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
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
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
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
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
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
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
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
,
so
he
may
have
an
Action
personal
,
and
Trespass
for
breaking
his
house
[
as
he
may
have
a
Writ
of
Error
for
necessity
.
]
And
the
Opinion
of
the
Lord
Coke
,
in
his
Commentary
upon
Littleton
,
is
,
That
if
an
Alien
Friend
brings
an
Action
,
it
ought
to
be
pleaded
in
disability
of
his
person
,
and
not
in
barr
to
the
Writ
or
Action
;
but
if
he
be
an
Alien
Enemy
,
the
Defendant
may
conclude
to
the
Action
.
And
therefore
Mr.
Theloal
in
his
Digest
of
Writs
well
observeth
,
That
an
Exception
taken
to
a
Writ
propter
defectum
Nationis
,
vel
potius
defectum
subjectionis
vel
Ligeancie
,
is
peremptory
,
and
that
the
Action
cannot
be
revived
by
Peace
,
or
League
subsequent
;
and
that
the
King
may
grant
Licence
to
Aliens
to
implead
,
and
likewise
that
such
Aliens
as
come
into
the
Realm
by
the
Kings
Licence
or
Safe
Conduct
may
use
personal
actions
by
Writ
,
though
they
be
not
made
Denizens
;
and
that
Denizens
lawfully
made
by
the
Kings
Grant
;
and
such
Aliens
born
as
are
within
the
express
words
of
the
Statute
of
25
E.
3.
may
use
actions
real
by
Original
Writ
.
Co.
Lit.
129.
a.
b.
130.
b.
Co.
7.
1.
Theloal
,
Digest
de
Breifs
,
Lib.
1.
ca.
6.
32
H.
6.
23.
An
Alien
may
be
Administrator
and
have
Leases
for
years
as
well
as
personal
Chattels
and
Debts
,
Cro.
Eliz.
683.
Cro.
Car.
8.
9.
One
brings
an
Action
as
Executor
,
Utlary
in
the
plaintiff
is
no
Plea
,
because
he
sues
in
auter
droit
;
but
it
is
otherwise
of
Excommunication
,
21
E.
4.
49.
34
H.
6.
14.
14
H.
6.
14.
If
the
defendant
plead
that
the
plaintiff
is
an
Alien
born
,
and
conclude
to
the
person
,
yet
(
it
seems
)
he
may
demand
the
View
,
3
H.
6.
55.
For
the
Pleading
of
Matters
of
Record
in
Abatement
,
observe
,
That
in
Formedon
for
a
Mannor
,
another
Formedon
depending
for
20
s.
Rent
out
of
that
Mannor
,
is
a
good
Plea
,
3
H.
7.
3.
That
where
in
Trespass
the
defendant
pleaded
,
that
the
plaintiff
had
brought
Replevin
against
the
Mayor
and
Commonalty
of
A.
for
the
same
cause
,
and
that
he
was
one
of
the
Commonalty
die
Captionis
,
&c.
Necnon
die
impetrationis
Brevis
;
and
it
was
there
agreed
,
That
in
Trespass
a
Replevin
depending
for
the
same
Cause
is
a
good
Plea
,
if
there
be
not
more
Defendants
in
the
Replevin
than
in
the
Trespass
,
8
H.
7.
27.
A
Quare
Impedit
is
brought
against
the
Bishop
,
and
another
as
Incumbent
;
the
Defendants
plead
,
that
the
plaintiff
hath
brought
another
Quare
Impedit
against
the
said
Bishop
for
the
same
Presentation
which
was
then
depending
undetermined
,
and
demands
Judgment
of
the
Writ
:
and
it
was
adjudged
a
good
Plea
.
But
the
plaintiff
might
have
brought
divers
Quare
Impedits
against
divers
Defendants
,
Hobart
138.
9.
So
in
an
Assise
of
Darrein
Presentment
,
it
is
a
good
Plea
to
say
,
That
there
is
a
Quare
Impedit
depending
for
the
same
Presentation
.
Hobart
184.
But
where
an
Assise
is
brought
of
Lands
in
one
County
,
an
Assise
for
the
same
Lands
in
another
County
,
and
Judgment
thereupon
,
cannot
be
pleaded
;
So
of
a
Recovery
in
Ancient
Demesne
,
because
it
cannot
be
intended
,
that
the
Lands
recovered
in
the
Assise
or
in
Ancient
Demesne
,
are
the
same
Lands
,
4
H.
6.
24.
Rast.
Entr.
65.
In
Formedon
in
le
Diseender
,
it
is
no
Plea
to
say
,
that
the
Plaintiff
at
another
time
brought
a
Formedon
in
the
Remainder
of
the
same
Lands
,
except
both
the
Counts
be
of
one
and
the
same
Gift
,
40
E.
3.
31.
Where
the
Heir
brought
two
several
Formedons
upon
one
and
the
same
Gift
,
although
the
last
did
vary
from
the
first
Gift
,
yet
it
is
no
Plea
in
Abatement
,
for
he
might
claim
by
two
Ancestors
sub
dono
,
4
E.
3
8.
If
the
Defendant
(
in
a
personal
Action
)
pleads
another
Action
depending
at
the
time
of
the
purchasing
the
last
Writ
,
he
ought
not
to
say
,
that
it
is
yet
depending
,
for
the
last
Writ
is
abated
in
Law
,
notwithstanding
he
is
afterwards
non-suited
in
the
first
Writ
,
Co.
6.
Ferrers
Case
.
Where
Note
the
diversity
,
when
the
writ
is
general
,
as
Covenant
,
Detinue
,
Assise
&c.
and
the
Certainty
is
in
the
Declaration
;
for
there
if
the
Plaintiff
is
nonsuited
in
the
first
before
he
counts
(
or
declares
)
the
last
shall
not
abate
;
and
when
the
writ
is
special
,
and
the
thing
demanded
is
specified
therein
,
as
in
Praecipe
quod
reddat
,
&c.
What
persons
shall
be
admitted
to
plead
in
Abatement
,
and
what
not
.
Note
,
One
Defendant
may
plead
the
death
of
the
other
before
the
Writ
purchased
,
or
that
there
is
no
such
person
in
rerum
natura
.
20
H.
6.
30.
b.
But
in
Replevin
if
the
Defendant
avow
upon
an
Estranger
,
the
Plaintiff
in
the
Replevin
cannot
plead
in
Abatement
of
the
Avowry
.
22
E.
4.
35.
b.
If
the
Cognizee
of
a
Statute
sue
execution
against
one
Terretenant
only
without
the
other
,
he
cannot
plead
in
Abatement
;
but
is
put
to
his
Audita
Quaerela
against
the
other
,
because
that
the
Cognizee
is
not
bound
to
take
Notice
of
all
the
Terretenants
.
16
Eliz.
Dyer
331.
a.
Nota
,
That
after
a
Continuance
the
Defendant
shall
not
be
admitted
to
plead
,
that
the
Plaintiff
was
made
Bishop
,
or
,
that
the
Woman
Plaintiff
took
Husband
depending
the
Writ
;
except
that
he
pleads
it
after
the
last
continuance
:
but
it
is
otherwise
of
the
death
,
or
Coverture
of
the
Plaintiff
at
the
time
of
the
Writ
purchased
,
because
these
Pleas
do
abate
the
Writ
de
Facto
32
H.
6.
10.
11.
In
a
Replevin
where
the
Plaintiff
admits
the
Avowry
,
the
Priee
shall
not
plead
in
Abatement
but
as
Amicus
Curiae
;
and
not
then
except
it
be
apparantly
known
;
per
totam
Curiam
34
H.
6
8.
In
a
Praecipe
against
I.
S.
the
Son
of
W.
Edmond
,
at
the
retorn
of
the
Grand
Cape
the
Defendant
said
,
that
his
Father
was
named
Esmond
;
and
by
Thorpe
it
is
a
good
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
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
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
,
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
,
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
〈◊〉
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
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
10
l.
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
20
l.
