THE TOUCHSTONE OF Precedents, Relating to JUDICIAL PROCEED AT Common Law,  
By G. F. of Grayes-Inn, Esquire.  In magnis voluisse sat est. Hor. 
LONDON, Printed for Awnsham Churchill at the Black Swan, at the lower end of Paternoster-Row, near Amen-Corner, 1682.   

TO THE READER.  
NOtwithstanding the present Age hath so plentifully abounded with Books of Pleading in Public; yet certainly there hath been as manifest a Deficiency of some good Directions for the Understanding them; tho' perhaps one Reason hath been, for that Pleading is esteemed by the Learned the most difficult part of the Study of the Law, and therefore Collections of this Kind more liable to the Censure of the Over-critical.  
'Tis true, there are two Tracts extant upon this Subject; but it happens so unluckily, that one is but the particular Observations of a single Person in part of his Time at the Bar, and the other as Antique or Obsolete as the Language it is writ in, and much wanting the finishing hand of the Designer: Such hath been our misfortune as to this Subject, and we may well deplore our ill fate, that none of the Learned Gentlemen of the Long Robe hath yet given us their Rules and Methods on a Subject so Excellent as the Incomparable Littleton doth  it, viz. And know my Son, that it is one of the most honourable laudable and profitable things in our Law to have the Science of good Pleading in Actions Real and Personal; and therefore I counsel thee especially to employ thy Courage and Care to learn it. The Reader will here find most Excellent Directions, to guide him in his Practice through the Difficulties of the several Parts of Pleading, wherein the Nature of Writs, Counts, Barrs, Pleas, Replications, Rejoinders, Issues; as also Disclaimers, Discontinuances, Estoppels, Conclusions, Departures, Double Pleas, etc. are Succinctly and Methodically handled, from Authorities in the Law, both Ancient and Modern, far more useful and beneficial than any Collection hitherto Published, as will sufficiently appear to any intelligible Person upon a strict and serious perusal of the Book itself.   


Abatement of Writ or Count  
IN Debt by two Executors, one was summoned and severed, and died; and it was adjudged that it should not abate the Writ. Co. 10. Read and Redman's Case.  
If there be two joint-tenants, and the one is summoned and severed, and dies, the Writ shall abate; but in a Stir 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 dies, 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 mixed where the entire 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 Judgement 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 lies, there the death of one of the parties shall abate the Writ; but not, if it be a Judicial Writ after Judgement. Co. ubi supra.  
In Formedon against divers, some plead Non tenure, and others take the Tenancy upon them entirely, the writ shall not abate, and those who plead Non tenure shall not have Judgement, 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 Manor and 20 s. Rent, it is a good Plea to say, that the Rent is parcel of the Manor. So in Formedon for Land, it is a good plea to say, that the Demandant hath brought another Formedon of 20 s. Rend 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. College 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 Assize it is a good plea to the Writ to say that the Plaintiff was seized of the Freehold of the Lands in the Plaint; but in a Forcible Entry it is no plea to say that he was seized 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 appendent; 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 Judgement 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 Judgement, the whole Proceed are discontinued, but the Information itself 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 showing 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 showing 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 dies 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 dies, in Cro. Caroli 509. it is doubted, if the writ shall abate; but it is agreed there, That if the wife dies 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 Judgement, the Writ shall abate only against him.  
In Right of Advowson the Defendant pleads that the Plaintiff was seized 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 shows an Acquittance, the whole writ shall abate; and yet it is a good plea in bar 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, etc. 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 Waste 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 joined 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 jointly, 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 Assize 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 Assize, or Writ of Dower, as in Pollard's Case, come 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 tried; for it seems by a Jury of the Visne or Neighbourhood of F.  
Debt against two Executors, one said, That whereas he is named of S. that he was of D. the day of the Writ purchased, and prays Judgement 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 tried. 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 Judgement 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 joined 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 Communality, 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 apperson 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 shown, 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 Judgement 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 showed 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 mixed 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 Sovereign Lord the King; for an Alien Friend as he may Traffic, 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 bar 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 King's 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 altar 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 Manor, another Formedon depending for 20 s. Rend out of that Manor, 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, etc. 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 Judgement 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 Assize 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 Assize is brought of Lands in one County, an Assize for the same Lands in another County, and Judgement thereupon, cannot be pleaded; So of a Recovery in Ancient Demesne, because it cannot be intended, that the Lands recovered in the Assize 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 nonsuited in the first Writ, Co. 6. Ferrer Case. Where Note the diversity, when the writ is general, as Covenant, Detinue, Assize etc. 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, etc.   

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 apparently known; per totam Curiam 34 H. 6 8.  
In a Praecipe against I. S. the Son of W. Edmond, at the return 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 Cozenage, one shall not plead to the points of the Writ, after he hath pleaded in Bar; but it is otherwise in an Assize 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 Assize against two, the one pleads in Bar as to a moiety, the other pleads jointenancy with a third person, the Plaintiff may choose him who pleads in Bar for his Tenant, and confess that his writ is false for the other part.  
In Assize 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 Bar, the Plaintiff dissables the Tenant and doth not answer to the Bar, 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 merely 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 guard 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 Assize, the Lessee dies, 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 Judgement.  
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 appendent, 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 meantime between the parting from the  in one Acre and the taking the  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 absolutely 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 waist 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 Tenant's 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 purchased, the Plaintiff had not any Land by which he ought to have common, and afterwards pending the writ he purchased an Acre of Land to which the Common is appendent 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 Wool 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 lose 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 always the 20s. or perhaps always 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, than it is good ab initio. Lit. ib.  
So, If I have 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, rendering 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 Trial had, the Rent reserved may be known certainly, and then the Lessor may have a writ of Debt for the Rent, and so by this possibility of Trial the reservation is made good, which at the commencement was void for the incertainty.  
So if a man Let 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 Licence the Lessee to cut down Trees in White-Acre, than 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 liked it upon the view, that then he should take it from thence paying 40d. for every Acre; this there was held a good contract notwithstanding the incertainty of the quantity of the Wheat, and of the gross Sum which should be paid for it, because that upon the circumstance the certainty may appear, for although it was a conditional agreement between the parties, yet it is held a good Justification if he presently paid for it at the time of his carrying it away. P. 17 E 4. Fo. 1. & Fo: 6 b.   

Able and Disable.  
SFe the diversity 17 H. 7. where 
Reg. 1.  one sc. the Obligee was able at the time of the making of the Obligation and afterwards he is disabled by his own Act, and where he was not able at the time of the making of the Obligation.  
For in the first case the Defendant shall be discharged, and if a man be bound to another by Obligation upon Condition, that if he pay to the Obligee an Annuity of 10 l. at the Feast etc. Till 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 Manor to the Value of 20 l. per annum, the Obligee accepts a Manor to the Value of 10 l. he shall have advantage notwithstanding the Acceptance. 32 H. 7   

Action.  
WHere the principal thing is devested, 
Reg. 1.  yet the Plaintiff shall have an Action which is acrued to him by reason thereof.  
If I disseise one, and a stranger does Trespass to me, the disseisee reenters, I shall have an Action of Trespass for the Trespass before.  
And so if a Lord does Trespass and afterwards recovers by Cessavit.  
WHere the Husband shall have 
Reg. 2.  an Action without naming his Wife, and where not.  
IF a man be disseised of Lands in right of his Wife, he shall have an Assize in his own name.  
Also he shall have a writ of Droit de guard 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 Mary 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 Rend, and afterwards takes Husband, they shall join in an Action for the recovery of the Rent. 7 E. 4.  
A writ of Droit de guard 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 lie; for in every case where the cause of Action is given to a Feme sole and not to the Husband, the Husband ought to join his Wife with him, as if a contract be made with a Feme sole and she takes Husband, etc.  
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 Manor 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, than he ought to join 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 Assize lies 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 Judgement, 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 than 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 died, 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 lie 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, than 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 jointly 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 lies 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, Let's 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. nichols 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 died, yet the Lessee should have had one Writ against the Heir, and an other Writ against the Executor; and when an Action is once severed, it can never be joined again: and when Sr. O. hath granted the House of which he was seized 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 let his House the Lessee shall have one Action upon this Covenant, and the Lessor another; But yet he said this Action will well lie, 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 Assize 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 Chase 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 joins the chase 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 Trespass, for a man may join Lands of twenty Titles in Trespass; and Trespass lies f Wood, Pasture and the like: and 4 E. 2. if a man hold Lands in Capite and die, 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 seized 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 dies 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 rendering Rend, 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 Assize; but if the Infant makes a Feoffment and deliver seisin accordingly, he shall have no Assize; 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 Assize. 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 Husband's name only. 12 R. 2. Brief 639. And so,  
Where a Lease for years is made by Husband and Wife, of the Lands of the Wife, rendering Rend, 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 join. 2 R. 2. Brief 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. Brief 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 dies, 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 Waste: 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 jointly, because there one thing is the ground of the Action, viz. the Deteyner. 44 E. 3. 41 Brief 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 hindering the Plaintiff to hold his Leet, 2. for the disturbance of his Servants and Tenants in the gathering his Tithe, 3. for Threatening so that the people etc. durst not come to a certain Chapel 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 Bar 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 etc.  
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 Rend, 14 H. 4.  
The same Law if a Villain be made executor to a man to whom the Lord is Bound, the Villain shall have an Action against his Lord.  
The same Law if a Monk be made Executor etc.  
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 etc.  
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 Scholars.  
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 Bar 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 die, 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 dies seized, 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 dies, 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 etc.  
Action of Debt upon an obligation brought by an Executor, the writ shall be detinet and not debet, and for this cause they join 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 join 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 dies, 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 etc. yet the Feoffee shall have Trespass because his possession is affirmed. 43 E. 3.  
Assumpsit, If he would relinquish such a debt to pay him 30 l. and says he did relinquish it etc. and after Verdict for the Plaintiff, Judgement stayed because he shows not how he relinquished it and it may be by parol which were void. Gregory versus Lovel. 3 Cro. 292.  
Assumpsit in Consideration he would discharge him from an Arrest; and says, that exoneravit ipsum: moved in Arrest etc. he shows 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 showed 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 Judgement; 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 etc. and says he made it appear by the Court-Roll, Good, without saying what the Court Rolls were for the Infinitely. So a Bond to save harmless from all Estreates, good, without showing 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 etc. and says he assigned, and shows 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 etc. and to the Recognizance, that it was satisfied and kept in force of Fraud; the Defendant demurred quià replicatio multiplied and double, consisting of two matters, where one goes to the whole; but Judgement 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 alleged 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 showed 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, etc. Et hoc paratus, etc. ill; there he should have concluded all pais. And on general demurrer ibidem where an Award was, That one bound with Sureties, assigns breach that he did not become bound modo et forma & c well, though the Award bind as to the Surety, 'tis good as to him. A breach assigned that he did not etc. and the modo et forma extends not to the Surety, but to himself only, though it be made modo et forma as Awarded. Cook 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 shows 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 replies 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 etc. 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 Defendant 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 return 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 lie thereof. Co. 8. Blackmores' Cases. fo. 156.  
After Verdict in Ejectione firmae, these Errors were alleged in Arrest of Judgement, 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 Judgement of the whole Court shall be amended. So 11 H. 7. 2. b. per Brian praedictus defendens etc. was amended, and 10 H. 7. 23. b. per Townsend, a Bar was pleaded by the Tenant, which concluded with praedictus Johannes, is ready to aver etc. 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 Abridgement, Title Amendment 32. if Judgement be entered in the King's-Bench or Common-Pleas otherwise than it is in Truth; Or if Tales be awarded and marked on the back of the Writ, or of a Scroll, and not entered 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 Chain, ibid. The Justices of the Common-Pleas after a Writ of Error cannot at all amend the Roll where a Judgement 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 Entered; 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 returned 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 King's Bench, Sergeant Hutton moved that the Warrant of Attorney might be amended where the Christian name was omitted, but entered 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 Judgement 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 guard 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  from the Original, the Process etc. 19 H. 6.  
Amendment is properly where there is default in the Clerk, as where a man shows an Obligation to a Clerk of the Chancery, and the Clerk doth not make a good Original upon it, now it shall be amended because the Clerk had sufficient Instructions: but it is contrary if he show 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 always be amended; for it appears to be wholly the default of the Clerk.  
The like Law shall be, in Trespass the Defendant pleaded none cull. et ponit se super patriam, and the Clerk entered 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 Assize. And so see the diversity.  
In Assize brought against two or three where one is Tenant and the other is Disseisor, the Tenant takes the Tenancy upon him and Pleads in Bar, now if the Plaintiff makes Title and Traverseth the Bar, 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 shows 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 etc.  
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 Judgement given in a Writ of Annuity was reversed, for that the Writ of Annuity was Precipe quod reddat 26 marc' 6d 8● que ei aretro sunt de annuo reddit' 4 marc' per annum, and the Count the 6 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 Trial, 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. yelverton's Rep. Lee verse 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 Council to the Stranger, That is adversary to the Grantor, But it is not required to give Council 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 arrearages 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 Manor of D. of which I. S. is seized, this is a void Arbitrement, and yet it is possible, for he might disseise I. S. and make Feoffment etc. or might purchase the Manor 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 enfeoff the other of the Manor of D. generally, without speaking of I. S. that he is there compelled 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 Paul's 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 Judgement, that he take nothing by the Writ, because it could not then be tried by inspection, whether he were within age or not; And the form of the Writ in the Registors' is to allege that he still is within age.  
Audita Quaerela lies 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 dies, and one takes Administration of the Goods of the Conusee not Administered, and hath Execution of the Statute, and against him the Conusor brings an Audita Quaerela. Trin. 28 Eliz. rotulo 2136 in C. B.   

