'tis alledged, be­cause [Page 227] it alters the Tryal, and makes it be per pais; then it was moved, after Verdict the Bishop was dead, and that the Plaintiff might have his Judgment against the rest, and so he had it. Stevens against Facon, 1 Cro. 276.

Quare Impedit, and counts that A. was seized, and presented D. who died, and he presented the Plaintiff; the Defendant pleads, that long before A. was seized, Qu. Elizabeth was seized, and presented him, and he was admitted and instituted Plaintiff, tra­versed that the Plaintiff was admitted &c. upon the Queen's Presentment and Good, without traversing the Queen's Seisin. Sir John Dryden, &c. against Yates, &c. 1 Cro. 423.

The way to stop Strangers from Present­ment, Pendente brevi, is to sue a Ne Admit­tas, and then the Plaintiff may remove him by a Quare incumbravit; else he is put to his Scir' Fac'; and if the person present Penden­te brevi, he shall barr the Plaintiff in a Scir' Fac' per Popham, and not denyed. 2 Cro. 93.

The King grants the Mannor, the Church Appendant being then void the presentation passes not, except by special Words. Phane's Case, 2 Cro. 198.

One sued in the Deligates to avoid an In­duction, supposing the Institution void, was prohibited; for Induction being a temporal [Page 228] Act, and tryable at Common Law, is not avoided but by Quare Impedit, but this Pro­hibition not to be granted, having Hutton's Quare Impedit, because of his own shewing, it should abate it; but he must make his Surmise in the Deligates, without mention­ing that Quare Impedit. Hob. 15. Hutton's Case.

Prohibition to the Incumbent, that pend­ing the Quare Impedit, felled Timber upon the Gleeb. Hob. 36. Kent against Drury.

Where one brings a Quare Impedit, and his Title arises merely by Usurpation, he must not declare generally, that he was sei­sed in Fee, for that was false, and so he might be tryed by the Defendant's traverse of the Seisin; but he must lay his Case as 'tis, that A. was seised, and the Church voided, and he presented, and now the Church being void, he presents again. Hob. 103. Digby against Fitzherbert.

Quare Impedit against the Bishop of Exeter and A. and B. they plead, that he has ano­ther Quare Impedit depending against the Bishop, and A. and aver it to be the same Plaintiff, the same Avoidance and Distur­bance, &c. and demand Judgment. The Plaintiff says, that after the first Writ he presented C. to the Bishop, and he refused, which is the Disturbance; whereupon he new declared, the Defendant demurrs, where­upon [Page 229] the Writ abates, for he shall not have two Suits at once, and here was a Distur­bance laid in the first Action, so the new Disturbance mends not the Plaintiff's Case; so if he had new brought an Assise of Darein Presentment, the Quare Impedit depending, had been a Barr. St. Andrew against Epm' Ebor. Hob. 184. Noy 18. 9 H. 6. 68. 73. 22. E. 3. 4. Hob. 137. E. Bedford against E. Exe­ter, &c. Dy. 93. a Hut. 3. 4.

Before the Stat. 25. E. 3. Stat. 3. Cap. 7. No Incumbent could counter-plead the Ti­tle of the Plaintiff, because that was Title to the Patronage, and with that he had no­thing to do, but to avoid the Patron's Con­fession of the Action. Counter-plea was gi­ven by that Stat. but as Amicus Cur' he may shew false Latine in the Writ, &c. for that is no pleading, and the general Issue every one might plead for, thereupon the Plaintiff may pray a Writ to the Bishop. p. 3. H. 7. pl. 1. ad ult'. Hob. 61. 62. Co. 7. Rep. 26. 2.

If he that has one Benefice in Cure, take another, if it be not inducted, the Patron may at his pleasure take the Church to be void or not void, for 'tis not within the Stat. 21. H. 8. till Induction, Hob. 166. Winchcomb's Case, Mo. pl. 45.

In Quare Impedit, where one of the De­fendants pleads himself inducted at the King's presentment, and after, surmised that he was [Page 230] not Inducted, and prayed a Writ from the King to the Bishop; and because without Induction the Defendant could not plead, and the King could not be made a Defen­dant; therefore a Writ was made for the King, with a special Entry in the Judgment, that the Defendant was not inducted, Hob. 193. Winchcomb against Dobson.

Presentment pend', the Quare Impedit does not abate the Writ. F. N. B. 35. b. but if the Church be full the day of the Writ brought, it abates, because 'tis false, which says, quae vacat' &c. Hob. 194. Winchcomb against Pul­liston.

Quare Impedit, the Defendant and Ordi­nary agree in a plea of presentment by lapse, the Plaintiff replies, that he presented his Clerk, and the Ordinary refused him, and collated the other Defendant; the Plaintiff demurrs for doubleness of the plea, because he says, he did not present; which is an Af­firmative against the Ordinary's Negative: He says farther, that the Ordinary refused and collated; but the plea held good: For he must lay a Refusal to make good the Di­sturbance; and shewing the Collation is but Aggravation and Surplussage, and the only material part of his Replication, was, that he had presented a Clerk, Hob. 197, &c. Brickhead against Archbishop of York.

Quare Impedit, laying distress General, the Ordinary and Defendant make Title by Collation for Lapse: The Plaintiff replies, shewing that he presented, and the Ordina­ry refused, 29 May, whereas his Writ bore date the ninth of May; Judgment must be against him: for though the count was Ge­neral, yet the Replication applies it to a more particular Disturbance, since his Writ brought: So of his own shewing, he had then no cause of Action, and the Court must judge upon the whole Record, Ibidem.

Quare Impedit, the Ordinary pleads nothing but his ordinary plea, as Ordinary; he shall not be amercied, making no Disturbance; but the Plaintiff shall have Judgment against him pro falso Clamore; but if the Ordinary cast an Essoin, 'tis a Disturbance, Ibid.

If the Patron bring a Quare Impedit before any Disturbance, and after surcease his time, per Hob. the Ordinary shall not be debarred of his Lapse, Ibid.

A. brought a Quare Impedit against B. pend' the Writ; a Stranger gets in C. his Clerk; and then A. has a Writ, and his Clerk ad­mitted, thereupon; yet if C. have better Right, he shall retain the Benefice, Hob. 320. Dy. 364. ibid. 201. 2 Cro. 93. b. 6 rep. 52. a. vide H. 21 H. 7. pl. 7.

The Church is void, A. and B. severally pretend Right, present their Clerk; the Or­dinary [Page 232] refuses both. A. brought Quare Im­pedit against the Ordinary, and B. and his Clerk the six Months Incur: The Ordinary collates by Lapse: A. recovers, he shall re­move the Ordinary's Clerk, Hob. 214.

No Infants, nor Woman's Release by the Statute, Westm' 2. 5. against Usurpations, made against them (during Infancy or Cover­ture) but for such Advowsons as they have, as Heirs, and not as Purchasers or Successors of single Corporations, are relievable with­in the Equity of this Statute; an Heir out of the Ward as well as within, and an Heir in Soccage upon a double Usurpation, be­fore he comes to the Age of 21 Years (not if the Guardian surrender to him, or Insti­tute in ventre sa mere;) and the Purchaser may be within the Statute; as if the King grant the Advowson, and one usurps: For he is in loco Haered', and per Hob. an Heir of him in Remainder, as well of him in Reversion: vide 2 Inst. 359. and so it is of Tenant in Tayl; but if the Heir himself of full Age, make a Lease, and the Lessee suffers Usur­pation, that is out of the Statute: For the Lease must not be made by the Heir him­self but his Ancestor: So if a Bishop suffer an Usurpation, being in Succession, his Suc­cessor shall not have a Quare Impedit; but if it were in time of Vacation, he shall; and the King upon this Statute, may present at [Page 233] the next Avoidance, H. 239. Lord Stanhop aginst Bishop of Lincoln, 2 Inst. 358, 360. 1 Inst. 16. a F. N. B. 31 a.

Collation being by right or wrong, gains no Patronage, doing it in the Patrons Right, Hob. 154. Co, 6. rep. 29. Green's Case and 50 Boswell's Case. 1 Leon. 226. Mo. pl. 222. Hob. 124 b. 122.

A Church being void, the King within a Month, reciting ad nostram presentationem spe­ctam' jure prerogativae, presents one who is admitted, &c. and dies; the King presents again; the true Patron brings a Quare Im­pedit. Resolved the King's Presentation is void; as 'tis in Green's Case, Co. 6 rep. where the King presents, as by Writ of his own Title, where he had Right of Lapse, and the Patron had not only Right of Quare Impe­dit; but might have presented upon him at any time; and by the Bishop's receiving his Clerk, the other is ipso facto out: For it was but as an undue Collation of the Bishop, and no U [...]urpation in the King, Hob, 301. Grandy vers' Epm' Cant. Dy. 327.

One had a Grant of Outlaws Goods in the Rape of Bramber, and that had a Grant of the next Avoidance of the Church with­in the Rape, was Outlawed, and the Church became void, the Grantee shall have it: For it hath such a Locallity within the Rape, that the Lord of the Liberty shall have it where­soever [Page 234] the Grantee of the Voidance, or his Deed is, which the other needs not shew, coming in the Post. Hob. 132 Hollam against Shelley.

Before the Statute 25 E. 3. The Incum­bent or Ordinary could not counterplead the Plaintiffs Title; yet if the Quare Impedit were brought against the Incumbent and Ordinary, the Incumbent must plead in A­batement, that the Patron is alive, not na­med, &c. Hob. 316. Ellis against Bishop of York.

No Incumbent is enabled to counterplead by 25 E. 3. 27. till he be possessed, that is, till he be inducted; and if he resign, he could not counterplead; for that was given to maintain his possession, which by the Re­signation is gone, Hob. 319, 193. Dyer 1. b. 293. a. H. 2 H. 7. pl. 15.

If any one of the several pleas of the se­veral Defendants in a Quare Impedit against a Patron, he shall be barr'd against all; therefore name no more Defendants than ne­cessary: No, not the Ordinary, if the Church be once filled, Quare Impedit against two, the Incumbent sets up one Title, the Patron another: Neither Estops the other; and because it appears not which is true, both are to be admitted, Hob. 320. Co. Ent. 491, 492. pl. 10.

In making Title in Quare Impedit, lay the presentation of the last Incumbent, and name him; yet 'tis not material whether the Clerk were the same that is named, so it be of the same Patron, Hob. 321.

Lord of a Mannor, whereto an Advowson is Appendant, grants the three next Avoid­ances, and usurps upon the Grantee; at the first, this puts the Grantee out of possession of all the three Avoidances; and he has the whole Advowson again Appendant to the Mannor; so that being Attainted, and the King grants the Mannor, adeo plene, as the Grantor, viz. the Parson attainted habuit, it passes the Mannor with the intire Advowson Appendant, and not as the three Avoidan­ces were in Gross, and the rest of the Advow­sons Appendant to the Mannor; for then that in Gross would not pass for the King's Grant, Hob. 321, 202, 323. Elves against Bi­shop of York.

Process at Common Law, was Summons, Attachment and Distress infinite; but by Marlbridge cap. 12. if he came not at the Grand Distress, Judgment, and a Writ to the Bishop, although Nichil be returned on every Process. Distress against two, one makes Default, the Plaintiff shall have a Writ to the Bishop, by the Common Law; but if the Defendant appear at the Distress, and make Default afterwards, no Judgment; [Page 236] but a new distress must be. 2 Inst. 124, 125. F. N. B. 39.

The common Essoyne, de malo veniendi, is allowed in Quare Impedit, not de servitio Regis, &c. 2 Inst. 125.

None ought to present the King's or any Judge's Clerk to a Livery in Controversie, on pain that the Clerk shall lose the Church and his Service to it, for a year. 2 Inst. 212.

It was ordained at the Council of Lyons, that Lapse be given against a Patron after six Months; but this bound not the King nor Subject, till it was here allowed; and in many Cases, it's restrained by Act of Par­liament; as in some to give notice, &c. As it's said, it was by the Council of Lateran. 2 Inst. 273. 368.

In Ass. de Darr [...]in presentment, or a Writ of Right of Advowson, none can have Title without alledging Seisin in himself; but in a Quare Impedit one may have Title of the Sei­sin of him by whom he claims, and in a Writ of Right, he may declare of his Ance­stors Seisin; but a Purchaser can only have it of his own: and before Westm' the second, if Tenant in Tail or for Life, had suffered an Usurpation, they had been without Re­medy. 2 Inst. 356. 358.

If the Heir within Age be in Ward, he shall not have a Quare Impedit till he come of Age; but if out of Ward, he shall imme­diately [Page 237] have such Quare Impedit, as the An­cestors by Possession might have had, though the Ancestor actually had it not. 2 Inst. 359.

Plenarty hanging, the Writ was no Plea, but Plenarty before the Writ brought, was a good plea in Quare Impedit at Common Law; but by West. 2. 5. 'tis none, unless it be by the space of six Months, before the Writ brought. 1 Inst. 360.

No Plenarty is barr to the King, whether he presents in his own Right, or in a Sub­jects, but 'tis in case of the Queen, though she claims by the King's Endowment. Vide 43 E. 3. 14. 47 E. 3. 4. 21. 8 E. 3. 38. b. 1 E. 3. 3. 15. Co. 1 Inst. 119. b. 344. a. 'Tis said, no Plenarty is against the King till In­duction, that it seems a hindring from pre­senting, but Induction is no barr of his Qua­re Impedit. 2 Inst. 361.

When several persons claiming an undivi­ded Interest in the Advowson, agreed by fine &c. to present by Turns, if one usurps the other's Turn, he is not put to a Quare Impe­dit, but shall have a Scir' Fac' out of the fine, and therein a Plenarty by six Months, is no barr. 2 Inst. 362. F. N. B. 34. l. Dy. 259.

If upon the Foundation of a Chantry, the Composition be, that the Lapse shall incur within a Month, if upon a Disturbance, the [Page 238] Lapse be suffered, he shall recover Damages within the Equity of Westm' 2. though it says, per tempus semestre, and yet here 'tis but one Month. 2 Inst. 362.

The two years Damages or Imprisonment are given whereby the party loses his presen­tation by the Disturbance, or might lose it by the six Months passing; but if the Church remain void after the six Months, so as he may have his Turn, he may pray a Writ to the Bishop, and take's half years damage for two years, and loses his Turn. 2 Inst. 363.

Westm' 2. Cap. 5. gives the Quare Impedit de Prebendis, Capellis, Vicariiis, Hospital &c. yet de Capella a Writ was before. 2 Inst. 363.

If one Parcener usurp the Turn of the other, it puts not the other out of possessi­on, but he should have his Turn when it happens; and this extends to their Assigns; so if one Joynt-tenant presents alone, it puts not his Companion out of possession. Ib. 365. 1 Inst. 186. b. Tr. 1. 243. a.

In a Quare impedit, the Ordinary must shew the Cause of Refusal, specially and di­rectly, that the Court by Advice of Learned men may judge whether sufficient Causes of refusal may be in respect of the person, as Bastardy, Villany, Outlawry, Excommenge­ment, Laity, under Age, &c. in respect of Inability, as unlearned &c. and if the Refu­sal [Page 239] before Ecclesiastical Causes, as Heresie, Schism, Want of Learning, &c. he must give notice to the Patron; if Temporal, as Fe­lony, Homicide, or other temporal Crimes, or the Party be disabled by Statute, or Tem­poral Law, notice need not be, unless so pro­vided by the Statutes; and the Ordinaries Refusal concludes not the party, but he may deny it, and then the Court shall be certified by the Metropolitan; or if tempo­ral, it may be traversed, and tryed by Issue; and if the party refused, be dead, it shall be tryed per Patriam, least there should be a Failure of Justice, because the King cannot examine him. 2 Inst. 632. 5. rep. Speccot's Case, Dy. 254. b. 291. b. 6. rep. Green's Case 4 rep. Holland's Case, Dy. 327. 328. 58. Yel. 7.

If an Alien be presented to a Living, the Bishop ought not to admit, but may lawful­ly refuse him. 4 Inst. 438.

One that has Judgment to recover in Quare Impedit, is sued to be outlawed; Quae­re how the King shall have it? Whether the King shall have it either by Scir. Fac' against the Plaintiff or Incumbent, that is presented by Lapse. Beverly against Arch-bishop of Canterbury, Ow. 53. Dy. 26. a. 129. 130. 269. a. 283.

A Mannor whereto Advowson is appen­dant, the Church is void; a Grant of the [Page 240] Mannor which the Advowson passes, not the Avoidance, neither in the King, nor in the case of a common Person, for 'tis a Chattel vested. Dy. 300. a.

Next Avoidance is granted to A. and B. and becomes void, and then B. releases to A. totum Jus, &c. and A. being disturbed, brings a Quare Impedit in his own Name, for by the Release Nichil operatur therefore his Companion shall joyn with him. Ow. 65. 32. 1 Aud. pl. 241.

Quare Impedit, it lyes of a disturbance of a Presentation and Nomination to an Arch­deaconry. Ow. 99. Sale against Epm' Litch­field.

Several have an Advowson to present by Turns, and one presents, &c. if his Clerk be deprived; yet it shall go for his Turn, unless the presentations, &c. were all void; as 'tis for not reading the Act; or as in Wind­sor's Case, where one prosecuted upon the Deprivation of another, and the Deprivati­on taken off, and the Parson restored by fu­ture Sentence; and the Advowson is granted over after the Church void by Deprivation, quod non est lex: For one Grantee cannot re­lease to his Companion, Co. Inst. 276. b. Ow. 131. Lees vers' Epm' Coventry, 5 rep. Windsor's Case.

Assize of D. Darrein presentment against several; one makes Default, if they do not [Page 241] plead in Abatement: The Assize shall not be awarded, because it cannot be taken by parcels; therefore a Re-summons shall be a­warded against him that makes Default, and the like to the Jury, Hutt. 3.

By an Usurpation upon a Grantee, or Les­see for Years, the true Patron is out of Pos­session, and the Usurper in possession of the whole Fee; so that against him, the Writ of Right lies, but by Westm' 25, he in Reversi­on may have a Quare Impedit whent he Church is void, and re-continue it, Hutt. 66. Hob. 240, 322. 1 Inst. 249. a.

The King, having no Right, presents one by Lapse; the Church is not void as to Spi­ritual matters (to wit) to have Tithes, &c. for to that purpose he is Incumbent; but as to hinder the true Patron of his Present­ment, he is not; but the Church void, Hutt. 66. Hob. 302.

He that recovers in a Quare Impedit pre­sents his Clerk, and has him admitted with­out any Writ to the Bishop, 'tis as good as if he had; like one that entered after Judgment without habere facias possessionem, Hutt. 66.