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
,
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
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
,
the
Husband
shall
have
an
Action
of
Account
in
his
own
name
,
for
there
the
words
of
the
writ
are
true
.
And
when
an
Action
personal
is
given
to
the
Husband
and
also
to
his
Wife
during
the
Coverture
,
it
is
at
the
Liberty
of
the
Husband
to
bring
the
Action
in
both
their
names
or
in
his
own
name
,
if
it
be
so
that
the
Wife
may
have
advantage
of
it
.
When
a
thing
is
given
to
Husband
and
Wife
by
matter
of
Record
,
then
he
ought
to
joyn
with
her
.
But
there
is
a
Diversity
when
it
is
of
the
part
of
the
Plaintiff
and
when
it
is
on
the
Defendants
part
,
as
a
Feme
sole
disseiseth
me
and
takes
Husband
,
the
Assise
lyes
against
both
,
supposing
that
they
both
disseised
me
.
So
it
is
of
Trespass
.
Note
,
It
is
at
the
Election
of
the
Plaintiff
to
bring
his
Action
of
Debt
against
the
Heir
,
or
against
the
Executors
.
A
Man
marrieth
a
Wife
,
That
hath
a
Rent
Charge
out
of
the
Lands
of
another
,
Rent
is
arrear
before
and
after
marriage
;
The
Plaintiff
shall
recover
by
Action
of
Debt
against
the
Grantor
or
his
Heirs
.
Action
of
Covenant
shall
not
go
to
the
Heir
but
to
the
Executors
,
As
Action
of
Debt
upon
a
Bond
or
a
Lease
for
years
,
the
Term
goes
to
the
Executors
and
not
the
Heir
,
or
any
thing
where
damages
shall
be
only
recovered
;
for
that
every
Heir
may
not
have
Chattels
descend
,
and
so
not
this
Action
.
A
man
seized
of
a
House
and
Goods
makes
a
Lease
thereof
,
and
after
enters
and
enfeoffs
I.
S.
the
Lessee
reenters
;
Rent
is
in
arrear
;
I.
S.
brings
his
Action
of
Debt
,
and
hath
Judgment
,
because
the
Rent
issues
out
of
the
House
,
and
not
out
of
the
goods
.
A
man
was
bound
in
a
Bill
Me
teneri
&
firmiter
obligari
in
viginti
libris
solvendum
in
watches
.
It
was
questioned
whether
the
Action
should
be
brought
for
the
Watches
or
the
Money
.
But
Resolved
for
the
Money
;
Otherwise
if
the
number
of
Watches
had
been
in
the
Bill
:
For
then
it
had
been
for
so
many
Watches
to
the
Value
of
20
l.
If
a
man
had
been
indebted
to
me
in
a
single
contract
and
dyed
,
I
could
have
had
no
remedy
at
the
Common-Law
against
his
Executors
;
For
he
might
have
waged
his
Law
in
his
Life-time
,
but
his
Executors
could
not
.
But
now
I
may
have
an
Action
upon
the
Case
against
his
Executors
.
Assault
and
Battery
and
Ejectment
will
lye
both
in
one
Declaration
.
Where
two
Men
are
beaten
together
,
yet
they
ought
to
have
several
Actions
,
because
the
Trespass
is
personal
;
but
otherwise
it
is
in
real
trespasses
.
If
you
bring
your
Action
for
live
Cattle
,
it
must
be
Cepit
&
abduxit
But
if
it
be
dead
Goods
or
Chattels
,
then
you
must
say
cepit
et
asportavit
:
so
likewise
you
say
for
live
Cattle
pretii
,
for
dead
things
ad
valentiam
.
Divers
persons
may
have
an
Action
of
Trespass
joyntly
for
Goods
taken
,
or
the
like
;
But
of
Battery
or
such
personal
Trespass
the
Action
ought
to
be
single
,
unless
it
be
a
man
and
wife
.
And
if
the
man
and
wife
bring
an
Action
of
Battery
or
for
Goods
taken
,
The
writ
shall
say
the
Goods
of
the
Husband
only
;
For
the
Wife
cannot
have
property
in
the
Goods
during
the
Coverture
.
An
Action
lyes
against
an
Executor
upon
a
promise
of
the
Testators
,
upon
consideration
of
forbearing
to
prosecute
;
but
altered
since
by
the
late
Act
to
prevent
Frauds
and
Perjuries
.
If
there
be
Three
Executors
named
in
the
Testament
,
and
Two
of
them
refuse
,
the
Third
may
prove
the
Will
alone
;
And
yet
the
other
Two
may
meddle
with
the
Goods
when
they
will
,
and
either
of
them
when
they
will
:
And
if
an
Action
be
brought
,
it
ought
to
be
in
all
their
names
,
notwithstanding
such
refusal
,
Executors
of
Executors
shall
not
have
an
Action
of
Debt
or
other
Action
for
any
thing
due
to
the
first
Testator
,
For
that
they
are
not
Executors
to
the
first
Testator
or
privies
to
his
Will
,
but
were
Strangers
by
the
Course
of
the
Common-Law
.
But
by
the
Statute
of
25
E.
3.
Cap.
5.
they
may
Sue
and
be
Sued
,
and
shall
answer
for
whatsoever
comes
to
their
hands
of
the
first
Testator
.
Sr.
O.
C.
seized
of
an
House
in
Fee
,
and
possessed
of
an
other
House
(
as
Administrator
)
for
years
,
Le
ts
them
both
for
10
years
to
the
Lady
S.
who
Covenants
to
keep
them
in
Repair
,
and
so
Leave
them
at
the
end
of
the
Term.
Afterwards
Sr.
O.
grants
the
Reversion
of
both
Houses
by
several
Indentures
to
I.
P.
The
Lease
made
to
the
Lady
S.
expires
,
and
the
Houses
are
left
Ruinous
;
Whereupon
I.
P.
brings
his
Action
.
Nicholls
for
the
Defendant
said
.
that
the
Plaintiff
ought
to
have
brought
two
Writs
of
Covenant
,
for
that
the
Houses
are
several
;
and
if
(
the
Case
had
been
)
that
the
Lessor
had
Covenanted
to
repair
them
,
and
had
dyed
,
yet
the
Lessee
should
have
had
one
Writ
against
the
Heir
,
aad
an
other
Writ
against
the
Executor
;
and
when
an
Action
is
once
severed
,
it
can
never
be
joyned
again
:
and
when
Sr.
O.
hath
granted
the
House
of
which
he
was
seised
in
Fee
by
Deed
to
P.
now
the
Action
is
severed
,
and
Sr.
O.
shall
have
an
Action
of
Covenant
for
one
House
,
and
P.
for
the
other
.
And
for
these
Reasons
he
held
the
Action
not
to
be
well
brought
.
Doderidge
è
contra
.
And
first
he
agreed
with
the
other
that
two
Actions
upon
this
Covenant
are
maintainable
,
and
that
if
Sr.
O.
had
lett
his
House
the
Lessee
shall
have
one
Action
upon
this
Covenant
,
and
the
Lessor
another
;
But
yet
he
said
this
Action
will
well
lye
,
for
the
Law
is
excellent
in
this
Point
,
for
when
the
Ground
upon
which
the
Action
is
founded
in
one
,
notwithstanding
the
things
are
several
,
yet
all
shall
be
comprised
in
one
Action
,
for
,
frustra
fiunt
per
plura
quae
fieri
possunt
per
pauciora
,
and
with
this
agrees
14
E.
3.
If
a
man
grant
a
Rent
out
of
his
Land
to
one
,
and
sells
the
same
Land
,
and
afterwards
the
vendee
grants
another
Rent-charge
out
of
the
same
Land
to
the
same
person
,
and
he
is
disseised
,
He
shall
have
one
Assise
for
both
the
Rents
.
So
if
one
distreyn
for
two
Rents
and
the
Tenant
rescuos
them
,
He
shall
have
but
one
Writ
of
Rescous
,
3
H.
6.
17.
&
13
H.
7.
12.
b.