Avowry, vide Replevin.  
AVowry for an Amerciament in a Court Baron quia presentatum fuit, that he was Summoned and came not, and alleadges in fact, that he was resident &c. as he must &c. for when 'tis only presentatum etc. and not alleged in fact, 'tis ill. Mo. Pl. 221.  
In Avowry it was set forth, that a Dean and Chapter were seized in Jure Ecclesie, and not said seized in Fee, and held ill: for they might be seized per altar 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 employed a Feoffment in Fee Pop. 163. Latch. 121. Avowry  
Avowry for damage pheasant, and shows a Lease from I. S. seized in Fee: the Plaintiff says I. S. was seized in , and conceives the Estate to himself as Heir; the Avowal seizes the Land rendering Rend, 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. Tailor's Case, Yelv. 134. Wood versus Haukshind. i Cro. 156. 2 Cro. 121. 3 Cro. 404 Dy. 956. 1 Jnst. 304 Hob. 271 Dy. 103. 253 b. Yelv. 96 Leon. 32. 156.  
Avowry on a New Grant of a new Rent-Charge in Fee, the Plaintiff pleads, that nothing passes by the Deed; 'tis an ill Plea, he should have said that he did not grant by the Deed; for a thing not in Esse, could not pass though it was raised by the Deed, Steward's 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 showed when the Husband died, 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 Avows, and the other 2 makes Conusance, and Judgement against the Plaintiff; but reversed, because that those two did not make Conusance as Bailiffs to another. Yelv. Owen verse 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, than the Privity on both sides is removed, and the Tenant shall Plead any discharge though he be a mere 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 alleged, which made it unsufficient for the penalty; but Return adjudged to him, for they appeared to the Court to be several. Hob. 133 Howel verse 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 says, 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 verse Stokes. 14 Car 2. in B.  
One who is a Stranger to the Avowry shall not Plead any Plea but horse 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 horse de son Fee, because that he is a Stranger to the Avowry, and he cannot have a Writ of Mesne, because it is a Maxim, 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 altar 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 die, so that the Tenancy descends to his Son, or that the Tenancy is recovered, or that the Tenant hath forjudged 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 dies seized of three entire Manors, and if his Wife be endowed of one Manor entire.  
3. Avowry upon my Tenant by the manner, as Lessee for life rendering Rent. Also if à Woman be endowed of the third part of a Manor, the Heir distrains her and avows.  
4. Avowry upon the Land, as a Rent-Charge is granted, the Grantee avows in the Lands charged with his distress.  
5. Avowry upon my matter, as I am seized in Fee, and let for years for certain Rent, and so show 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 horse de son Fee, or that which is Tantamount, as a Release etc. which prove the Land to be out of the Fee of the Lord.  
A Man cannot avow the taking of Beast for Rend arrear, if those Beasts were taken by Night, but for damage Fesant he may. Pasch. 10 E. 3.  
Where the Avowant shall justify, 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 dies, his Executors sue Replevin, now I ought to justify 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 etc. 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 revived, 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 allegeth seisin by the Husband of Lands which he hath in Right of his Wife. The Plaintiff allegeth that the Husband hath nothing but in right of his Wife, and although he allegeth seisin by the Husband etc. yet he showeth that the Husband was seized in his demesne as of Fee, without that, that the Wife hath any thing etc. 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 Rend Service, or any other Rent, except that he shows the Commencement of the Rent, as a Gift in tail or a Grant of a Rent-Charge, he ought to allege no seisin of the Rent in his Avowry, because he shows the Commencement of the Rent.  
In Avowry for Homage or Escuage, if he show not the Commencement of the Tenure, he ought to show seisin of the Homage, or otherwise it is not good.  
Avowry for Relief or aid pur file merrier, he ought not to allege seisin of the Relief nor of the Aid because that they are no parcel of the Tenure as Homage or Escuage be, but incident to the Seignory.   

Where in Avowry the Defendant shall answer to the seisin, and where he shall traverse.  
IN Avowry the Lord allegeth 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 encroach 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 alleged; 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 than the Tenure was before. Also where the Lord avows for Homage and Ten shillings Rend, 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 seized of an Acre of Land, and so seized grants him Twenty shillings Rend 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 seized in Fee, and yet the Avowant allegeth that he was seized 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 compelled to say, without that, that he was seized 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 seized of an Acre in Fee, and let the same to the Plaintiff for Life or for years reserving Rend, and for Rend arrear he avows. The Plaintiff saith that one I. S. was seized in his demesne as of Fee, and let to the Avowant for the life of I. N. the which I. N. died, and the said I. S. entered, 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 seized 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 seized in Fee, and the Plaintiff saith that he was seized 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 Bar 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 filled 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 die, 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.  
Judgement was given against one in the Kings-Bench, upon which he was in Execution, and had another Judgement against him in the Common-Pleas, in which Court his Sureties to save their Bail brought him to the Bar by Habeas Corpus to render his Body; but before that he had brought a writ of Error in the Kings-Bench to reverse the Judgement 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 sum, 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 parties entered 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 Judge 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, although the Bankry, had sold them or disposed of them to his Creditors, if the sale or disposal thereof were after he became a Bankrupt.  
The Commissioners may sell the Copyhold Lands of a Bankrupt, for and towards the payment of his Debts by Deed inden●ed and enrolled, 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 Creditor's: and the Lord Chief Justice said, That a Custom may divide 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 Come 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 descent, which is found so, and afterwards he hath Lands by descent etc.  
In Formedon the Tenant pleads the warranty of the Ancestor of the Demandant, with that, that he hath Assets by descent; he pleads that he hath nothing, and it is found that he hath, he is Barred.   

To plead a thing by way of Bar 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, Villeinage 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 allegeth Excommunication in the Plaintiff, he may say 'tis for the same cause.  
If a Villain brings a Writ of Error upon Judgement had in nativo habendo, Villeinage 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 aver 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 Cozenage by default, he ought to show how he was Cousin.  
Also if the Tenant will Plead a Recovery in a Writ of Right against the Demandant by default, he ought to show of what possession his Writ of Right was conceived.  
But otherwise it is, if he will Plead a Recovery in Formedon by Action tried, this Recovery is a good Bar 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. Judgement, 7 E. 3.  
The same Law in Debt upon Arrearages of Account, the Defendant Pleaded Arbitrement, it is no Bar, 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 Sum 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 show.  
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, than the Disseisee may enter, and yet he was once Barred. Vide Barr pro tempore.   

Where a man shall Plead a Bar 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 show 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 always 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 Manor, he is discharged from keeping the said Court for ever.  
See Pleas and Plead.   

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 Customs against Cannon-Law are to be Tried 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 deal 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 Custom.  
Where the younger son in Burrough-English dyes, the Middle Son (not the Eldest) shall have the Land. The same Law for Customary or Copyhold 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 Marshal's 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 dies 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 Commonwealth, 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 alleged 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 alleged in one certain place, but a Prescription is personal, and aught to be alleged 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, Copyhold Tenors. So Lands devisable by Custom, So that the Custom be reasonable. Co. 6. Gatewards' case, & lib 5. Perimen 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, aught 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 Manor have hitherto used to have a Herriot after the death of any Tenant for life, or for years within the Manor; 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 lie in Grant, as Rents, Villain, etc. but aught to be made only in him, who prescribes and his Ancestors, or otherwise he ought to show the Deed and Grant by which he claims. But a man may allege a Que Estate of a thing which lies 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 always to have a Leet: So a man may allege a Que Estate in another of a thing which lies in Grant, although not privy to the Conveyance, as the Plaintiff in Replevin may allege a Que Estate in the Seignory in the Avowant. Co. Lit. 121.  
Such things as cannot be forfeited or seized, before the Encheson of the forfeiture be found by Record, cannot be claimed by Prescription, as Bona et Catalla Felonum, etc. Co. Lit. 113. & Lib. 9 Abbot de Strata Marcella's Case.  
When one hath Common by Prescription, paying for it such a Sum of money, he may prescribe generally; and if the Money be not paid, it may be shown of the other side, and also is a Condition subsequent; but when a Custom is for one to have Pot-water etc. paying a penny for it, Quaere if it may be claimed generally, because that the other part hath not any Remedy for the penny. Co 5. Rep. Gray's Case.  
In Replevin the Avowant said, That the Plaintiff and his Ancestors and those whose Estate he hath in such Lands etc. have Common in locus in quo etc. being the Land of the Avowant, and that he and his Ancestors etc. have paid 10 s. per annum for the same, and so avows; 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 etc. 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 allege 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 Winchester's 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 Manor 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 Copyholder, when he claims Common or other profit in the wastes of the Manor, or in other Lands of the Lord with the Manor. But when he claims it in the Lands of any other within or out of the Manor, he must prescribe in the Lord; and the thing where &c. be it aliened and severed from the Manor, or comes again to the Lord, although the Copyholder in such Cases may allege the Custom. Co. 6. Gatewards' Case. Lib. 4. 31. Co. 8. 64. Swains Case.  
An Action upon the Case for stopping a Watercourse que currere consuevit, was brought against one, and held good: But if it be against a Terretenant, or when a Quod permittat or an Assize is brought, there he must prescribe and show his Title.  
A Custom pro bono privato cannot be alleged in an Upland Town, which is neither City or Burrow: 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 alleged in an Upland Town or Hamlet. Co. Lit. 110.  
A Copyholder ought not to allege 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. Combs Case. Co. Entr. 576.  
But particular Customs of particular places may be alleged, as the Custom of Gavelkind, and of Burrough-English, which Customs must be precisely pleaded, and alleged. 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 Coke Reports, lib 11. fo. 94. where in the Margin of the Pleading in Action upon the Case against the Major and Burgesses of Plymouth, 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, etc. Co. 11. 94.  
Note, The Parishioners may prescribe to Choose two Churchwardens, and may put them out of their Office if they see cause. The Parishioners may not bring an Action of Account against the Churchwardens; But they may choose other Churchwardens, 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 adjoining 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 lie; 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 Ostler, 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.  
Tithes shall be paid for the second mowing of Grass, unless there be a prescription to be discharged by payment for the Tithes 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 Tithes shall not be paid two ways in one year for the same thing.  
No prescription in Lands maketh a Right; Therefore a man must show 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 Mid super Conditionem etc. et Issint non est factum, by the Issint etc. the special matter is weighed and amounts to the general Issue to be tried 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 Bar 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 authorities they are cited, and vide 21 E. 3. 10, 11, 12. Defendants plead not, Executors cannot plead severally in dilatories but in Bar 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 show 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 showing 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 Clerk, the Plaintiff may elect which he will have Tried first, Needham contra, the most peremptory shall be Tried first. Hill. 8 E. 4. Pl. 3.  
Debt against Executors, they Plead a Judgement against the Testator by A. for 200 l. and another by B. for 100 l. And that they have not Assets, but to satisfy the 200 l. per Bryan the Plea is double, having Pleaded 2 Judgements, 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 Trial must be within. Tr. 19 El. et B. Hales Case. Ow. 6.  
One bond to save another harmless, Pleads that he had saved him harmless, and shown not how; 'tis not good; but non fuit damnificat, generally, is good; et Pop. 297. dictum per Jones, If the first be generally demurred on the advantage of it is lost, for which I think it not Law; for in Mansels Case, Co 2. the Demurrer is general upon such a Plea, and Judged ill. et 2 Cro. 165. 363.  
One Action against several Defendants for one Debt etc. 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 than 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 says in the Action, the Defendant lent money usuniously, 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 show the Cause of Action in the Writ; And showing the Receipt was more than received; for the very lending usuniously 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 joint-tenant 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 threatened the Monks to imprison them if they would not seal it double, one, the Imprisonment of the Prior; the other the threatening 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 Judgement. M. 15. E 4. Pl. 2.  
In Debt of 100 l. the Administrator pleads Judgement of 200 l. to another So plene administravit, and that he had not goods preterquam non attingen' ad 200 l. the Plaintiff demurs generally, because he shown no certain sum whereto the goods amounted, according to Co 9 Merriel Treshams' Case, 109 b. Hob. and Winch held performance the substance. Hob 133 Moor verse 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 shows, that he made a Lease for years Rend. etc. the Lessee was thereby possessed, and devised it to the Defendant, and he entered, and Null possession etc. ill, first, because he shown not that any was made Executor, or that he entered by his Assent; nor 2 that vir●ute legationis he entered, and then it might be for another Title. Die 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 Judgement upon Demurrer nisi Causa Yeane verse 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 replies, 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 Tears Case. Trin 23. Car. 1. B. R. Sti 4.  
Debt upon an Obligation, he pleads, that he paid at such a day, the Jury find he did not pay at that day, the Truth was, the●e were two days of payment, and he paid 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 Trial to prevent Error, because no Issue joined; but the Court said it was a good issue, but ill plea whereon he might have demurred; and ruled: the Defendant shows 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 Bar of the Action as here 'tis Hillingworth versus Whetstone. P. 1649. B. R. Sti. 112 163 Co. 9 Jnst. 303. 2 Cro. 304. 959. H. 10. H. 7. Pl 3. M. 21. E. 4. Pl. 38.  
Debt for 40. l. against an Executor, he pleads, that he received but 10 l. and 40 l. was due to him; the Plaintiff replies, that he is Executor de tort, and has more goods Et hoc parat etc. where it should be Et hoc petit, etc. ill, and that discontinues the whole Plea. Alexander versus Lane.  
In Debt for Rent, Lessee pleads, that Lessor nil habet etc. he replies quod habet; 'tis ill, not showing what estate, but cured by Verdict, if Issue be joined 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 shown in Arrest of Judgement, 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 Judgement Friths Case. 3 Cro. 68, 69. 4041. 110. 111.  
In Debt on an Obligation the Defendant pleads all 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 etc. after performance of a Will; the other was to pay etc. within two years after the Devisor's death and performance etc. and pleads, that the Will was that he should make a Release, and alleges 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 etc. one day is not come and damages entire, so no Judgement to be; but per Cur. 'tis only the Allegation of the Defendant, that he died at such a day, which if true, the Defendant would have rested on it and not have pleaded a false Plea whereon the Issue is taken, and found against him. Thurbettle versus Reeve and Tye, 3 Cro. 110. 111. 40. 41. 68, 69.  
Debt upon an Obligation, the Defendant pleads non est factum, 'tis found that he Sealed, etc. and the Seal was torn off, after the Plea pleaded, but on atthe time of the Plea, 'tis against the Plaintiff. Mirral versus Scebrith. 3 Cro. 120 Co. 5 Rep, 119. b.  
Debt for Rent against an Executor, he pleads Levy per distress and sans Detinet, void, find no Levy by distress, but that an assignment was made by the Testator, and the Rent paid by the Assignee, and adjudged for the Defendant, for the substance is on the new Detinet, and the rest but circumstance. S. Tho. Cecil versus Harriot 3 Cro. 140.  
Debt on a Bond, conditioned to save harmless against another Bond of Fifty two pounds, And so he saved him harmless; but because that he shows 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, Judgement is got, but because the Bond to three cannot be intended, And that the Plea goes in Abatement and he has concluded in Bar, ill; Isumet Priscot versus Hitchcot 3 Cro. 102.  
Debt on Obligation, conditioned, If such Lands be four miles distant etc. the Defendant pleads that 'tis four thousand paces distant, the plea Ruled good, for a thousand paces is a mile, So it tantamounts the Condition; but how a mile or the spaces shall be reckoned per communem viam or straight 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 imply it. Lox versus Lee 3. Cro 256.  
In Debt a good plea in Bar, replication ill, Judgement by nil dicit, because the Defendant never rejoined 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 satisfy the Judgement; the Plaintiff protestando, that was a true Debt pro placito, replies, that the Recovery was by Covin to deceive him; Defendant demurs; 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 Cook 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 etc. 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. Edward's 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 etc. As Maleveres Case cited, Bond to pay all Rents of a Manor, they must set forth that such Rents be paid, which were all; but resolved good; for where the length of particulars would cumber Records, 'tis allowed to plead generally to all affirmatives as performance of all Covenants etc. and the Case cited doubted of, unless it being certain, may be set down in short. Mints versus bethel 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 confessed 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 replies, that they were mortgaged, and says not how, by Feoffment, Bargain and Sale etc. yet well, being a stranger to it. Baley versus Tailor 3 Cro. 899.  
Debt upon Obligation made to perform a Will which was to pay 20 l. to the Poor, and the Churchwardens of such a Parish, he Pleads payment to the Churchwardens 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 etc. without showing 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 showed now. Bret versus Andrew. 1 Leon. 71 M. 2. R 3. b. 17.  
Debt in Waste 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 showed how by due Course, viz. what suit, 'tis agreed the plea had been good if he had said only not disturbed by any indirect means; but doubted if not ill, because he pleads over by any Lawful means, and shows not what, so it might be tried. Dighton and Clark's Case 2 Leon. 199.  
Debt upon Obligation conditioned (inter alia) to account, the Defendant pleads conditions performed; the Plaintiff replies, he had not accounted; ill, not showing what he had to account for, and difference taken when the Condition is in the negative, not to do a thing, 'tis sufficient to say he did not do it. And when in the Affirmative to do, as to perform his office, and to enfeoff him of all his Land etc. there he might show what his office was, and what Lands he had; And that he did etc. M. 2. R 3. foe 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. foe 15, 16.  
Debt upon Obligation conditioned to gather all the Amerciaments of the County etc. the Defendant pleads that he collected all etc. without showing 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 etc. there he must show 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 etc. The Defendant pleads, that the Arbitrators made no Award nor demanded it; 'tis a double Plea; one, that they made not etc. and the other, that they did not etc. m 5. H 7. Pl 15.  
Debt upon Obligation to make Assurance as Council should advise, pleads, that Council advised, and he gave notice etc. 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 allege performance generally, without showing 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 show 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 show what he did or did not appoint: so if the Covenant be an Affirmative that implies 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 etc. 12 July, and shows no usurious contract; the Plaintiff replies, and shows the lending to be for a longer time and so not usury Absque hoc quod corrupta etc. the Defendant rejoins, 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 etc. 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 showed. Secondly, because he says non h●b●t tempore bille, but says not unquam post●●, 'tis incurably ill; for if he had the day of the Ple● pleaded 'tis Assets. Green versus ●olls. 2 Cro. 131, 132.  
Debt on a Statute Merchant, the Defendant pleads that the Clerk mentioned, was no Clerk at the time, but did not insist on it, and seems not Pleadable, for a Statute is a Record, and 'tis against a Record. Fo● versus jucks. 2 Cro. 13●.  
In Debt against an Executor he pleads a Judgement in Bar, 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 showing which; for performance of any one is good excuse; wherefore he must show what he hath performed. 27 H. 6. I. b.  
In Debt against an Executor or Administrator he pleads a Judgement, and that he hath not Goods preterquam que non etc. Co. 9 Rep. 109, 110. 'Tis held ill on general demurrer, not showing what sum he has; but Hob. 133. More versus Andrews, 'tis held but form, and good on general demurrer, and Vide Co. Entr. 446. a. 148. Pl. 27. 152. a. 269. a. 617. b. It is oftener pleaded in the general, then to plead a particular sum etc. 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 etc. Defendant pleads he paid all without showing what; the Plaintiff replied he received some sums and has not paid; the replication good, for the knowledge 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 Bar 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 etc. Defendant pleads she miscarried 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 show 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 shows 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 gins with the Writ of Execution and Arrest; ill, not showing the Judgement quod cum recuperasset etc. 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 showing how; the Plaintiff says he was sued at Law pro eo quod, the money was not paid, and pleads not the Writ &c. as he ought, the Defendant rejoins, he had not notice, which is a departure and not material, the Plaintiff demurs. Resolved, the Bar 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 etc. 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 Judgements in debt had against him; and says 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 etc. 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 Judgement had against one as Administrator, who ultra to satisfy 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 Judgement and a Bond, the Plaintiff replies the Judgement satisfied, and satisfaction given Et hoc paratus est verificare; And to the Bond assets ultra, Et hoc petit quod inquiratur per Patriam. Defendant demurs, 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 demur, adjudged ill, he should have answered to all the particulars expressed in the Action; aliter where 'tis to perform Covenants, Winbleton versus Helderup. Trin. 22 Car. B. R. rot. 704.  
Debt on a Bond conditioned to perform Covenants which were within two years to deliver a Map 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 Map 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 show 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 licavi 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 Judgement. Noy. 79.  
A. and B. jointly 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 showing 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 Foreign 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 Foreign plea which is not local be pleaded, the Plaintiff may demur upon it; but if it be local, he cannot demur 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 rejoins and says Rob of it, and gave notice Et hoc paratus etc. 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 replies and says, A. and B. habentes jus virtute tituli eis inde fect' aunt Burg. predicta ' entered, the Defendant demurs 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 showing were the Chancery was. Secondly, saying, he sued for a Legacy, and says not in fact, a Legacy was given. Dainty versus Fair Mich. 10. Jac. B. R.  
Debt upon an Obligation dated at Hamburgh was brought in London, and good; for Hamburgh in that sense 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 Foreign Coin, 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 lies: But a Prisoner for Lodging and Diet may wage his Law. It lies not for Rent, it lies 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 Judgement, and two Precipes 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 Judgement, the others Body is free: and with this agrees 36 H. 6. hilary'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, etc. 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 etc. but it is not agreed that the Defendant should detain the Deed till the money paid, 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 Bar 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 Count ' that I. S. enfeoffed etc. And though he said but in facto a Deed whereby I. S. enfeoffed, etc. but Cont ' that etc. And so for aught appears no Livery might be; yet per curiam, well; for 'tis a deed though nothing passed, and the Action lied. But Princ. it may work by Confirmation. 39 H. 6. 37. b.  
In Detinue, after Verdict, 'twas moved in Arrest of Judgement, 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 Judgement 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. Brief. 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 Bar himself; and the reason is, because they are compelled by the Law to join 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 Bar 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 demurs to one and doth not plead over to the other, it is a discontinuance, as it appears by two Precedents in the Books of Entries, and Holcrofts Case, Co, Lib 4. where it is pleaded accordingly.  
In Precipe quòd reddat the Tenant disclaims the Judgement 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 seized 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 ties him to a Post, and in struggling 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 justify the breaking open of doors to distrayn for the King's 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 Highway; None shall drive distress into a Castle or Hold to withhold them from the Owner upon his Replevin.  
If a man come to distrain and the party seeing his purpose drives the Cattle off the Land or put the goods out of the house, to the intent he shall not take them upon the ground for a distress; Then I may lawfully pursue, and if I take the same upon the Highway or upon the ground, the taking is lawful as if I had taken it upon the ground or house out of which the rend issues to whomsoever the property of the goods or  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. rendering Rend 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 enclose 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 threatening a Landlord, whereby he is disturbed, and hindered 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 Horseback, to the intent to weigh the same by his Neighbour's 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 die, 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 , he intends to distrain for Rent, and the Tenant to avoid the Distress, drives the  out of the Landlord's 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 Rooms, 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 Manor 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 King's 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 dies 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 Judgement ought not to be awarded; For by the writ of Error the Record itself 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 etc. 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 Bar 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 Judgement.   