The King presents, having no Title, the Patron gives another a presentation, and then recovered against the King's Presentee; then the presentation was exhibited to the Bishop, Issue being, if the Church were void when the Patron presented; held it was: For he pre­sented [Page 242] when the presentation was exhibited; and that was after the Judgment: and so it had been, if it had been exhibited before the Bishop. Then the Patron recovers, and then exhibited to the Bishop again, 'tis a good Presentation: For the Patron could not re­voke, or give a new presentation; for he had passed over his Title by that, Hutt. 66.

In a Quare Impedit, the Plaintiff made his Title from the Colledge of, &c. and was sei­zed, and presented; and that after the Plain­tiff's Ancestor was seized and presented, and that he was attainted of Treason, and the Colledge usurped on the King; and that af­terwards the Attainder was reversed, and the Church became void; and so it belonged to him to present: And the Defendant demur­red, and had Judgment without making any Title, Dy. 24. b.

The Church being void, the Patron grants proximam praesentationem, &c. the next Avoid­ance passes not, being a thing in Action; but the Grantee shall have the next after, 2 Cro. 91. if the Church voids by the Incum­bents taking a Bishoprick or Plurality; the Grantee must take that Avoidance, and cannot have the next, Dy. 26 a. 31. Ow. 131. 53. Dy. 121, 130, 282, 283, 269. a. 1 And. pl. 32.

If Co-parceners agree to present by turns, the Composition is exempted by presentment, [Page 243] by every one in their Turn; and in Quare Impedit afterwards brought, he need not mention the Composition, because exempted, Dy. 29. a. F. N. B. 33. l.

One seised of an Advowson, grants proxi­mam Advocationem to one, and then granted proximam Advocationem to another; Fitz­herbert held the second Grant void, because he cannot have the next Avoidance; and so is the second part of Croke 691. Shelley's Case; and that if one grants a third Avoidance, and the Woman recovers that in Dower, the Grantee shall have the fourth, Co. 1. Inst. agrees with three Cro. grantee of proximam Advocationem, cannot have the second, where one is granted before. Dy. 35. a. b. 1 Inst. 378. b. 379. a. 3. Cro. 790. 791.

One had the Nomination of a Church to an Abbot, and the Abbot to present, the Church being in the King's hands, he pre­sented without nominating; the Party may have a Quare Impedit against the Incumbent, without naming the King, for it lies not against the King; and he that had the Nomi­nation, had the Patronage, Vide Mo. pl. 147. Vide 14. H. 4. 11. He that has the Nomina­tion, brings the Writ, Quod permittat nomi­nari, the Writ abated for it should have been nominare, 1 H. 5. 1. b. Dy. 48. a. 1 Cro. Daviston against Yates, F. N. B. 33. b. 14 H. 4. 11.

Two Parceners, the younger in Ward, the Guardian marries the eldest, and pre­sents in both their Names, the Church voids again, and whether the elder Sister shall present as in her Turn for the younger, quaere. Dy. 55. a.

The Jury finds the Church full, of a Stranger presented by one not party to the Writ, and that ex officio, yet good. Dy. 77. a. Co. 6. rep. 52. a.

In Quare Impedit, one made Title to a fourth part of the Church in Grosle, and that he presented, and shewed, that others were seised of the other three parts, as ap­pendant to certain Mannors, and they pre­sented; and their Clerk dyed, and so it be­longs to him to present. Dy. 78. b.

Quare Impedit by the King, the Bishop makes Title to a Stranger, and he permitted a Lapse, then the ordinary presented; the Clerk pleads, that he is Parson Imparsonee of the Presentment in causa & forma preallegata. It seems, that the Plea by the Bishop, that he presented, &c. is good enough, though indeed he collated, but the Clerk's Plea is, per totam Curiam, uncertain and void; for in causa preallegata cannot refer to any thing in his own Plea, because nothing alledged, and to the Ordinary in cannot, because to the Ordinary he is a Stranger, not a Ser­vant: [Page 245] p. 14. H. 7. Pl. 4. Tr. 15. H. 7. Pl. 12.

Quare Impedit, by a Corporation the De­fendant pleads, that they are incorporated by another name, and demands Judgment; so where the Plaintiff goes but to the Right, by Fitzherbert, 'tis ill sans doubt. p. 26. H. 8. Pl. 3. a.

In Quare Impedit he counts of an Avoi­dance by Deprivation, and shews not how it became void, or for what cause; and that assigned for Error; for it might be for Sim­mony, or some such Cause, that gives a Ti­tle to the King, sed non alloc' and Judgment was affirmed. Episcopus Glouc' against Veake. 3 Cro. 678.

Quare Impedit, the Bishop claims nothing but as Ordinary, the Writ good, if a Writ against him immediate, quaere the Plain­tiff says, he presented A. whom he refused, he says he presented to the Church, because litig' if a Departure semble, 'tis, for he in­tended to have pleaded it at first. Tr. 5. H. 7. Pl. 3.

In a Quare Impedit, the Plaintiff claims by a grant of a next Avoidance by A. the De­fendant says, that A. was Tenant in Tail, held of D. by Knights Service, and describes the manner whereto, &c. and then usurped upon the Description, and dyed; his Heir [Page 246] within Age, and the Lord granted the Ward to him, adjudged the Plea not double, tho the Usurper had Writ Remitter which was one thing; and though the Grantee of the Ward should have the first present against the Grantor of the next Avoidance, which is no more than a Lease for years, which the Guardian shall avoid for his time, and he have it after the Ward comes of Age, for, with pleading both, he could not shew his Title. Tr. 5. H. 7. pl. 3.

Quare impedit, and makes Title as appen­dant, and that A. as Ancestor presents B. &c. the Defendant protests, 'tis not appendant; says that he presented D. &c. The Plaintiff says, that at the time he presented D. it was in Lease to E.; the Defendant rejoyns, that before the Lease, his Ancestor presented I. 'tis a Departure, for he might at first have laid the Presentment in I. p. 10. H. 7. pl. 6. Tr. 11. H. 7. pl. 15. p. 27. H. 8. pl. 11.

Quare Impedit for the King, the Defendant pleads the Statute 25 E. 3. 1. That the King shall not present to any, living in Auter droit, but such as fall in his own time; and if he do, the Court is not to hold plea, Judgment Si Curia cognoscere vult, per Thurning: This is a plea to the Action, not merely to the Jurisdiction: For pleas for the Jurisdiction of one Court, give Jurisdiction to ano­ther, [Page 247] which this does not, 11 H. 4. 8. a.

Quare Impedit, and Counts of an Advow­son appendant, and makes Title to a Gift in Tayl, the Defendant pleads, the Donee in Tayl was seized of it in Gross, and granted per Curiam illam, admit it once Appendant, and not shew how it after came to be in Gross, 44 E. 3. 15. b.

Quare Impedit, to present to a Church in Somersetshire, the Defendant pleads, that the Land whereto the Plaintiff supposed it to be reputed, parcel of the Mannor of S. in De­vonshire; Issue of both Counties tryed it, Bend' 26.

Release.

IF Money be due upon Recognizance, and the Counsor pay part, and the Coun­see give him a Release; if the Release mentions not the Recognizance, it shall release so much as paid only: For the Re­cognizance is entire, and being destroyed in part, is destroyed in the whole.

If a man be bound to pay an 100 l. to a­nother, on such a day, and he tender the same at the day, he is not bound to pay the same on any other day, unless the Obligee will give him an Acquittance or Release.

Replevin.

IN a Replevin, the Defendant avoyed to distrein for Rent; Charge granted in Tayl, the Plaintiff says, that an Ancestor of the Defendant, whose Heir he is, was seized of the Lands, discharged of the Rent, and gave to him with Warranty: No Assetts descend­ed; adjudged an illlegal plea; First, because he pleads Warranty from an Ancestor, and shew­ed not what, whether lineal or collateral: [Page 249] Nor, Secondly, because he pleads, that he was seized of the Lands, discharged of, &c. and shewed not how, viz. by Union or o­therwise, H. 21 H. 7. pl. 11.

Replevin avows Damage feasant barr, that the place where his Acre called A. whereof he is seized of 100 l. and has Common in the Residue; after Verdict moved, the Blank in the Declaration makes all uncertain, quid resid' est sed non alloc'; 'tis found there is a Residue; and be it what it will, he is to have Common: And here no Land is to be reco­vered so, certain enough. Sir Anthony Cope a­gaiust Temple, Yel. 146, 147.

Replevin, the Defendant avows, Forty shillings Rent for two Acres held of him; the Plaintiff replies, that he holds them and twenty more of him by 12 s. absque hoc; that he holds the two last by Twenty shillings; and though objected, the plea double, tra­versing that the quantity of the Rent: And also, that he holds the two Acres, only ad­judged good, because otherwise he could not avoid the false Avowry, M. 8. H. 7. pl. 1.

Replevin and Avowry, for that A. was seized in Jure Ecclesiae, and leased; good, without saying, that he was Parson, supplied by in Jure Ecclesiae, but not in Quare Impedit the Plaintiff, that so he is a Parson Imparson', because till then, in that cause, he cannot plead in Bar. Rolls against Walters, Noy. 70.

If Cattel or Goods be distrained for Rent, or otherwise for Damages, then the party, whose Goods are fo distrained, may make Replevin, and must prosecute his Replevin, as Plaintiff, and the Defendant must avow the taking; but if by chance the Plaintiff in Replevin become Non-suit, or Judgment a­gainst him, then shall the Defendant have a Retorn' hend' averiorum, upon which the Plaintiff in Replevin, may bring his Writ of Second Deliverance; but if he become Non-suit again, or Judgment against him, then the Defendant shall have Retorn' hend', irre­pledgeable, and keep the Goods for ever.

If Live Cattel, and Dead Things be Re­plevied by one Writ, as they may; the Live Beasts or Cattel, must be named before the Dead; as thus, Quendam Equum suum & Catella sua quae B. cepit.

If a Man distrain Beasts or Goods for his Rent, and the Tenants tenders Amends be­fore the Distress is taken: The taking the Distress, is tortious, Mesme le Ley pur Damage fesant. But tender after the Distress be ta­ken, and before the Impounding, the De­tainer, and not the taking, is tortious: But tender after the impounding, neither the ta­king nor detaining are tortious; for the Ten­der comes too late.

In Replevin, the Plaintiff is Non-suited, and the Defendant had a Writ of Retorn' ha­hend' [Page 251] and enquiry de dampnis, the Plaintiff brings Second Deliverance: This is a Super­sedeas to the Retorn' hend', but not to the En­quiry.

By the Common Law, when the Goods or Chattels of any person are taken, he may have a Writ out of the Chancery, command­ing the Sheriff to make Replevin of them; and this Writ is Viscontiel, and in the na­ture of a Justicies, in which the Sheriff may hold plea to any Value, and in all Cases; but when the Defendant claims Property, and when more than one Live Beast is taken, then the Form of the Writ, is quod replegiari faceret J. S. averia sua; and when only one Beast is taken, then the Form is quod reple­giari faceret J. S. quendam Juvencum suum, vel bovem suum &c. And when many Dead Chat­tels are taken, then the Writ shall be quod replegiari faceret Bona & Catella sua, and the Plaintiff must ascertain them in the Declara­tion; But if but one Dead Chattel be taken, then the Writ shall be, quod replegiari, facias J. S. quoddam Plaustrum cum furnitura, &c.

By the Statute of Marlbridge, cap. 21. the Sheriff upon Plaint made to him in Court, or out of Court, ought to make Replevin of the Goods or Chattels taken.

In Replevin, the Sheriff ought to take two sorts of Pledges; by the Common Law, Pledges de prosequendo, and by the Statute, [Page 252] Pledges de Retorn' habend', Co. Com' 145. b.

A Man who hath but only a special Pro­perty, may bring a Replevin, as when Goods are pledg'd to him, or Beasts are taken by him to compost his Land; and the Writ may be General or Special, 41 E. 3. 18. b. 22 H. 7. 14 b. 11 H. 4. 17.

If this Plea be before the Sheriff by Writ, then it may be removed into the Kings Bench or Common Pleas, by pone, by the Plaintiff, without Cause, and by the Defendant, with Cause mentioned in the Writ: But if it be before the Sheriff by plaint, then it may be removed by Recordare, issuing out of Chan­cery by the Plaintiff, without shewing cause, and by the Defendant, if he do shew cause in the said Writ.

A Replevin lies of such things whereof a man hath but a qualified Property, as of things that are ferae naturae, and are made tame, so long as they have Animum rever­tendi: le Case de Swans in Co. 7. rep.

So Replevin lies of a Leveret or of a Fer­ret, 2 E 2. Fitz. tit. Avowry 182.

Also Quare cepit quoddam examen Apium, &c. Register Original. fol. 81.

In many cases, this Action or Trespass lies at the Election of the Plaintiff; but against the Lord, Trespass lies not, 7 H. 4. 28. b. 6 H. 7. 9.

A Replevin lies against one, de Averiis capt' [Page 253] per ipsum simul cum alio, Co. Ent. 600. 2 Inst. 533.

So it lies de averiis capt' & detent' quous (que) &c. & de aliis averiis capt' & adhuc detent', Rast-Entr. 567. 572. And in this Case, when the Plaintiff declares, that the Defendant yet de­tains the Cattel, and the Defendant appears, and makes Default, the Plaintiff shall recover all in Damages, F. N. B. 69. b. Co. Ent. 610.

When the Beasts are chased into another County after they are taken, the party may have a Replevin in which of the Counties he pleaseth, or in both, Idem 65. 6.

When the Cattel of several men are taken, they shall not joyn in Replevin; nor is it a Plea to say, that the property is to the Plain­tiff and another, Co. Com. 145 b.

In Replevin, the Plaintiff ought to alledge a place certain, where the Cattel, &c. were taken.

When the Plaintiff is Non-suited before Declaration, and he sues Second Deliverance, and is Non-suited also again before Declara­ration, the Defendant shall have the Cattel irreplegiable without any Avowry, &c. Dyer 280.

Scire Facias.

SCire Facias, by the King to repeal a Pa­tent, the Defendant pleads a Plea, whereon the Attorney General de­murrs, the Defendant joyns in De­murrer, and pleads over part of a Statute, and Informand' Curiam. Co. 8. rep. 12. b.

Scire Facias against an Administrator, who pleads a special Plene administravit: Replic' quod devastavit, and says not who devastavit, issue quod praedictus J. S. non devastavit, found for the Defendant: the Plaintiff moved in Arrest, &c. 'tis not said who devastavit, so might be the Executor at Age, but per non­nullos, the Plaintiff shall, not after Issue, find a Fault in his own Replication. Oxford a­gainst Rivet, and 1 Cro. 135. Plaintiff after Verdict, when no Advantage of his own ill Declaration. 1 Cro. 56. 66. vide Co. 7. Rep. 4. 6. 5. rep. 39. b. 8. rep. 59. a. 1 Cr. 39.

Scire Facias of a Recognizance entred by A. and B. returned Terre-tenants, come in and plead, that C. hath three Acres of A. Land not summoned, &c. whereof he was [Page 255] seized in Fee Issue, that A. was not seized of three Acres, Verdict find that he and E. were joyntly seized and infeoffed C. per Po­pham and Gaudy, 'tis against the Defendant; for now though the moyety of these Lands are subject to the Extent, yet upon the spe­cial Plea, which is false, for A. was not sei­zed alone of them in Fee, as the Plea alledg­es, he cannot abate the Writ. Fenner con' Dame Needam against Buning. Vide 3 Cro. 524. 52.

Scire facias against two, for Damages re­covered in Assize, by three; one Defendant pleads, that one of the Plaintiffs, supposed by the Plaintiff to be dead, at the time of the Scire Facias, was alive; and the other pleaded, that one of the Plaintiffs now sup­posed alive, is dead: ill, for they must joyn in Dilatories, though objected, they might have severed in their Pleas to the first. Vide p. 26 H. 8. pl. 7. One imparls, the other de­mands the view in a Precipe quod reddat, quae­re of that. M. 7. H. 7. pl. 8. m. 10. H. 7. pl. 6. m. 12. H. 7. fo. 3.

Scire Facias, to have Restitution of Mo­ney, or Reversal of Judgment; the Defen­dant pleads Payment, not good against a Record, without matter of Record, or spe­cialty; and 'twas long before it was agreed, that levyed by the Sheriff in a Scire Facias, [Page 256] was a good Plea, but at last agreed, be­cause grounded on the Scire Facias, which he cannot withstand, Ʋrse against Harrison; sed vide 2 Cro. 29. Ognel against Randal. Per Popham, bare payment without Writing, is no Plea to barr an Execution by Fieri Faci­as of Scire Facias, vide H. 4. 58. 59. In Debt on a Judgment leavyed Fieri Facias, and paid to the Plaintiff no Plea, because the Sheriff is to bring the Money into Court, not to deliver it to the Plaintiff, other if the Lands were extended by Elegit, 1 Cro. 239.

Scire Facias, as Cousin and Heir to D. viz. Fitz A. &c. Plea that I had no such Son, good, and he needs not shew who was the Plaintiff's Mother, as if it had been pleaded, the Plaintiff was not the Son of A. for then, the Birth of A, was confessed, he must, when he takes one Mother from him, give him another; but here the Birth of the Plaintiff is not at all mentioned, admitted, or granted. Vide talem 11 H. 456. b. 74, 75. H. 4. 38. 9. E. 3. 30. 31. Plea that he had no such Son, not admitted, but he for to plead whose Son he was. 8 H. 4. 21. a. 9 E. 3. 30, 31.

Scire Facias on a Recovery against the Heir and Terre-tenants, the Sheriff an Heir and four more Terre-tenants the Heir, Nil dicit; the other four plead, that [Page 257] two of them are Joynt-Tenants of part with J. S. not named, and resolved that the Joynt­tenancy is a good Plea in this Action, but not for all, but for that part wherein the Joynt-tenancy is: but because all joyned, where but two were Joynt-tennants, the Plea was ill for all four. Holland against Donitree, &c. 3 Cro. 739.

Scire Facias on a Recognizance. Defen­dant pleads an Acquittance, Plantiff replies, 'tis razed in such and such material places, and demands Judgment of the Writ, per Cu­riam; this being but a matter tryable by the Court, is but a Plea in Abatement, where­on a respond' Ouster shall be, and lies not peremptory, & sic de Margine dict. in all. In all our Books, Matters tryable by the Court, go only in Abatement, and are not peremptory, which seems, must be intend­ed either of matters of Fact, or with some restraint; for, every Plea in Law, is trya­ble by the Court, 5 E. 3. 32 b.