There
exception
was
taken
,
because
it
supposed
a
Chasing
in
two
Parks
,
the
which
ought
to
have
several
Punishments
,
Viz.
for
either
Park
Imprisonment
for
3
years
,
as
it
is
given
by
the
Statute
W.
1.
and
because
he
joyns
the
chasing
in
two
Parks
together
,
it
is
not
good
;
For
a
man
cannot
have
a
Writ
of
Ravishment
de
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
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.
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
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
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
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
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
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
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
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
,
't
is
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
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
,
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
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
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
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.
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
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
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
yet
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
23
d
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
,
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
t
is
only
presentatum
&c.
and
not
alledged
in
fact
,
't
is
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
;
't
is
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
.
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
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
,
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
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
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
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.
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
Copy-hold
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.
Barr.
A
Man
may
be
Barred
pro
tempore
,
and
yet
afterwards
he
shall
have
his
Action
.
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
t
is
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
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
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
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
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
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
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
,
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
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
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
;
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
;
't
is
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
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
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
11
th
of
May
,
Nul
Award
pleaded
;
he
replyes
,
that
the
Award
was
made
the
10
th
of
May
,
to
be
delivered
the
same
10
th
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
't
is
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
;
't
is
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.
't
is
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
,
't
is
found
that
he
Sealed
,
&c.
and
the
Seal
was
torn
off
,
after
the
Plea
pleaded
,
but
on
atthe
time
of
the
Plea
,
't
is
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
't
is
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
,
't
is
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
,
't
is
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
,
't
is
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
;
't
is
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
12
th
of
July
was
agreed
for
a
longer
time
;
the
traverse
tying
him
up
to
the
12
th
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●●
,
't
is
incurably
ill
;
for
if
he
had
the
day
of
the
Ple●
pleaded
't
is
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
't
is
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.
'T
is
held
ill
on
general
demurrer
,
not
shewing
what
summ
he
has
;
but
Hob.
133.
More
versus
Andrews
,
't
is
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.
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
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
't
is
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
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
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
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
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
't
is
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
,
't
was
moved
in
Arrest
of
Judgment
,
that
Sattago
was
not
good
,
but
Sartago
,
and
igneum
ferrum
anglice
a
firegrate
,
improper
:
yet
the
Court
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
,
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
,
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
,
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
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
High-way
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
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
,
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
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
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
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
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
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
,
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
26
th
of
March
)
by
Dedimus
potestatem
,
and
the
wife
dyed
27
th
of
the
same
month
;
and
the
next
day
being
the
28
th
,
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
.
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
.
OVtlawry
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
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.
't
is
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
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
gone
against
both
.
Also
't
was
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
;
't
is
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
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
't
is
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.
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
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
't
is
not
said
ad
Comitat
'
Somerset
,
nor
Somerset
,
set
in
the
Margin
:
'T
is
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
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
,
't
is
only
the
King's
Suit
,
and
the
Parties
have
no
Interest
in
it
;
and
if
the
Defendant
be
Outlawed
after
the
Supersedeas
,
't
is
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
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
,
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
't
is
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
't
is
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
puts
the
King
out
,
not
if
seized
Virtute
,
Windsor
against
Savel
.
Outlawry
against
two
reversed
,
because
it
's
entred
ideo
Vtlegat'
sunt
,
and
not
uterque
eorum
Vtlegat'
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.
Vtlegat
'
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
was
but
a
Latitat
,
't
is
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
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
't
is
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
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
'
,
't
is
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
when
he
is
pardoned
of
an
Outlawry
before
Judgment
,
with
an
ita
quod
stet
,
because
he
is
to
Answer
to
the
Party
;
but
when
't
is
after
Judgment
,
't
is
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
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
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.
t
is
said
,
in
Debt
,
on
a
Contract
,
Outlawry
in
Plaintiff
,
Abatement
,
because
the
Defendant
not
forfeited
;
but
on
a
Bond
't
is
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
't
is
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
.
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
,
't
is
held
by
Cro.
that
it
s
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
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
.
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
,
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
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
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
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
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
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
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
it
s
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
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
shall
not
prejudice
him
,
because
the
Judges
ought
to
take
notice
of
it
,
per
totam
Curiam
;
and
nul
tiel
Record
'
cannot
be
pleaded
against
a
General
Act
of
Parliament
,
although
it
cannot
be
found
;
per
Coke
Chief
Justice
,
ubi
supra
.
Reg.
11.
Note
by
all
the
Justices
for
a
general
Rule
,
where
a
thing
alleadged
doth
confess
and
avoid
my
Plea
,
I
may
Traverse
it
,
7
H.
6.
13
Eliz.
Dyer
.
A
Copy-holder
pleaded
,
that
per
Licentiam
Dominorum
Manerii
adtunc
existentium
,
he
made
a
Lease
for
Years
,
to
J.
S.
and
rul'd
to
be
an
ill
plea
;
because
he
hath
not
shewn
what
Estate
the
Lords
have
in
the
Mannor
:
For
they
may
be
only
Tenants
at
Will
,
and
so
cannot
give
License
to
make
a
Lease
for
Years
,
although
they
have
Power
to
grant
Estates
by
Copy
.
A
Man
brought
an
Action
of
Trespass
for
his
Horse
taken
:
The
Defendant
said
,
that
the
Plaintiff
gave
him
License
to
take
his
Horse
;
and
farther
said
,
that
he
was
within
Age
at
the
time
of
the
License
,
&c.
Afterwards
the
Defendant
said
,
that
he
was
not
seised
long
time
before
that
the
Infant
any
thing
had
,
&c.
and
so
possessed
,
until
J.
S.
took
and
gave
to
the
Infant
.
This
is
a
good
Departure
,
because
that
he
doth
not
maintain
his
Barr
,
sc.
his
License
,
5
H.
7.
Assise
,
the
Tenant
pleads
,
that
his
Tenant
died
without
Heir
,
he
shall
not
be
received
to
say
,
that
he
committed
Felony
,
for
which
he
was
attainted
,
because
that
it
is
new
Matter
,
and
not
pursuant
.
An
Obligation
did
bear
Date
the
first
day
of
May
,
and
was
delivered
the.
20
th
.
day
afterwards
;
the
Obligee
releaseth
the
Second
day
of
May
;
which
Release
was
delivered
the
same
day
:
This
Release
is
no
Barr
,
quod
nota
.
If
the
Obligee
brings
an
Action
,
and
declares
upon
a
Bond
bearing
Date
the
first
day
,
&c.
and
doth
not
say
that
it
was
afterwards
delivered
the
20
th
.
day
,
the
Defendant
shall
barr
him
by
the
Release
,
which
was
made
after
the
first
day
;
and
the
Plaintiff
shall
not
reply
,
and
shew
the
first
Delivery
of
the
Bond
the
20
th
.
day
;
for
that
is
a
Departure
,
and
because
that
he
might
have
alleadged
it
it
at
the
Commencement
.
By
Keeble
,
where
the
Defendant
in
Trespass
fortifies
his
Bar
;
and
there
is
no
other
Matter
but
pursuant
to
the
Barr
,
and
goes
before
the
Barr
in
Conveyance
of
his
Title
:
This
is
no
Departure
;
but
where
the
Barr
is
before
the
Matter
shewn
in
his
Rejoynder
,
this
is
a
Departure
:
As
in
Assise
,
the
Defendant
pleads
the
Dying
seised
of
his
Father
,
and
gives
Color
,
&c.
The
Plaintiff
pleads
the
Feoffment
of
the
Defendant
after
that
Descent
;
the
Defendant
rejoyns
,
and
saith
,
that
Feoffment
was
upon
Condition
,
which
Condition
was
broken
,
and
so
he
did
re-enter
.
Now
this
is
a
Departure
;
for
the
Barr
was
before
the
Feoffment
:
But
if
the
Tenant
in
Assisse
saith
,
that
J.
S.
was
seised
,
and
enfeoffed
him
,
and
gives
Colour
,
&c.
and
the
Plaintiff
saith
,
that
J.