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 lie 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.  
Judgement 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 return 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 Precedents 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 return 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, dies, 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 estoped, 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 dies, the Son enters, or he that recovers, or he that was party to the Fine between him and the Son brings an Assize, 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 Seignory to one for Life, the Tenant for Life of the Seignory 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 Assize 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 administered as Executor.   

If a man will plead a Record to estopp him that was privy, he ought to show 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, etc. I brought an Action of Trespass against you, and the Defendant pleaded Villeinage, and the Plaintiff confessed it; he ought to show further, by force of which he was nonsuited, and to show what end the Plea had, and demand Judgement if against that he shall be answered.   

Where a man hath Judgement to recover Land, by that Judgement 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 Rend in Fee he may distrain or have a Writ of Annuity, and if he brings a Writ of Annuity and hath Judgement 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 dies, and the Tenant for Life aliens in Fee, and the Heir bring in consimili casu and recovers, now by this Judgement he shall never have a Formedon of the same Land etc.  
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 always 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 Assize of Mortdancestor, and recover, when in Truth I have no Right, etc. yet the Wife of the same Father shall be endowed etc. 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 lose Land by Erroneous Judgement 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 etc.  
AS a man grants a Rend 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 tried 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 Rend 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 sensed 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 clear 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, etc.  
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 Judgement. 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 acknowledge the note of a Fine before a Judge, and then one of them dies; 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 died 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 King's Silver was entered as of the same Hillary Term, and so the Fine was past and engrossed, 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 Bar 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 proceed by the Heir to the Wife's 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 inquire 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 show 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, than 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 Bar, 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 King's 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 Watercourse, 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 Judgement in Debt, and Outlawed. 2. on it against. 2. where the Sheriff returned quod non habent bona out catalla; quod summon' potuer. it should have been per quod, etc. 2. it should be nec eorum aliquis het ' 3. the Original is against Lancelot A. and the Exigent is against Lancelot A. 4. 'tis said in Hastings, and it should be in Hustingis de Com. plac. & revocetur Lancelot vers' Jones. 3. Cro. 50.  
An Outlawry was reversed, because it was against Lewellin with a single l, and now the mean Process against Llewellin, with a double Ll, and it was against two, and returned quod non sunt inventi, and not nec eorum aliquis. Llewellin against Watkins vide M. 2. R. 3, 4, 13. pl. 16. 3 Cro. 85. 104. 49. 50. 116. 198. 240. 248. 205. M. 21. H. 7. pl. 37.  
Exigent names no place where the Sheriff is to have the Body; and that adjudged Error to reverse the Outlawry: For the Sheriff cannot tell in what County to carry him. Cesar against Stone. 3 Cro. 104.  
Outlawry reversed, because the Party was Indicted in Com. Somerset, and supposed to be of London; and the Capias awarded to the Sheriff of Somerset, where it ought to go to the County where he lives. Rorset's Case. 3 Cro. 179. vid. Dy. 295. b. vid. M. 1 E. 4. pl. 2.  
One Outlawed of Felony, assigned his Term, and then reversed the Outlawry, the Grantee shall maintain Trespass for the Profits taken 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 itself, not the Money: Otherwise, if sold on a Fieri Facias, etc. 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, etc. 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.  
Judgement 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 'twas not per Judi● ' Coron' Beverly against Beverly. 3 Cro. 648.  
Debt against the Sheriff, on an Escape, where the Case was, that the Party was Outlawed after Judgement, 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 Judgement, where the Plaintiff hath not over-stayed his Time, viz. the Year; but many have Habeas Corpus, or Fieri Facias, without Scire Facias: If the Prisoner be taken by Capias utlegatum, he shall be in Execution for the Party, without the Prayer of the Party, or Accord of the Court, if he will; but if it be after the Year, not without Prayer; 'tis the Course upon Outlawry after Judgement, if Error be brought to award a Capias utlegatum, if he does not assign Error; but if it be before Judgement, and the Defendant brought in, the Plaintiff must declare against him de Novo; and if one Outlawed after Judgement, bring Error, and comes to assign Error, he shall be committed to the marshalsea, 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 Judgement, he shall maintain the Scire Facias being Entitled by Act in Law, but the Scire Facias must mention the whole Record of the Outlawry: And so in Debt on a Bond and Judgement 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 dwelled at S. absque hoc, that he dwelled 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 returned 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 seizeth 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 certify what County (and on such a Precedent shown) 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, than 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 show 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, etc. 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, etc. 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 Body's 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 than it seems he may declare against them in the King's Bench, within the Equity of the Statute of 5 Ed. 3. tho' it say rendre all Court donec le Exigent fiat sher', it went out of the Co. B. but now 'tis in the King's 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 Bailiff of Westminster, who returned, that he was not Bailiff, not good; he must answer to the having the Goods, and must deliver them, tho' gone out of his Possession, or show 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 joined 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 Soldier at Calais under such a Captain, and shall not show the Patent; if the party appear upon Scire Facias, it shall be tried in one Case by the Natives, in the other, by the Certificate of the Captain, M. 11. H. 7. pl. 17. P. 21 E. 4. pl. 4.  
The Sheriff returns the Exigent thus, Ad Comitat' tent' apud C. in Comitat ' Somerset. 5. Exactus non comperuit, because 'tis not said ad Comitat ' Somerset, nor Somerset, set in the Margin: 'Tis held to be ill, because it might be the County Court was not held in the County of Somerset, but in another County, sed adjornatur, M. 11. H. 7. pl. 33. H. 6. H. 7. pl. 7.  
One taken upon a Capias utlegat ' by the Name of J. S. Gentleman, says, he is a Yeoman, and was etc. 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 Judgement 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 party's Suit; and if the party be taken, he shall be Imprisoned, and not discharged at the Parties Suit, if he will; yet, till he be taken, 'tis only the King's Suit, and the Parties have no Interest in it; and if the Defendant be Outlawed after the Supersedeas, 'tis Error, and shall be reversed. P. 4. E. 4. pl. 24, 36. Tr. 4. E. 4. pl. 4. M. 4. E. 4. pl. 14. H. 4. E. 4. pl. 3. vid. Co. 5. rep. 88, 89.  
The Sheriff returns the Copy of the Exigent, and not the Writ itself, with Proclamation, etc. 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 shown it to the Sheriff or not, it shall be entered in the Term, and the utlegat ' discharged, 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 Judgement, because no Proclamation went into the County where the party inhabited; but being after Judgement, resolved, it need not, but only in Outlawry and Process before Appius ' but because in all the Proceed she was named, A de B. and in the Exigent she is named nuper de B. and because it was recuperavit versus eum for eam, it was reversed, Lady Gargrave against Markham, 2 Cro. 516.  
Exigent in London, and 'tis returned quod ad Husting', etc. and recites a Form which was add Husting' de Com' plit', and that assigned for Error. 2. The Exigent is, that he non comperuit, and 'tis returned the same day it bears Teste; and that was held Error, Archer against Dalby, 2 Cro. 660.  
Outlawry reversed, because the Exigent supposes, that Robert the Plaintiff did sue the said Robert, whereas the Plaintiff's name was Thomas; and Defendant being ready in Court, it was reversed immediately, Jonson against Kite.  
One enters a Judgement, and then is Outlawed in a personal Action, then makes a Feoffment of the Lands; and he that has the Judgement, 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 Seizure, not if after Seizure; and if by Feoffment, after Inquisition found, before it be returned & ibidem Opinio, if the Seizure be Virtute Officii, Tenant after puts the King out, not if seized Virtute, Windsor against Savel.  
Outlawry against two reversed, because it's entered ideo Vtlegat' sunt, and not uterque eorum Vtlegat' P. 15 Caroli Secundi B. R.  
One Outlawed after Judgement, 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 Trial 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 Judgement, 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, 'tis an abuse of Process, and he Fined 50 l. Hob. 263. Waterhouse against Saltmarsh.  
If one that is Outlawed for Treason, Peer or Peasant, be out of the Realm, at the time of the Outlawry, yet he cannot for that avoid it by Error, since the Stat. 26 H. 8. and 5 E. 6. as he might at Common Law, 3. Inst. 32.  
By 26 H. 8. 13. Outlawry in Treason against persons beyond Sea, shall be as good, as if they had been in England at the time of the Outlawry, by 5 E. 6. 11. if within a Year after, the Outlawry pronounced, the party come in to the Chief Justice, and traverse the Indictment, and be found not guilty, he shall be discharged of the Outlawry.  
By the Award of the Exigent in Case of Felony, the Goods are forfeited; but that may be avoided by matter in Law, as if the Indictment, etc. be sufficient; or by Matter indeed, or Record he may excuse his Absence, as that he was beyond Sea, etc. 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 Bailed, 4 Inst. 179.  
No Goods are forfeited by the Judgement 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, etc. 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 Judgement 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 Grace, if it be reversed before the day, etc. a respond' Ouster; and 1 Inst. when 'tis pleaded in Bar, day is given; but when in Disability, it must be showed 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 Grace. 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 showing, 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 voided but in Lond ', 'tis ideo utlegat ' of the principal Judgement ipso facto reverses the Judgement 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 Proceed 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 Judgement, with an ita quod stet, because he is to Answer to the Party; but when 'tis after Judgement, 'tis ita quod satisfac' parti, because he is to pay the Condemnation, Dyer 172.  
Trespass by J. S. plea that he was Outlawed by the name of J. S. de D. he pleads, that he lives, and ever did, at S. it seems good: for it must be intended another person by Little ': vide M. 41 H. 6. pl. 19 in an Action brought by J. D. plea that he was Bail for one by the name of J. D. Gentleman, and Outlawed on it: He replies, that he is a Yeoman, and held no plea: for if he entered 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 ' hear per les Sergeants come 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 Forestall, 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. Less 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 Judgement; said 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 appendent, and it becomes void, whilst the Manor 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' add Com' Lanc' tent' ibidem, etc. where it should be ad come Lanc' tent' apud Lanc', or other place cert', and for that the Outlawry was reversed, though dict' many Precedents 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, etc. which are cetain are forfeited, not Damage, etc. uncert'; but so 10, 22. 'tis said, in Debt, on a Contract, Outlawry in Plaintiff, Abatement, because the Defendant not forfeited; but on a Bond 'tis pleaded in Bar, because the Defendant forfeited, Co. 4. rep. 93. a. 95. a.  
My Lord Cook says, that at Common Law, if the Party was Outlawed, he was at an end of his Suit, and put to his New Original; yet he granted not 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 Judgement dies after the General Pardon, wherein 'tis provided none take Advant ' of the Party that is Outlawed after Judgement, 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 Privilege, sues a Supersedeas, and after is Outlawed; there is a Nullity in all Proceed, and the Outlawry declared void, without suing any Writ of Error, Co. 8. rep. 143. b.  
Outlawry by Asst ' being avoided by Plea, 'tis held by Cro. that 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. sembls. con. 1 Cro. 214, 215.  
Exigent against three Men, and two Women, ret' non comperuer', ideo per Judic' come 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 Manor 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.   