Scire Facias on a Judgment against an Executor, he pleads a Judgment to J. S. of 100 l. another to himself of 100 l. and that he has but 100 l. to satisfie J. S. and says not ultra, to satisfie himself, ill; for he may pay himself, if he have not ultra to pay J. S. and himself, he is not bound to pay the Plaintiff, Feltham against Ex­ecutors [Page 258] of Tourston, Tr. 8. Car. 2. in Scacca­rio.

In Scire Facias, on a Recognizance for the Plaintiff, 'tis sufficient to assign breach, that he beat one, contra Pacem, without saying vi & armis, aliter in Battery. Hutchins against Perryman. M. 14. Jac. B. R. 3. Bulstr' 220.

In Scire Facias of a Judgment against an Executor, he pleads, Plene administravit, Jour de brief, ill; for he might have paid Bonds before, so should he have pleaded, Riens tempore mortis nec unquam postea; but the Plaintiff taking Issue, waved the benefit of the ill Plea, Harcourt against Wrenham Mo. pl. 11. 78.

Sheriff, Bailiff, &c.

ALattitat was delivered to the Under-Sheriff, to be executed, the Defen­dant being in Company with the Under-Sheriff; and the Under-Sheriff lets the De­fendant go, and returns, non est invent': Whereupon, the Plaintiff brings his Action of the Case, against the Under-Sheriff, setting forth the whole Frand and Falseness of the Under-Sheriff, and Judgment by default. But upon Motion in Court, in Arrest of Judgment, the Action did not lye; for the Sheriff, is the person alone to answer in Court for all Mis­demeanors [Page 259] of the Under-Sheriff and Bai­liffs.

Upon a Fieri Facias, if the Sheriff return, that he hath levyed the Money, and do not pay it to the Plaintiff at the Return of the Writ, the Plaintiff may have a Scire Facias against the Sheriff, to shew cause, where­fore the Sum levyed, should not be levied of the Goods of the Sheriff.

The Sheriff cannot break open any man's House or Close, upon a Fieri Facias execu­ting, (and much less the Landlord shall not break open doors to distrein for Rent) but where the King is concern'd (as upon an Ut­lary) there the Sheriff may justifie the break­ing open the doors, if he be resited; but he must acquaint them in the House with the Cause of his coming, before he force them open.

If a man be in the hands of the Under-Sheriff, in Execution for Debt, and the Debtee tell the Sheriff, that the Prisoner hath satisfied him, if the Sheriff release not the Prisoner, it is false Imprisonment.

A Bailiff having a Warrant to attach the Goods of a Person, to answer at the Cou [...] ­ty Court, doth attach the Goods acc [...]rdingly, and after delivers them to the De­fendant, and takes Bond of him, to appear at the day, or redeliver the Goods to the [Page 260] Bailiff, this is not within the Statute of 23 H. 6.

A Bailiff of a Liberty cannot execute a Capias Ʋtlegatum, and if the party be in the hands of the Bailiff, the Sheriff may take him, for it is a Non Omittas in it self. Per Curiam. Hill. 13. Ja. in C. B.

Observations upon the Statute of 29 Car. 2. Regis, for prevention of 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 24th. of June, 1677.

2. After the said 24th. 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 [Page 261] 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 24th. 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 eff [...]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 [Page 262] 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 afo [...]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 endo [...]se on the back-side of the Writ.

8. No Bargain of Goods above the value of ten pounds, shall stand good, unless the [Page 263] 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 [Page 265] 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 [Page 266] 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 prout ei bene licuit; but not to say per infortunium & contra voluntatem suam; or casualiter or such like, is no good pleading to excuse a Trespass or Wrong done.

One Train-Band Souldier in Skirmishing, hurteth another in Discharging his Musquet, who brings Trespass, and the Defendant justifies and excuses himself, as being a Soul­dier upon his Duty; and upon a Demur­rer, Judgment for the Plaintiff: for tho' the Law be, that if two men Tilt or Tur­ney in the presence of the King, or two Masters of Defence, in playing a Prise, [Page 267] the one Kills the other, this shall be no Felony: So if a Lunatick Kill a Man, it's no Felony, because Felony must be done Animo Felonice: But yet in Trespass, where Damages are to be recovered, ac­cording to Loss or Hurt it's not so: And therefore if a Lunatick hurt a Man, he shall be answerable, in Trespass, wherein no man shall be excused, except it may be adjudged utterly without his Fault.

If there be a Lease of a House for Years, and the Lessor Enters, to see if Waste be committed, or want of Repairs; and then he takes away some of the Lessee's Goods, against the Will of the Lessee, he shall be punished as a Trespasser ab initio: So of one that comes into a Tavern, and carries away a Cup; for though the Entry were lawful, in both Cases at the First; yet if they do an evil Act after the Entry, it makes the Entry and all the rest unlawful: And the reason is, for that the Law gives liberty to enter for one intent, and he useth the same for ano­ther ill Intent. The same Law is where Goods are seized for Rent or Damage feasant [...] and the Goods are abused.

A Man may Distrain in an House, if the Doors be open, otherwise not but a man may distrain per Ostia & senestras; so that a Di­stress taken out of a Window is good.

You cannot present, in a Court Leet, any thing that is particular Trespass, to particu­lar persons, but only such things which are a Common Nusance to all; neither is such Offence punishable there; As if a Freeholder erect a Dove-house it is only Trespass to those whose Corn they eat, and not punish­able in the Leet.

Also every Man's Land is supposed to be Inclosed, though it lie in the open Field, and if Trespass be done the writ is quare Clausum fregit.

If a Man doth a Lawful Act which proves unlawful, it is Dampnum sine injuria: As if in Plowing my own Land, the Cattel are so unruly, that they carry the Plow upon another's Land against my Will; this is a good Justification.

In all Trespasses there must be a volun­tary Act of the Trespasser, and a Damage to the other party, else the Trespass lies not.

In Trespass for Beating and Assaulting the Wife, the Husband shall have the Action a­one, without mentioning the Wife, because whatever Damages are Recovered shall go to the Baron only.

In all Actions of Trespass, vi & armis. &c. there ought to be an express Averment of the Force in the Declaration, and ought not [Page 269] to be expressed with a, whereas there was such a Force.

In an Action of Trespass against one, with a Simul cum, against others, if nothing be proved against the other, they may be exa­mined as Witnesses in the Cause: And if re­covery be had against the Defendant, named in the Declaration, those in the Simul cum can never be sued afterwards for the same Trespass.

Trespass against three, they plead, that they had Common, and each put in his Cat­tel to use it; and the plea adjudged single and good enough: But in Trespass against one, and he pleads, that A. had Common, and to B. and S. C. and he as their Ser­vant acct' in &c. 'twere confused and ill; but if he pleads, that as a Servant to A. he put in such, and to B. such, &c. 'tis good e­nough: vide Title Joyntly and Severally, Tr. 15. H. 7. pl. 18.

In Tresp [...]ss, the Defendant pleads, that the Plaintiff delivered Goods to the Defen­dant, to carry to such a place: The Plain­tiff replied, de Injuria sua, &c. per nonnull'; no plea: For where the Defendant claims under a Gift or Delivery of the Plaintiff, the Plaintiff must answer to the Gift or De­livery by himself, and not the mean Con­veyance, which Bryan granted; but held, [Page 270] that de Injuria, &c. was a good Traverse, that he delivered them, M. 16. H. 7. pl. 2. M. 10. H. 7. pl. 15. H. 15. H. 7. pl. 6. Tr. 15. H. 7. pl. 19.

Trespass: the Defendant justifies for taking a Distress for an Amerciament as Bay liff of a Court Baron, good; though he shewed no Warrant in Writing, for the Precept may be per parol; but because he pleaded not that he returned the Precept, 'tis ill; as if the Sheriff returned not the Cap', he is a Tres­passer, Trin. 16 H. 7 El. 9. 15.

Trespass and Battery against a Constable, he pleads that the Plaintiff was beating a­nother, and he came to keep the Peace, and laid Hands on the Plaintiff, and he beat him, and so justifies, per Ryder Just. 'tis double: For he justifies as Constable, and also in his own Defence. Kingsmil contra, the Beating had not been Lawful, but that he first beat the Constable, P. 2 H. 7. pl. 5.

Trans' de domo fracto & muris [...]jusdem do­mi, the Defendant pleads Not Guilty to the breaking of the House; and as to the Wall justified, ill: For the Wall is part of the House; so he cannot be Not Guilty of all, and justifie for part; for that is repugnant, pl. 21 H. 7. pl. 7.

Trespass of a thing done at D. and after in plea, they alleadge another thing in pursu­ance [Page 271] of the former to be done at D. and though they say not at D. yet intended so, and ruled well, M. 21. H. 7. pl. 10.

Trespass for Digging, &c. the Defendant justifies as Commoner, to dig a Trench, to let out Water, wherewith it was usually sur­rounded, in the Winter, as well for the saving the Lands as the Commons; and by some this seems double; for either of them was a sufficient Justification of Issue: And where one pleads two things, either of which is a plea of it self, 'tis double, Tr. 17. H. 8. pl. 1.

He that pleads a Fine in Barr in Trespass or in Warranty must conclude Judgment, Si Acco', and not r [...]ly on the Estoppel; for that goes to the Realty, which is not in questi­on in Trespass, Tr. 27. H. 8. pl. 19.

Trespass against A. for Imprisonment, &c. he pleads, that the Plaintiff had committed Felony, and he prays the Constable &c. and thereupon they went and arrested him; ill, because he answers nothing for himself; that he, by Command of the Constable, &c. P. 2. E. 4. pl. 20.

Trespass: the Defendant pleads, that his Father was seized, and let to A. for Life, to enfeoffee; &c. And A. died, and his Father entred, as in his Reversion, and it descend­ed to him, and objected; his plea double, on [Page 272] the entry of the Father, the dying seized and descent, by Billing and Needham, but Littleton and Cook, contra. M. 2. E. 4. pl. 15,

Trespass by A. and B. for breaking their Close, the Defendant to A. pleads a Title in Barr, and to B. not guilty, by Danby, Mayle, Cheke, the plea ill, for the Barr goes to all, and the other makes it double, Needham and Ashton contra, each Plaintiff ought to have his Answer. M. 2. E. 4. pl. 20.

Trespass for cutting Subbosc', and carry­ing away two Loads of Barley: quoad the Barley, the Defendant pleads a Lease at Will, by one Tenant, as Tenant in Com­mon: and quoad the Wood a License by him, and the Plea not double, for a Tenant at Will cannot cut, &c. without License. M. 2. E. 4. pl. 25.

In a Precipe, the Tenant pleads a Release in Barr, and it was in Barr of all the Lands in S. that he bought of J. S. ill; not aver­ing, that he bought the Lands of J. S. the words being general, viz. All the Lands, &c. not particular of bl. Acre, &c. which will be otherwise. M. 2. E. 4. pl. 26

Trespass on the Stat. R. 2. the Defendant pleads a Guift of the Land by Act of Parlia­ment, whereby he was seized temps' H. 6. [Page 273] and the Plaintiff entred upon him temps E. 4. and he entred; Choke Justice, and Littleton, held it double, for the Gift and Seizin is one barr, and the Entry of the Plaintiff and the Re-entry of the Defendant is another; but Ardern Justice, and Lason, contra, for 'tis all pursuant, Et ibidem by Choke and Needham, Justice, when the Defendant pleads, that the Plaintiff entred so long after the Statute, and says not by what Colour it shall be intended more strongly against himself, and intended by Title, Ardern, Justic' cont', no Title shall be intended, till the Plaintiff shews it. Trin. 3. E. 4. pl. 1.

Trespass for taking a bag of Money, the Defendant pleads, that the Plaintiff was in­debted to him, and says not how, and delivered it him in payment; the Plaintiff replies, De injuria, &c. And per Littleton, no Plea where the Defendant justifies by an Act of the Plaintiff himself. Vide Trin. 20. E. 4. pl. 1. m. 9. E. 4. pl. 25. 12 E. 4. 10. 6 H. 19. E. 4. pl. 15.

Trespass against the Lord, vi & armis, he admits it, and pleads a Distr' for Services and the Issue of Views, Arrear, found for the Defendant, yet no Judgment; for the Court is not to admit him to recover against a Negative Statute, other, if it were affirma­tive, and Election to proceed either way. p. 10. E. 4. pl. 10.

Trespass by J. S. for taking an Horse, the Defendant pleads, that J. S. de D. was possessed, and gave him the Horse, &c. the Plaintiff replies, that he is not the same per­son in the Barr and Dem', and tho objected this ill in matter of Fact and Dem' for matter in Law; and it cannot be tryed by Court and Jury, the Plea ruled good; for by joyning in Dem' 'tis confess'd, he is the same Person, and he might have taken Issue of it. H. 13. E. 4. pl. 4.

Trespass against three, they all plead Not Guilty, as to part, and quoad resid. plead a guift of the Goods, and Issue, and at Ni. pr. 2. make default; the third pleads a Con­cord, Prius Darr' contin' prayed to try the Issue against the two by Default, because no contin' can be made of it, because they ab­sent, and if not tryed, now 'twill be dis­continued. Objected, that goes but to part, and there is now a Plea, that goes to all, which is to be tryed first; for if that be a­gainst the Plaintiff, though he should have Verdict on the other, he can have no Judg­ment but for the Inconvemency, and for that this Plea to the whole, comes after the ven' fa', and the other was before; there­fore 'twas tryed; but if both had been be­fore the ven' fa', it could not have been, and they found for the Plaintiff, and they had Judgment with a Cessat Executio, till the [Page 275] other tried; for the Concord was laid in another County; so the Plaintiff relea­sed to him, and took Execution tho' the Judgment on the First Plea, Tr. 15 E. 4. pl. 11, 3. vide 4 E. 3. 42.

Trespass, the Defendant justified for Tithes severed; the Plaintiff replies, de son tort; objected no plea, no more than when in Trespass the Defendant makes Title, and pleads son Franktenement, or a Lease for years, by Bryan; and so it seems tho' Piggot says there, he claims there the Occupation of the Land; not so here, P. 16 E. 4. pl. 9. 2 Cro. 224, 225.

Trespass Not Guilty, and Issue, the De­fendant puis darr' contin', pleads a Release, dated before the last Contin'; but deliver­ed after; the Plaintiff replies, that was delivered the same day 'twas dated, Judg­ment against him; for he did confess, he did release; so satisfied, and no matter when; but he might have pleaded, that he did not deliver it puis darr' Contin'; or that it was not his Deed puis' darr' con­tin, by 78 H. 6. and 39. H. 6. 8, 9. Tr. 16 E. 4. pl. 2.

Trespass, the Defendant pleads, that the Plaintiff let to him for Years per Cur' he must shew what Estate he had, as that he was seized in Fee, &c. and let but by [Page 276] Kidwelly: when one pleads a Lease from a Stranger, 'tis necessary to plead it so; not when he pleads the Lease to the Les­sor himself, M. 22 E. 4. pl. 217.

Trespass for Assault and Battery, and Threatning, &c. de son Assault demesn Obj. in Error, the plea ill, not answering the minas; but resolved well enough for the minas, laid but in aggravation of damages. Penruddock against Errington: sed vide Hill. 16 E. 4. pl. 8. contra M. pl. 983.

In Battery, the Defendant justifies by Warrant out of a Leet; and though they plead not the day of the Leet, nor that the House was within the Jurisdiction, nor the Warrant; yet all these being but In­dictments, adjudged good. Curey's Case, M. pl. 11. 47.

Trespass for entring the Close, and cut­ting so many Trees, quoad all but cutting the Trees, and entring the Close, pleads Not Guilty; et quoad fract' Claus' pleads▪ matter in Law, and justifies the cutting the Trees; but because in the quoad, &c. nothing was said of the Trees; the plea is ill, and was amended, and made et quoad fract' claus', Cutting, &c. Co. 4. rep. 62. a.

Trespass and Battery, the Defendant pleads, that he had a Lease for Years of an House, and the Defendant would have [Page 277] put him out, &c. good, without shewing by what Title his Lease or Commence­ment, &c. of it, because said but as In­ducement: For whatever Title he had, his possession excused him. Scable against Avery, 1 Cro. 69.

In Trespass, Quare clausum fregit in Dale, the Defendant justifies in Sale absque hoc, that he is Guilty in Dale: It seemed to be an ill plea, amounting but to the General Issue; but Fitz-herbert douts, because Dale and Sale may be adjoyning, and it may be doubtful in which the Close lies, Dyer 19. a.

In Trespass in several things in a Park, the Defendant made several Justifi­cations, and pleaded, that quidam J. S. granted, &c. & quidam J. S. granted, &c. and so began every plea with qui­dam J. S. which shall be intended several men; and it all being about one Office, 'tis ill: for several men could not several­ly grant him it, 3 Cro. 401. quidam J. S. in­tended the same person that it was men­tioned before: And so Sti. 329. and 18 E. 3, 49, b. and Brid. 100. Hat. 84. quidam, found by Special Verdict, doubted if good.

In Trespass, the Defendant pleads a special plea, and justifies; the Plaintiff replies de Injuria sua propria; but did [Page 278] not Traverse absque tali Causa; Issue and Verdict for the Plaintiff, Judgment staid, and Repleader awarded: For here is no Negative but an Affirmative of the first Declaration; but no denying the De­fendant's plea by the Impa'. Jennings versus Lee, M. 24. Ca. 1. B. R. Sti. 150, 151.

In Trespass, the Defendant justifies his Entry, by Vertue of a Lease for Years; and adjudged no good plea, a­mounting but to the General Issue. Jaynes Case, 1651. in B. R. so 2 Cro. in Trover, the Defendant pleads Sale in Market O­vert; not good in Trover; The Defen­dant pleads, that A. was possessed of Goods, and sold them to the Defend­ant, and retained them in his Hands, and sold them to the Plaintiff; and they cme to the Defendant's Hands, and he converted, ill; amounting but to the General Issue, and leave no Color for the Plaintiff's Action; whereupon a Writ of Enquiry was awarded, and not ruled, for that the Defendant pleaded Not Guilty, Sti. 355. 2 Cro. 165, 319. Hob. 187. 1 Cro. 112. 2 Cro. 146, 147. 169, 435, 532. 555.

In Trespass, the Defendant pleads the Statute of Limittions; the Plaintiff re­plied, [Page 279] that he sued an Original within six Years. Et hoc pet' quod, &c. an ill Conclusion: For thereupon he lies upon the Defendant, and binds him to an Is­sue, which he cannot pass over; but he should have ordered his Plea, Et hoc pa­ratus, &c. Whitehead versus Buckland, Hill. 1651. B. R. Sti. 401, 402. Yel. 138.