S.
disseised
him
,
and
enfeoffed
the
Defendant
,
upon
whom
he
re-enter'd
,
and
was
seized
until
,
&c.
if
the
Tenant
rejoyn
,
that
after
the
Disseisin
,
he
releas'd
to
the
said
J.
S.
and
then
he
enfeoffed
him
.
This
is
no
Departure
,
and
yet
he
might
have
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
,
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
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
;
't
was
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
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
't
is
become
void
,
and
he
presented
J.
S.
The
Defendant
pleads
,
that
't
is
in
Gross
,
and
Let
to
him
;
and
that
he
presented
J.
S.
absque
hoc
that
't
is
appendant
,
the
Traverse
is
good
;
but
where
the
Count
is
of
an
Advowson
in
gross
,
&c.
and
the
Defendant
pleads
,
that
't
is
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
't
is
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
.
Vnderhill
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.
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
,
't
is
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
't
is
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
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
,
't
is
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
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
't
is
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
.
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
't
is
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
,
't
is
enough
to
say
,
his
Clerk
was
Instituted
and
Admitted
without
Induction
,
but
in
a
Writ
of
right
Induction
,
is
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
full
of
him
by
6
Months
before
.
No
plea
without
traversing
the
Resignation
;
but
what
a
Traverse
't
is
,
see
5
E.
4.
3.
b.
and
12
H.
4.
11.
He
needs
not
say
,
't
was
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
't
is
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
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
,
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
;
sed
vide
10
H.
8.
14
a.
Corporation
present
their
Head
,
and
't
is
held
a
void
presentation
;
see
Mo.
45.
accord'
al
principal
case
,
and
P.
17
H.
8.
pl.
28.
M.
21
E.
4.
pl.
48.
Three
Patrons
of
an
Advowson
,
agree
to
present
by
Turns
,
if
one
usurps
one
,
the
other
presents
in
her
Turn
;
yet
it
puts
her
not
out
of
Possession
;
but
if
one
be
in
Ward
to
the
King
,
and
he
usurps
in
Right
of
one
of
the
Parceners
,
it
puts
the
other
out
of
possession
,
because
he
not
privy
to
the
Partition
;
per
Choke
and
Bryan
,
sed
Catesby
contra
,
because
in
Right
of
the
Parcener
,
P.
22
E.
4.
pl.
3.
Void
or
not
Void
,
is
tryable
at
Common
Law
;
but
Full
,
or
not
Full
,
by
Certificate
of
the
Bishop
;
and
so
is
40
E.
3.
20.
b.
11
H.
7.
18.
a.
M.
22
E.
4.
pl.
3.
Quare
Impedit
against
A.
as
Patron
,
and
B.
as
Incumbent
,
the
Defendant
pleads
,
that
C.
presented
him
not
named
;
no
plea
:
For
here
the
Plaintiff
has
named
one
Disturber
,
and
he
shall
not
force
him
to
name
another
;
and
vide
9
H.
6.
30
,
31.
a
Disturber
must
be
named
;
but
contrary
of
an
Incumbent
:
For
that
is
at
the
Plaintiffs
pleasure
,
H.
22
E.
4.
pl.
7.
In
Quare
Impedit
,
Title
was
made
by
Acceptance
,
of
a
second
Benefice
,
contrary
to
the
21
H.
8.
and
Issue
taken
of
the
Jurisdiction
:
And
so
it
seems
Admission
and
Institution
makes
not
the
Avoidance
till
Induction
,
Mo.
pl.
45.
Hob.
166.
Owner
of
an
Advowson
grants
,
that
whenever
the
Church
is
void
,
J.
S.
shall
nominate
,
and
he
will
present
;
each
shall
maintain
a
Quare
Impedit
;
and
if
he
that
has
the
Nomination
presents
,
he
that
should
present
,
shall
have
a
Quare
Impedit
,
and
è
contra
;
and
a
Rent
Charge
granted
,
must
be
confirmed
by
both
;
but
Aid
shall
be
prayed
only
of
him
that
has
the
Nomination
;
for
't
is
in
the
Right
,
Mo.
pl.
147.
vide
H.
14
E.
4.
pl.
2.
Mo.
pl.
1258.
vide
Mo.
pl.
11
,
78.
Quare
Impedit
against
Parson
,
Patron
and
Ordinary
,
who
make
default
;
the
Plaintiff
is
forced
to
make
Title
;
and
then
has
a
Writ
to
the
Bishop
,
and
another
to
enquire
of
the
four
points
,
and
recover
Damages
against
them
all
,
because
by
the
Default
,
all
supposed
Disturbers
,
Mo.
pl.
214.
Barroness
retains
Chaplains
;
her
Marriage
after
is
no
discharge
of
their
Detainer
,
unless
the
Husband
actually
discharge
them
;
but
Attainder
either
in
Man
or
Woman
,
is
a
Discharge
,
Rex
vers'
Epm'
Peterborough
,
Mo.
pl.
924.
Resolved
,
the
Advowson
of
the
Viccaridge
is
properly
appendant
to
the
Rectory
,
but
may
be
to
the
Mannor
;
as
if
the
Mannor
and
Rectory
were
both
in
a
Hand
before
Appropriation
;
and
at
the
Appropriation
,
the
Lord
reserved
the
Advowson
of
the
Viccaridge
;
but
that
must
be
shewed
either
by
the
Appropriation
,
or
usual
Continuance
,
which
is
an
Evidence
of
it
,
Sir
George
Shirley
against
Vnderhil
,
Mo.
pl.
1258
,
Quare
Impedit
against
the
Bishop
and
another
,
who
demurred
Judgment
for
the
Plaintiff
,
et
Epus'
in
Mia
,
and
Writ
to
enquire
,
7
E
3.
30.
a.
Writ
to
enquire
of
Damages
on
Demurrer
and
Judgment
,
et
Epus'
in
Mia
'
:
And
that
assigned
for
Error
,
because
he
is
twice
amercied
:
Resolved
none
;
for
,
First
,
The
last
is
but
a
Recital
of
the
first
.
Secondly
,
The
first
however
is
good
at
Common
Law
,
and
the
Plaintiff
may
take
it
at
Common
Law
,
without
Damages
if
he
will
;
wherefore
't
is
affirmed
.
Specot's
Case
,
Co.
5.
rep.
58.
b.
59.
a.
Quare
Impedit
,
and
the
Writ
was
Ad
Ecclesiam
,
and
the
Count
was
,
de
Advocatione
duarum
partium
;
and
well
:
For
the
Writ
must
be
General
;
but
the
Count
must
be
according
to
his
Title
.
Windsor's
Case
,
vide
Co.
Ent.
489.
a.
3
Cro.
687
,
688.
Co.
10.
rep.
13.
b.
1
Inst.
17.
b.
18.
a.
vide
2
Anderson
pl.
16.
Writ
,
quod
permittat
presentare
ad
duas
partes
Ecclesiae
,
and
Counts
of
the
Advowson
,
that
duae
partes
&
bene
aliter
,
if
the
Count
had
been
de
duabus
partibus
,
Co.
5.
rep.
102.
A
Tenant
for
Life
Remainder
to
B.
presents
his
Clerk
,
&c.
and
after
sues
him
to
Deprivation
for
not
reading
the
Articles
.
A.
dies
,
and
two
years
after
,
the
King
presents
by
Lapse
;
and
then
the
Clerk
of
A.
dies
,
and
B.
presents
.
Resolved
first
,
That
the
Patron
is
not
bound
to
take
notice
of
the
Deprivation
,
though
at
his
Suit
;
but
't
is
to
be
given
by
the
Ordinary
to
the
Patron
;
and
not
only
a
General
,
but
publick
Notice
.
Secondly
,
Though
the
Church
be
so
void
,
for
not
Reading
,
as
a
Parishoner
may
plead
it
against
the
Parson
,
in
Debt
for
the
Tithes
;
yet
the
Patron
is
not
to
take
Notice
before
it
be
given
.
Thirdly
,
The
King
mistakes
his
Title
,
his
presentation
is
void
.