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

Parson.  
IF a Parson that hath a Benefice, be made Bishop of the same Diocese, and he acccepts of the Bishopric, 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.  
tithe. The tithe of those things which proceed from the Earth, as Hay, Corn, Apples, and such like, aught to be severed upon the Ground (or place where they grow;) but not so of Sheep, Pigs, etc. because they are of another Nature: And if a Man have Sheep in two Parishes, the Parsons of both Parishes shall have tithe of them. Willows, Horn-bane and Sallows are Titheable; but Timber-Trees, as Oak, Ash, Elm, etc. are not, nor the Loppings of them, contra, if they be felled or lopped 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, Judgement 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 jointly in the whole; the Obligee afterwards gets Judgement against one of them, and brings his Action against the other: This Recovery is no Bar; 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 itself. Secus of a Record, for that is grounded upon an Original, and Judgement; and ought therefore to be entirely recited, when pleaded in Bar.  
If Tenant in Tail of a Manor, whereunto a Villain is Regardant, discontinue and die, and the Right of the Entail descend to the Villain himself, who brings Formedon, and the Discontinuee pleadeth Villanage. This is no Plea, because the Divesting of the Manor, which is the Intention of the Suit, doth include this plea, because it determineth the Villanage.  
Reg. 2. Plead 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 Demean be disseized by the Lord, whereby the Seignory 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 Seignory 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 than he were without Remedy, ever to reverse the Attainder.  
If Tenant in  discontinue for Life, rendering 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 Judgement 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  of two Acres, make two several Discontinuances to several persons for Life, rendering Rend, 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 Bar: And yet there is no doubt, but if in a Formedon, the Warranty of Tenant in  with Assetts be pleaded, it is no Replication for the Issue to say, that a Praecipe 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 Trial, may give Entire Damages for the whole.  
Scire Facias against Manucaptor ', they plead, that after Judgement 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 rendered himself to the Marshal, and there died; and this he is ready to prove, etc. 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 Rendering, 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 joint-tenancy with J. S. of the Gift and Feoffment of J. D. Judgement, deal 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 joint Feoffment; whereupon he the Demandant re-entered, 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 tortuous, and the hardest against him shall be taken, which is, that it was a lawful Entry; therefore he should have alleged 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 no 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 alleged 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 allege it precisely, Dyer foe 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 entered 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 Sense, 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, etc. this is no Plea; for there cannot be an Abatement, unless there be a Dying seized, alleged 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 alleged in himself, in his Demesme, as of Fee in the whole, and the Estate for Life of the Moiety is repugnant; and it shall not be Cured by taking the last, which is expressed to control the former, which is but general and formal; but the plea is naught, and yet the matter in Law had been good, to have Entitled 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 Sum: If this Bar 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 Bar 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 Sense, but in the most Beneficial; and to be left unto the contrary part to be alleged.  
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 bar 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 Judgements of an 100 l. a piece; and that he had paid 40 l. in Satisfaction of two of the Judgements; and that he hath not, nor had, etc. praeterquam, etc. the said 40 l. and 20 l. more, which is not sufficient to satisfy the other Judgement, 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 wastes 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 Judgement 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, Judgement 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 the 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 Bar 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 Bar of the Action, 22 E. 4, 35.  
An Outlawry is a good Plea in Bar 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 Bar of the Action, than to the Writ; for there it is said, that where a Man cannot plead to the Writ, but by showing of a matter in Bar, there he may show 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 counterpleaded, 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. Judgement 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 Licence, 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 show the Bishop's Letters under his Seal, testifying the Excommunication; and then he may demand Judgement, whether he ought to be answered. But if the Demandant or Plaintiff cannot deny this, the Writ shall not abate; but the Judgement 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 showed 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 Impanelled 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 Impanelled; 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 alleged doth confess and avoid my Plea, I may Traverse it, 7 H. 6. 13 Eliz. Dyer.  
A Copyholder pleaded, that per Licentiam Dominorum Manerii adtunc existentium, he made a Lease for Years, to J. S. and ruled to be an ill plea; because he hath not shown what Estate the Lords have in the Manor: For they may be only Tenants at Will, and so cannot give Licence 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 Licence to take his Horse; and farther said, that he was within Age at the time of the Licence, etc. Afterwards the Defendant said, that he was not seized long time before that the Infant any thing had, etc. and so possessed, until J. S. took and gave to the Infant. This is a good Departure, because that he doth not maintain his Bar, sc. his Licence, 5 H. 7.  
Assize, 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 Bar, quod nota. If the Obligee brings an Action, and declares upon a Bond bearing Date the first day, etc. and doth not say that it was afterwards delivered the 20 th'. day, the Defendant shall bar him by the Release, which was made after the first day; and the Plaintiff shall not reply, and show the first Delivery of the Bond the 20 th'. day; for that is a Departure, and because that he might have alleged 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 Bar, and goes before the Bar in Conveyance of his Title: This is no Departure; but where the Bar is before the Matter shown in his rejoinder, this is a Departure: As in Assize, the Defendant pleads the Dying seized of his Father, and gives Color, etc. The Plaintiff pleads the Feoffment of the Defendant after that Descent; the Defendant rejoins, and saith, that Feoffment was upon Condition, which Condition was broken, and so he did re-enter. Now this is a Departure; for the Bar was before the Feoffment: But if the Tenant in Assisse saith, that J. S. was seized, and enfeoffed him, and giveth Colour, etc. and the Plaintiff saith, that J. S. disseised him, and enfeoffed the Defendant, upon whom he re-entered, and was seized until, etc. if the Tenant rejoin, that after the Disseisin, he released 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 entered, 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 Bar, 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 released 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 Judgement, etc. The Plaintiff replies, that such a day he presented to him such a person, whom he refused; to which the Bishop rejoins, that the Church was void (and shows how) and that thereupon he collated by Laps, Judgement, etc. 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 shows 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. Praecipe 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 entered, and gives Colour, etc. 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 entered cum hoc, that he will aver, that the said J. S. was within the Age of 21 Years, at the time of the Devise. The Tenant rejoins, 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, etc. 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 Bar, and hath only added new Matter to maintain it, 37 H. 6.  
If a Man plead a Gift in  in Barr, and the Demandant reply, ne dona pass; if he show a Recovery in Value, it is no Departure.  
In Assize, the Tenant pleaded horse de son Fee; the Plaintiff shown that the Tenant held of him issint de son fee, and the Defendant shown a Release of all Right. This is a Departure, because this plea was a Bar, 5 H. 7.  
In Formedon, the Tenant pleaded, ne dona pass; the Demandant shown a Recovery in Value issint dona; The Tenant shall not plead a new Bar, because that that would be a Departure; quod nota, 21 H. 6.  
Reg. 12. In all Plead, where you claim as Legatee, you must surmise the Consent of the Executor, as cui quidem dimissioni idem J. S. consentivit. After Verdict the Plaintiff dies, viz. before the day in Bank; in Error brought, this is assigned for Error, and the Plaintiff per Attornatum suum, pleads, that he was alive; 'twas tried, and found that he was dead.  
Argued by Mr. Allen, That there was no Trial proper for the Cause; for that the Issue was joined 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 Trial is good, and the Judgement reversed 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 showed: 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, etc. And it was moved, that he being Incumbent, could not traverse the King's Title, without making one for himself; but show 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 shows, 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 appendent, that 'tis become void, and he presented J. S. The Defendant pleads, that 'tis in Gross, and Let to him; and that he presented J. S. absque hoc that 'tis appendent, the Traverse is good; but where the Count is of an Advowson in gross, etc. and the Defendant pleads, that 'tis appendent, there the Presentment is traversable; not that it appendent: For the Presentment makes it in gross. Signior Buckhurst against Epm. Winton, 1 Leon. 154.  
In a Quare Impedit by Tenant for Life, Exception was taken, because he counted of a Presentment only in himself, and laid not any in his Lessor; but adjudged good: For the Lessor may lay a Presentment on his Lessee; therefore 'tis good for the Lessee. Palms 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 Judgement; they join in a Writ of Deceit, and avoid the Judgement for Non Summons; and of that a Writ of Error brought and assigned, that they could not join, and Adjourned. Guilliams against Blower; sed vide 3 Cro. 65. They join in a Writ of Error on a Judgement 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 Marry seized of a Rectory impropriate, granted Advocationem Ecclesiae; the Advowson passed not: For being appropriate, it cannot be disappropriate, and the Rectory itself 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, etc. 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, etc. duplex quaerela lies, Stoke against Sykes, Latch. 191, 192.  
A. brings a Quare Impedit against B. pending which B. was instituted and inducted; Then A sues in the Spiritual Court to remove him, prohibition prayed; first, because he sues in duplici foro. Secondly, 'tis after Induction granted, Oliver and Hussey, Latch 205.  
Quare Impedit and Counts of an Avoidance. The Defendant pleads, that the Avoidance was by Resignation; and that he had notice the Church continued void six Months, whereby he presented by Laps, ill; not showing, 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 Judgement 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 Manors descended to three Sisters, to one of which an Advowson is appendent; they make Partition of all, except the Advowson, and assigned the Manor, whereto, etc. to one, and another to each of the other, and say nothing of the Advowson; and if it be Appendent, or in Gross alternis vicibus, viz. Appendent when the Sisters Turn comes that has the Manor, or in Gross pro toto: doubted; but the Opinion seems, that 'tis in Gross pro toto: For the Partition is as a Sale, excepting the Advowson; and if the Advowson had not been excepted, then clearly it had been in Gross: vide Dyer 205. A Church may be Appendent 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, etc. whereby the Church became litigious. The Plaintiff Demurs. 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, etc. 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, etc. The Defendant pleads, that J. S. presented B. to him, and traverses the Collation; and whether the Bishop in Suit against him, might set up a Title in a Stranger, to avoid the Plaintiffs Suit, was the Question? And it seems, he having the Cure of the Church, and to see that the Rightful Patrons do present, may; and hereby the Usurpation of J. S. the now Patron, is out of Possession. Quaere if a Disturber may plead such a plea? Tr. 5 H. 7. pl. 2.  
One grants Omnia tenta ', if an Advowson passes, 'tis doubted: For it seems it cannot be held, because no place for a Distress; and therefore no Tenure of it can be: vid. Trin. 5 H. 7. 3. & Co. 1 Inst. 6. a. 19 b. 154. a. by what Name, Rents, etc. 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 merely 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 Manor, wherein, etc. 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, etc. 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 seized, and that his Lands came to the King by the Stat. and the Church voided, and he granted to the Queen, the immediate Presentment, and also the next Avoidance: The Queen presents, and 'tis void again, and was disturbed. It seems, the laying these Presentments, makes the Declaration double; for one of them well makes a Title; but at last they judged not: And it seems, because the Statute is so high, that no Title can be precedent to it; so that what was laid in J. only was Surplusage. 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 join 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 Trial, 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 Layman; but not, if he be a Spiritual Man, P. 14 H. 7. pl. 3.  
In a Quare Impedit by the King, the Ordinary pleads, that such a one presented his Clerk to him, and he came to him as he was taking Horse, and bid him come again in three days, and he never came, and so permitted a Lapse: Resolved the Ordinary not bound immediately to examine the Clerk, but may take convenient time to do it in: for it may be at the present time, he is busied in aliis agend '; and though he pleads, that he presented (whereas his Collation) yet it seems well enough, P. 14 H. 7. pl. 4. Tr. 15 H. 7. pl. 2.  
That the Clerk has one or two Benefices already, is no cause of Refusal: For 'tis a Privilege to the Clerk, and the Bishop is not to meddle in it; but Villain 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 Trial of Right, shall be between him and the Clerk, admitted pendente lite, and no Scire Fac ' to be sued; but 2 Cro. 93. is contrary to that; vide Dyer 260. Hob. 201, 320. H. 2 H. 7. pl. 7.  
He that pleads presentation by a Corporation, needs not to plead it by Deed, because it may be without Deed: For a presentation is but as a Letter Commendatory.  
In Quare Impedit, 'tis enough to say, his Clerk was Instituted and Admitted without Induction, but in a Writ of right Induction, is necessary, because he must lay the Esplees in taking the Tithes, Tr. 26 H. 8. pl. 7.  
Two joint-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 join in the Title, Trin. 26 H. 8. pl. 22.  
Quare Impedit by three Joyntenants, 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 joint-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 Tail to the Ancestors of the Plaintiff, who presented, etc. 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, etc. the Defendant pleads, that the Church was full of him by 6 Months before. No plea without traversing the Resignation; but what a Traverse 'tis, see 5 E. 4. 3. b. and 12 H. 4. 11. He needs not say, 'twas full by 6 Months before; for if he had, his presentment before, or pending the Writ, it shall abate, and he shall not have an Action for his Presentment, where he has had the Fruit of it before P. 4 E. 4. pl. 37.  
If two present severally, the Ordinary is not bound to award his Jure Patronatus, without Prayer of the party, H. 8 E. 4. pl. 6.  
In Annuity, the Defendant pleads, that, he was presented by the King, and prays in Aid of him and the Ordinary: Oyer demanded of the presentment. Resp ' It belongs to the Ordinary. Danby, There is a difference between the Bishop's Collatee, and the King's Presentee, Trin. 9 E. 4. pl. 14.  
Composition, that if the Patron of a sine Cura present not within a Month, the Ordinary shall, if the Patron be disturbed, so as the Month past, he shall recover Damages for the two Years: For afterwards he hath lost his presentment, though the Ordinary has not presented; and so 'tis not like a Lapse at six Months at the Common Law, M. 13 E. 4. pl. 5.  
One to name the other to present; he that names the Nomination, shall have the Quare Impedit; but if it be to name two, whereof the other is to present one, the Presenter 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: Judgement 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 Judgement 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 Judgement. 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 alleging 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 alleging 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 Manor and Advowson Appendent, and Attainted of Treason, and Office found, that the King presented, etc. the Defendant makes Title to himself in Gross, absque hoc, that the King presented, and by some held, that the party may traverse the King's 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 King's 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. joint-tenants of an Advowson, they present C. by a strange name to the Church, and he is admitted, etc. by the Bishop, and is held a good presentment; sed vide 10 H. 8. 14 a. Corporation present their Head, and 'tis held a void presentation; see Mo. 45. accord' all 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 'tis in the Right, Mo. pl. 147. vide H. 14 E. 4. pl. 2. Mo. pl. 1258. vide Mo. pl. 11, 78.  
Quare Impedit against Parson, Patron and Ordinary, who make default; the Plaintiff is forced to make Title; and then has a Writ to the Bishop, and another to inquire 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 appendent to the Rectory, but may be to the Manor; as if the Manor 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 showed 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 Judgement for the Plaintiff, et Epus' in Mia, and Writ to inquire, 7 E 3. 30. a. Writ to inquire of Damages on Demurrer and Judgement, et Epus' in Mia ': And that assigned for Error, because he is twice amercied: Resolved none; for, First, The last is but a Recital of the first. Secondly, The first however is good at Common Law, and the Plaintiff may take it at Common Law, without Damages if he will; wherefore 'tis affirmed. Specot's Case, Co. 5. rep. 58. b. 59 a.  
Quare Impedit, and the Writ was Ad Ecclesiam, and the Count was, the 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 parts & bene aliter, if the Count had been de duabus partibus, Co. 5. rep. 102.  
