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.

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, 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.

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.

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.

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.

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 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: 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 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 6s 8d 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 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.

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.

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 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, 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.

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 man ſhall not Forfeit thoſe Goods which he hath as Executor by Outlary. ib.

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.

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.

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.

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.

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.

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 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, 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 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 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 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, 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 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 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 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 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 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 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 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.

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 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.

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.

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.

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.

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 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.

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.

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.

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.

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 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.

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.

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' 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, 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' 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, 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 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, 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 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 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.

IF my Servant without my knowledge, puts Beaſts into another mans Ground, the Servant is Treſpaſſer, and not the Maſter.

If a man beat my Servant, I may have Treſpaſs, and my Servant another Action of Treſpaſs, diverſis reſpectibus.

It is good to lay the Action ſome day after the Treſpaſs committed; yet it is not material or traverſable if be laid before: For it's but a Circumſtance: As Treſpaſs done the Fourth of May, the Plaintiff alledgeth the Firſt of May, it's ſufficient, if upon Evidence it be proved, that the Treſpaſs was done before the Action brought.

A Maſter is puniſhable for his Servant, if he be about his Maſters Buſineſs: An Abbot for his Monk; a Captain for his Souldier; an Hoſt for his Gueſs; So a Sheriff for his Under-Sheriff and Bayliffs: But a Maſter ſhall not be Punniſhed for Treſpaſs of Battery, or Entry into Lands, or Felony, or Murder, or ſuch like, done by the Servant, unleſs done by his Command.

If a Servant keeps his Maſter's Fire ſo negligent, that it burns his Maſter's and the Neigbours Houſe, the Maſter is chargeable therewith.

A man is chargable with the Faults of his Family or of his Beaſts: If a Ship is periſhing, and the Marriners caſt the Goods, to ſave them, on the Land next adjoyning; yet this is Treſpaſs, and puniſhable by him that holds the Land.

A Servant may juſtifie the beating of another in Defence of his Maſter.

A Man ſhall not have his Action of Treſpaſs for Threatning, and recover Damage as well as in Aſſault and Battery.

The Law does not allow any man to ſtrike in Revenge of Ill words; and the reaſon is, becauſe there is no proportion between Words and Blows; but he that is ſtruck may ſtrike again.

In Treſpaſs, he that conſents and gives aid to the committing of Treſpaſs is a Principal and no Acceſſary to the ſame Treſpaſs.

If Tenant at Will commits voluntarily Waſte, Treſpaſs lies againſt him, notwithſtanding his Poſſeſſion; ſo that if I deliver my Sheep to another, to Fold or Dung his Land, or a Horſe to Ride, or Oxen to Plow his Land; If the Bailiff ſpoil or kill them, I have an Action of Treſpaſs againſt him, notwithſtanding the Delivery of them, or Trover at his Election.

If a Man deſſeize me of my Land, or diſpoſſeſs me of my Goods, yet I may enter upon the Land, or take my Goods, although I releaſe to the party Diſſeizer or Treſpaſſer, all Actions; yet this Releaſe ſhall not Bar my Right.

No Treſpaſs can be excuſed by Law; but it may be juſtified; as upon ſon aſſault demeſne, or 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, 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.

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 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.

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, 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. 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.

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 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 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.

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 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.

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 upon Arreſt of Judgment.

In Action upon the Caſe, if the Plaintiff declare that ſhe hath many Wooers to marry her, and that the Defendant ſaid of her, She is with Child, and hath taken Phyſick for it; whereby, ſhe came into Diſgrace, Et perdidit conſortium vicinorum ſuorum, &c. Although that it be not alledged, that ſhe loſt any Marriage thereby, yet the Action lyes. Mich. 21. Jac. B. R. Medhurſt againſt Balam; adjudged in Arreſt of Judgment.

If a man ſaith to an other; Thou waſt found in Bed with J. S. his Wife; by reaſon of the ſpeaking of which words, he loſt his Marriage with A. S. &c. Although that he might be in Bed with her, without any ill done, yet becauſe that it ſounds in Diſgrace, and he hath loſt his Marriage by it, the Action lyes. Mich. 8. Car. B. R. Southal againſt Dawſon; adjudg'd in Arreſt of Judgment.

If the Plaintiff in an Action of the Caſe for words, declare, that the Defendant ſaid of him, He had the uſe of my Wife's Body by Force; by reaſon of which words, he was brought before certain Juſtices, &c. and examined by them, for a Rape committed by him upon the ſaid Woman, whereupon to purge himſelf thereof, he expended divers Sums of Money; an Action lyes upon this Deelaration for the temporal Dimage he had thereby. Mich. 9. Car. B. R. Harris againſt Smith; adjudged upon Writ of Error.

In Action upon the Caſe, if the plaintiff declares, that in London, by the Cuſtom, a Common Whore ought to be carted, and a Baſon rung before her; And that the Defendant ſpoke theſe words of the Plaintiff, Thou art a Whore, and a common Whore, and art a Bawd to thy Miſtreſs, and I will have a Baſon tinged before thee; the Action well lyes upon this Declaration for theſe Words. Trin. 15. Car. B. R. Haſſell againſt Capcot; adjudged in Arreſt of Judgment.

In Action upon the Caſe, if the Plaintiff declare, that in London there is a Cuſtom, that a Bawd ought to be carted; and the Defendant ſaid theſe words of the Plaintiff, She is a Bawd, and I will have her carted. Hill. 15 Car. B. R. Riley againſt Lewes; adjudged in Arreſt of Judgment.