Fourthly
,
The
Institution
and
Induction
,
&c.
thereon
had
,
are
void
,
and
the
Church
remains
so
void
;
to
that
Hob.
203.
Dr.
Griffith's
Case
.
B.
R.
14
Car.
1.
Fifthly
,
If
a
Common
Parson
usurp
upon
the
King
,
and
his
Clerk
be
inducted
,
the
King
is
put
to
his
Quare
Impedit
;
but
a
double
or
treble
Usurpation
,
gives
only
the
possession
,
not
the
Right
from
them
.
Sixthly
,
Without
presentation
,
the
Patron
cannot
be
put
out
of
Possession
:
For
Collation
may
put
one
that
has
Right
to
collate
,
out
of
possession
;
but
not
one
that
has
Right
to
present
:
And
so
't
is
agreed
after
,
fo.
50.
in
Boswell's
Case
.
And
note
,
if
the
Presentation
be
in
the
time
of
War
,
though
the
Admission
,
Institution
and
Induction
,
be
in
Time
of
Peace
,
all
is
void
.
Green's
Case
,
2
Cro
385.
Quare
Impedit
against
the
Bishop
and
Clerk
,
omitting
the
Patron
.
Resolved
,
it
shall
abate
:
For
the
Patron
only
at
Common
Law
could
plead
,
and
must
be
named
in
every
case
,
unless
where
the
King
presents
,
who
cannot
be
sued
;
and
unless
it
be
in
such
a
case
as
the
Patrons
Right
is
not
concluded
,
but
only
the
presentment
recovered
;
and
if
it
be
brought
against
the
Clerk
and
Patron
,
and
the
Patron
does
plead
to
the
Writ
,
it
shall
not
abate
,
nor
shall
it
if
brought
by
Baron
and
Feme
,
or
two
Parceners
,
or
Joynt-tenants
,
and
the
Feme
,
and
one
Parcener
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
't
is
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
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
.
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.
't
is
held
the
Bishop
ought
to
return
plenarty
;
and
thereon
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
't
is
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
,
't
is
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
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
,
't
is
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
.
Vrse
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
't
is
alledged
,
because
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
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
't
is
,
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
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
't
is
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
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
't
is
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
,
't
is
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
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
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
't
is
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
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
't
is
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
;
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
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.
't
is
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
't
is
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.
'T
is
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
Lapse
be
suffered
,
he
shall
recover
Damages
within
the
Equity
of
Westm
'
2.
though
it
says
,
per
tempus
semestre
,
and
yet
here
't
is
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
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
Mannor
which
the
Advowson
passes
,
not
the
Avoidance
,
neither
in
the
King
,
nor
in
the
case
of
a
common
Person
,
for
't
is
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
't
is
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
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
,
't
is
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
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
,
't
is
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
,
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
:
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
,
't
is
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
,
't
is
,
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
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
,
't
is
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.
't
is
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
,
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
:
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
'
;
't
is
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
'
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'
quousque
&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.
't
is
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
,
't
is
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
't
was
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
,
Vrse
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
Joynt-tenancy
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
,
't
is
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
,
't
is
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
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
Bailiff
,
this
is
not
within
the
Statute
of
23
H.
6.
A
Bailiff
of
a
Liberty
cannot
execute
a
Capias
Vtlegatum
,
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
24
th
.
of
June
,
1677.
2.
After
the
said
24
th
.
of
June
,
1677.
No
Executor
or
Administrator
,
shall
be
charged
with
any
special
Promise
,
to
answer
Damages
out
of
their
own
Estates
,
but
only
in
Relation
to
the
Testator
having
Assetts
in
their
hands
,
and
that
no
other
person
shall
be
charged
with
any
special
promise
,
to
pay
the
Debt
of
another
man
,
or
answer
for
the
Default
of
any
other
,
or
upon
any
Agreement
of
Marriage
,
or
for
any
Agreement
for
Lands
,
or
for
any
other
commodity
or
thing
not
to
be
performed
within
one
Year
after
the
making
of
any
such
Agreement
,
unless
the
same
Promise
,
Bargain
or
Agreement
,
be
set
down
in
Writing
,
and
signed
by
the
party
to
be
charged
therewith
,
or
by
some
other
person
,
lawfully
authorised
by
him
,
so
to
do
.
3.
All
Wills
and
Bequests
of
Lands
,
Tenements
,
&c.
after
the
said
24
th
.
day
of
June
,
1677.
shall
be
put
into
writing
,
and
subscribed
by
the
Testator
,
or
some
person
else
in
his
Presence
and
by
his
express
Directions
,
and
attested
and
subscribed
in
the
presence
of
three
or
four
Witnesses
;
other
wise
,
all
such
Gifts
to
be
void
:
all
such
Devises
so
made
and
subscribed
by
the
Testatoror
his
Directions
,
as
aforesaid
,
shall
be
good
,
and
stand
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
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
Buyer
take
part
of
the
Goods
(
so
sold
)
into
his
Possession
,
or
give
something
in
Earnest
,
or
that
some
Note
or
Memorandum
be
made
thereof
in
Writing
.
9.
No
nuncupative
Will
whereby
an
Estate
is
bequeathed
above
the
value
of
thirty
pounds
,
shall
be
good
,
unless
it
shall
be
proved
by
three
Witnesses
at
the
least
,
nor
unless
the
Testator
did
bid
the
parties
present
bear
witness
,
that
so
was
his
Will
,
or
to
such
like
effect
;
nor
unless
such
a
Will
was
made
in
the
time
of
the
Testator's
last
Sickness
,
and
in
his
place
of
Habitation
;
and
unless
he
was
surprised
and
taken
sick
from
Home
,
and
that
no
Testimony
shall
be
received
to
prove
such
Will
after
six
Months
,
unless
the
Testamentory
Words
were
committed
to
Writing
within
six
Days
after
the
making
of
such
Will.
10.
No
words
unless
they
are
committed
to
Writing
and
read
to
the
Testator
and
allowed
by
him
,
and
proved
by
three
Witnesses
to
be
his
Will
,
shall
alter
any
Will
in
Writing
concerning
any
Goods
or
Chattels
,
or
any
Device
or
Bequest
therein
.
Trespass
.
IF
my
Servant
without
my
knowledge
,
puts
Beasts
into
another
mans
Ground
,
the
Servant
is
Trespasser
,
and
not
the
Master
.
If
a
man
beat
my
Servant
,
I
may
have
Trespass
,
and
my
Servant
another
Action
of
Trespass
,
diversis
respectibus
.
It
is
good
to
lay
the
Action
some
day
after
the
Trespass
committed
;
yet
it
is
not
material
or
traversable
if
be
laid
before
:
For
it
's
but
a
Circumstance
:
As
Trespass
done
the
Fourth
of
May
,
the
Plaintiff
alledgeth
the
First
of
May
,
it
's
sufficient
,
if
upon
Evidence
it
be
proved
,
that
the
Trespass
was
done
before
the
Action
brought
.
A
Master
is
punishable
for
his
Servant
,
if
he
be
about
his
Masters
Business
:
An
Abbot
for
his
Monk
;
a
Captain
for
his
Souldier
;
an
Host
for
his
Guess
;
So
a
Sheriff
for
his
Under-Sheriff
and
Bayliffs
:
But
a
Master
shall
not
be
Punnished
for
Trespass
of
Battery
,
or
Entry
into
Lands
,
or
Felony
,
or
Murder
,
or
such
like
,
done
by
the
Servant
,
unless
done
by
his
Command
.
If
a
Servant
keeps
his
Master's
Fire
so
negligent
,
that
it
burns
his
Master's
and
the
Neigbours
House
,
the
Master
is
chargeable
therewith
.
A
man
is
chargable
with
the
Faults
of
his
Family
or
of
his
Beasts
:
If
a
Ship
is
perishing
,
and
the
Marriners
cast
the
Goods
,
to
save
them
,
on
the
Land
next
adjoyning
;
yet
this
is
Trespass
,
and
punishable
by
him
that
holds
the
Land
.