A Tenant for Life Remainder to B. presents his Clerk, etc. 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 'tis to be given by the Ordinary to the Patron; and not only a General, but public 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, etc. 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 triple Usurpation, gives only the possession, not the Right from them. Sixthly, Without presentation, the Patron cannot be put out of Possession: For Collation may put one that has Right to collate, out of possession; but not one that has Right to present: And so 'tis agreed after, fo. 50. in Boswell's Case. And note, if the Presentation be in the time of War, though the Admission, Institution and Induction, be in Time of Peace, all is void. Green's Case, 2 Cro 385.  
Quare Impedit against the Bishop and Clerk, omitting the Patron. Resolved, it shall abate: For the Patron only at Common Law could plead, and must be named in every case, unless where the King presents, who cannot be sued; and unless it be in such a case as the Patrons Right is not concluded, but only the presentment recovered; and if it be brought against the Clerk and Patron, and the Patron does plead to the Writ, it shall not abate, nor shall it if brought by Baron and Feme, or two Parceners, or joint-tenants, and the Feme, and one Parcener or joint-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 inquire of the three points: First, That the Church was full of J. S. a Stranger. Secondly, That 'tis of Eighty pounds' value. Thirdly, That the Action was brought within six Months after the Avoidance, and Judgement, 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 Courtesy 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, etc. 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 Manor, 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 Bar in Quare Impedit, or Assize de darrein. Presentment, if brought within half a year after the Avoidance, though not so soon ended. Thirdly, It gives Damages. Infants, etc. by purchase are not within the first, and the Issue of  is within the Equity of the first Branch: because  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 penned ' the Writ, his Estate was to be removed: So if a Stranger usurp, penned ' 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' light, had good title he shall stay, else be removed; but in Cro. rep. of this case, 2, part 33. 'tis held the Bishop ought to return plenarty; and thereon Sci' Fa ' go against the Incumbent, and therein to show his Right, Boswell's Case; but 1 Cro. 423. Writ to the Bishop for the Plaintiff, and to remove the Incumbent inducted. Co. 6. Rep. 49, 50, 51, 52.  
If the Plaintiff be Nonsuit, or discontinue 'tis Peremptory, and a Bar 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 Latin or Insufficiency, found by the Clark's Fault, within six Months he shall have a Note; so if the Plaintiff or Defendant be misnamed, and the Plaintiff confess it, for it may be the Clerk's Fault; but if he take on him the Order of Knighthood, 'tis peremptory. Sir Hugh Portman's Case. Co. 7. rep. 27. b.  
Quare impedit ad Medietat' Ecclesiae, good: When there are two Patrons and two Parsons in one and the same Church, yet it seems he may have it also ad Ecclesiam; but when there is but one Parson, though the Patronage be in two several hands, it must be ad Ecclesiam, and in a Writ of Right of Advowson. When the Church is divided amongst Parceners, the Writ of Right shall be ad Medietatem Advocationis; but where two several Persons are to present two several Parsons to one Church, each whereof is to have the half, the Writ must be Advocationem Medietatis, for the Advowson is entire, but the 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 purchased, for it shall be intended to relate to the Writ; and if he was not so at the time of the Plea, 'tis good, and has made the Writ good. Lady Chichesley against Thompson, 1 Cro. 75.  
Assize 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 Archbishop, to admit etc. and Quia Episcopus est pars, doubted if they may; but it seems, now they may, since the Court of Grand Session's is one of the King's Courts, but when they were in the Marches they could not. Vrse against Epm' St. David, etc. 1 Cro. 249.  
Quare Impedit, The Defendant pleads, that he was admitted, instituted, and inducted, etc. and the Plaintiff traverseth the Admission and Institution, and for that was forced to reply, and traverse the Induction alleged; for that must be where 'tis alleged, because it altars the Trial, and makes it be per pais; than it was moved, after Verdict the Bishop was dead, and that the Plaintiff might have his Judgement 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, etc. against Yates, etc. 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 bar the Plaintiff in a Scir' Fac' per Popham, and not denied. 2 Cro. 93.  
The King grants the Manor, the Church Appendent 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 showing, 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 seized in Fee, for that was false, and so he might be tried by the Defendant's traverse of the Seisin; but he must lay his Case as 'tis, that A. was seized, 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, etc. and demand Judgement. 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 demurs, 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 Assize 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, etc. 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 show false Latin in the Writ, etc. 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. add ult'. Hob. 61. 62. Co. 7. Rep. 26. 2.  
If he that has one Benefice in Cure, take another, if it be not inducted, the Patron may at his pleasure take the Church to be void or not void, for 'tis not within the Stat. 21. H. 8. till Induction, Hob. 166. Winchcomb's Case, Mo. pl. 45.  
In Quare Impedit, where one of the Defendants pleads himself inducted at the King's presentment, and after, surmised that he was 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 Judgement, that the Defendant was not inducted, Hob. 193. Winchcomb against Dobson.  
Presentment penned ', the Quare Impedit does not abate the Writ. F. N. B. 35. b. but if the Church be full the day of the Writ brought, it abates, because 'tis false, which says, quae vacat ' etc. 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 demurs for doubleness of the plea, because he says, he did not present; which is an Affirmative against the Ordinaries 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 showing the Collation is but Aggravation and Surplusage, and the only material part of his Replication, was, that he had presented a Clerk, Hob. 197, etc. Brickhead against Archbishop of York.  
Quare Impedit, laying distress General, the Ordinary and Defendant make Title by Collation for Lapse: The Plaintiff replies, showing that he presented, and the Ordinary refused, 29 May, whereas his Writ bore date the ninth of May; Judgement 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 showing, 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 Judgement against him pro falso Clamore; but if the Ordinary cast an Essoin, 'tis a Disturbance, Ibid.  
If the Patron bring a Quare Impedit before any Disturbance, and after surcease his time, per Hob. the Ordinary shall not be debarred of his Lapse, Ibid.  
A. brought a Quare Impedit against B. penned ' the Writ; a Stranger gets in C. his Clerk; and than 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 Ordinaries 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 ; 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 against 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, etc. and dies; the King presents again; the true Patron brings a Quare Impedit. Resolved the King's Presentation is void; as 'tis in Green's Case, Co. 6 rep. where the King presents, as by Writ of his own Title, where he had Right of Lapse, and the Patron had not only Right of Quare Impedit; but might have presented upon him at any time; and by the Bishop's receiving his Clerk, the other is ipso facto out: For it was but as an undue Collation of the Bishop, and no Usurpation 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 locality within the Rape, that the Lord of the Liberty shall have it wheresoever the Grantee of the Avoidance, or his Deed is, which the other needs not show, 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, etc. 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 barred against all; therefore name no more Defendants than necessary: No, not the Ordinary, if the Church be once filled, Quare Impedit against two, the Incumbent sets up one Title, the Patron another: Neither Estops the other; and because it appears not which is true, both are to be admitted, Hob. 320. Co. Ent. 491, 492. pl. 10.  
In making Title in Quare Impedit, lay the presentation of the last Incumbent, and name him; yet 'tis not material whether the Clerk were the same that is named, so it be of the same Patron, Hob. 321.  
Lord of a Manor, whereto an Advowson is Appendent, 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 Appendent to the Manor; so that being Attainted, and the King grants the Manor, adeo plene, as the Grantor, viz. the Parson attainted habuit, it passes the Manor with the entire Advowson Appendent, and not as the three Avoidances were in Gross, and the rest of the Advowsons' Appendent to the Manor; for than 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, Judgement, 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 Judgement; but a new distress must be. 2 Inst. 124, 125. F. N. B. 39  
The common essoign, de malo veniendi, is allowed in Quare Impedit, not the servitio Regis, etc. 2 Inst. 125.  
None ought to present the King's or any Judge's Clerk to a Livery in Controversy, 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 Lions, that Lapse be given against a Patron after six Months; but this bond 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, etc. 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 alleging 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. 'tis none, unless it be by the space of six Months, before the Writ brought. 1 Inst. 360.  
No Plenarty is bar to the King, whether he presents in his own Right, or in a Subjects, but 'tis in case of the Queen, though she claims by the King's Endowment. Vide 43 E. 3. 14. 47 E. 3. 4. 21. 8 E. 3. 38. b. 1 E. 3. 3. 15. Co. 1 Inst. 119. b. 344. a. 'Tis said, no Plenarty is against the King till Induction, that it seems a hindering from presenting, but Induction is no bar of his Quare Impedit. 2 Inst. 361.  
When several persons claiming an undivided Interest in the Advowson, agreed by fine etc. 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 bar. 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 'tis but one Month. 2 Inst. 362.  
The two years' Damages or Imprisonment are given whereby the party loses his presentation by the Disturbance, or might lose it by the six Months passing; but if the Church remain void after the six Months, so as he may have his Turn, he may pray a Writ to the Bishop, and takes 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 etc. 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 joint-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 show 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, Villainy, Outlawry, Excommengement, Laity, under Age, etc. in respect of Inability, as unlearned etc. and if the Refusal before Ecclesiastical Causes, as Heresy, Schism, Want of Learning, etc. 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 tried by Issue; and if the party refused, be dead, it shall be tried per Patriam, lest 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 Judgement 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 Archbishop of Canterbury, Ow. 53. Dy. 26. a. 129. 130. 269. a. 283.  
A Manor whereto Advowson is appendent, the Church is void; a Grant of the Manor which the Advowson passes, not the Avoidance, neither in the King, nor in the case of a common Person, for 'tis a Chattel vested. Dy. 300. a.  
Next Avoidance is granted to A. and B. and becomes void, and then B. releases to A. totum Jus, etc. and A. being disturbed, brings a Quare Impedit in his own Name, for by the Release Nichil operatur therefore his Companion shall join with him. Ow. 65. 32. 1 Aud. pl. 241.  
Quare Impedit, it lies 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, etc. if his Clerk be deprived; yet it shall go for his Turn, unless the presentations, etc. were all void; as 'tis for not reading the Act; or as in Windsor's Case, where one prosecuted upon the Deprivation of another, and the Deprivation taken off, and the Parson restored by future Sentence; and the Advowson is granted over after the Church void by Deprivation, quod non est lex: For one Grantee cannot release to his Companion, Co. Inst. 276. b. Ow. 131. Lees vers' Epm' Coventry, 5 rep. Windsor's Case.  
Assize of D. Darrein presentment against several; one makes Default, if they do not 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, etc. for to that purpose he is Incumbent; but as to hinder the true Patron of his Presentment, he is not; but the Church void, Hutt. 66. Hob. 302.  
He that recovers in a Quare Impedit presents his Clerk, and has him admitted without any Writ to the Bishop, 'tis as good as if he had; like one that entered after Judgement 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 Judgement: and so it had been, if it had been exhibited before the Bishop. Then the Patron recovers, and then exhibited to the Bishop again, 'tis a good Presentation: For the Patron could not revoke, or give a new presentation; for he had passed over his Title by that, Hutt. 66.  
In a Quare Impedit, the Plaintiff made his Title from the College of, etc. 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 College 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 Judgement without making any Title, Dy. 24. b.  
The Church being void, the Patron grants proximam praesentationem, etc. 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 Bishopric 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 Coparceners 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 seized 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 shown, that others were seized of the other three parts, as appendent to certain Manors, and they presented; and their Clerk died, 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, than 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, etc. 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 alleged, 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 Judgement; so where the Plaintiff goes but to the Right, by Fitzherbert, 'tis ill sans doubt. p. 26. H. 8. Pl. 3. a.  
In Quare Impedit he counts of an Avoidance by Deprivation, and shows 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 Judgement was affirmed. Episcopus Glouc ' against Veake. 3 Cro. 678.  
Quare Impedit, the Bishop claims nothing but as Ordinary, the Writ good, if a Writ against him immediate, quaere the Plaintiff says, he presented A. whom he refused, he says he presented to the Church, because litig ' if a Departure semble, 'tis, for he intended to have pleaded it at first. Tr. 5. H. 7. Pl. 3.  
In a Quare Impedit, the Plaintiff claims by a grant of a next Avoidance by A. the Defendant says, that A. was Tenant in Tail, held of D. by Knight's Service, and describes the manner whereto, etc. and then usurped upon the Description, and died; his Heir within Age, and the Lord granted the Ward to him, adjudged the Plea not double, though 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 show his Title. Tr. 5. H. 7. pl. 3.  
Quare impedit, and makes Title as appendent, and that A. as Ancestor presents B. etc. the Defendant protests, 'tis not appendent; says that he presented D. etc. The Plaintiff says, that at the time he presented D. it was in Lease to E.; the Defendant rejoins, that before the Lease, his Ancestor presented I. 'tis a Departure, for he might at first have laid the Presentment in I. p. 10. H. 7. pl. 6. Tr. 11. H. 7. pl. 15. p. 27. H. 8. pl. 11.  
Quare Impedit for the King, the Defendant pleads the Statute 25 E. 3. 1. That the King shall not present to any, living in altar droit, but such as fall in his own time; and if he do, the Court is not to hold plea, Judgement 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 appendent, and makes Title to a Gift in , the Defendant pleads, the Donee in  was seized of it in Gross, and granted per Curiam illam, admit it once Appendent, and not show 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 Manor of S. in Devonshire; Issue of both Counties tried 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 , 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 shown not what, whether lineal or collateral: Nor, Secondly, because he pleads, that he was seized of the Lands, discharged of, etc. and shown not how, viz. by Union or otherwise, H. 21 H. 7. pl. 11.  
Replevin avows Damage pheasant bar, that the place where his Acre called A. whereof he is seized of 100 l. and has Common in the Residue; after Verdict moved, the Blank in the Declaration makes all uncertain, quid resid' est sed non alloc '; 'tis found there is a Residue; and be it what it will, he is to have Common: And here no Land is to be recovered so, certain enough. Sir Anthony Cope against Temple, Yel. 146, 147.  
Replevin, the Defendant avows, Forty shillings Rend 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 walter's, Noy. 70.  
If  or Goods be distrained for Rent, or otherwise for Damages, than the party, whose Goods are foe 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 Nonsuit, or Judgement 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 Nonsuit again, or Judgement against him, than the Defendant shall have Retorn' heard ', irrepledgeable, and keep the Goods for ever.  
If Live , and Dead Things be Replevied by one Writ, as they may; the Live Beasts or , 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 tortuous, Mesme le Ley pur Damage fesant. But tender after the Distress be taken, and before the Impounding, the Detainer, and not the taking, is tortuous: But tender after the impounding, neither the taking nor detaining are tortuous; for the Tender comes too late.  
In Replevin, the Plaintiff is Nonsuited, 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' heard ', 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, than the Form of the Writ, is quod replegiari faceret J. S. averia sua; and when only one Beast is taken, than the Form is quod replegiari faceret J. S. quendam Juvencum suum, vel bovem suum etc. And when many Dead Chattels are taken, than 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, than the Writ shall be, quod replegiari, facias J. S. quoddam Plaustrum cum furnitura, etc.  
By the Statute of Marlbridge, cap. 21. the Sheriff upon Plaint made to him in Court, or out of Court, aught 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 the Retorn' habend', Co. come 145. b.  
A Man who hath but only a special Property, may bring a Replevin, as when Goods are pledged 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, than it may be removed into the King's 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, than it may be removed by Recordare, issuing out of Chancery by the Plaintiff, without showing cause, and by the Defendant, if he do show 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, etc. 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 etc. & de aliis averiis capt' & adhuc detent', Rast-Entr. 567. 572. And in this Case, when the Plaintiff declares, that the Defendant yet detains the , 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  of several men are taken, they shall not join 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 allege a place certain, where the , etc. were taken.  
When the Plaintiff is Nonsuited before Declaration, and he sues Second Deliverance, and is Nonsuited also again before Declararation, the Defendant shall have the  irreplegiable without any Avowry, etc. Dyer 280.   