Trespass for taking and Imprisoning him such a day; the Defendant justifies by Warrant on a Capias ad Satisfaci­end'; the Plaintiff shews, that after the Writ issued, and before executed, he paid the Money to the Sheriff, who gave him a Supersedeas to all Bayliffs, &c. and the Defendant Arrested him; whereupon he shewed him the Superse­deas, [...]ho yet detained him an Hour: The Defendant says, he was not Let­ter'd, and took that time to advise: Whereon 'tis demurred, and adjudg­ed for the Defendant, not on the Mat­ter in Law; but the plea for the De­claration, charges him with a taking and imprisoning, and the Replication, with a detaining only, so a Departure. Strin­ger against Fanlake, 3 Cro. 404.

Trespass for breaking two Gates and three Pearches of Hedging, the Defen­dant prescribes to go in Preambulation [Page 280] that way in Easter Week, and given the Plaintiff two Gates and three Pearches of hedging, he broke them, and upon Demurrer, adjudged the Plea ill, be­cause he says not praedictas, and the two Gates and the three Pearches, may be other than those laid in the Declaration. Gooday against Mitchel, 2 Cro. 441.

In Trespass against several that en­tred to take the Corn, whereto one of them had Right upon the Determina­tion of a Lease, depending on a Lease for Life, ended: the Defendant pleads Not Guilty, and all the matter found spe­cially, though their Entry were lawful as in the Right of one, yet it being by a License in Law, which must have been pleaded, and is not to be given [...] Evi­dence, or by a special Verdict, for that Cause, Judgment was against them, for their entring, though against the Plaintiff as to the taking the Corn. Sir Henry Knivet against Powle, &c. 2 Cro. 463. 464.

In Trespass, the Defendant justifies Damage feasant, the Paintiff made a new Assignment, the Defendant justifies there for an Herriot, the Plaintiff demurred, supposing it a Departure, but adjudged not; for, by the new Assignment, the [Page 281] Barr is out of doors, and that in the Replication, is as of a new thing, and could not be pleaded otherwise, for, it may be, he took one on Damage feasant, and the place mentioned in the Barr, and another for an Herriot in the Replica­tion. Odyham against Smith. 3 Cro. 589, 590.

Trespass for taking an Hide, the Defendant justifies, because the Mayor &c. of London is seized of a House, called Leaden-Hall, and 'twas there Da­mage feasant, for he by &c. The Plaintiff replies, that Leaden-Hall is an ancient Market on Fridays, and he bought it there, and had it on his Back to carry away; and though objected, the Repli­cation not good, because he concludes not, que est eadem, &c. because he va­ries from the manner of the Caption, and by his Plea, takes from the Plain­tiff his Authority, yet resoplved good without it agreeing with him in the time and place of the Caption. Sawer against Wilkinson. 3 Cro. 627, 628.

In Trepass, one as Bailiff, pleads quod presentat' existit, that such an one surchar­ged the Common, and for that was a­merced, therefore distrained: 'tis good without saying in facto, that he did [Page 282] surcharge the Common, for he is to take notice of no more than what is done in Court. Volleston against Alimond 3 Cro. 748. 386. com. 1. Leon. 292. 2 Cro. 582.

Trespass for taking two Hides, the Defendant justifies for a Distress, the Plaintiff replyed, that he tanned them, the Defendant rejoyned, they could not keep else, he did it to save them; ill, and a Departure. Duncomb against Reeve and Green. 2 Cro. 783.

Trespass, the Defendant pleads, that he is Clericus & seisitus de Rectoria in Jure Ecclesiae, and prescribes, that he and all his Predecessors, Parsons of that Church, have had a way, and so he says, not that he was Parson; and so it was objected, he had not enabled him­self to make a Prescription, yet, saying he is seized Jure Ecclesiae, it tant' amounts and is good. Dom. Sandr. against Pender. 3 Cro. 8. 98.

In Trespass, the Defendant justifies, because, per quandam Indenturam, A. bar­gain'd and sold Land habend' to B. the Plea ill, because not said in the Premi­ses to whom he being, &c. but 'tis the habend', and the Granter and Grantee, must be named in the Premises; but, [Page 283] because the Plaintiff replyed, Quod bene & verum, that A. granted to B. that is, a Confession to whom the Grant was, and mends it, Bustard against Collyer. 3 Cro. 899.

Trespass, the Defendant prescribes for Estovers at all times, except fawning times; the Plaintiff made an ill Repli­cation: the Defendant demurrs, though the Bar was ill, the Defendant not shewing, that at the time that he cut, &c. was not fawning time; yet, he ha­ving demurred on the Plaintiff's Re­plication, the Court would not to the Bar, but no Judgment of the Plaintiff's ill Replication, Russel against Booker. 2 Leon. 209. 210.

Trespass for Battery, the Defendant justifies, Molliter manus imponendo, in de­fence of the Possession of his House; the Plaintiff replyes, de Injuria sua abs­que, &c. Verdict for the Plaintiff, and Judgment, Replication good, for the principal is the Battery, Hall against Gerrard. Latch 128. 3 Cr. 225. La [...]ch 221. 273.

Trespass, the Defendant pleads, the Plaintiff is a Recusant convict, whom the Statute 3 Jac. 5. makes excom' Judg­ment de billa, because it wants, Et hoc [Page 284] paratus, &c. per Recordum; also, the Con­clusion is unapt for the Plea, for the Plea is in Disability; the Conclusion is barr, but, it seems, the Conclusion is but form, and used by general Demurrer. And vide the form of several Conclusions, Inde si Cur' vult cognoscere. 2. Al' person' sit serra respond'. 3. Al' briefe Judgment ate' Br. 4. Al' accon' del briefe. 5. In barr' Com' apprest Bracton de excepc', and differ Quando le ple al' br'; of perempt' quan­do neme. If the pleading to the Writ be tryable, and tryed per pais, is peremp­tory to the Defendant, other if Demurrer upon respond'; but if the Plea be try­able by Certificate of the Ordinary, 'tis never peremptory; and if the Plea to the Writ be to the Action of the Writ, it seems peremptory, so Plea to the Action of the Writ, and Conclusion to the Writ peremptory, if demurred: one pleaded to the Action of Avowry, he shall not resort to plead in Abatement, after Imparlance: one pleads Outlawry in the Plaintiff, allowed. Dr. Cudman against Grendon. Vide 40 E. 3. 9 pl. Abate­ment, Avowry and Conclusion the barr. Latch 177, 178, 179. Co. 11. rep. 52 a. and 1 Cro. 117.

Trespass, the Defendant justifies as Ex­ecutor, the Plaintiff says, that the De­fendant was annulled upon Appeal to the Court of Rome, and so not Executor, if the Conclusion good; diverse of opi­nion semble, as well as where one pleads a Divorse in the Spiritual Court, and so not his Wife. M. 2. R. 3. fo. 22. pl. 51.

In Trespass for Misprision, the Defen­dant pleads, that Robery had been done, and that he being a Watch-man, and the Plaintiff coming through the Town in the Night, he stopped him, to see what he was: doubted if not double, for he might stop him generally, either under Suspition, or particularly as a Night-Walker, being a Watchman. H. 4. H. 7. pl. 2.

Trespass against two Defendants, they Justifie, Et hoc paratus ut Justific' excep­tionis, taken because it should have been, Et hoc parat' sunt. 1 Cro. 413. 414.

Trespass for taking his Apprentice, Plea, that the Plaintiff discharged him, not good; for he cannot be Apprentice but by Indenture, and then he cannot be discharged but by Deed, no more than one Covenant to build me an House in Covenant to plead a Discharge of [Page 286] the Building, unless he plead it by Deed, 21 H. 6. 31, 32.

Trespass, Defendant pleads a Lease at Will made to him, by Vertue whereof he entred, and was possessed, and held good, without shewing of what Estate he was possessed; Idem in pleading a Feoffment, &c. For it may be doubtful in Law, as if made by an Infant, &c. Therefore more safe to plead the Mat­ter, and to omit the Conclusion how he was seized and leave it to the Court, 35 H. 6, 63. b.

Trespass, the Defendant pleads, that the Plaintiff had nothing but in Com­mon with J. S. &c. per Cur', he ought to shew how Tenant in Common, viz. the Feoffment, &c. if of a Joynt Te­nancy personar, &c. but not after, the Plaintiff, stands not on it, but says, he was sole seized, and some thinks the Law is, he pleaded a Tenancy in Com­mon of the adverse side; but if he had pleaded on his own side, then I agree I must shew how, 3 H. 6, 56.

Trespass for Fishing in his several Fish­ings: the Defendant pleads 'tis not Free­hold; and by some the plea is good, till the Plaintiff make a particular Title to the Fishing; Idem in Case of War­ren; [Page 287] but per Yel. and not denied; but not so for Common, because when one demands Common, it must be intended in alieno solo: But when one demands Fishing or Warren, it may be intend­ed in his own Soyl: And so for the Defendant to plead un' Fr' Tent' a good plea prima Facie, till the other makes a Title; but per Fortescue, with a Tra­verse of Fishing, &c. 'tis good, else not, no Resolution: vide Title Forrest per tout: And Title Fishing per tout, plus de cest' matter; and vide 21 H. 6. 21 b. and the Plaintiff makes Title, 18 H. 6. 29, 30.

Trespass, Quare lib' Warr' fregit, et Cuniculos cepit, the Defendant pleads, that the Plaintiff was seized and let to A. he by Command of A. took the Co­nyes; Judgment le sans Title Mre', and after waves that, and pleads ut auter Judgment, si Acco' per Danby, on plea, because the Warren passed not by the Lease of the Land, and one may have Warren in his own Freehold. Note, he may plead Title under the Plaintiff himself; and Note the General Issue, and Note after he pleads the Freehold in a Stran­ger, who let ut supra; and that he by Command of A. &c. absque hoc pt', the [Page 288] Plaintiff has any Warren there. Jenny, that is, doubt the Freehold in a Stran­ger, and traverse of the Warren; and thereon he Demurrs, L. 5 E. 4, 54.

Trespass for cutting Trees, Defendant makes Title to the Lord in Right of his Ward; and that he cut prout sibi be­ne licuit, Danby Chief Justice, and the Conclusion ill: For it appears waste and unlawful, Marle, & mal Opinion ut mihi videtur, 'tis Lawful, quoad the Plaintiff; and good: For before the Statute of Waste, Lessor, or Ward had no Remedy against the Lessee or Guar­dian by Trespass; and now 'tis punish­able only by Waste, not in Trespass; but it may be an Estoppel in Waste; therefore better to plead, he cut them for a Repair, prout sibi bene licuit, L. 5 E. 4, 64, 89. b.

Trespass for taking, beating and im­pounding his Cow, Defendant, quoad ven' vi & armis, and pleads Not Guilty, and quoad the taking and impounding justifies for a Distress; ill, not answering the Beating. Copeley against Piercy, Trin. 19 Car. 6. B. R.

Trespass for taking Cattel, Defendant justifies, Plaintiff replies and avoided it, & hoc &c. unde petit Judicium si. ab Acti­one [Page 289] praecludi; ill, being specially demur­red on, it ought to be petit Judic' et dampna sua sibi adjudicari. Lady Broughton a­gainst Holly, Tr. 21 Car. 2. B. R.

Trespass for Battery, Defendant pleads son Assault demesn, Plaintiff replies, the Defendant would have rid over him, and he molliter assaulted the Defendant in defence of his person; and so the Battery was of his own Assault, qui est idem insultus: In the Barr, the Defendant demurrs, and Judgment for him for the Re­plication molliter assaulted; ill: it should have been molliter manus imposuit. Jones against Trysillian, Tr. 21 Car. 2 B. R.

Trespass for taking his Cattel, Defendant justifies damage feasant in his Free-hold, Plaintiff replies, and claims Common to a Messuage, &c. Defendant rejoyns, that he set sufficient Common for all the Cattel, le­vant and couchant in the Messuage, Plaintiff demurrs, and objected he should have aver­red sufficient Common to the Messuage for all levant, &c. for at that time he might not have so many levant as he had right of Com­mon; for but adjudged the Rejoynder; good. Leech vers' Mickley, H. 21, 22 C. 2. B. R.

Trespass, Defendant justifies as Own­er of an House, and says, That long be­fore the Trespass, he was et adhuc seisit' existit, and doth not say necnon tempore [Page 283] Transgression' praedict'; yet per Hob. Winch and Hutton; good. Grise against Lee, Winch 16, 17.

Trespass for Battery of A. and B. his Servant, per quod servitium amisit; Defen­dant justifies, because A. and B. would have erected a Building to the Nusance of his Lights, and on demurrer, adjudged ill, because he says, not as Servants, or by command of the Plaintiff: And then he answers the quod servitum amisit, which is the Gist of his Action. Nor­ris against Baker, H. 13 Jac. Bridg. 47.

Trespass for entring and breaking his Close, and driving his Cattel; Defen­dant justifies as to the Entry, and dri­ving the Cattel; Issue of it and Ver­dict but Judgment against him, be­cause he proved not the Breach as well as the Entry. Praunce against Tuckle, P. 8 Jac. B. R. Rot. 138. 1 Bull. 164.

Trespass str. May, Defendant Justifies 7 May, quae est eadem, &c. and on de­murrer, adjudged a good Plea, without a Traverse; and if he had Justif' of the same time, he need not say, quae est ea­dem; but at another time he must. Vaste­rope against Taylor, H. 8 Jac. Rot. 1337.

Trespass for Assaulting, Wounding, Taking and Imprisoning the Defendant: quoad the Assault and Wounding, pleads [Page 275] Not Guilty; and as to the Taking and Imprisoning, justifies; and on Dem [...]rrer, ill; because he justifies not the As­sault; and there could be no taking without the Assault, and the quoad cap­tionem and Imprisonment, does not im­ply, and include the Arrest. Wilson a­gainst Dodderidge, Hill. 12 Jac. B. R. 2 Bulstrod 335.

Trespass, Defendant makes Title by Descent from J. S. to himself, as Heir; Plaintiff demurrs generally, resolved then of the not saying, how Heir, but forme and amendable. Duke of New-Castle against Wright. M. 18. Car. 2. B. R.

Trespass for breaking six Closes; Not guilty to two pedibus ambulando: for the rest pedibus ambulando, he justifies for a way: upon which Issue. For the Trespass cum Averiis, he pleads want of Inclosure. The Plaintiff saith, the In­closure was good, and the Defendants Cattel unruly, absque hoc, that they were out of Repair; upon which, the De­fendant demurrs, and for cause shews, that the matter of Inducement is idle. Opinion of the Court was, that 'twas good, and the Traverse necessary upon that Inducement; that an Inducement is not material, a man may have many [Page 292] if the Issue offered be single: resolved the Replication good. Parnell against Row. Anno 15 Car. 2. in B. R.

Trespass, Quare clausum fregit & cuni­culos suos ad valentiam, &c. Verdict for the Plaintiff; moved in Arrest of Judg­ment, that it ought not to be ad valenti­am, of a living thing, but precii. 2. That it ought not to be cuniculos suos: resol­ved by the Court, 1. Ad valentiam was but matter of Form; 2. That it shall be intended, that it appeared upon the Evidence, that they were domestick Coneys, and that the Jury were direct­ed by the Judge: Also, that the Jury gave not any greater Damages in Re­spect of Property, alledged by the Plain­tiff in his Count.; Judgment for the Plaintiff per totam Curiam. Sir Orlando Bridgman also declared, that the Opi­nion in 1 Cro. 15 Car. Child against Green­hill, that of Deer in a Park, or Coneys in a Warren, a man might say, suos is not Law; and contrary to Coke, lib. 7. Case of Swans. Saywell against Thorpe, 16 Car. 2. in C. B.

Trespass, quare coepit, &c. 100 Oves; Judgment for the Plaintiff, Damages 2 d. after which, upon another Action for the Conversion, it was resolved, that the damages were only for driving them a­way, [Page 293] and not for the Conversion, 1 Cro 36. Lacon against Bernard.

He that hath the possession of an Hawk may have an Action of Trespass for stri­king and killing her. 1 Cro. 18. Sir Fran. Vincent's Case.

Trespass, a man after he is arrested upon a Latitat, tenders Amends accord­ing to 21 Jacobi; resolved it comes too late. 1 Cro. Wats against Baker, 264.

Trespass lies of Trespass done in an Hamlet, Yelv. Lapworth against Wast. fo. 77.

Trespass, the Plaintiff lays it in an Acre bounded &c. with Abuttels; the Jury found it to be in Dimidio Acrae infrascript', 'tis good; also, if the Jury had found it to be half an Acre, where­as it was assigned an Acre, 'twere well enough. Yelv. Winkworth against Man, 114. But in an Ejectione firmae 'twere incertain, and void. Yelv. ibid. & 2 Cro. 183. 2.

Wager of Law.

IN Debt for an Amerciament in a Court-Baron 'tis said one cannot wage Law, But two or three Presidents are there cited, where in such Cases Wager has been, Mo. Pl. 430.

In Debt by an Attorney for his Fees the Defendant cannot wage Law, But for Mo­nies laid out by him as a Solicitor he may, Rolls versus Jermin. Mo. Pl. 500.

Tenetur that the Defendant cannot wage Law in Account for the profits of Lands, Popworth versus Archee. Mo. Pl. 670.

A wager of Law may be done by eight, ten or twelve hands, As the Court shall appoint; The Party is to swear directly that he oweth or detayneth nothing, The Compurgators, that they beleive that he ow­eth or detaineth nothing, Term. Ley. 341.

Cooke sayes Debts by simple Contract, are forseited by Outlary, though it puts by the party his Wager of Law, and so he [Page 295] sayes is the latter opinion of the Books and of the Judges now, And he sayes in every Quo minus by the Kings Debtor it puts the Defendant by his Wager of Law, for the benefit of the King though not par­ty à fortiori where the King is adjudged party, Slades Case, Co. 4. Rep. 93. a. 95. a b. 9 Rep. 88. a. 89. b.

In Debt for Arrearages of Account be­fore one Auditor, the Defendant may wage his Law, because not within the Sta­tute of W 2. Ca 11. unless two Auditors, And so if the Lord be found in Surplus in Debt against his Servant, it may be waged, because not within the Statute, which is made only as to Accountants, the rest be­ing determinable at Common-Law, Debands Case 38 H 6. 5. b. contrary to this last, Co. 10. Rep 103 a.