A
Servant
may
justifie
the
beating
of
another
in
Defence
of
his
Master
.
A
Man
shall
not
have
his
Action
of
Trespass
for
Threatning
,
and
recover
Damage
as
well
as
in
Assault
and
Battery
.
The
Law
does
not
allow
any
man
to
strike
in
Revenge
of
Ill
words
;
and
the
reason
is
,
because
there
is
no
proportion
between
Words
and
Blows
;
but
he
that
is
struck
may
strike
again
.
In
Trespass
,
he
that
consents
and
gives
aid
to
the
committing
of
Trespass
is
a
Principal
and
no
Accessary
to
the
same
Trespass
.
If
Tenant
at
Will
commits
voluntarily
Waste
,
Trespass
lies
against
him
,
notwithstanding
his
Possession
;
so
that
if
I
deliver
my
Sheep
to
another
,
to
Fold
or
Dung
his
Land
,
or
a
Horse
to
Ride
,
or
Oxen
to
Plow
his
Land
;
If
the
Bailiff
spoil
or
kill
them
,
I
have
an
Action
of
Trespass
against
him
,
notwithstanding
the
Delivery
of
them
,
or
Trover
at
his
Election
.
If
a
Man
desseize
me
of
my
Land
,
or
dispossess
me
of
my
Goods
,
yet
I
may
enter
upon
the
Land
,
or
take
my
Goods
,
although
I
release
to
the
party
Disseizer
or
Trespasser
,
all
Actions
;
yet
this
Release
shall
not
Bar
my
Right
.
No
Trespass
can
be
excused
by
Law
;
but
it
may
be
justified
;
as
upon
son
assault
demesne
,
or
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
.
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
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.
't
were
confused
and
ill
;
but
if
he
pleads
,
that
as
a
Servant
to
A.
he
put
in
such
,
and
to
B.
such
,
&c.
't
is
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
,
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
Bayliff
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
,
't
is
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
.
't
is
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
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
,
't
is
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
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.
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
't
is
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'
't
is
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
't
will
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
't
was
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
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
't
was
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
Kidwelly
:
when
one
pleads
a
Lease
from
a
Stranger
,
't
is
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
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
,
't
is
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
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
,
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
't
is
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
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
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
't
was
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
:
't
is
good
without
saying
in
facto
,
that
he
did
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
't
is
the
habend
'
,
and
the
Granter
and
Grantee
,
must
be
named
in
the
Premises
;
but
,
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
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
,
't
is
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
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
't
is
not
Freehold
;
and
by
some
the
plea
is
good
,
till
the
Plaintiff
make
a
particular
Title
to
the
Fishing
;
Idem
in
Case
of
Warren
;
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.
't
is
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
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
,
't
is
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
't
is
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
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
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
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
't
was
good
,
and
the
Traverse
necessary
upon
that
Inducement
;
that
an
Inducement
is
not
material
,
a
man
may
have
many
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
,
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
'
,
't
is
good
;
also
,
if
the
Jury
had
found
it
to
be
half
an
Acre
,
whereas
it
was
assigned
an
Acre
,
't
were
well
enough
.
Yelv.
Winkworth
against
Man
,
114.
But
in
an
Ejectione
firmae
't
were
incertain
,
and
void
.
Yelv.
ibid.
&
2
Cro.
183.
2.
Wager
of
Law
.
IN
Debt
for
an
Amerciament
in
a
Court-Baron
't
is
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.
'T
is
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
,
't
is
quasi
a
Debt
of
Record
,
for
that
alters
not
the
Law
:
quoad
Wager
.
Morgan
against
Green
.
And
so
't
is
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
,
't
is
not
material
,
though
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
't
is
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
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
't
is
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
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.
'T
is
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
't
is
allowed
in
some
Cases
,
in
Debt
,
Detinue
,
and
Account
;
't
is
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
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
.
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
,
't
was
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
,
't
is
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
't
is
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
.
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
there
the
Receipt
is
traversable
;
but
in
the
first
Bailment
't
is
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
't
is
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
,
't
is
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
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
,
't
is
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
,
't
is
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
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
,
't
is
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
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
,
't
is
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
,
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
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
't
is
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
't
is
found
by
the
Suiter
,
and
so
't
is
said
,
13
H.
7.
3.
6.
Per
Cousby
.
'T
is
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
't
is
agreed
it
must
be
,
not
being
Money
;
and
though
't
was
upon
a
Lease
●o
years
,
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
't
is
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
auter
maines
,
then
his
that
sues
tamen
quaere
.
In
Debt
and
Account
by
Executor
,
't
is
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
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
,
't
is
no
wast
to
suffer
it
to
fall
,
but
to
pull
it
down
't
is
,
and
't
is
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
't
is
said
,
the
Lessor
cannot
grant
them
without
the
Lessee's
License
.
But
Co.
11.
Rep.
't
is
said
,
't
is
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
Vlmas
,
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
,
't
was
said
,
quòd
quer'
obtulit
se
quarto
die
per
Attorn
'
without
naming
him
;
and
though
he
was
named
in
the
assigning
of
the
Wast
,
yet
't
was
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
,
't
was
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
voluntary
wast
,
is
double
wast
.
To
dig
for
Gravel
,
Stone
,
&c.
is
wast
,
unless
for
Reparation
of
the
house
.
To
suffer
a
Sea-wall
,
or
against
a
River
,
to
decay
,
is
wast
.
To
take
Timber
,
&c.
to
make
new
Fences
,
is
wast
.
Tenant
cuts
Trees
for
Repair
,
and
sells
them
,
though
he
buyes
them
again
,
and
employs
them
,
't
is
wast
.
Burning
a
house
by
Negligence
or
Mischance
,
is
wast
.
1
Inst.
53.
40.
E.
3.
15.
b.
Willows
cut
in
view
of
the
House
,
is
wast
.
40
E.
3.
25.
b.
So
to
cut
Hasels
in
a
Wood
where
there
is
no
other
Timber
.
If
one
grants
in
his
Leafe
that
Wast
shall
be
redressed
by
Neihgbours
,
and
not
by
Plea
,
yet
he
may
bring
an
Action
of
Wast
,
for
the
place
wasted
is
not
otherwise
recoverable
.
1
Inst.
53.
a.
If
the
Tenant
repair
houses
before
any
Action
of
Wast
be
brought
,
the
Action
of
Wast
is
not
maintainable
;
but
he
must
not
plead
Quòd
non
fecit
vastum
,
but
the
special
matter
.
38
Ass.
1
Reparation
after
the
Writ
brought
,
not
pending
the
Action
seems
no
Plea
.
1
Inst.
55.
D.
None
shall
have
wast
,
unless
he
had
the
immediate
Inheritance
,
yet
an
other
may
joyn
with
him
against
Tenant
by
the
Curtesie
with
the
surviving
Partner
,
Joyntenant
for
life
with
him
that
hath
the
Fee
.
Where
the
Estate
is
determinable
,
the
Wast
is
general
,
as
Tail
becomes
Tail
after
possibility
,
&c.
The
Heir
cannot
have
it
of
Wast
in
his
Ancestors
time
,
nor
a
Bishop
of
his
Predecessor
,
nor
shall
Executors
be
punished
for
Testators
wast
.
Aunt
and
Neece
may
joyn
.
45
E.
3.
8.
b.
Gift
to
two
and
the
Heirs
of
one
,
he
that
hath
Fee
cannot
have
Wast
against
his
Joyntenant
,
but
his
heir
may
,
if
wast
after
,
if
the
other
survive
,
if
the
Reversion
be
not
continued
in
the
same
it
was
at
the
time
of
the
wast
done
,
the
Action
is
gone
,
though
taken
back
again
.
1
Inst.
53.
D.
Wast
lyes
against
Tenant
by
the
Curtesie
,
and
in
Dower
,
though
they
have
assigned
,
unless
the
Reversioner
have
assigned
also
.
All
others
shall
answer
for
their
own
wast
,
unless
Guardians
.