Scire Facias.  
SCire Facias, by the King to repeal a Patent, the Defendant pleads a Plea, whereon the Attorney General demurs, the Defendant joins 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, etc. 'tis not said who devastavit, so might be the Executor at Age, but per nonnullos, the Plaintiff shall, not after Issue, find a Fault in his own Replication. Oxford against Rivet, and 1 Cro. 135. Plaintiff after Verdict, when no Advantage of his own ill Declaration. 1 Cro. 56. 66. vide Co. 7. Rep. 4. 6. 5. rep. 39 b. 8. rep. 59 a. 1 Cr. 39  
Scire Facias of a Recognizance entered by A. and B. returned Terretenants, come in and plead, that C. hath three Acres of A. Land not summoned, etc. whereof he was seized in Fee Issue, that A. was not seized of three Acres, Verdict find that he and E. were jointly seized and enfeoffed C. per Popham and Gaudy, 'tis against the Defendant; for now though the moiety 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 alleges, 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 join 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 Judgement; the Defendant pleads Payment, not good against a Record, without matter of Record, or specialty; and 'twas long before it was agreed, that levied 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 bar an Execution by Fieri Facias of Scire Facias, vide H. 4. 58. 59 In Debt on a Judgement 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. etc. Plea that I had no such Son, good, and he needs not show 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 Terretenants, the Sheriff an Heir and four more Terretenants the Heir, Nil dicit; the other four plead, that two of them are joint-tenants of part with J. S. not named, and resolved that the joint-tenancy is a good Plea in this Action, but not for all, but for that part wherein the joint-tenancy is: but because all joined, where but two were Joynt-tennants, the Plea was ill for all four. Holland against Donitree, etc. 3 Cro. 739.  
Scire Facias on a Recognizance. Defendant pleads an Acquittance, Plaintiff replies, 'tis razed in such and such material places, and demands Judgement 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 Margin 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 Judgement against an Executor, he pleads a Judgement to J. S. of 100 l. another to himself of 100 l. and that he has but 100 l. to satisfy J. S. and says not ultra, to satisfy himself, ill; for he may pay himself, if he have not ultra to pay J. S. and himself, he is not bound to pay the Plaintiff, Feltham against Executors of Tourston, Tr. 8. Car. 2. in Scaccario.  
In Scire Facias, on a Recognizance for the Plaintiff, 'tis sufficient to assign breach, that he beat one, contra Pacem, without saying vi & armis, aliter in Battery. Hutchins against Perryman. M. 14. Jac. B. R. 3. Bulstr ' 220.  
In Scire Facias of a Judgement 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, etc.  
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 Judgement by default. But upon Motion in Court, in Arrest of Judgement, the Action did not lie; for the Sheriff, is the person alone to answer in Court for all Misdemeanours of the Under-Sheriff and Bailiffs.  
Upon a Fieri Facias, if the Sheriff return, that he hath levied 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 show cause, wherefore the Sum levied, 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 concerned (as upon an Utlary) there the Sheriff may justify the breaking open the doors, if he be resit; 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 accordingly, 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 itself. 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, etc. 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 effectual in the Law, unless the Testator shall, at any time, cancel 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 Judgement, and liable 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 aforesaid, 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 Judgement shall be signed with the day of the Month, and the Year in which such Judgement was Signed; and the day of the Month and Year are to be entered on the Margin of the Plea-Role, and they shall be accounted Judgements 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 endorse on the backside 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 man's 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 allegeth 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 Master's Business: An Abbot for his Monk; a Captain for his Soldier; an Host for his Guests; So a Sheriff for his Under-Sheriff and Bailiffs: But a Master shall not be Punished 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 Neighbour's House, the Master is chargeable therewith.  
A man is chargeable with the Faults of his Family or of his Beasts: If a Ship is perishing, and the Mariners cast the Goods, to save them, on the Land next adjoining; yet this is Trespass, and punishable by him that holds the Land.  
A Servant may justify the beating of another in Defence of his Master.  
A Man shall not have his Action of Trespass for Threatening, 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 Blow 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 Soldier in Skirmishing, hurteth another in Discharging his Musket, who brings Trespass, and the Defendant justifies and excuses himself, as being a Soldier upon his Duty; and upon a Demurrer, Judgement 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 Prize, the one Kills the other, this shall be no Felony: So if a Lunatic 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 Lunatic 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 Nuisance 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 Enclosed, 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 Ploughing my own Land, the  are so unruly, that they carry the Blow 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. etc. 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  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 etc. 'twere confused and ill; but if he pleads, that as a Servant to A. he put in such, and to B. such, etc. 'tis good enough: vide Title Jointly and Severally, Tr. 15. H. 7. pl. 18.  
In Trespass, the Defendant pleads, that the Plaintiff delivered Goods to the Defendant, to carry to such a place: The Plaintiff replied, de Injuria sua, etc. 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, etc. 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 shown no Warrant in Writing, for the Precept may be per parol; but because he pleaded not that he returned the Precept, 'tis ill; as if the Sheriff returned not the Cap ', he is a Trespasser, Trin. 16 H. 7 El. 9 15.  
Trespass and Battery against a Constable, he pleads that the Plaintiff was beating another, and he came to keep the Peace, and laid Hands on the Plaintiff, and he beat him, and so justifies, per Ryder Just. 'tis double: For he justifies as Constable, and also in his own Defence. Kingsmil contra, the Beating had not been Lawful, but that he first beat the Constable, P. 2 H. 7. pl. 5.  
Trans' de domo fracto & muris ●jusdem domi, the Defendant pleads Not Guilty to the breaking of the House; and as to the Wall justified, ill: For the Wall is part of the House; so he cannot be Not Guilty of all, and justify for part; for that is repugnant, pl. 21 H. 7. pl. 7.  
Trespass of a thing done at D. and after in plea, they allege 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, etc. 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 itself, 'tis double, Tr. 17. H. 8. pl. 1.  
He that pleads a Fine in Bar in Trespass or in Warranty must conclude Judgement, 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, etc. he pleads, that the Plaintiff had committed Felony, and he prays the Constable etc. and thereupon they went and arrested him; ill, because he answers nothing for himself; that he, by Command of the Constable, etc. P. 2. E. 4. pl. 20.  
Trespass: the Defendant pleads, that his Father was seized, and let to A. for Life, to enfeoffee; etc. And A. died, and his Father entered, 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 Bar, and to B. not guilty, by Danby, Mail, Cheke, the plea ill, for the Bar 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 Licence by him, and the Plea not double, for a Tenant at Will cannot cut, etc. without Licence. M. 2. E. 4. pl. 25.  
In a Praecipe, the Tenant pleads a Release in Bar, and it was in Bar 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, etc. not particular of bl. Acre, etc. which will be otherwise. M. 2. E. 4. pl. 26  
Trespass on the Stat. R. 2. the Defendant pleads a Gift of the Land by Act of Parliament, whereby he was seized temps ' H. 6. and the Plaintiff entered upon him temps E. 4. and he entered; Choke Justice, and Littleton, held it double, for the Gift and Seizing is one bar, and the Entry of the Plaintiff and the Reentry of the Defendant is another; but Ardern Justice, and Jason, contra, for 'tis all pursuant, Et ibidem by Choke and Needham, Justice, when the Defendant pleads, that the Plaintiff entered 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 shows 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, etc. 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 Judgement; 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, etc. the Plaintiff replies, that he is not the same person in the Bar and Dem ', and though objected this ill in matter of Fact and Dem ' for matter in Law; and it cannot be tried by Court and Jury, the Plea ruled good; for by joining in Dem' 'tis confessed, 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 gift 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 tried, now 'twill be discontinued. Objected, that goes but to part, and there is now a Plea, that goes to all, which is to be tried first; for if that be against the Plaintiff, though he should have Verdict on the other, he can have no Judgement but for the Inconvemency, and for that this Plea to the whole, comes after the ven' fa ', and the other was before; therefore 'twas tried; but if both had been before the ven' fa ', it could not have been, and they found for the Plaintiff, and they had Judgement 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 Judgement on the First Plea, Tr. 15 E. 4. pl. 11, 3. vide 4 E. 3. 42.  
Trespass, the Defendant justified for Tithes severed; the Plaintiff replies, de son tort; objected no plea, no more than when in Trespass the Defendant makes Title, and pleads son Franktenement, or a Lease for years, by Bryan; and so it seems tho' Piggot says there, he claims there the Occupation of the Land; not so here, P. 16 E. 4. pl. 9 2 Cro. 224, 225.  
Trespass Not Guilty, and Issue, the Defendant puis darr' contin ', pleads a Release, dated before the last Contin '; but delivered after; the Plaintiff replies, that was delivered the same day 'twas dated, Judgement 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 show what Estate he had, as that he was seized in Fee, etc. and let but by Kidwelly: when one pleads a Lease from a Stranger, 'tis necessary to plead it so; not when he pleads the Lease to the Lessor himself, M. 22 E. 4. pl. 217.  
Trespass for Assault and Battery, and Threatening, etc. the 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 entering the Close, and cutting so many Trees, quoad all but cutting the Trees, and entering the Close, pleads Not Guilty; et quoad fract' Claus ' pleads▪ matter in Law, and justifies the cutting the Trees; but because in the quoad, etc. nothing was said of the Trees; the plea is ill, and was amended, and made et quoad fract' claus ', Cutting, etc. 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, etc. good, without showing by what Title his Lease or Commencement, etc. 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 doubts, because Dale and Sale may be adjoining, 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, etc. & quidam J. S. granted, etc. and so began every plea with quidam J. S. which shall be intended several men; and it all being about one Office, 'tis ill: for several men could not severally grant him it, 3 Cro. 401. quidam J. S. intended the same person that it was mentioned before: And so Sti. 329. and 18 E. 3, 49, b. and Brid. 100 Hat. 84. quidam, found by Special Verdict, doubted if good.  
In Trespass, the Defendant pleads a special plea, and justifies; the Plaintiff replies de Injuria sua propria; but did not Traverse absque tali Causa; Issue and Verdict for the Plaintiff, Judgement stayed, and Repleader awarded: For here is no Negative but an Affirmative of the first Declaration; but not 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 Virtue 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 Colour 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' quoth, etc. 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, etc. 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 shows, that after the Writ issued, and before executed, he paid the Money to the Sheriff, who gave him a Supersedeas to all Bailiffs, etc. and the Defendant Arrested him; whereupon he shown him the Supersedeas, ●ho yet detained him an Hour: The Defendant says, he was not Lettered, and took that time to advise: Whereon 'tis demurred, and adjudged for the Defendant, not on the Matter in Law; but the plea for the Declaration, charges him with a taking and imprisoning, and the Replication, with a detaining only, so a Departure. Stringer against Fanlake, 3 Cro. 404.  
Trespass for breaking two Gates and three Pearches of Hedging, the Defendant prescribes to go in Preambulation 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 entered 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 Licence in Law, which must have been pleaded, and is not to be given ●● Evidence, or by a special Verdict, for that Cause, Judgement was against them, for their entering, though against the Plaintiff as to the taking the Corn. Sir Henry Knivet against paul, etc. 2 Cro. 463. 464.  
In Trespass, the Defendant justifies Damage pheasant, 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 Bar 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 pheasant, and the place mentioned in the Bar, 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 etc. of London is seized of a House, called Leaden-Hall, and 'twas there Damage pheasant, for he by etc. 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, etc. because he varies from the manner of the Caption, and by his Plea, takes from the Plaintiff his Authority, yet resoplved good without it agreeing with him in the time and place of the Caption. Sawer against Wilkinson. 3 Cro. 627, 628.  
In Trepass, one as Bailiff, pleads quod presentat' existit, that such an one surcharged the Common, and for that was amerced, therefore distrained: 'tis good without saying in facto, that he did 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. come. 1. Leon. 292. 2 Cro. 582.  
Trespass for taking two Hides, the Defendant justifies for a Distress, the Plaintiff replied, that he tanned them, the Defendant rejoined, 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. bargained and sold Land habend ' too B. the Plea ill, because not said in the Premises to whom he being, etc. but 'tis the habend ', and the Granter and Grantee, must be named in the Premises; but, because the Plaintiff replied, Quod bene & verum, that A. granted to B. that is, a Confession to whom the Grant was, and mends it, Bustard against colyer. 3 Cro. 899.  
Trespass, the Defendant prescribes for Estovers at all times, except fawning times; the Plaintiff made an ill Replication: the Defendant demurs, though the Bar was ill, the Defendant not showing, that at the time that he cut, etc. was not fawning time; yet, he having demurred on the Plaintiff's Replication, the Court would not to the Bar, but no Judgement 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 replies, de Injuria sua absque, etc. Verdict for the Plaintiff, and Judgement, 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 ' Judgement the billa, because it wants, Et hoc paratus, etc. per Recordum; also, the Conclusion is unapt for the Plea, for the Plea is in Disability; the Conclusion is bar, but, it seems, the Conclusion is but form, and used by general Demurrer. And vide the form of several Conclusions, Ind si Cur' vult cognoscere. 2. Al' person' sit sirrah respond'. 3. Al' brief Judgement eaten ' Br. 4. Al' accon' del brief. 5. In barr' come apprest Bracton de excepc ', and differ Quando le ple al' br '; of perempt' quando neme. If the pleading to the Writ be tryable, and tried per pais, is peremptory to the Defendant, other if Demurrer upon respond '; but if the Plea be tryable by Certificate of the Ordinary, 'tis never peremptory; and if the Plea to the Writ be to the Action of the Writ, it seems peremptory, so Plea to the Action of the Writ, and Conclusion to the Writ peremptory, if demurred: one pleaded to the Action of Avowry, he shall not resort to plead in Abatement, after Imparlance: one pleads Outlawry in the Plaintiff, allowed. Dr. Cudman against Grendon. Vide 40 E. 3. 9 pl. Abatement, Avowry and Conclusion the bar. 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; divers of opinion semble, as well as where one pleads a Divorce 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 Watchman, 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 Suspicion, or particularly as a Night-Walker, being a Watchman. H. 4. H. 7. pl. 2.  
Trespass against two Defendants, they Justify, 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 Virtue whereof he entered, and was possessed, and held good, without showing of what Estate he was possessed; Idem in pleading a Feoffment, etc. For it may be doubtful in Law, as if made by an Infant, etc. 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. etc. per Cur ', he ought to show how Tenant in Common, viz. the Feoffment, etc. if of a Joint Tenancy personar, etc. 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, than I agree I must show how, 3 H. 6, 56.  
Trespass for Fishing in his several Fishings: the Defendant pleads 'tis not Freehold; and by some the plea is good, till the Plaintiff make a particular Title to the Fishing; Idem in Case of Warren; 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 Soil: 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, etc. 'tis good, else not, no Resolution: vide Title Forrest per tout: And Title Fishing per tout, plus de cest ' matter; and vide 21 H. 6. 21 b. and the Plaintiff makes Title, 18 H. 6. 29, 30.  
Trespass, Quare lib' Warr' fregit, et Cuniculos cepit, the Defendant pleads, that the Plaintiff was seized and let to A. he by Command of A. took the Coneys; Judgement le sans Title Mre ', and after waves that, and pleads ut altar Judgement, 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. etc. 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 Demurs, L. 5 E. 4, 54.  
Trespass for cutting Trees, Defendant makes Title to the Lord in Right of his Ward; and that he cut prout sibi bene licuit, Danby Chief Justice, and the Conclusion ill: For it appears waste and unlawful, Marle, & mal Opinion ut mihi videtur, 'tis Lawful, quoad the Plaintiff; and good: For before the Statute of Waste, Lessor, or Ward had no Remedy against the Lessee or Guardian by Trespass; and now 'tis punishable only by Waste, not in Trespass; but it may be an Estoppel in Waste; therefore better to plead, he cut them for a Repair, prout sibi bene licuit, L. 5 E. 4, 64, 89. b.  
Trespass for taking, beating and impounding his Cow, Defendant, quoad ven' vi & armis, and pleads Not Guilty, and quoad the taking and impounding justifies for a Distress; ill, not answering the Beating. Copeley against Piercy, Trin. 19 Car. 6. B. R.  
Trespass for taking , 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 Bar, the Defendant demurs, and Judgement 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 , Defendant justifies damage pheasant in his , Plaintiff replies, and claims Common to a Message, etc. Defendant rejoins, that he set sufficient Common for all the , levant and couchant in the Message, Plaintiff demurs, and objected he should have averred sufficient Common to the Message for all levant, etc. for at that time he might not have so many levant as he had right of Common; for but adjudged the rejoinder; 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' predict '; 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 Nuisance 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 entering and breaking his Close, and driving his ; Defendant justifies as to the Entry, and driving the ; Issue of it and Verdict but Judgement against him, because he proved not the Breach as well as the Entry. Prance against Tuckle, P. 8 Jac. B. R. Rot. 138. 1 Bull. 164.  
Trespass stir. May, Defendant Justifies 7 May, quae est eadem, etc. 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 Demurrer, 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 demurs generally, resolved then of the not saying, how Heir, but form and amendable. Duke of Newcastle 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 Enclosure. The Plaintiff saith, the Enclosure was good, and the Defendants  unruly, absque hoc, that they were out of Repair; upon which, the Defendant demurs, and for cause shows, that the matter of Inducement is idle. Opinion of the Court was, that 'twas good, and the Traverse necessary upon that Inducement; that an Inducement is not material, a man may have many 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, etc. Verdict for the Plaintiff; moved in Arrest of Judgement, 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 domestic Coneys, and that the Jury were directed by the Judge: Also, that the Jury gave not any greater Damages in Respect of Property, alleged by the Plaintiff in his Count; Judgement 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, etc. 100 Oves; Judgement 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 Waste. fo. 77.  
Trespass, the Plaintiff lays it in an Acre bounded etc. with Abuttels; the Jury found it to be in Dimidio Acrae infrascript ', 'tis good; also, if the Jury had found it to be half an Acre, whereas it was assigned an Acre, 'twere well enough. Yelv. Winkworth against Man, 114. But in an Ejectione firmae 'twere incertain, and void. Yelv. ibid. & 2 Cro. 183. 2.   