'Tis said that Ley gager lies not before Justice of Peace or Justice of Oyer and Termi­ner or any other inferior Court, but those at Westminster, Therefore an Information up­on 23 H. 8. against Brewers to be brought at Westminster, not in the proper County, because the Statute, Ousts Ley gager; and so intends such Courts wherein it lay. Vide Kitchin. 494. b. Ley gager, the proper Try­al in Court-Baron, and Per Pais. 1 Cro. 79. 104. Co. 4. Inst. 64. 65.

Commissioners of Bankrupt assign a Debt due by simple Contract to the Bankrupt; in Debt the Defendant may wage Law against the Assignee of the Commissioners, as well as he might have done against the Bankrupt; though obj. they coming in by Act of Parliament, 'tis quasi a Debt of Re­cord, for that alters not the Law: quoad Wager. Morgan against Green. And so 'tis adjudged also, 2 Cro. 105. Bradshaw's Case, and Noy 112. 1 Cro. 135. 2 Cro. 105.

Debt by an Attorney for his Fees, De­fendant cannot wage his Law, because the Plaintiff was compellable to be an Attor­ney: but in Debt, by a Serjeant at Law, for 10 l. to be of his Counsel, for two years, the Defendant may wage Law; yet dict. the Serjeant was compellable to be of his Coun­sel, but it seems, not for two years, nor are those his certain Fees appointed by the Law. 3 H. 6. 33. b. 34. a. In Debt, for 20 l. by Serjeant at Law. Good.

Debt against a Successor of an Abbey, and Counts of a Sale of Goods, by Deed to the Predecessor, which came to the use of the House, it seems the Defendant may wage Law, notwithstanding the Contract was by Deed, and by the Predecessor; for, the Deed binds not, had it not come to the use of the House: and that being it which main­tains the Action, 'tis not material, though [Page 297] it was the Predecessors Contract, Sed ibidem by Ascue, and not denyed: If I sell Goods to the Servant of J. S. and they come to the use of J. S. he cannot wage Law, because de auter Contract: but if my Servant sells my Goods to J. S. in Debt he may wage Law, because 'tis my Sale by my Servant, qu. Diversitatem. 21 H. 6. 23. a.

Detinue of three Tallies, the Defen­dant wages Law; and so it seems he might, if it were a free Obligation. 21 H. 6. 30. a.

Detinue and Counts of a Delivery in London: If the Delivery were in Middlesex the Defendant may wage Law by Newton, and not denyed, Quia non detinet modo & forma, &c. And so if in Debt, and suppose the Delivery in Middlesex, and it was in Truth in Essex. 21 H. 6. 25. b.

In Detinue of Charters and other Wri­tings, the Defendant wages Law as to the other Writings; but as to the Charters on­ly, he pleads in Bar 38. H. 6. 21. In Deti­nue of a box of Charters sealed, it seems he may wage, unless he counts of some Inspect. 21 H. 6. 24. a. 22. H. 6. 15. b.

In Debt against a Lombard, the Receipt is to be read to him in the Language which he understands, and in his own Language he is to wage his Law, not in French or Latine. 21 H. 6. 42. a.

Debt against one, and counts that he set A. and B. to board with the Plaintiff, at 15 s. a Week; the Defendant wages Law, and so it seems might A. and B. (the parties that took the Board) have done, if the Acti­on had been brought against them. 22 H. 6. 13. b.

Debt, and Counts of Arrearages of Ac­count before Auditors. It appears, the Parties by Deed submitted the Account to Award of Arbitrators, who awards 20 l. for which, the Action is brought; the De­fendant wages Law, and may, for this is but an Award, and not Arrearages, found by Auditors of the Account, and ibi­dem, 23 H. 6. In Arrearages of Account the Defendant pleads Riens lui doit, and prays, the Attorney of the Plaintiff might be exami­ned, who could not; if the Defendant wage Law, he shall not make it present, but have day to do it. 22. H. 6. 41. a. 33. H. 6. 24. a.

In Debt, upon an Insimul computaverunt, against four whereof, one was out-lawed, one of the other waged his Law alone, and though opposed, resolved he may do it, and so did make his Law; and the Plaintiff was Nonsuit. Hob. 244. Essington against Butcher.

Wager of Law must be duodecima manu, the Party himself de fidelitate, the other ele­ven [Page 299] to be sworn de credulitate, so is equal to a Jury. Vid. Mag. Ch. 1. 28 Co. 1. Inst. 295. a.

When one has any thing of common Right, or by Course of Law, the same may be enlarged by Prescription, as the Lord has Court-Baron of common Right, and by Course of Law, all Pleas therein are deter­mined therein by Wager of Law, yet the Lord may prescribe to determine them by Jury. Co. 2. Inst. 143.

In Debt, upon an Account before Audi­tors, brought either by the Master against the Accountant, or the Accountant against the Master for Surplus, the Wager of Law lyes: for the Auditors by Westminster 2. 11. are Judges of Record, the Statute being in the nature of their Commission. Co. 2. Inst. 308.

Where the Statute gives a Forfeiture to be recovered in any of the King's Courts, wherein no Wager of Law, Essoin or Pro­tection, shall be allowed. Per Co. 4. R. 55. It may be in a Case where no Essoin lyes; for 'tis Reddere singula singulis; viz. There shall be no Essoin if they lye in the C. But 1 Cro. in Faringdon and Comer's Case, p. 79. and Green's and Girle's Case, p. 104. the contrary is held by the Court. Co. 4. Inst. 64. 65.

In Debt, upon the Statute of Coppi­ces, the Defendant would have waged his [Page 300] Law, but could not, the Action being grounded upon a Statute, 9 H. 3. a. No Wager in Debt for Arrearages in Account before Auditors, aliter, on Account to the Plaintiff. H. 10. H. 7. Pl. 18.

No Wager of Law can be against a Spe­cialty, (as if I deliver a Charter to another by Indenture, and the Bailiff dye, Detinue lyes against his Executor, by reason of the Indenture) nor against a Receipt Per auter maines, in account. Dyer, 265. a. vi. 39 H. 6. 35. a.

Detinue on a Contract of Goods bailed, the Defendant may wage his Law, or plead non Detinet. Dy. 30. a.

In such Actions where the Defendant is put from his Wager in Law, there he may traverse a point that is but inductive to the Action, and not a point of the Action; as in Debt, upon a Lease he may plead non di­misit. In Debt, for Arrearages of Account he may plead non computavit; but in Debt, for Money or Wares, sold to him, he may plead non debet, and traverse, that he sold them. Dyer 121. b.

In Account, the Defendant pleads ne un­que Receiver, and waged Law thereon, and had day, and at the day, would have wa­ved his Law for part, and confessed the Action for it, and waged Law for the Re­sidue: per Curiam he cannot without the Plaintiffs assent. Dy. 261. a.

'Tis held, that at the Common Law, he that waged Law in a Court of Record, was to bring with him Fideles Testes, where­with Glanvil agrees, Lib. 1. C. 9. But in in­feriour Courts, one might wage Law with­out Witnesses; to prevent which, was Magn. Ch. 28. made Nullus Ballivus ponat aliquem ad legem, &c. sine testibus fidelibus ad hoc inductis. Others hold, that Ballivus there extends to all Judges. Co. 1. Inst. 168. b.

An Infant cannot wage his Law, but the Husband and Wife, for the Debt of the Wife, may: 18. E. 3. 53. a. A Mute wages Law by Signs. Co. 1. Inst. 172.

Wager of Law is not allowed in any case where a Contempt, Trespass, Deceit or In­jury, is offered; but 'tis allowed in some Cases, in Debt, Detinue, and Account; 'tis not allowed when there is a Specialty. Co. 1. Inst. 295. a.

One Infamous cannot wage Law, nor an Infant, but a Fem [...] Covert with her Hus­band, may. No Wager lyes where the Suit is for the King, or his Benefit, by Quo minus; no Wager against an Infant. An Alien must wage Law in his own Language. No Wager against Receipt, P [...]r auter maines on Account, unless his Wives or his Com­panion. Bailiff of a Mannor cannot wage Law in Account, in Debt, for Rent, or [Page 302] nue, for a Lease no Wager, because sound­ing in the Realty.

It lyes in Debt for a Fine in a Leet, be­cause a Court of Record; otherwise, for an Amercement. No Wager in Debt upon Ac­count, before Auditors; otherwise, if but one Auditor. No Wager in Debt by a Goal­er for Victuals, nor against an Attorney in Debt for his Fees, nor against a Servant re­tained according to the Statute in Debt for his Wages. One charged as Executor, &c. shall not wage; no Wager in Debt for a Penalty given by a Statute. Co. Ent. 118. Pl. 1.

Error of a Judgment against an Executor in Bristol, upon a Concessit solvere per Cu­stom, there to pay a Debt of the Testator, by simple Contract, because it takes from the Wager of Law, Cur' advise &c. Wigg against Roberts. H. 22. C. 1. b. r. Rot. 956. Pascal against Spurning. p. 1649. b. r. Rot. 75. Sti. 145. 198. 199. 228.

In Debt against Baron and Feme, for Beer sold to the Feme dum sola, they waged Law. So note, he waged Law for the De­fendant. Hucks against Holmes, 3 Cro. 161.

Debt against an Executor for Money a­warded to be paid by the Testator, it lyes not, for the Testator might have waged his Law, which the Executor cannot. Hampton against Bower. Sed vide Latch 213. Symonds Case. [Page 303] no Wager of Law against an award, P. 1. H. 7. Pl. 18. 13. H. 3. Noy 96. No Wager against an Award, because the third Per­son cannot 3 Cro. 557. 600. 11. H. 4. 56. b. Wager in Debt, for the Son award.

In Account against A. as Bailiff of his Mannor of D. the Defendant waged Law, and had day to make it: but, at the day, 'twas ruled, that Ley gager lyes not in this Case, being a matter tryable per Pais Ar­chees Case. 3 Cro. 579.

Debt on a Contract against two, one pleads Nil debet per Patriam, the other wa­ged Law; he cannot, but must plead per Patriam, being joyntly concerned in one Contract. 3 Cro. 645.

Debt sued by one in Chancery, a Servant to the Lord Keeper; Defendant, as to part waged Law, and to the Residue pleaded Nil debet per Patriam. And being sent in­to the King's Bench, 'tis doubted if he may make his Law good, but, de bene esse, it was done, Audley against Franke. 3 Cro. 648.

In Debt for Money on sale of Land, doubt if the Defendant could wage Law, being on a real Contract, and resolved he may, and he did make his Law. Miller against Eastcrowe; and so 'tis held by Newton, 22 H. 6. 11. a. and not denyed, 3 Cro. 750.

In Account against one as Bailiff he can­not wage his Law, but as Receiver he may. [Page 304] Sheffeild against Barnefield. Note, it was Account against him as a Bailiff of Town­goods, as Merchandize, not a Bailiff of a Mannor. 7 Cro. 790.

Debt against a Defendant for his Dyet, he would wage his Law, but could not, and pleaded, ad Pais. Bish against Walford, vid. 39. H. 6. The Court divided in this point, H. or E. 19: H. 6. 10. a. Per totam Curiam, he may wage in Debt for Dyet. 3 Cro. 818.

In Account, upon a Receipt by the hands of the Plaintiff's Wife, the Defendant was to wage his Law, because that is not a Receipt per auter maines, upon a Receipt by the hands of the Plaintiff's Wife, they be­ing one Person. Goodrick's Case. 3 Cro. 919.

In Debt, against the Abbot of D. on a Contract by the Predecessor for Goods, that came to the use of that House, the Defen­dant would to wage Law, Et per opinionem Curiae, he may: and vide there divers Ca­ses, where one may wage Law on anothers Contract. Prior de Dunstable's Case. P. 1. H. 7. Pl. 18. M. 13. H. 7. Pl. 2. H. 22. E. 4. Pl. 39. H. 6. 22. a.

In Detinue of a Bailment per auter mains, the Defendant may wage Law; so in Debt, on a Contract per auter mains, otherwise on Account on a Receipt per auter mains; for [Page 305] there the Receipt is traversable; but in the first Bailment 'tis not, but the Detinue. M. 18. H. 8. Pl. 15.

In a Writ of Right of Advowson, Grand Cape issued for default; the Defen­dants came and offered to wage Law of Non-Summons; and because some said the Writ was peremptory, so as he could not have another, the Ley gager was respited. Tr. 27. H. 8. Pl. 2.

In Account, upon a Receipt at the Plain­tiff's hands, though by Writ the Defendant shall wage his Law, and by Detinue upon a Bailment by deed, for he might take them again; and 'tis that Detinet is the cause of Action; not the Bailment. Er. 27. H. 8. Pl. 14.

Debt against J. S. he waged Law, and at the day, appeared to make it, the Plaintiff said, there is J. S. Senior, and J. S. Junior, and the Action brought against the elder, and this is the younger; and in tant' the elder makes default, prays Judgment. Er. 5. E. 4. Pl. 22.

In Debt for dyet, the Defendant may wage Law, whether the dyet were for himself or another. 22. H. 6. 13. b. But on a Lease of a House, &c. he cannot, but on a Lease of Goods or Chattels he may. No Ley gager in Debt for dyet of a Pentioner. P. 9. E. 4. Pl. 1. H. 15. E. 4. Pl. 2. Co. 9: R. 87. 6. 19 H. 6. 10. a.

Debt on a Contract, the Defendant pleads the Contract was made with him and Br. and abates the Writ; yet in another Acti­on he may wage Law, though herein he confessed the Contract; for, he may have pleaded it after, per Littleton, and not deny­ed, & ibidem, by him. In Debt against Baron and Feme on a contract by the Feme dum sola; both shall wage, though he a Stranger to the Contract; for, by the Mar­riage he hath made himself lyable to it. And to this last agrees M. 15. E. 4. Pl. 4 Sed vide 33 H. 6. 43. b. If she make default at the day, 'tis the Default of both, and binds the Husband. 9 E. 4. 2. 4. b.

Debt and Counts of a Retainer, to shape and make such Cloaths; In this case, the Defendant may wage his Law, and in similiter, not against a Labourer, compel to wage by the Statute, 1 H. 6. 23. b. Not wage in debt by a Servant for his Wages. H. 16. E. 4. Pl. 3. Mo. Pl. 971. Co. 9. R. 88. a. b.

Detinue of a chain of Gold of four oun­ces weight, of the value of twenty pounds, though the Defendant have, and detain them, yet, if it be but two ounces weight, he may wage Law, as if it were a black Horse, and the Suit for a white one: but if the Count were of a thing certain in the quant. or qual▪ as six yards of cloath, tho [Page 307] he mistake the Price, as ten Shillings for eighteen Shillings; yet the Defendant can­not safely wage law, Count of a Contract for 500 l. It was for 500 l. to be paid in Jew­els, Defendant waged law. 39 H. 6. 34, 35. 3 H. 6. 49. b. Count of a Contract for 40. l. plead that it was for 20 l. and wage law for the rest. P. 22. E. 4. Pl. 8. 9. Mo. Pl. 1. 48. Vide 39 H. 6. 34. 35.

Debt by a Keeper of the Tower, for Man­ger and Boyer for one committed there for Treason; Defendant cannot wage law, Et dict. for debt by a Priest, for his Salary, Defendant may wage law: 28 H. 6. 4. b.

In Account of Receipt per auter maines, no Wager lyes, because the Receipt is the cause of the Action, and that's notorious al pais being per auter mains: but in Detinue on a Delivery per auter mains, Wager lyes, because, not the Livery, but the Deteiner, which is, in a manner, the cause of Action; but in next Case, 'tis the Usage which makes the law of Wager; therefore in debt it lyes, in Trespass it lyes not 33 H. 6. 9. a.

Debt on a Judgment in Court-Baron, the Defendant pleads, Nul tiel Judgment, 'tis no Record, therefore tryable per Pais; De­fendant not wage Law; 34 H. 6. 49.

No Wager lyes in debt, or Arrearages of Account before Auditors, but that was not at the Common Law, but is given by the [Page 308] Statute of Westminster, 2 Ca. 11. But though the Statute gives it only in Case where the Lord sues for the Arrearages against the Receiver; yet it seems by Needham and Prisot, the Wager lyes not where the Bai­liff or Receiver sues the Lord for Surplus on the Account, 38 H. 6. 5. 6.

Debt for Wages and on a Reteyner to serve in all Occupations, the Master wages law, because it may extend to other things besides Husbandry, which the Reporter holds to be otherwise; for, the Service and Wages being entire and no Wager for part, he thinks there should be none for the rest; for, Ma­gis dignum trahit ad se minus, 38 H. 6. 13. 14.

Party wages Law, and day given to make it; either of the Parties at that day may be excused by Essoin, but if either make de­fault, it is adjudged against him; or if the Defendant do not bring twelve sufficient men, 'tis a default, as if any of them prove Execution, Attachment, &c. Et ibidem if in Replevin the Plaintiff say that the Defen­dant kept himself out of the way, that he could not tender Amends, and bring his Suit of it, Defendant may wage law of it; but if he bring no Suit, he need not wage, for against one single Voice he need not wage; whereby, since (moy semble) he means Proof, and so Selden upon Fortescue expounds it. vid. Brit. 60. a.

Debt and Counts upon a Lease for three years, of certain Sheep, the Defendant wa­ges law, per Cur', he may, though not in a Lease of Land; Vid. 9. E. 4. 1. b. 1. H. 6. 1. a. b.

No Wager in Law lyes in debt by a Ser­vant for his Wages, sed quaere, for that seems, such a Servant only, as is retained according to the Statute, 3 H. 6. 33 B. 34. a.

Debt and Counts of Reteyner to scald his Hogs, and foul by the Year, taking 100 s. The Defendant may wage his Law, and so he may upon a Retainer to serve him at Plough a year, and to find Ploughs, &c. for these not Reteyners according to the Statute; and so of a Reteyner to be his Counsel for a year, &c. 3 H. 6. 42.

One waged law, and brought twelve with him, one whereof was challenged, for that he was under Age; and he was try­ed by Inspection of Court, to be of full Age, whereupon, the Party made his Law, and went quit; 8 H. 6. 15. b.

Debt of a Box of Writings and Charters, and Counts of one Charter in Special. To which, the Defendant pleaded non detinet, and to the rest, wages Law, & bon; for, if one Count of a box of Charters, and shew not in Special, he may wage Law as to all: for, unless one Charter be certainly set out [Page 310] the Box, and all counted Chattels: Vid. 14. H. 6. 1. a. Detinue of Goods and Chattels, defendant wages Law quoad the Goods, and pleads to the Charters 44 or 4 E. 3. 41 b. and 19 H. 6. 9. b.

Debt, Defendant having answered in Court, that he bought, &c. to the use of the King, waged Law, and was admitted; for, notwithstanding he acknowledged the debt, it being a Contract, and he might have paid (or pleaded) it in pais, the Wager allow­ed, simile, 11 H. 4. 28 and 3 H. 4. 40. 7 H. 4. 7. a.