If the Plaintiff declares in an Action upon the Caſe, that whereas he was a Pariſhoner of S. the Defendant being Vicar there, to the intent to ſcandalize the plaintiff, and to create an evil opinion of the plaintiff among his Neighbours, ſo that they Abſtraherent ſeipſos à conſortio of the plaintiff, tanquam ab homine excommunicato, & nulla fide aut credentia digno, and to exclude the Plaintiff injuſtly from the Church, and for a long time, to deprive him of the benefit of hearing divine Service in the ſaid Church; the Defendant in time of divine Service in the Church in the hearing of the pariſhioners maliciouſly pronounced, the plaintiff excommunicated, Praetextu cujuſdam Inſtrumenti, by him received from the Ordinary, whereas he never had any ſuch Inſtrument of Excommunication, nor was he excommunicated. And alſo at another time to the ſame Intent aforeſaid, in time of Divine Service in the hearing of the pariſhoners maliciouſly pronounced the plaintiff excommunicated, and refuſed farther to celebrate divine Service, until the plaintiff departed out of the Church; whereupon, the plaintiff was compelled to go out of the Church, whereas the plaintiff was not excommunicated; whereby the plaintiff was ſcandalized, and hindred from hearing Divine Service for a long time, and for the clearing of this Scandal, and of his Innocency therein, Diverſos corporis ſui grandes labores capere, & diverſas ingentes denariorum ſummas errogare & exponere coactus fuit, in extremam depauperationem & ignominium maximum of the plaintiff. This Action lyes, notwithſtanding he doth not ſhew that any perſon did avoid his Company, or refuſed to trade or deal with him; and notwithſtanding he doth not ſet forth any temporal or ſpiritual loſs: for it is a great Scandal and malicious, tho to his Soul, and ſpiritual. Mich. Car. B. R. Barnabas againſt Traunter. Adjudged in Arreſt of Judgment.

If a man ſaith of another, who hath lands by diſcent, That he is a Baſtard, an Action upon the Caſe lyes, for it tends to his Diſinheritance, and diſturbance by Suit. Mich. 3. Jac. B. R. per Curiam.

In an Action upon the Caſe, if the plaintiff declare that he was Heir apparent to his Father, and B. his Brother, and that either of them hath Lands in Fee to the value of 40 l. per annum, and that they did intend to ſuffer the ſaid Lands to deſcend to him, or to convey the ſame to him; yet the defendant intending to diſinherit the plaintiff, ſaid to the plaintiff, Thou art a Baſtard, whereby his Father and Brother intended to diſinherit him, and to convey their Lands to another. The Action lyes upon this Declaration, for the temporal damage which might come to him thereby. Paſch. 13. Car. B. R. Humfries againſt Stutfield. Adjudged in Arreſt of Judgment.

Where there was Grand-father, Father, and Son, and the Son brought an Action upon the Caſe, and declared that the Grand-father (whoſe heir he is) entailed certain Lands upon him and the Heirs males of his Body, and the Defendant intending to ſcandalize his poſſibility that he hath to inherit this Land, as Heir of the body of his Grand-father, ſaid that he was a Baſtard, notwithſtanding that the Grand-father and Father were alive, yet the Action brought as above by the Son did lye. Humfries Caſe ubi ſupra.

In an Action upon the Caſe, if the Plaintiff declare that he exhibited Articles in the Kings Bench againſt the defendant for the good abearing, and ſwear the Articles to be true before Juſtice W. (Innuendo the ſaid Oath taken upon the ſaid Articles) although it be not averr'd that the Oath was taken of Record; yet the Action lyes, for it ſhall be intended the Articles exhibited in Court, and ſworn before a Juſtice of the Court. Mich. 10. Car. B. R. Yolden againſt Wannel. Adjudged in Arreſt of Judgment.

If a man ſaith of an other, He hath written a forged Will, wherein I will prove him ſalſe, forſworn, and perjur'd, in a Will that he made of John Hunt; an Action lyes for theſe words, for it ſhall be intended, that he was perjur'd in his Oath taken, touching the ſaid Will. Hil. 12. Car. in B. R. Cowley againſt Clough.

In an Action upon the Caſe, if the plaintiff declare, that there was a Writ to inquire of Damages between A. and B. in a Court of C. at the Seſſions-houſe, where he was ſworn to give Evidence according to his Knowledge; and afterwards the Defendant ſaid of him, He is a forſworn Rogue, in taking an Oath at the Seſſions Houſe; an Action lyes for theſe words, although it was objected in Arreſt of Judgment, that if he ſwore falſely before an Inqueſt of Office, it is not within the Statute of 5 Eliz. for admit it were not, yet they all agreed, that for ſuch forſwearing; at the common Law he may be indicted; and therefore, if it be out of the Statute, yet an Action lyes for this Slander. Mich. 13. Car. Pruer againſt Moadman.

If a man ſaith of an other, He is a Perjurer, he ſwore once for me, and the ſecond time hath perjur'd himſelf with J. S. (a Stranger) Action lyes. Mich. 9. Car. in Camera Scaccarii. Adjudg'd in Writ of Error.

If a man ſaith of J. S. I will prove J. S. forſworn, and that ten men can juſtifie; and I could prove him perjur'd if I would. The Action lyes not for the firſt words, but it lyes for the latter; for it is a great Slander, to be reputed that it is in the power of any man to prove him perjur'd. Paſch. 5. Jac. B. R. Whitacre againſt Loverden per Cur.

If a man ſaith to another, [I did not know that Mr. W. was your Brother, he hath forfworn himſelf, and I will prove him perjur'd or elſe I will bear his Charges.] Action lyes for theſe words, although they are ſpoken conditionally to 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.