Wager of Law.  
IN Debt for an Amerciament in a Court-Baron 'tis said one cannot wage Law, But two or three Precedents 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 detaineth nothing, The Compurgators, that they believe that he oweth or detaineth nothing, Term. Ley. 341.  
Cook says Debts by simple Contract, are forseited by Outlary, though it puts by the party his Wager of Law, and so he says is the latter opinion of the Books and of the Judges now, And he says in every Quo minus by the King's Debtor it puts the Defendant by his Wager of Law, for the benefit of the King though not party à fortiori where the King is adjudged party, Slades Case, Co. 4. Rep. 93. a. 95. a b. 9 Rep. 88 a. 89. b.  
In Debt for Arrearages of Account before one Auditor, the Defendant may wage his Law, because not within the Statute of W 2. Ca 11. unless two Auditors, And so if the Lord be found in Surplus in Debt against his Servant, it may be waged, because not within the Statute, which is made only as to Accountants, the rest being determinable at Common-Law, Debands Case 38 H 6. 5. b. contrary to this last, Co. 10. Rep 103 a.  
'Tis said that Ley gager lies not before Justice of Peace or Justice of Oyer and Terminer or any other inferior Court, but those at Westminster, Therefore an Information upon 23 H. 8. against Brewers to be brought at Westminster, not in the proper County, because the Statute, Ousts Ley gager; and so intends such Courts wherein it lay. Vide Kitchin. 494. b. Ley gager, the proper Trial in Court-Baron, and Per Pais. 1 Cro. 79. 104. Co. 4. Inst. 64. 65.  
Commissioners of Bankrupt assign a Debt due by simple Contract to the Bankrupt; in Debt the Defendant may wage Law against the Assignee of the Commissioners, as well as he might have done against the Bankrupt; though obj. they coming in by Act of Parliament, 'tis quasi a Debt of Record, for that altars not the Law: quoad Wager. Morgan against Green. And so 'tis adjudged also, 2 Cro. 105. Bradshaw's Case, and Noy 112. 1 Cro. 135. 2 Cro. 105.  
Debt by an Attorney for his Fees, Defendant cannot wage his Law, because the Plaintiff was compellable to be an Attorney: but in Debt, by a Sergeant at Law, for 10 l. to be of his Counsel, for two years, the Defendant may wage Law; yet dict. the Sergeant 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 Sergeant at Law. Good.  
Debt against a Successor of an Abbey, and Counts of a Sale of Goods, by Deed to the Predecessor, which came to the use of the House, it seems the Defendant may wage Law, notwithstanding the Contract was by Deed, and by the Predecessor; for, the Deed binds not, had it not come to the use of the House: and that being it which maintains the Action, 'tis not material, though it was the Predecessors Contract, Sed ibidem by Ascue, and not denied: If I sell Goods to the Servant of J. S. and they come to the use of J. S. he cannot wage Law, because the altar Contract: but if my Servant sells my Goods to J. S. in Debt he may wage Law, because 'tis my Sale by my Servant, qu. Diversitatem. 21 H. 6. 23. a.  
Detinue of three Tallies, the Defendant wages Law; and so it seems he might, if it were a free Obligation. 21 H. 6. 30. a.  
Detinue and Counts of a Delivery in London: If the Delivery were in Middlesex the Defendant may wage Law by Newton, and not denied, Quia non detinet modo & forma, etc. 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 Latin. 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 outlawed, 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 lies: 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 lies; for 'tis Reddere singula singulis; viz. There shall be no Essoin if they lie 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 die, Detinue lies against his Executor, by reason of the Indenture) nor against a Receipt Per altar manes, in account. Dyer, 265. a. vi. 39 H. 6. 35. a.  
Detinue on a Contract of Goods bailed, the Defendant may wage his Law, or plead non Detinet. Dy. 30. a.  
In such Actions where the Defendant is put from his Wager in Law, there he may traverse a point that is but inductive to the Action, and not a point of the Action; as in Debt, upon a Lease he may plead non dimisit. In Debt, for Arrearages of Account he may plead non computavit; but in Debt, for Money or Wares, sold to him, he may plead non debet, and traverse, that he sold them. Dyer 121. b.  
In Account, the Defendant pleads ne unque Receiver, and waged Law thereon, and had day, and at the day, would have waved his Law for part, and confessed the Action for it, and waged Law for the Residue: per Curiam he cannot without the Plaintiffs assent. Dy. 261. a.  
'Tis held, that at the Common Law, he that waged Law in a Court of Record, was to bring with him Fideles Testes, wherewith Glanvil agrees, Lib. 1. C. 9 But in inferior Courts, one might wage Law without Witnesses; to prevent which, was Magn. Ch. 28. made Nullus Ballivus ponat aliquem ad legem, etc. sine testibus fidelibus ad hoc inductis. Others hold, that Ballivus there extends to all Judges. Co. 1. Inst. 168. b.  
An Infant cannot wage his Law, but the Husband and Wife, for the Debt of the Wife, may: 18. E. 3. 53. a. A Mute wages Law by Signs. Co. 1. Inst. 172.  
Wager of Law is not allowed in any case where a Contempt, Trespass, Deceit or Injury, is offered; but 'tis allowed in some Cases, in Debt, Detinue, and Account; 'tis not allowed when there is a Specialty. Co. 1. Inst. 295. a.  
One Infamous cannot wage Law, nor an Infant, but a Fem● Covert with her Husband, may. No Wager lies 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 altar manes on Account, unless his Wives or his Companion. Bailiff of a Manor cannot wage Law in Account, in Debt, for Rent, or nue, for a Lease no Wager, because sounding in the Realty.  
It lies 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 Gaoler 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, etc. shall not wage; no Wager in Debt for a Penalty given by a Statute. Co. Ent. 118. Pl. 1.  
Error of a Judgement 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 etc. 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 lies 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 Manor of D. the Defendant waged Law, and had day to make it: but, at the day, 'twas ruled, that Ley gager lies 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 jointly concerned in one Contract. 3 Cro. 645.  
Debt sued by one in Chancery, a Servant to the Lord Keeper; Defendant, as to part waged Law, and to the Residue pleaded Nil debet per Patriam. And being sent into the King's Bench, 'tis doubted if he may make his Law good, but, de bene esse, it was done, Audley against Franke. 3 Cro. 648.  
In Debt for Money on sale of Land, doubt if the Defendant could wage Law, being on a real Contract, and resolved he may, and he did make his Law. Miller against Eastcrowe; and so 'tis held by Newton, 22 H. 6. 11. a. and not denied, 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 Merchandise, not a Bailiff of a Manor. 7 Cro. 790.  
Debt against a Defendant for his Diet, 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 Diet. 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 altar manes, 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 another's Contract. Prior the 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 altar mains, the Defendant may wage Law; so in Debt, on a Contract per altar mains, otherwise on Account on a Receipt per altar mains; for there the Receipt is traversable; but in the first Bailment 'tis not, but the Detinue. M. 18. H. 8. Pl. 15.  
In a Writ of Right of Advowson, Grand Cape issued for default; the Defendants came and offered to wage Law of Non-Summons; and because some said the Writ was peremptory, so as he could not have another, the Ley gager was respited. Tr. 27. H. 8. Pl. 2.  
In Account, upon a Receipt at the Plaintiff's hands, though by Writ the Defendant shall wage his Law, and by Detinue upon a Bailment by deed, for he might take them again; and 'tis that Detinet is the cause of Action; not the Bailment. Er. 27. H. 8. Pl. 14.  
Debt against J. S. he waged Law, and at the day, appeared to make it, the Plaintiff said, there is J. S. Senior, and J. S. Junior, and the Action brought against the elder, and this is the younger; and in tant ' the elder makes default, prays Judgement. Er. 5. E. 4. Pl. 22.  
In Debt for diet, the Defendant may wage Law, whether the diet were for himself or another. 22. H. 6. 13. b. But on a Lease of a House, etc. he cannot, but on a Lease of Goods or Chattels he may. No Ley gager in Debt for diet of a Pensioner. 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 denied, & 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 liable to it. And to this last agrees M. 15. E. 4. Pl. 4 Sed vide 33 H. 6. 43. b. If she make default at the day, 'tis the Default of both, and binds the Husband. 9 E. 4. 2. 4. b.  
Debt and Counts of a Retainer, to shape and make such ; 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 cloth, though 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 altar manes, no Wager lies, because the Receipt is the cause of the Action, and that's notorious all pais being per altar mains: but in Detinue on a Delivery per altar mains, Wager lies, because, not the Livery, but the Deteiner, which is, in a manner, the cause of Action; but in next Case, 'tis the Usage which makes the law of Wager; therefore in debt it lies, in Trespass it lies not 33 H. 6. 9 a.  
Debt on a Judgement in Court-Baron, the Defendant pleads, Nul tiel Judgement, 'tis no Record, therefore tryable per Pais; Defendant not wage Law; 34 H. 6. 49.  
No Wager lies 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 lies 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 Retainer to serve in all Occupations, the Master wages law, because it may extend to other things besides Husbandry, which the Reporter holds to be otherwise; for, the Service and Wages being entire and no Wager for part, he thinks there should be none for the rest; for, Magis dignum trahit ad se minus, 38 H. 6. 13. 14.  
Party wages Law, and day given to make it; either of the Parties at that day may be excused by Essoin, but if either make default, it is adjudged against him; or if the Defendant do not bring twelve sufficient men, 'tis a default, as if any of them prove Execution, Attachment, etc. 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 lies 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 Retainer 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, etc. for these not Reteyners according to the Statute; and so of a Retainer to be his Counsel for a year, etc. 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 tried 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 show 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, etc. 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 the Son Comoine, good, and needs not count of a Receipt by his own hand; yet, 'tis as a Receipt by his own hand, and the Defendant may wage Law: And so vice versa, in Account against Baron or Abbot, Count of Receipt per manus del Feme o● Cemoine, le Defendant; and so is 2 H. 5. 2. b. vid. 47 E. 3. 16. 13 E. 4. 8. a.  
Debt against two, one makes default, the other wages law, and at the day makes it. The whole Writ is abated, Et quer' nil capiat against both entered; 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 joins, and makes the Law. And it is accepted, though the defendant opposed it, the defendant recovered some of the other Moiety. Note, here both waged jointly at first, vide 48 E. 3. 13. b. Cessavit against two who waged law, one comes to make it, Seizing is prayed of the, others Moiety 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 Seizing of the entire, for the default of one, it was denied; and upon the whole it seems, if one make default, Seizing of his part must be pr. first, else, by acceptance of the others Law, the Writ abates; And if Seizing be granted of the Moiety, 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 Seizing 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, etc. 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 lies, by Belknap, it does; because the first Suit but for debt, in which Ley gager lies. 44 E. 3. 32. a.  
The Servant retains one as Attorney for his Master, the Master makes the Servant Executor; and dies: 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, etc. 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 Brooks and Bridges say the Law is otherwise at this day, quere, since 'tis not before Auditors assigned by Court, Et hic dicitur quod, one may wage Law for a Sum recovered in a a Court-Baron, because no Court of Record; yet 'tis found by the Suitor, and so 'tis said, 13 H. 7. 3. 6. Per Cousby. 'Tis also here said, one may wage Law in debt for a Sum recovered in Trespass, but in Trespass Ley gager lies not: 49 E. 3. 2. 3.  
Debt in the detinue only for rend Corn, as 'tis agreed it must be, not being Money; and though 'twas 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 gauged; 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 Judgement against the elder by default, and the Plaintiff be no longer delayed. And so 'tis adjudged, 9 E. 3. 20. b. 5. E. 4. 23. 26. 114.  
Annuity, defendant pleads a Refusal to give him advise upon Request; plaintiff offers to wage his Law, that he did not request him, denied, 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 shows 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 lie 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 denied) 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 altar manes, than his that sues tamen quaere. In Debt and Account by Executor, 'tis said, defendant may wage his Law, Et sic semble hic. 7 E. 3. 61.  
An Abbot is permitted to wage law of Non Sum' per Attornatum, quere If a common person may do so also, though he must make it in person. 8 E. 3. 20. a.  
Prohibition of a Suit in Trespass contra pacem, the Sheriff comes, and says he is sued not contra prohibitionem, on the attachment, and tenders Law; denied, for in Trespass contra pacem, it lies not, no more than in Count of a Receipt per altar manes; non allocatur, and that Law was received, and in 29. E. 3. 47. b. Debt lies and grant of a delivery of goods by the Testator, per altar manes, 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 alleging that he had passed it per altar manes, non allocatur. Vide 30 E. 3. b. a. Ley gauged, that he did not receive a Statute, Wine, and Cloth, in Satisfaction of a Debt, and doubted if it lie quoad the Statute; but the Clerk 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 jointly, and the debt disproved quoad one, the Writ is satisfied in toto, yet eodem folio. 6. in a Praecipe of Land against two, one makes Ley of non sum; the Writ abates quoad him, and Seizing 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 lies not in debt for Relief, 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 denied for peremptory; but the defendant pleaded all 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 all pais, without consent. 3 Bulstr. 263. Affidavit, that he was sick, yet no day, but he pleaded all pais, 3 Bulstr. 316. on default, Judgement, and no day. Ben. 151.  