Account by the Husband or an Abbot, and counts of Receipt per manus de Son feme. or de Son Comoine, good, and needs not count of a Receipt by his own hand; yet, 'tis as a Receipt by his own hand, and the De­fendant may wage Law: And so vice versa, in Account against Baron or Abbot, Count of Receipt per manus del Feme o [...] Cemoine, le Defendant; and so is 2 H. 5. 2. b. vid. 47 E. 3. 16. 13 E. 4. 8. a.

Debt against two, one makes default, the other wages law, and at the day makes it. The whole Writ is abated, Et quer' nil capiat against both entred; where, by the Acceptance of the Law quoad one, the whole Writ is abated. Vide 41. E. 3. 26. or 2. b.

Precipe quod reddat against two, one makes default after Joynt-wager, the other joyns, [Page 311] and makes the Law. And it is accepted, though the defendant opposed it, the de­fendant recovered some of the other Moy­ety. Note, here both waged joyntly at first, vide 48 E. 3. 13. b. Cessavit against two who waged law, one comes to make it, Seizin is prayed of the, others Moyety that made default; for, if the Law of the one be accepted at first per Wishingham, all the Writ abates. But here when he prays Seizin of the entire, for the default of one, it was denyed; and upon the whole it seems, if one make default, Seizin of his part must be pr. first, else, by acceptance of the o­thers Law, the Writ abates; And if Seizin be granted of the Moyety, it seems it is conditional; for, if the other makes his Law, the whole Writ abates tamen quere, and vide 3 E. 4. 21. a. 12. E. 4. 1. b. 5 E. 3. 9 B. and quere in personal Actions, not to be done in such case, for there no Seizin of part can be prayed. 40 E. 3. 35. b. vid. 40 E. 3. 40. 41.

Debt against a Bailiff for Arrearages on Account; obj. He cannot wage, &c. because in the Realty; but resolved he may, and so may he by 13 H. 7. 3. 6. If he had account­ed, and was found in Arrearages before one Auditor. 43 E. 3. 1. 6.

Attaint on a Prohibition; Plea, that he sued out Sugg' to Prohibition, and therefore [Page 212] he wages Law: doubted if Ley gager lyes, by Belknap, it does; because the first Suit but for debt, in which Ley gager lyes. 44 E. 3. 32. a.

The Servant retains one as Attorney for his Master, the Master makes the Servant Executor; and dyes: In debt by the Attor­ney against the Executor, he cannot wage Law, though the Master might; for, the Servant is bound by his own deed of Re­tainer, though he be sued as Executor, &c. And per Finchden, Baron may wage Law, if a Feme contract, and an Abbot, if his Monks: And so Bro. Tit. Ley gager 46 E. 3. 10.

Debt against a Bailiff for Arrearages found before Auditors, assigned in pais by the Ma­ster; the defendant wages his Law, Et bene per Cur', though Brookes and Bridges say the Law is otherwise at this day, quere, since 'tis not before Auditors assigned by Court, Et hic dicitur quod, one may wage Law for a Sum recovered in a a Court-Baron, because no Court of Record; yet 'tis found by the Suiter, and so 'tis said, 13 H. 7. 3. 6. Per Cousby. 'Tis also here said, one may wage Law in debt for a Sum recovered in Tres­pass, but in Trespass Ley gager lyes not: 49 E. 3. 2. 3.

Debt in the detinue only for rent Corn, as 'tis agreed it must be, not being Money; and though 'twas upon a Lease [...]o years, [Page 213] yet being in the Detinet only, the desendant is admitted to wage Law, 50 E. 3. 16. a. b.

Debt against J. D. who appeared by Attor­ney, and ley gaged; and at the day, J. D. Junior, comes to make the Law: Plaintiss says his Suit is against J. D. the elder, & per optimam opinionem, J. D. Junior shall be dis­charged, and the Plaintiff shall have Judg­ment against the elder by default, and the Plaintiff be no longer delay'd. And so 'tis adjudged, 9 E. 3. 20. b. 5. E. 4. 23. 26. 114.

Annuity, defendant pleads a Refusal to give him advise upon Request; plaintiff of­fers to wage his Law, that he did not re­quest him, denyed, because he cannot wage Law de alieno; from (then) he offers to wage Law, that he did not refuse; (then) per Herle, that admits, that he did request, and shews no performance on request; and if he re­quested, he did or did not perform, and when he sued not, if he did perform, it must be intended he did not qu. of law gager in such cases if it lye at all. 5 E. 3. 55. b.

In a Plea of Land the defendant defendant wages law of Non-summons, and offers to make it instanter, and per Herle (and not denyed) he may Ley gager, and make it instant, 7 E. 3. 24. a. Account by an Executor, and counts of a Receipt per manus Testatoris, was per [Page 314] auter maines, then his that sues tamen quaere. In Debt and Account by Executor, 'tis said, defendant may wage his Law, Et sic semble hic. 7 E. 3. 61.

An Abbot is permitted to wage law of Non Sum' per Attornatum, quere If a com­mon person may do so also, though he must make it in person. 8 E. 3. 20. a.

Prohibition of a Suit in Trespass contra pa­cem, the Sheriff comes, and says he is sued not contra prohibitionem, on the attachment, and tenders Law; denyed, for in Trespass contra pacem, it lyes not, no more than in Count of a Receipt per auter maines; non al­locatur, and that Law was received, and in 29. E. 3. 47. b. Debt lyes and grant of a delivery of goods by the Testator, per auter maines, defendant wages Law. So 30. E. 3. 24. 29. E. 3. 34. b.

In account, the defendant before Audi­tors says he paid the Money to the plaintiff; the plaintiff would have waged law, That he did not receive it, but the other alledging that he had pass'd it per auter maines, non allocatur. Vide 30 E. 3. b. a. Ley gaged, that he did not receive a Statute, Wine, and Cloath, in Satisfaction of a Debt, and doubted if it lye quoad the Statute; but the Clark said it is usual, 29 E. 3. 46. b.

Debt against two who wage Law, one makes default, the other his Law, Nil ca­piat [Page 315] per breve; and the re [...]son seems, that he having charged the two joyntly, and the debt disproved quoad one, the Writ is satis­fied in toto, yet eodem folio. 6. in a Precipe of Land against two, one makes Ley of non sum; the Writ abates quoad him, and Seizin of Land against the other that makes de­fault. Note, the first Action is in the per­sonal and entire, the last in the realty and several. 38 E. 3. 33. a.

One wages Law, and at the day failed, and the Roll marked, and Costs taxed, yet on motion sedente Curia, the same day he was admitted, and made his Law, & eodem in libro. Pa. 44. Ley gager lyes not in debt for Releif, Noy 42.

Defendant had day to make his Law, and at the day, made Affidavit, that he was pressed to serve the King, and could not come, and they prayed farther, and deny­ed for peremptory; but the defendant pleaded al pais per advisamentum Curiae, and consent: Ashford against Greenvile, M. 1. Ca. 1. sed vide in Bulstr. 186. He cannot wave his Law, and plead al pais, without con­sent. 3 Bulstr. 263. Affidavit, that he was sick, yet no day, but he pleaded al pais, 3 Bulstr. 316. on default, Judgment, and no day. Ben. 151.

Debt for Scavage, and declares that the Mayor, Aldermen, &c. time out of mind, have so much for Scavage, and the defen­dant brought so many Boards, whereby so much was due; defendant waged Law, and on demurrer adjudged, it lyes not on this debt grounded on a Custom Ma. &c. of London against Delpester, Tr. 26. Ca. 2. b. r.

Wast.

DEvise to one for Life, Remainder to A. in Fee; Tenant for Life does wast, he in Remainder shall have an Action of Wast, but the Writ must be special, and shew that he was the Reversioner by Devise, not gene­rally ex assignatione. Hutton. 110.

Lease, excepting wood and underwood, Lessee cuts Timber; it seems an Action of Wast lyes not, because the Wood was devi­sed, and so not within the Statute. Dyer 19. a. 1 Leon 61.

In Wast it seems, that the defendant, if he never attorned, may either say que riens pas­sa, and give in Evidence that he never at­torned, or plead it. Dyer 31. a. 231. a. b.

In Wast, for cutting and selling Trees, the selling must be answered, as well as the cut­ting, for that is traversable. Dyer 75. b. 90. b. Co. 1. Inst. 53. Hob. 104.

If an house be ruinous at the Lessee's En­try, 'tis no wast to suffer it to fall, but to pull it down 'tis, and 'tis wast in the Lessee to cut Timber to re-edifie such an house, per Dy­er; but I suppose not, for, if the house fall by Tempest, the Lessee may cut Trees to repair, [Page 318] by Co. 1. Inst. 53. b. 54. a. contrary to Dyer 36. a. Co. 4. Rep. 63. a. 11. 81. a.

The general property of Trees remains in the Lessor, and the Lessee hath but particular Interest to take them; and in Dyer 'tis said, the Lessor cannot grant them without the Lessee's License. But Co. 11. Rep. 'tis said, 'tis good to take effect after the Lease; which is yet a doubt upon Waller and Pettit's Case. Dyer 36. a. b. Co. 4. Rep. 36. b. 11. Rep. 48. b. 81. 1 Cro. 199.

Wast assigned, quòd amputavit & decapita­vit quadragi [...]ta Fraxinus, & viginti Ʋlmas, and adjudged it well lyes. Dyer 55. a.

Wast assigned, Succidendo quercus, the Truth was, he did not lop and top them; he may plead, Nul wast fait, and give the speci­al matter in Evidence. Dyer 92. a.

Upon the Retorn of the Summons, 'twas said, quòd quer' obtulit se quarto die per At­torn' without naming him; and though he was named in the assigning of the Wast, yet 'twas Error, and so it was that the Estate was not set forth in the Writ, though it was in the Action of Wast. Also, he shewed one Te­nant for Life, by way of use, the Reversion to him, and said not specta [...]' vel pertinen'. Dyer 93. b.

Wast may be assigned in destroying the Planks and Managers in a Stable, but then they must be averred, fixed to the Free-hold. [Page 319] And so of letting a Brick-wal fall, but it must be averred that it was covered. 1 Inst. 53. a. Dyer 108.

Wast by a Bishop, moved to abate the Writ, because, 'twas ad Exheredationem ipsius Episcopi, where it should be ad Exheredatio­nem Ecclesioe; but no Resolution given. Mich. 10. H. 7. Pl. 8. Ad Exheredationem ipsius A. B. & Ecclesioe de S. Mich. 42. E. 3. 22. b. Dyer 129. a.

Lessee of an house and Wood, covenanted to repair the house at his proper Costs, and took Timber to repair it; he is not charged with Wast, but in Covenant he is:

The same Law, if the Lessor had covenant­ed to repair it, and the Lessee had took Trees on his default. Vide 21 H. 6. 47. a. Lessee may plead in Bar of Wast, that the Lessor granted the Repair, and he took the Trees to do it in his default. Dyer 198. b. 314. a. Dr. and Stud: 66. b. Perkins. § 738. Plow. Com. 29. Dyer 32 a.

A. makes a Lease to commence in futuro, and before the Lease commences infeoffs B. The Lessee does wast, B. brings wast, suppo­sing quod tenet ad terminum, &c. ex Assignatio­ne A. de quo idem defend' tenuit, &c. and good, there being no other forme, though he never held of A.; for his Term was never commen­ced in A's time. Dyer 206. b. Hutton's Re­ports, fo, 110.

Lessor grants the Reversion to A. who grants it to B. the Lessee assigns the Term to C. Form of the Writ denyed per Justic' utrius­que Banci. Dyer 208.

Scire facias of a Fine, and Writ of Estrepe­ment sued; one that purchased wood long before the Scire facias, is hindred to fell it. Quoere, what Remedy? Dyer 110. b.

In wast assigned in taking a Furnace fixed to the Soyl; the defendant pleaded a Devise of it by the Termor, and removal of it by the Executor's Assent: It seems no Plea, being doubted if the Plaintiff ought not to have Judgment for the wast confessed. Dyer 272. b. Owen's Rep. 70. Wentworth's Office of Execu­tors, fol. 36.

Quid Juris Clamat was brought upon a Fine, and after Judgment, and before Execu­tion, a Writ of Estrepement awarded. Dyer 325. b.

In wast for cutting Trees, the defendant pleaded quòd fuerunt aridoe & cavoe, & putri­doe in culminibus non existentes sufficiens Mahe­remium pro edificiis. Two Judges held it ill, because not said non portantes fructus nec folia. Dyer contra, it tantamounts. But agreed non existen' sufficiens maheremium ad edificand a­lone, ill; for it may be fit for other uses. And to other he justified to make Posts for Inolo­sures, and that ill, because not shewed, that all those Trees were so employed. Dyer 332. More pl. 246.

A. and B. Joyntenants for Life, Reversion to B. make a Lease; they shall joyn in wast. And so if Tenant for Life, and he in Reversi­on make a Lease, they shall joyn, and Te­nant for life shall recover Locum vastatum, he in Reversion damages. 1 Inst. 42. a. b. 1 Le­on. 49:

To cut down Timber is Wast, to suffer the young Germina to be destroyed, is Destructi­on; so if one when he has cut a Sale-wood lets the spring be spoiled, or stubs it up. Cut­ting Willows, Beech, Maple, &c. that stand in defence of the house, and stubbing up a quick set Hedge, is destruction: for all which, an Action of Wast lyes. 1 Inst. 53. I. K. L. M.

To suffer a ruinous house to fall down, that was so at one's Entry, is not wast; ytt, he may take Timber and re-edifie it: but if he pull it down it is wast. To destroy Glass, Wainscot, Doors, Furnaces, &c. fixed to the Free-hold, is wast. Cutting Fruit-trees in the Orchard or Garden, is wast; otherwise not. If a house be blown down by Tempest, Lightning, &c. the Tenant must in conveni­ent time repair it. Destroying the Stock of Dove-houses, Warrens, &c. is wast. Where Timber is scant, 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 [Page 322] 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, 'tis 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 [Page 323] 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 'tis 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, 'tis 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, [Page 324] Grantee does wast, Grantor ent [...]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, 'tis 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, 'twas 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. [Page 325] 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; 'tis 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 [Page 326] 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 dig to make a drayne in a [Page 327] Meadow. Ibidem Owen 66. 67. Hutt. 103. Dy. 37. a. Co. 1. Inst. 53. 2 Leon. 174.

Lessee builds a new house, 'tis wast to suffer it to decay; not if the Lessor builds it after the Devise. Ibidem Co. 1. Inst. 35. s. Hutt. 103.

Whether Tenant by the Curtefie were pu­nishable for wast by the Common Law? Or not. Vide Co. 2. Instit. 299. 145.

The first Statute that gave prohibition of wast and damages against Farmers, was Marlb­cap [...] 23. And where the Statute says vastum &c. non facient, 'tis to be understood also, non permittent vastum; and so 'tis in the Conditi­on of a Lease. Co. 2. Inst. 145.

None can claim to be dispunishable of wast in a particular Estate, but by deed, because, 'tis the Lessor's disherison, Co. 2. Inst. 146. Dy [...] 281. a.

Lessee of a Mannor commits wast in a Te­nement escheated, the Lessor shall declare in wast of a Lease of the Tenement, and main­tain it by special Matter. Co. 2. Inst. 146.

At the Common Law, to prevent wast by Guardian, Tenant in dower, or by the Cur­tesie, the Party might have a Prohibion to the Sheriff, and by that he might have a posse Co­mitatus; and so it may be done at this day. And such Remedy as is against them at the Common Law, is against Farmers, &c. by Marlb. ca. 23. Co. 2. Inst. 299. Vide Stat. 10 R. 2. c, 14.

If a Lease be made to A. for his own life, Remainder to him for the life of B. or where a Remainder for years is upon an Estate for life; there, if A. does wast, it shall be pu­nished, because himself had both Estates: and in the latter case, the Remainder shall not destroy the Term for years. Co. 1. Instit. 54. & 2. Inst. 301.

The Husband that holds in Right of his Wife (Lessee for life) does wast, the Wife dyes, the wast is not punishable, because the Hus­band held not, but in his Wife's Right, and the Estate was her's. Clifton's Case, ibidem. Co. 5. Rep. 75. b.

Although Tenant in Tail after possibility of Issue extinct be dispun. of wast, yet if he grant over his Estate, it is punishable in the Assignee. ibidem 302.

Tenant by Statute, Merchant, Staple, or Elegit, though they have but a Chattel, are not within the Statute of Glocester, 1. 5. Exe­cutors shall be punished for wast done in their own time, not in the Testators. He that holds a third or fourth part pro indiviso, is within the Act. Tenant for years assigns up­on Condition, the Assignee does wast, and he enters, for that Condition the Action must be against the Assignee. Ibidem.

Tenant for Years, or Life, assigns, and takes the profits, and does wast; the Action lyes against the pernor of the profits, by 11 [Page 329] H. 6. c. 5, Co. 5. Rep. Booth's Case 77.

Tenant assigns the Term (except the Trees) Wast is done in the Trees, the Action lyes against the Assignee. Co. 5. Rep. Saunder's Case.

Lessee commits Wast, and then assigns; Wast in the Tenant shall be maintained against the Lessee, and the place wasted, and treble Damages shall be recovered a­gainst him. Non Tenure general is no Plea in Wast but special non Tenure is. Assign­ment, and no Wast done before the Assign­ment, or Wast done by the King's Enemies, or Tempest, or Lightning, is not punisha­ble. Co. 2. Inst. 302. 303.

The Tenant shall answer for permissive Wast, unless in such case where he could not prevent the Wast; as where he is ou­sted by Cotssee of a Statute entred into before his Lease, and that Cotssee does wast, or by any precedent Title, ibid. 303.

Feme Tenant in Dower of a Mannor and Copy hold, commits Wast, the Action lies against the Tenant in Dower. Ibid. 303.

Femes Coverts, and Infants shall answer for Wast done by Strangers, though some have held the contrary; and so shall the Wife for wast done by the Husband for Lease made to them for Life, if she agree to the Estate. Ibid. 303.

Where the Wast is done Sparsim in hou­ses, Woods, or Meadow, there the whole shall be recovered ibid. 304.

One may have an Action of Wast in the Tenct after the Term is determined by Ex­piration, Death, or the Act or Wrong of the Tenant; and theresore, if the Term end, hanging the Writ, it shall not abate, be­cause maintainable for the damages; but if the Tenant surrender after the Wast done, no Writ is maintainable; for the Lessor can­not by his own Act alter the form of the Action. Ibid. 304.