And
if
the
Guardian
assign
it
lyes
against
the
Assignee
.
Guardian
shall
not
answer
wast
by
an
other
,
(
because
't
is
poenal
)
unless
he
is
Joynt-Guardian
.
If
one
recovers
against
him
under
Age
,
he
recovers
the
Land
,
else
only
Damages
.
Infants
,
Feme
coverts
,
&c.
shall
answer
Wast
,
&c.
done
by
Strangers
,
and
she
for
her
Husband
.
Co.
1.
Inst.
53
,
b.
54.
a.
Husband
Tenant
for
Life
in
his
Wives
Right
does
wast
,
she
dyes
,
't
is
dispunishable
;
but
if
tenant
for
years
in
her
Right
,
not
;
because
the
marriage
is
a
Gift
of
it
to
him
.
Tenant
for
Life
grants
his
Estate
on
Condition
,
Grantee
does
wast
,
Grantor
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
,
't
is
not
wast
,
though
he
was
not
bound
to
repair
them
as
his
Lessor
covenanted
to
repair
them
;
for
,
if
it
was
sans
Impeachment
of
wast
for
the
houses
,
as
the
house
was
ruinous
at
his
Entry
:
and
this
for
that
Favour
the
Law
gives
to
houses
of
Habitation
.
Co.
1.
Inst.
54.
b.
a.
Dyer
194.
198.
b.
Brook
463.
Tit.
Wast
.
Lease
of
lands
,
he
may
dig
in
open
Mines
,
and
if
it
were
of
lands
and
mines
,
if
any
were
not
open
,
he
can
open
none
new
;
but
if
none
were
then
open
he
may
open
new
ones
.
Co.
1.
Inst.
54.
b.
5
R.
1.
2.
Tenant
for
Life
makes
Feoffment
,
wast
is
done
,
't
was
upon
Condition
,
Lessee
enters
for
Condition
broken
;
Lessor
shall
have
wast
.
So
Successor
of
a
Bishop
shall
have
Wast
on
his
Predecessors
Lease
,
for
wast
done
in
time
of
Vacation
.
So
if
Lessee
for
Life
be
disseised
,
and
wast
done
,
if
he
enters
he
shall
be
charge
.
able
for
the
rest
;
yet
in
none
of
these
cases
had
the
Lessor
any
Reversion
in
him
at
the
time
of
the
wast
,
as
regularly
he
ought
:
but
these
cases
stand
upon
their
particular
Reasons
.
1
Inst.
13.
b.
The
Aunt
and
Neece
joyn
in
Action
of
Wast
done
in
the
old
Sisters
Life
;
the
Aunt
alone
recovers
the
damages
.
Co.
1.
Inst.
233.
b.
Tenant
for
Life
makes
a
Lease
for
years
,
and
enters
upon
his
Lessee
,
and
consents
to
a
Recovery
in
Wast
against
him
;
the
Lessee
for
years
shall
be
for
ever
excluded
,
for
,
of
necessity
,
the
place
wasted
must
be
recovered
:
but
if
he
had
granted
a
Rent
charge
,
and
committed
Wast
,
and
the
land
recovered
,
the
Rent
had
continued
.
Co.
1.
Inst.
233.
b.
Perkins
844.
Tenant
for
Life
does
wast
,
and
grants
over
his
Estate
,
Lessor
releaseth
all
wast
to
the
Grantee
,
it
shall
discharge
the
Lessee
.
Idem
of
Tenant
in
Dower
,
or
by
the
Curtesie
;
for
,
besides
the
Privity
that
endures
,
if
the
Lessor
should
maintain
his
Action
,
he
should
recover
Locum
vastatum
against
the
Grantee
,
contrary
to
his
own
Release
.
Co.
1.
Inst.
269.
b.
Lessee
does
wast
,
and
then
surrenders
;
't
is
said
,
the
Lessor
shall
maitain
wast
,
but
the
Book
seems
to
be
misprinted
,
and
that
it
should
be
[
shall
not
maintain
,
&c.
]
for
,
by
his
own
Act
he
hath
determined
his
Action
in
part
.
Co.
1.
Inst.
285.
&
5
Rep.
12.
b.
Wast
brought
against
Tenant
pur
auter
vie
in
Ass
;
he
dyes
pending
the
Writ
,
it
shall
not
abate
,
but
proceed
for
the
damages
,
because
altered
by
Act
in
Law
:
but
if
Baron
and
Feme
,
Tenants
in
Tail
special
,
bring
Wast
,
and
she
dies
without
Issue
pendente
brevi
,
so
as
the
Husband
becomes
Tenant
in
Tail
apres
possibility
d'issue
extinct
,
it
shall
abate
,
because
all
wast
must
be
ad
exheredationem
.
And
note
,
that
Release
of
actions
real
bar
wast
,
and
so
doth
Actions
personal
,
for
he
shall
not
apportion
his
own
Action
.
Co.
1.
Inst.
285.
a.
One
devises
Lands
by
the
general
words
Bosc'
Maherem
'
Miner'
Carbon
'
in
tam
amplis
modo
&
forma
,
as
the
Lessee
habuit
or
habere
potuit
;
the
Lessee
opens
a
Mine
,
and
cuts
Trees
to
use
about
it
,
the
cutting
is
wast
,
for
the
Trees
were
not
granted
,
it
being
a
Lease
,
nor
do
they
pass
as
incident
to
the
Mine
,
it
not
being
open
.
And
Hobard
holds
,
that
if
the
Mine
had
been
open
at
the
time
of
the
Lease
,
it
had
been
wast
.
Hobard
234.
Darcy
against
Ashwich
,
Hutton
190.
191.
Lessee
cannot
change
the
nature
of
the
thing
devised
,
and
therefore
,
not
turn
Meadow
into
Arrable
,
or
Wood
into
Pasture
,
dry
up
an
ancient
Poole
,
suffer
a
Park
pale
to
decay
,
destroy
a
stock
of
Deer
,
Fish
,
&c.
but
may
better
a
thing
in
the
same
kind
;
and
therefore
may
dig
to
make
a
drayne
in
a
Meadow
.
Ibidem
Owen
66.
67.
Hutt.
103.
Dy.
37.
a.
Co.
1.
Inst.
53.
2
Leon.
174.
Lessee
builds
a
new
house
,
't
is
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
,
't
is
to
be
understood
also
,
non
permittent
vastum
;
and
so
't
is
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
,
't
is
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
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
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
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
Ground-sills
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.
't
is
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
't
is
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
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
Joynt-tenant
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
Hedge-boot
,
is
taken
,
that
there
were
not
enough
besides
,
and
found
there
were
as
to
the
House-boot
:
the
Defendant
demurs
,
and
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
Willows
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
re-edifies
,
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
Writ
,
but
if
it
had
been
assigned
of
digging
Clay
,
&c.
it
had
.
Mo.
Pl.
200.
Wa
st
and
Count
of
Wa
st
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.
'T
is
Wa
st
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
,
't
is
disjunctive
by
reason
of
the
Remainder
;
whereto
,
More
answers
,
that
't
is
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
,
't
is
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
't
is
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
't
is
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
,
't
is
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
,
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
open
a
Mine
,
and
not
that
Term
except
Mines
,
if
after
the
Assignee
dig
in
it
,
't
is
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
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
Hay-boot
,
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
'
,
't
is
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.
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
,
't
is
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
't
is
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
t
is
pleaded
,
and
that
no
under-wood
was
there
.
And
in
this
case
't
is
held
by
some
,
that
Ashes
,
Oaks
,
&c.
under
twenty
years
growth
,
may
be
taken
for
Fire-boot
,
&c.
but
denyed
by
others
,
for
they
are
Ashes
,
and
't
is
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
Writ
to
enquire
of
the
Wast
shall
be
awarded
,
no
Writ
being
retorned
,
served
,
or
an
Alias
distringas
,
multum
dubitatur
,
&
alter
catur
;
but
at
last
the
Writ
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
Wast
done
by
him
46
E.
3.
25.
vid.
Case
.
21
H.