The Heir cannot maintain an Action for Wast done to the Ancestor, because the da­mage belongs not to him; yet, if two parce­ners be, and wast is done, and one of them dyes, and wast is done again, one Action shall be maintained for both, and the Writ shall say, both Wastes were to both their Disherison, but the Judgment shall be for the place wasted to them both, and for the damages severally in their several Tenures. Ibid. 305.

Guardian shall not be punished for Wast done by Strangers, unless it be such as he might have prevented, and would not; for then qui non prohibet, jubet, ibidem 305.

If the Gnardian commit Wast, he shall by Gloue' Ca. 5. lose the Wardship and sin­gle Damage; and if it be done so near his [Page 331] Age as he could not bring his Action of Wast, or had not notice of it, then he shall recover treble damages upon the said Sta­tute, as a common person shall. Ibidem 306.

Wast upon the Stat. of Glouc' Ca. 5. lyeth not in Ancient Demesne, because they can­not award a Writ to the Sheriff, to inquire. Ibid. 306. Owen 24. contra.

In an Action of Wast by two in the Te­nuit, if one relinguisheth, it barrs both; not so of an Action in the Tenet. Ibid. 307.

A. has B. and C. in his Wardship, Ratione Custodiae, and commits Wast in the Lands of B. yet he shall not lose the Wardship of C. because the Wast was not to his Disheri­son. Ibid. 306.

At the Common Law there lay an E­strepement after Judgment; Glouc. c. 13. gives it, Pendente placito, and may be sued out with the Original. If the Tenant alien pendent the Plea, the Estrepement may be against him and his Alienee, and the De­fendant shall not have his Age in it. And tho the Statute says, Du Tenement in demand, yet in the Scire Facias to execute a Fine in a Quid juris clamat, or in Wast, an Estrepe­ment may be had, yet no Land is demand­ed in the Writ. Upon the Statute, the par­ty shall recover damages after delivery of the Lands. Co. 5. Rep. 114. b. It lyes before [Page 332] or after Judgment in Wast, and the Sheriff may take the Posse Comitatus, to prevent the Wast. Co. 2. Inst. 328. 329.

In Wast, the Process is Summons, At­tachment, Distress, and then upon default, a Writ ad Inquirend'; and the Sheriff, by the Statute, is to go in Person, and with the Ju­ry view every place in every Town; but he may inquire at any Town, and there can­not be less than twelve of the Jury. Co. 2. Inst. 140. or 146.

Articuli super Chartas, gives an Action of Wast against the Escheator or Sub-Eschea­tor, if they do wast in any thing that comes into the King's hands, with a Respondeat su­perior'. Co. 2. Inst. 571.

Wast may be in distruction of the Game of Deer, or Pigeons, though all be not de­stroyed, so to stop the holes of Dove-houses, to stop Coney burroughs; but, to dig Stones, Marle, or stub up old Thorns, or plough a Hop-ground, is not. Ow. 36. 67. Co. 1. Inst. 51. K. 2. Leon. 222.

Adjudged, That if Houses or Ground­sills be putrified for not scouring a Ditch, Wast lyes, In Domibus pro non escurando, &c. Ow. 43.

To stub up Thorns is not wast, unless growing in a hedge-row or on a Wood, or old Thorns of fifty or sixty years growth. Ow. 67. 1 Inst. 53.

One made a Feoffment to the use of him­self for Life, and to another in Fee, and was punishable in Wast by him in Remain­der therein; tho in the Dr. and Stud. 'tis said, if Feoffment be to one for Life, he is not pu­nishable for Wast. Ow. 91. 25 Eliz. Com. Ban­co, Rot. 603. Rayer con' Durat.

One entred into Bond not to commit Wast, and the permitting a house ruinous at the time of the Lease, to fall, was a For­feiture of the Obligation; such Wast is not punishable, if there be no Bond, nor Co­venant against it. Owen 29 Eliz. Glover against Pike.

It seems, that a Quod ei deforceat will lye upon a Recovery by default in a Writ of Wast, against Tenant in Dower, &c. But because the default was after Appearance, and so a Contempt, it lay not in Elmer's Case, not because Damage on the Prin', or that Wast is a personal Action. Vide 3 Cro 263. 2 Rolls 102. 2. 104. 4. Damage, Owen 101. p. 33. El. Co. Baneo Rot. 1125. Elmer against Thatcher. 1 Inst. 355. 198. 2. r. 68. b.

Lessee for years, waves Possession, and a Stranger commits Wast; the Lessor shall have wast against Lessee; and so if Lessee as­signs, and continue in Possession, and does wast, the wast shall be against him. Ow. 141.

When the Writ to enquire of wast is A­warded upon Nichil dicit, there the Com­mand in the Writ, that the Sheriff go to the place wasted, and enquire &c. is but Sur­plus; and the Sheriff needs not go thither but may enquire of it in any place in the County, because the wast is confessed; but if the Writ be to enquire at the Grand Distress, upon Westm. 2. 24. There such Command is necessary, and the Sheriff must go to the place, because that must better appear upon the view; yet the Entry in both cases is Per visum Juratorum. Pop. 24. Dy. 204. a. Hutt. 44. 3 Cro. 18. 290.

When the Interest of the Inheritance is in one person, and the Lease for years in another, though by several Demises, part at one time, part at another time, yet one Action of Wast lyes: and so if Lessor have but two third parts of the house in which the wast is done, he shall assign wast to be done in the whole; for it cannot be done in part, but 'tis to all, and though not in all, yet it goes to each part. But 14 H. 8. where one lets several Leases of the same Lands to one person, not one, but several Actions. Pop. 24. 25. 3 Cro. 290. 14 H. 8. 12. b.

Lease for Life without Impeachment of Wast, Lessee has an Interest in the Trees, &c. and may give them, and shall have them [Page 335] whoever cuts them, and shall have Trespass against a Stranger that cuts them; contra­ry to Co. 4. 63. a. Dy. 184. a. Hob. 132. Pop. 195. Co. 11. 82. b. Dy. 47. b. Co. 1. Inst. 224: a. 2 Cro. 216.

When the Wast is confessed by Nil dicit, the Writ to enquire is not to enquire of the Wast, as it is when the Judgment is upon the Distress by the Statute, but only of the Damage. Hutt. 44. Tippin against Rives.

Trenching a Meadow, whereby it is me­liorated, is not wast; but building a new house is, because it puts the Lord to more charge; and so is planting a Hop-ground, because it alters the Lord's Inheritance. Dyer 361. b. Hutton 19. 103. Hob. 234. 1 Inst. 53. f.

By Fitzh and Baldwin, Ch. Inst. One Joynt­tenant shall have Wast against his Compa­nion by the Equity of the Statute, cum duo vel tres, &c. but not Parceners, because they were compellable to make Partition: and not denyed. p. 27. H. 8. Pl. 37.

Wast, Et inter alios Arbores, white Thorns, each valued at 6 s. 8 d. Defendant pleads, that they were for Hedge-boot, and House-boot. Plaintiff says, there were black Thorns enough besides; and as to the Hedge­boot, is taken, that there were not enough besides, and found there were as to the House-boot: the Defendant demurs, and [Page 336] the Plaintiff enters a Nolle prosequi on the Demurrer, and Cur. advisare vult on the Verdict, and no Judgment given. Co. Entr. 708▪ 709. Pl. 11.

Wast and Issue of a Confirmation, and in the Venire facias was omitted, Et Interim Terram illam videant; wherefore, obj. they cannot take the Inquest. Responds. they may; the Issue here being for a collateral thing, and the Estate not to be enquired of. P. 7. E. 4. Pl. 2.

Wast against Baron and Feme, and she re­ceived in his default, pleads an Assignment by them, and till then, no Wast. And it seems she shall have the Plea, though it ap­pear she can lose nothing. And for Dama­ges she shall not be received. Trin. 9. E. 4. 15. Vid. 22. E. 4. 35. a. 21. H. 6. 46. 4. or 40. 42. E. 3. 22. 6.

Wast brought by two, and one summon­ed, and severed, and the other recovers the moyety of the place wasted, and the Moy­ety of the damages & quoad, the VVillows Assize for wast, Cur' advisari vult. P. 12. E. 4. Pl. 1.

If one does wast, and repairs before Acti­on brought, he may plead it and excuse himself; but, if the Condition of a Bond be not to do wast, and he does wast, and re­edifies, yet, Debt lyes, for the Bond was once and ever forfeited. 20 E. 4. 18. b.

Lessor sells Trees, Vendee cuts them; Lessee's Cattel eat the Germines, no Wast, for he not bound to fence them in, against the Lessor's own tortious Act. Tr. Mo. 9.

Lease for years, Remainder for Life, Te­nant for years does wast, Action of Wast lyes. So if Lessor covenant that he will not sue Lessee for wast within two years, yet after the two years, he may sue him for wast done within them. But if Tenant for Life be, Remainder to Baron and Feme in special Tail, Feme dyes without Issue, wast lyes not; otherwise, if the Remainder in Fee were to the Baron, because the Tenants in Tail, after Possibility, were merged by the Fee, per Browne; quod tamen Dy. negat. Tenant for Life, Remainder for Life, Wast is done, he in Remainder surrenders, Wast lyes. Co. 5. Rep. 76. b. Mo. pl. 64. Co. 5. Rep. 76. b. 2 Cro. 68. b.

Tenants in Common cannot joyn in Wast in the Tenet, but Joynt-tenants or Parce­ners may; and also Tenants in Common in the Tenuit, being only to recover Damages. Ibid. Mo. f. 383. Mo. pl. 110. 127.

He in Reversion, by way of use, brings wast against the Feme Tenant for Life; of the same use, she pleads that the place was left so ruinous at the death of her Hus­band, Quod reparare non potuit, and adjudged a good Plea. Mo. Pl. 158.

Wast assigned in permitting Sea-walls to be ruined, whereby, &c. if not done by sudden violence; as if a small breach were, and he permits it grow greater, it seems wast, Et per omnes, the permitting Decay in the Banks of the River is wast. Mo. 173. 187. 200.

Dower; Tenant pleads ne unque seisie que Dower, and Issue of it. Demandant prayed a Writ of Etrepement, because great part of his Coppice wood, and the Husband dyed not seized, so she cannot have damages; yet it seems Etrepement lyes not, because Damage lyes in the Action. Mo. Pl. 186.

Wast, and the Writ was quod fecit vastum in terr' In the Count assigns wast in cutting Trees; and adjudged, it maintained not the VVrit, but if it had been assigned of digging Clay, &c. it had. Mo. Pl. 200.

VVast and Count of VVast done contra prohibitionem, after the Estrepement sued upon a Formedon, Defendant pleads Quod non fuit vastum contra prohibitionem. Issue; Verdict, and Judgment pro querente. Mo. Pl. 1. or 245.

'Tis VVast to take away a Partition, &c. fixed by the Lessee to the Free-hold; sic of Benches or Glass-windows, to take away Doors of the Houses, if they be outer doors, for defence of the houses; not in ward for Separation of Chambers. Mo. Pl. 315.

One that had power to make a Joynture of third part, makes her Joynture of a third part undivided. And this held by Popham, not according to the Power, which was to be sans impeachment of wast, and against the Tenant in common wast lyes not: so it should have been done in Severalty, by Popham fo. 374. But that is denyed by Mo. fo. 387. 388. And that wast lyes against the Te­nant in Common, of a third part also, by Popham, the Proviso being to do it, Sans Impeachment, &c. And he makes an Estate for Life, with Remainder, 'tis disjunctive by reason of the Remainder; whereto, More answers, that 'tis but the effect of the Law, not the word of the Party, and then Remainder were created before; so he must make it by operation of Law, Sans Impeachment, &c. or make none: Also, 'tis not eadem sans Impeachment, &c. but the Re­mainder does at present hinder the Action; and it is not like Cases upon 32 H. 8. there Tenant in Tail shall not make a Lease for three Lives in Possession. So another way to satisfie the Statute, Perrot's Case. Mo. Pl. 506.

Tenant for Life Remainder for Life, tho Wast in the Tenant for Life be dispunisha­ble, yet the Chancery will by Injunction bind him to do no wast; and such a Pre­sident cited temps. R. 2. Mo. Pl. 748.

Error to reverse a Recovery in Lancaster, and pendant it a Writ of Estrepement grant­ed, and so resolved 'tis grantable in a Scire Facias. Holland, &c. against Jackson and Ogden, & sic vid. 2 H. 6. 13. Estrepement granted in Scire facias, on a Judgment in a Formedon. Mo. Pl. 850.

Resolved, that great Birch is used in the Country as Timber, and esteemed in Law as Timber, and 'tis wast in the particular Te­nant to cut them; and so in Cro. are black Thorns in some Countrys. Countess of Cumberland's Case. Mo. Pl. 1099. 1 Cro. 283. 2 Cro. 126.

Writ of Wast in two Towns, Count of Wast in three Towns ill; but è contra, if less be in the Count, than is in the Writ, 'tis good pro tanto. Earl of Cumberland against Countess Dowager Cumberland. Mo. Pl. 1185.

To convert a Horse Mill to a Hand Mill, or a Corn Mill to a Fulling Mill, is, though it be better for the Reversion, and the rea­son seems, because it alters the Evidence. City of London against Groyme. Mo. Pl. 1230. 2 Cro. 182.

Lessee covenants to repair at his own Cost, and the house being out of Reparati­on, put Timber on the Land to do it, and held a bar; for, the Covenant takes not from him the Liberty the Law gave him: but it seems the Court was of another opi­on, [Page 341] Mo. Pl. 80. vid. Dy. 196. b. 314. a.

Lease except Trees, Lessor grants and sells the Trees to Lessee, he cuts them; resolved first, Lessee has but special Property in Trees, till severed, and then Lessor may take them, be it by Wind, or wilfully, unless Doatards. Secondly, Sans Impeachment of wast gives no interest, but that is contra to Co. 11. Rep. 82. 83. Popham 195. Dyer 184. b. Thirdly, such Interest has Lessee in Timber of Houses, if blown down, to take to rebuild; but, if he pulls them down, Lessor may take it. Fourthly, by the sale of Trees to the Lessee, they are not so re-united, but the Lessee is absolute Owner of them, for he has not an equal Interest in them and the Land, to ex­tinguish; as if Feoffor sells the Trees to Fe­offee. Fifthly, Wast may be in Glass, tho in the Lessee's own setting up, fixed by Nails or otherwise; and so in Wainscot, set up by the Lessor or Lessee, and fastned either by Nails or otherwise, to remove it if nailed. Harlakenden's Case. Co. 4. Rep. 62. 63. 64.

Lessee deviseth the Term, Executors do wast, and then assent to the Legacy, Wast lyes against them in the Tenuit; and so if the Grantee on Condition do wast, and then the Grantor enters for the Condition, yet wast in the Tenuit lyes against the Assignee on Condition. And if the Lessee unlawful­ly [Page 342] open a Mine, and not that Term except Mines, if after the Assignee dig in it, 'tis wast in him, though the first began it, for the Exception is void. And resolved, first, Les­see may dig in Mines opened before, not open new. Secondly, if it be of the Land, and all Mines, he may open new Mines. Sanders Case, Co. 5. R. 12. b.

Wast lyes against an Occupant, for he is within the words of the Statute, for he holds, Pur Terme de auter vie, and it is a­gainst all Tenants for Life. But it lyes not against Tenant by Elegit, Statute Merchant, for they hold not, but come in by Act in Law. Co. 6. R. 37. b.

Lessee. for years, Sans Impeachment of Wast accepts a Confirmation for Life, the Priviledge is gone, because the Estate where­to it was annexed, is removed. Co. 8. R. 76. b.

If the Sheriff go and see the place wast­ed, and cause the Jury to have the View, he, may take the Inquisition at another place. Co. 8. R. 15 2. b.

Lease for Life, Sans Impeachment of Wast per parol; mult' alter [...]at', and not resolved whether the Priviledge be good without deed; but resolved, if the Priviledge be void without Deed, yet the Estate is good, as an Estate without the Priviledge. Co. 9. R. 9. a. 10. b.

In Wast, for cutting down a tree, no­thing shall be recovered but the Circuit of the Root, and not according to the Latitude of the Branches. Co. 11. R. 50. a.

Lease for years, Sans Impeachment, &c. Lessor confirms his Estate for Life, the Term is merged, and he punishable for wast, so lease pur auter vie, Sans Impeachment, &c. Remainder in him for his own Life, it merges his first Estate, &c. he is bare Tenant for Life, punishable for wast. Co. 11. R. 83. b.

Term expires, Lessee continues in Tenant at Sufferance, and does voluntary wast, his Lessor also being Tenant for years, brings Action upon the Case; and adjudged it lyes, and not Trespass, as objected by Littleton it ought to be, and the rather here, because the Plaintiff being but a Termor, subject to Wast, ought to sue his Action to have as much in Damages as he may be charged over. West against Trend, 1 Cro. 135. vid. Co. 5. r. 13. b.

Error of a Judgment in wast assigned, first, because the Wast being assigned in se­veral things, entire Damages are taxed, which ought not to be, for some of them be Pettits not punishable, and the Court is to judge; Sed non allocatur being found not in­tended any of them Pettit. Secondly, thir­teen Jurors enquire, and they not an In­quest [Page 344] of Office, as Writ to enquire of Da­mages for Attaint lyes; but that seemed well enough also. Thirdly, the Wast is as­signed in cutting twenty Trees, and the Ju­ry found him guilty but of two, and yet no Misericordia pro Resid'. But Barkley held it well, for when they find any part of the same thing assigned, there needs no Mise­recordia pro resid'. But if they find wast in some things, and no Wast in any part of one thing, as if Wast assigned in Domibus & Boscis, and they find it in part in Domibus, and none in Boscis, he shall be in Misericor­dia pro Boscis, but where they find a less num­ber of trees than assigned. Jones and Cro. doubted. K. & uxor against Fitzh. 1 Cro. 299. 327.

Eradication of white Thorns is wast, not succidendo and vendendo, unless they grow in places for defence of Cattel, and it be so averr'd. 2 Cro. 126.

Lease for years with House-boot and Hay­boot, sine impetitione vasti, as good as sine impetitione vasti, and traverse to the whole, not the House-boot and Hay-boot. Ley against Eyre. 2 Cro. 226. or 216.

Wast, and Counts general of wast done, ad exhered', 'tis found, that the Defendant was Lessee for years, Remainder to D. Sans Impeachment of Wast, who is dead; and if the wast was committed in the Life of B. [Page 345] yet good amover, for, though then no A­ction lay, and B. might have licensed him to do wast, yet now he may count of it, as Wast immediately done to himself. Bray a­gainst Tracey. 2 Cro. 688.

Wast, and Counts of a Lease for Life, Defendant pleads, 'tis part of an Hospital whereto the Plaintiff presented him for life; it seems it lyes not, for he is in from the Foundation, and though in but for Life, the person has the time, no Revertion in him. 21 H. 6. 2.

Wast by an Abbot, and Counts of a Lease by the Predecessor, and assigns wast gene­ral, without saying whether in the Prede­cessors time, or his own; and good, for were the wast committed in the Predecessors time, the Successor shall punish it, and so is 42 E. 3. 22. And if the Predecessor had released it, yet the Predecessor may punish it; for, being in the Realty, the Predeces­sor could only release for his own Life. eod: Libr. E. 3. yet there 'tis doubted, if an A­greement had been made with the Prede­cessor for the wast, if it had not been a Bar. And in 21 H. 6. where one justifies to cut Ashes for Fire-wood could be had, and that per Curiam; yet note in the end of the Case tis pleaded, and that no under-wood was there. And in this case 'tis held by some, that Ashes, Oaks, &c. under twenty years [Page 346] growth, may be taken for Fire-boot, &c. but denyed by others, for they are Ashes, and 'tis held, that Lessee Sans fait may take House-boot, &c. as well as if by Deed, and that if Lessor in the Deed of Lease granted that he will require the House, Lestue may take Trees in his default, and pleaded it in Bar of the wast; and so seems Dyer 198 b. 124. a 24 H. 6. 46. 47. 48.

The Summons, Attachment and Distress, all retorned, nihil, and whether a VVrit to enquire of the VVast shall be awarded, no VVrit being retorned, served, or an Ali­as distringas, multum dubitatur, & alter catur; but at last the VVrit was awarded, To inquire of Wast, vide 41. or 14. H. 6. 2. b per Roll. If Baron and Feme Tenants in Common of a Term be, and wast is done, wast lyes against her after his Death, quod alii concesserunt Trav. denyed. Et vide F. N. B. 59. Baron and Feme Tenants for Life, she shall not be punishable after his Death for VVast done by him 46 E. 3. 25. vid. Case. 21 H. 6 56. a. b. H. 6 25. b.

VVast, and assigns wast in cutting down so many Oaks, and in cutting down the Springs that came up from the Roots again: Resolved, this is double wast, and so may be double Assignment, and is not a double Assignment of the same wast, and treble Damages shall be given for each cutting; [Page 347] tho by some it can be recovered but once, 2 H. 12. a. b.

Tenant in Dower, or by the Courtesie, grants over their Estate, yet the Husband shall maintain an Action of Wast against them; but if he assigned his Reversion, his Assignee must have it against their Assignee Co. 1. Inst. 316. a. F. N. B. 45.

Two bring an Action of VVast, one re­leases; it bars both, if it be in the Tenuit, wherein Damages only are to be recover­ed, not if in the tenet, where locum vastatum, is to be recovered also. Co. 1. Inst. 355. b.

In Co. 1. Inst. 'tis held of one side, and denyed by the other, that an Attachment lyes upon an Inquiry of wast. But 1 Cro. 'tis held clearly, that it does. And F. N. B. fays it was fo resolved by the Court, 2 H. 4. But his Opinion is contrary Co 1. Inst. 355. b. 1 Cro. 299. F. N. B. 107. c.

The Reversion must continue in him that brings the Action, at the time of the Action brought, because 'tis said, Ad Exheredatio­nem, and it must be in him at the time of the wast done, unless in special Cases; as Tenant for Life makes a Feoffment on Condition, VVast is done, and he enters for the Condition, Lessor shall have wast, fo if Lessee of a Bishop commits wast in time of Vacancy the Successor shall have the Action; so if Tenant for Life be disseised, [Page 348] and wast is done, and the Tenant re-enters, Lessor shall have wast, yet he had no Re­version. Note, 'tis no plea for Lessee in wast, to say generally that Lessor had no Reversion, &c. but must shew how he lost it. But in wast, by Assignee of the Rever­sion, such Plea general is good, vid. 39 E. 3. 19. 20. Wast by Successor of a Bishop, or wast done in the Predecessors time, quaere sc. bon. for laid ad exheredationem Ecclesiae, Co. 1. Inst. 356. a. vid. 1. H. 4. 26. Opinion that Successor of an Abbot or Prior shall have wast for wast done in the Predecessors time; or if a Bishop, Parson, &c. that can make Executors. Vid. 71 E. 3. 53. b. 43 E, 3. 8. 49 E. 3. 26. Successor of an Abbot, not chargable for wast of a Predecessor.

In wast, if the Plaintiff's Reversion deter­mine either before, or pendant the Suit, his Action is gone; but if it be pendente, the Suit it must be so specified. Ewer against Moyle. Yel. 141.

In Wast, the Plaintiff declares, Quod cùm seisitus fuit, and let for years, the Defendant had wasted, and though not said of what Estate seised, (so it might be for Life) yet being ad exheredationem, and that alledging of Seizin but Surplus, held by most good enough. Sir Walter Asto [...] against Sweten hall. 3 Cro. 47.

Wast assigned in the house, where, it ap­pears, the Plaintiff has but two parts of the Reversion, yet good, he cannot assign it otherways; Wast inquired of by the She­riff, where it was confessed by Nihil dicit, yet no Error. Warnford against Haydock. 3 Cro. 290.

Wast against a Husband, Tenant for life in right of his Wife, dead, not being in the Tenet or Tenuit, ill; also, the Writ is Quod fecit vastum, and being in her right, it should have been fecerunt vastum. But by Co. 1. Inst. this Wast is dispunishable by her death: otherwise, if it had been a term for years. Co. 1. Inst. 54. P. Note, the Estate was made to the use of the Wife for Life, yet Action lyes. Sackervil against Bagnell. Con. to Dr. and Stu­dent. Co. 3. Cro. 356. 357.

In wast, the plaintiff prayed a writ of E­trepement against the Tenant and his Ser­vants, and at last a Warrant against both, though doubted at first, if it lye in this Action, though it do in Writ of Entry, &c. Anderne against Anderne. 3 Cro. 393. F. N. B. 61.

In a Writ of Entry sur disseisin done to himself, the plaintiff prayed a writ of E­trepement, doubted if allowable, because in that Action he is to recover Damages, but because Non constat, whether the Tenant be able to satisfie him if he pull down his [Page 350] Houses; granted. Wright against Pearcy. 3 Cro. 484. 774.

Tenant in cutting three hundred Oaks, Defendant as to two hundred, justifies that the House was ruinous, and he cut and em­ployed them in repairs; and for the other hundred, he cut them to have them ready to repair. Tempore opportuno, adjudged an ill Plea on Demurrer, for so every Lessee might [...]ut where there is no Necessity. Grey against Stanfeild. 3 Cro. 593. vid. 498. 499.

Wa [...]t, the writ was general, and that the woman held &c. ex dimissione A. her for­mer Husband, and counted that A. enfeof­fed B. to the intent a Rocovery be had against him to the use of A. for Life, Remainder to the woman for Life, which was done accordingly, and for this Judgment against the Plaintiff, for the writ ought to have been recited; for the Husband could not let to the Wife, but she is in by the Husband, and so has the Estate from the Feoffee. Green feild against Dennis. 3 Cro. 722.

A. lets to B. B. assigns to C. and D.; D. assigns to E. except the Trees, then 'tis en­acted by Parliament, that the Heir of the Body of A. shall have the Land, A. being dead, leaving three Daughters who took Husbands, one of them dyes, the other two and their Husbands quitt; the Tenant by the Curtesie brings wast against C. and E. in [Page 351] the Term, the Term being ended, adjudg­ed first the Writ good, notwithstanding the setling the Estate by the Statute, without shewing the special Title; and secondly, without joyning the Tenant by the Curte­sie, because he not intitled to the Damages non locum vastat: And thirdly, the Writ sup­poses quod tenuerunt, which implies a Joynt­tenancy, now they appear Tenants in Com­mon, good, because the Land at first one and entire; but if wast can be committed in the Trees, excepted by the Lessee not agreed; but in Co. 5. Rep. adjudged it does, and the Exception void. Sir Roger Leuknor against Freed. 1 Leon. 48. 3. Cro. 17. Co. 6. Rep. 12. b.

Lessee for Life, and he in Reversion make a Lease, wast is committed, they shall joyn and Tenant for Life recover Locum vasta­tum, and he in Reversion the damages, Les­see for Life Sans Impeachment, &c. Wast is committed by a Stranger, the Lessee in Trespass shall recover no Damages for the Trees cut, but only for the Entry, for the property of the Trees remaining in the Les­sor. 1 Leon. 49. Co. 1. Inst. 42. a. p. 27. H. 8. p. 36.

Lease of Lands (exceptis arboribus grossis su­per Praemissa crescentibus) Trees, then little, grow great, and are cut, if wast, Semble non per Anderson; for they were excepted, [Page 352] whereas great, and not only what were great at the time of the Lease. Garrock ver­sus Cliffe. 1 Leon. 61.

A. lets to B. for years, and during the Term, lets to C. for years by Indenture to commence presently; B. commits wast, A. brings a Writ against B. the Defendant can­not plead nul wast, nor can he plead that the Lessor had nothing, for the Plaintiff will estop him by the Indenture; and though the Count be general of a Lease, and says not per Indenturam, yet a Replication that by Indenture, is no departure, but a corobo­rating of the Declaration. 1 Leon. 156.

Tenant for Life is disseised, and Disseisor commits wast, he in Reversion shall main­tain an Action of wast against Tenant for Life; yet note, that by the disseisin, the Reversion was out of him. 1 Leon. 264.

If wast be assigned in a whole wood spar­sim, if the Jury have view of the out-side of the wood, 'tis good, without entring and viewing of every part, and so of a house; otherwise, if the wast were assigned in certain part of the wood, or Rooms in the house, 1 Leon. 267.

Feoffment to the use of himself and wife for Life, Remainder to his own Heir; he dyes, she commits wast, the Writ must be gene­ral, Quas tenet de hereditate, &c. & non ex dimissione, for she comes in by the Statute. [Page 353] 2 Leon. 222. vid. Co. Entr. 706. Pl. 9. 700. Pl. 7.

Feoffment to the use of A. for Life, with­out Impeachment of wast, and power to cut and sell Trees, and make Leases; Remain­der for Life to B. with the same power. Latch 163. 268. Poph. 193. 706. Pl. 9. A. makes a Lease, and dyes, quaere, whether B. may cut the Trees, not agreed; but' tis agreed, that the Clause Sans Impeachment gave an Interest, and A. might have done what he would with the Trees, but not his Executor after his Death, because it was an Interest annexed to his Estate, and determi­ned with it: the doubt of the Remainder chiefly seems to be because the Lease ariseth partly out of the first Feoffment, and part­ly of the Lessors Estate for Life. Note, the Lease was excepted, the Trees and the Ex­ception good, because Tenant for Life had an Interest by the Sans Impeachment. Secher­val versus Dale. Latch 163. 268. &c. as before.

Lessor brings wast against Lessee for Trees of the Plaintiff, the Lessor himself cut them; 'tis a good Bar, and therefore in Trespass by the Lessee against Lessor for the cutting, he shall recover only for the Fruit and Shade, because not charged over, as if a Stranger had cut them he should. Co. 13. r. 96. 70. M. 10. H. 7. Pl. 3. 2 E. 4. 2. or 7. b.

In wast for digging Gravel, Defendant ju­stifies by. Command of the Lessor, no plea, for 'tis the Lessee's Land pur temps, not the Lessors, so he could not command him; also, 'tis per parol, and without Deed, and against the Tenant for Life, yet dict. such a Command to cut Trees, good, because not the Lessee's but Lessor's: and that is agreed in Co. 11. R. 48. b. H. 2. H. 7. Pl. 20. M. 10. H. 7. Pl. 3.

Feoffee to use, Cestuy que use, makes a lease for years, according to the Statute R. 3. The Reversion remains in the Feoffee, for the Statute does but give Authority to Ce­stuy que use to dispose; as where one wills that his Executor shall sell, if Lessee com­mits wast, the Feoffee shall bring the Acti­on, tho no Privity; because they could not have any; so shall the Lord in Escheate main­tain Wast, yet he had not Privity. Mi. 5. H. 7. Pl. 11. H. 8. H. 7. Pl. 1. Tr. 26. H. 8. Pl. 131. or 31.

'Tis wast to pull down, or suffer a wall to go to Ruine, be it made of Wood, Mud, or Stone, or be it within the house for Sepa­ration, or without for Inclosure; so to de­stroy wood of hasle or willow, not to cut them Husbandly. To cut Fruit Trees in an Orchard, and destroy them, is wast, not if they grow in Hedges and Closures: and if a house be ruinous at the Entry, 'tis no wast [Page 354] to suffer it to decay; otherwise, if not ruinous at the Entry, but where 'tis held, plough­ing Meadows is no wast, 'tis no Law. Hob. 234. Ow. 66. M. 10. H. 7. Pl. 3. 4.

In an Action of Wast in the Tenuit, an Ac­cord is a good Plea, because only damages to be recovered, not in the Tenuit, because locum vastatum is to be recovered also. Co. Entr. 706. 707. Pl. 9. H. 11. H. 7. Pl. 7. P. 13. H. 7. Pl. 3. Co. 6. R. 44. a.

Upon Scire facias of a Judgment in wast, one may have a Writ of Estrepement, or in any Suit where no Damages are to be reco­vered; but not Scire facias, of wast com­mitted after the first Scire facias, because he might have had Estrepement at first: But for wast after Estrepement, a Scire facias lyes to shew Cause why he committed the wast; and a Scire facias lyes in Assise for wast done after Judgment, not before Judg­ment, because he cannot recover Damages for its after verdict, but in a Formedon not; because he might have had Estrepement, and Pl. 20. Error of a Judgment in Assise, and the Piaintiff in the Error prayed an Estrepement, and could not have it, because he may, (it seems) have Scire facias for da­mages done after the Judgment, &c. But questioned, per Fennel, because, by the Sta­tute he finds Security in the Writ specified, to answer for all the Damages. Mich. 14. [Page 356] H. 7. Pl. 20. but vid. 32 or 33 H. 6. b. a. In Scire facias of a Fine Estrepement lyes.

Lessee does wast in a corner of a Wood on­ly, the part, not the whole, shall be reco­vered; but if he do in the whole Wood, and there be plots of ground within the Wood; that shall be recovered with the Wood. Tsin. 15. H. 7. Pl. 21.

Furnaces, Fatts, Posts, Rails, &c. fixed to the Free-hold by Lessee for years, 'tis h [...]ld by some, that if he remove them during the Term, 'tis no Wast, quod qu. But agreed, that if he leave them there till the Term ended, he cannot remove them. Vid. 42 E. 3. 6. a. 6. M. 20. H. 7. Pl. 24. Trin. 21. H. 7. Pl. 4. Owen 70.

Lease, Absque impetitionc vasti, in Wast he shall plead that in Excuse; but if the Lease at first were given, and then a grant after that he shall not be punished in Wast; it is not pleadable in Bar, but to bind as a Covenant. Vide divers such Cases, 21 H. 7. 30.

Tenant for life grants his Estate to one Parcener in Reversion, and her Husband, 'tis no Surrender; and if the Baron and Feme do wast, the other Sister shall bring a Writ in all their names, and the Baron and Feme shall be summoned and severed. M. 2. H. 7. Pl. 60.

In wast by Lessor, the Lessee pleads not [Page 357] guilty, and gives in Evidence, a grant to cut &c. to repair &c. And per Brook, Pollard, and Elliot, it was no wast, but ought to have been pleaded, and not given in Evidence, for thereby the Advantage thereof is lost, Ad quod Bradnet concessit, but held it wast, but not punishable Wast; and he held, that if a Lessor covenant to repair, and do not, Les­see may do it; and deduct it out of the Rent. And if one covenant to repair a ruinous house, if he do not, 'tis wast, but he may take Trees, else it had not; yet, in that case he might have repaired it, and taken Trees to do it, though not bound to do it. And at Common law; Lessee might take Boots, but if excessive, it is Wast; Lessee suffers Posts, Pales, &c. to decay, it is wast. Trin. 12. H. 8. Pl. 1. or 4.

Wills.

WIlls and Testaments were originally proved at the Common Law, as Perkins confesses. and Leonard says, they are by the Curtesie of England proved in the Spiritual Court, not de communi jure, nor in other Nations; and in divers Mannors, the Lords have the Probate at this day. Co. 5. Rep. 73. b. 16. a. 9. Rep. 38. a. 5. Rep. 30. b.

Issue at Common Law, for Lands devised by Will, and the question, whether a Will or not; and now they moved at the Spiri­tual Court to it, which will blemish the Evidence at the Common Law; where­fore, prohibition prayed, but granted only quoad the lands, and that it be proved quoad bona. Hill against Thornton. 1 Cro. 118.

Debt on a Bond, conditioned, he permit his Wife to make a Will to the value of 50 l. and 'tis found on Issue, Nullum fecit volunta­tem, &c. that she did make a Will of 50 l. but was covert, 'tis for the Plaintiff; for, though properly a Feme-Covert can make no Will in Law, yet 'tis a Will within the Intent of [Page 359] 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 U [...]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 [Page 360] 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, 'twas held good enough. 3 Cro. 130. 1 Leon. 122. Note, she being the person [Page 362] 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 Subpena [...]d, appeared not; moved first, 'tis not shewed that the Subpena was left; resolved, it needs not, for it might be for more Witn [...]sses. 2. There was but 12 d delivered, but resolved, since he pro­mised to pay the rest, and the Witness ac­cepted the 2 d. 'tis good, else the Witness had not been b [...]nd 'till the whole Char­ges had been tendred. But thirdly, be­cause he av [...]rred not that he was damni­fied by the Non-Appearance of the Wit­ness, though the Action be but for the ten pound P [...]nalty, and not for the Damages over. R [...]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 P [...]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 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 [Page 365] 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 [Page 366] 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, [Page 367] 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 [Page 368] 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 [Page 369] 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 [Page 370] 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 [Page 371] conditionally to bea [...] 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 filia [...]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; [Page 374] 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. int [...]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 [Page 375] which Case, a corporal punishment is to be inflicted by the Statute. Hill. 5. C [...]r. B. R. Lightfoot against P [...]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 [...]djudged.

In Action upon the Case for words, the plaintiff, Thomas B [...]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 prejudic [...]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, [Page 376] 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 Advows [...]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.

I [...] 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. Mi [...]h. 11. Jac. B. R. Inter Crawford and Brice, adjudged.

If a man saith of an other, he is a forsworn [Page 378] 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.