6
56.
a.
b.
H.
6
25.
b.
Wa
st
,
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
;
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
Wa
st
,
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
.
't
is
held
of
one
side
,
and
denyed
by
the
other
,
that
an
Attachment
lyes
upon
an
Inquiry
of
wast
.
But
1
Cro.
't
is
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
't
is
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
,
Wa
st
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
,
and
wast
is
done
,
and
the
Tenant
re-enters
,
Lessor
shall
have
wast
,
yet
he
had
no
Reversion
.
Note
,
't
is
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
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.
le
ts
to
B.
B.
assigns
to
C.
and
D.
;
D.
assigns
to
E.
except
the
Trees
,
then
't
is
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
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
Joynt-tenancy
,
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
,
whereas
great
,
and
not
only
what
were
great
at
the
time
of
the
Lease
.
Garrock
versus
Cliffe
.
1
Leon.
61.
A.
le
ts
to
B.
for
years
,
and
during
the
Term
,
le
ts
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
,
't
is
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
.
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
'
t
is
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
;
't
is
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
't
is
the
Lessee's
Land
pur
temps
,
not
the
Lessors
,
so
he
could
not
command
him
;
also
,
't
is
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.
'T
is
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
,
't
is
no
wast
to
suffer
it
to
decay
;
otherwise
,
if
not
ruinous
at
the
Entry
,
but
where
't
is
held
,
ploughing
Meadows
is
no
wast
,
't
is
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.
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
,
't
is
h●ld
by
some
,
that
if
he
remove
them
during
the
Term
,
't
is
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
,
't
is
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
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
,
't
is
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
.
WIl
ls
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
't
is
found
on
Issue
,
Nullum
fecit
voluntatem
,
&c.
that
she
did
make
a
Will
of
50
l.
but
was
covert
,
't
is
for
the
Plaintiff
;
for
,
though
properly
a
Feme-Covert
can
make
no
Will
in
Law
,
yet
't
is
a
Will
within
the
Intent
of
the
Condition
,
and
the
Husband
is
bound
to
perform
it
.
Marriot
vers.
Kinsman
.
1
Cro.
159.
And
so
Tilly
and
Parryes
Case
,
273
,
274.
Bond
to
pay
300
l.
to
such
Persons
and
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.
Witnesses
.
HE
that
is
attainted
of
a
false
Verdict
,
Conspiracy
,
or
convicted
of
Perjury
;
Premunire
,
or
Forgery
upon
5
Eliz.
or
Felony
,
or
that
has
stood
in
the
Pillory
,
lost
his
Ears
,
been
stigmatiz'd
,
&c.
whereby
he
becomes
infamous
,
or
Recreant
in
a
Writ
of
Right
,
or
an
Infidel
,
under
Age
of
Discretion
,
or
interessed
,
ought
not
to
be
a
Witness
,
nor
a
man's
Wife
for
or
against
her
Husband
.
But
one
outlawed
in
personal
Actions
may
be
a
witness
Co.
1.
Inst.
6.
b.
25.
J.
K.
Witnesses
are
not
to
prove
a
Negative
.
ibid.
Where
Tryal
is
by
Witnesses
,
there
ought
to
be
two
at
the
least
.
ibid.
A
Juror
may
give
Evidence
as
a
Witness
to
his
Companions
,
but
it
must
be
publickly
,
by
Examination
in
Court
,
not
privately
to
his
Fellows
.
Stiles
Rep.
233.
Bail
for
the
Defendant
being
a
Witness
for
him
,
upon
motion
was
taken
off
the
File
,
and
new
Bail
filed
.
Idem
.
385.
A
Felon
that
has
been
burned
in
the
hand
,
may
be
a
Witness
,
for
he
may
purchase
,
and
his
Punishment
has
satisfied
his
Offence
.
Idem
385.
In
Ejectment
,
he
that
had
the
Inheritance
of
the
Land
was
admitted
as
a
Witness
,
where
note
,
the
Plaintiff
and
Defendant
both
claimed
under
one
person
.
Idem
482.
A
Counsellor
at
Bar
being
examined
as
a
Witness
for
his
Clyent
,
was
denyed
to
be
examined
on
the
other
side
;
for
he
shall
not
be
put
to
discover
the
Secrets
of
his
Clyents
Cause
.
Idem
449.
Debt
on
5
Eliz.
9.
because
the
Wife
did
not
appear
,
whereas
he
served
her
,
and
tendred
to
her
,
her
Charges
,
&c.
to
his
Damage
.
And
though
not
laid
what
Damage
,
yet
being
for
the
10
l.
upon
the
Statute
,
not
for
his
damages
for
her
not
appearing
,
and
a
Feme
Covert
being
within
the
Statute
,
't
was
held
good
enough
.
3
Cro.
130.
1
Leon.
122.
Note
,
she
being
the
person
who
was
to
appear
,
the
Charges
are
to
be
tendred
to
her
or
her
Husband
.
Iidem
ibid.
Debt
for
10
l.
against
a
Witness
,
that
being
Subpena●d
,
appeared
not
;
moved
first
,
't
is
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.
't
is
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
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.
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
;
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
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
,
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
Knave
,
for
he
swore
that
the
wood
was
worth
40
s.
where
it
was
dear
of
13
s.
4
d.
No
Action
lyes
for
those
words
,
though
he
aver
,
that
there
was
Communication
between
them
of
the
matter
at
the
Assises
,
where
the
Plaintiff
was
sworn
as
a
Witness
,
because
that
he
did
not
say
directly
,
that
the
Wood
was
not
worth
40
s.
but
that
it
was
dear
of
13
s.
4
d.
Also
,
it
doth
not
appear
,
that
the
Defendant
intended
it
sworn
at
the
Assises
.
Hill.
13.
Jac.
B.
R.
Inter
Stephen
Apthorpe
and
Cockerel
,
adjudged
.
If
a
man
saith
to
an
other
,
Thou
wert
forsworn
in
B
Court
,
which
is
but
a
Court-Baron
,
no
Action
lyes
,
because
it
is
no
Court
of
Record
.
Pasch.
8.
Jac.
in
Scaccario
.
Inter
Perie
and
Rock
,
agreed
per
Curiam
.
If
a
man
saith
to
another
,
Thou
art
forsworn
,
and
didst
take
a
false
Oath
at
the
Assises
at
Hereford
,
against
J.
S.
No
Action
lyes
for
these
words
,
without
an
Averment
,
that
it
was
at
a
Tryal
or
before
the
Court
or
Jury
;
for
it
might
be
at
the
Assises
in
a
private
house
,
or
other
place
.
Pasch.
15.
Car.
B.
R.
Inter
Prichard
and
Smith
.
Adjudged
per
Curiam
.
If
a
man
saith
to
an
other
,
Thou
deservest
to
be
hanged
,
no
Action
lyes
for
these
Words
,
because
it
only
expresseth
his
Opinion
and
Judgment
of
him
.
Trin.
4.
Jac.
Inter
Hake
and
Molton
,
adjudged
.
If
a
man
saith
to
J.
S.
Thou
art
a
scurvey
bad
Fellow
,
and
hast
done
that
thou
deservest
to
be
hanged
.
No
Action
lyes
.
Mich.
11.
Car.
B.
R.
inter
Fisher
and
Atkinson
;
adjudged
per
Cur.
in
arrest
of
Judgment
.
after
Verdict
for
the
plaintiff
.
If
a
man
saith
to
another
,
You
are
no
true
Subject
to
the
King
,
no
Action
lyes
for
these
words
,
because
they
are
too
general
;
for
it
might
be
,
he
had
not
paid
his
Taxes
,
Mich.
5.
Jac.
B.
R.
inter
Smith
and
Turner
,
adjudged
.
If
a
man
saith
to
another
,
Thou
art
a
Rogue
,
and
an
arrant
Rogue
,
and
I
will
prove
thee
to
be
a
Rogue
;
no
Action
lyes
.
Mich.
41.
&
42.
Eliz.
B.
R.
adjudged
.
FINIS
.