Debt for Scavage, and declares that the Mayor, aldermans, etc. time out of mind, have so much for Scavage, and the defendant brought so many Board's, whereby so much was due; defendant waged Law, and on demurrer adjudged, it lies not on this debt grounded on a Custom Ma. etc. 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 waste, he in Remainder shall have an Action of Waste, but the Writ must be special, and show 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 Waste lies not, because the Wood was devised, and so not within the Statute. Dyer 19 a. 1 Leon 61.  
In Waste it seems, that the defendant, if he never attorned, may either say que riens passa, and give in Evidence that he never attorned, or plead it. Dyer 31. a. 231. a. b.  
In Wast, for cutting and selling Trees, the selling must be answered, as well as the cutting, for that is traversable. Dyer 75. b. 90. b. Co. 1. Inst. 53. Hob. 104.  
If an house be ruinous at the Lessee's Entry, 'tis no waist to suffer it to fall, but to pull it down 'tis, and 'tis waist in the Lessee to cut Timber to re-edify such an house, per Dyer; but I suppose not, for, if the house fall by Tempest, the Lessee may cut Trees to repair, by Co. 1. Inst. 53. b. 54. a. contrary to Dyer 36. a. Co. 4. Rep. 63. a. 11. 81. a.  
The general property of Trees remains in the Lessor, and the Lessee hath but particular Interest to take them; and in Dyer 'tis said, the Lessor cannot grant them without the Lessee's Licence. But Co. 11. Rep. 'tis said, 'tis good to take effect after the Lease; which is yet a doubt upon Waller and Pettit's Case. Dyer 36. a. b. Co. 4. Rep. 36. b. 11. Rep. 48. b. 81. 1 Cro. 199.  
Wast assigned, quòd amputavit & decapitavit quadragi●ta Fraxinus, & viginti Vlmas, and adjudged it well lies. 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 return of the Summons, 'twas said, quòd quer' obtulit se quarto die per Attorn ' without naming him; and though he was named in the assigning of the Wast, yet 'twas Error, and so it was that the Estate was not set forth in the Writ, though it was in the Action of Waste. Also, he shown 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 . And so of letting a Brick-wal fall, but it must be averred that it was covered. 1 Inst. 53. a. Dyer 108.  
Wast by a Bishop, moved to abate the Writ, because, 'twas ad Exheredationem ipsius Episcopi, where it should be ad Exheredationem Ecclesioe; but no Resolution given. Mich. 10. H. 7. Pl. 8. Ad Exheredationem ipsius A. B. & Ecclesioe de S. Mich. 42. E. 3. 22. b. Dyer 129. a.  
Lessee of an house and Wood, covenanted to repair the house at his proper Costs, and took Timber to repair it; he is not charged with Waste, 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 Waste, 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. Blow. Com. 29. Dyer 32 a.  
A. makes a Lease to commence in futuro, and before the Lease commences infeoffs B. The Lessee does waste, B. brings waste, supposing quod tenet ad terminum, etc. ex Assignatione A. de quo idem defend' tenuit, etc. and good, there being no other form, though he never held of A.; for his Term was never commenced in A's time. Dyer 206. b. Hutton's Reports, foe, 110.  
Lessor grants the Reversion to A. who grants it to B. the Lessee assigns the Term to C. Form of the Writ denied 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 hindered to fallen it. Quoere, what Remedy? Dyer 110. b.  
In waste assigned in taking a Furnace fixed to the Soil; 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 Judgement for the waist 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 Judgement, and before Execution, a Writ of Estrepement awarded. Dyer 325. b.  
In waist 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 none 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 showed, that all those Trees were so employed. Dyer 332. More pl. 246.  
A. and B. joint-tenants for Life, Reversion to B. make a Lease; they shall join in waist. And so if Tenant for Life, and he in Reversion make a Lease, they shall join, 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 Waste, 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, etc. that stand in defence of the house, and stubbing up a quick set Hedge, is destruction: for all which, an Action of Waste lies. 1 Inst. 53. I. K. L. M.  
To suffer a ruinous house to fall down, that was so at one's Entry, is not waste; ytt, he may take Timber and re-edify it: but if he pull it down it is waste. To destroy Glass, Wainscot, Doors, Furnaces, etc. fixed to the , is waste. Cutting Fruit-trees in the Orchard or Garden, is waist; otherwise not. If a house be blown down by Tempest, Lightning, etc. the Tenant must in convenient time repair it. Destroying the Stock of Dove-houses, Warrens, etc. is waste. Where Timber is scant, to cut Beech's is waste. Lopping Oak, Ash, or Elm, or any thing to prejudice Trees, is waste. Making Charcoal of wood is waste. Felling Timber to repair voluntary waist, is double waist. To dig for Gravel, Stone, etc. is waste, unless for Reparation of the house. To suffer a Sea-wall, or against a River, to decay, is waste. To take Timber, etc. to make new Fences, is waste. Tenant cuts Trees for Repair, and sells them, though he buys them again, and employs them, 'tis waste. Burning a house by Negligence or Mischance, is waste. 1 Inst. 53. 40. E. 3. 15. b. Willows cut in view of the House, is waste. 40 E. 3. 25. b. So to cut Hasels in a Wood where there is no other Timber.  
If one grants in his Leaf that Wast shall be redressed by Neihgbours, and not by Plea, yet he may bring an Action of Waste, for the place wasted is not otherwise recoverable. 1 Inst. 53. a.  
If the Tenant repair houses before any Action of Waste be brought, the Action of Waste 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 not Plea. 1 Inst. 55. D.  
None shall have waist, unless he had the immediate Inheritance, yet an other may join with him against Tenant by the Courtesy 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, etc. The Heir cannot have it of Waste in his Ancestors time, nor a Bishop of his Predecessor, nor shall Executors be punished for Testators waste. Aunt and Niece may join. 45 E. 3. 8. b. Gift to two and the Heirs of one, he that hath Fee cannot have Waste 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 waist done, the Action is gone, though taken back again. 1 Inst. 53. D.  
Wast lies against Tenant by the Courtesy, and in Dower, though they have assigned, unless the Reversioner have assigned also. All others shall answer for their own waist, unless Guardians. And if the Guardian assign it lies against the Assignee. Guardian shall not answer waist by an other, (because 'tis penal) unless he is Joynt-Guardian. If one recovers against him under Age, he recovers the Land, else only Damages. Infants, Feme coverts, etc. shall answer Wast, etc. done by Strangers, and she for her Husband. Co. 1. Inst. 53, b. 54. a.  
Husband Tenant for Life in his Wives Right does waste, she dies, 'tis dispunishable; but if tenant for years in her Right, not; because the marriage is a Gift of it to him. Tenant for Life grants his Estate on Condition, Grantee does waste, Grantor enters, Wast lies against the Grantee, and the place shall be recovered. Lord not punishable for waste done by his Villain before Entry, Occupant punishable generally or specially; Tenant afsigns, and takes the Profits, waist lies against the Tenant. Wast done sparsim in Woods or Houses, all is to be recovered. No Action of waist lies against Guardian in Socage, but Trespass or Account. 3 Cro. 357.  
If Lessee take Trees, etc. to repair houses, 'tis not waist, though he was not bound to repair them as his Lessor covenanted to repair them; for, if it was sans Impeachment of waist 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, waist is done, 'twas upon Condition, Lessee enters for Condition broken; Lessor shall have waist. So Successor of a Bishop shall have Wast on his Predecessors Lease, for waste done in time of Vacation. So if Lessee for Life be disseised, and waste 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 waist, as regularly he ought: but these cases stand upon their particular Reasons. 1 Inst. 13. b.  
The Aunt and Niece join in Action of Waste done in the old Sister's 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 Waste 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 Rend charge, and committed Waste, and the land recovered, the Rent had continued. Co. 1. Inst. 233. b. Perkins 844.  
Tenant for Life does waste, and grants over his Estate, Lessor releaseth all waist to the Grantee, it shall discharge the Lessee. Idem of Tenant in Dower, or by the Courtesy; 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 waste, and then surrenders; 'tis said, the Lessor shall maitain waist, but the Book seems to be misprinted, and that it should be [shall not maintain, etc.] 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 altar vie in Ass; he dies 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 Waste, 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 waist must be ad exheredationem. And note, that Release of actions real bar waist, and so doth Actions personal, for he shall not apportion his own Action. Co. 1. Inst. 285. a.  
One devices 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 waste, 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 waist. Hobard 234. Darcy against Ashwich, Hutton 190. 191.  
Lessee cannot change the nature of the thing devised, and therefore, not turn Meadow into Arable, or Wood into Pasture, dry up an ancient Pool, suffer a Park pale to decay, destroy a stock of Deer, Fish, etc. but may better a thing in the same kind; and therefore may dig to make a drain in a Meadow. Ibidem Owen 66. 67. Hutt. 103. Dy. 37. a. Co. 1. Inst. 53. 2 Leon. 174.  
Lessee builds a new house, 'tis waist 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 courtesy were punishable for waste by the Common Law? Or not. Vide Co. 2. Instit. 299. 145.  
The first Statute that gave prohibition of waist and damages against Farmers, was Marlbcap● 23. And where the Statute says vastum etc. non facient, 'tis to be understood also, non permittent vastum; and so 'tis in the Condition of a Lease. Co. 2. Inst. 145.  
None can claim to be dispunishable of waist in a particular Estate, but by deed, because, 'tis the Lessor's disherison, Co. 2. Inst. 146. Dy● 281. a.  
Lessee of a Manor commits waste in a Tenement escheated, the Lessor shall declare in waist of a Lease of the Tenement, and maintain it by special Matter. Co. 2. Inst. 146.  
At the Common Law, to prevent waist by Guardian, Tenant in dower, or by the Courtesy, 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, etc. 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 waste, 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 waste, the Wife dies, the waist is not punishable, because the Husband held not, but in his Wife's Right, and the Estate was here's. Clifton's Case, ibidem. Co. 5. Rep. 75. b.  
Although Tenant in Tail after possibility of Issue extinct be dispun. of waist, 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 Gloucester, 1. 5. Executors shall be punished for waste 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 waste, 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 waste; the Action lies 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 lies against the Assignee. Co. 5. Rep. Saunder's Case.  
Lessee commits Waste, and then assigns; Wast in the Tenant shall be maintained against the Lessee, and the place wasted, and triple Damages shall be recovered against him. Non Tenure general is no Plea in Waste but special non Tenure is. Assignment, and no Waste 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 Waste; as where he is ousted by Cotssee of a Statute entered into before his Lease, and that Cotssee does waste, or by any precedent Title, ibid. 303.  
Feme Tenant in Dower of a Manor and Copy hold, commits Waste, the Action lies against the Tenant in Dower. Ibid. 303.  
Femes' Coverts, and Infants shall answer for Waste done by Strangers, though some have held the contrary; and so shall the Wife for waste 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 Waste 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 Waste done to the Ancestor, because the damage belongs not to him; yet, if two parceners be, and waist is done, and one of them dies, and waist is done again, one Action shall be maintained for both, and the Writ shall say, both Wastes were to both their Disherison, but the Judgement shall be for the place wasted to them both, and for the damages severally in their several Tenors. Ibid. 305.  
Guardian shall not be punished for Waste done by Strangers, unless it be such as he might have prevented, and would not; for than qui non prohibet, jubet, ibidem 305.  
If the Gnardian commit Waste, he shall by Glove ' 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 Waste, or had not notice of it, than he shall recover triple damages upon the said Statute, as a common person shall. Ibidem 306.  
Wast upon the Stat. of Glouc' Ca 5. lieth not in Ancient Demesne, because they cannot award a Writ to the Sheriff, to inquire. Ibid. 306. Owen 24. contra.  
In an Action of Waste by two in the Tenuit, if one relinguisheth, it bars both; not so of an Action in the Tenet. Ibid. 307.  
A. has B. and C. in his Wardship, Ratione Custodiae, and commits Waste 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 Judgement; 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 though the Statute says, Du Tenement in demand, yet in the Scire Facias to execute a Fine in a Quid juris clamat, or in Waste, 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 lies before or after Judgement in Waste, and the Sheriff may take the Posse Comitatus, to prevent the Waste. 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 Waste against the Escheator or Sub-Escheator, if they do waste in any thing that comes into the King's hands, with a Respondeat superior'. Co. 2. Inst. 571.  
Wast may be in destruction 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 lies, In Domibus pro non escurando, etc. Ow. 43.  
To stub up Thorns is not waste, 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 Waste by him in Remainder therein; though in the Dr. and Stud. 'tis said, if Feoffment be to one for Life, he is not punishable for Waste. Ow. 91. 25 Eliz. Com. Banco, Rot. 603. Rayer con' Durat.  
One entered into Bond not to commit Waste, 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 lie upon a Recovery by default in a Writ of Waste, against Tenant in Dower, etc. 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 Waste; the Lessor shall have waist against Lessee; and so if Lessee assigns, and continue in Possession, and does waste, the waist shall be against him. Ow. 141.  
When the Writ to inquire of waist is Awarded upon Nichil dicit, there the Command in the Writ, that the Sheriff go to the place wasted, and inquire etc. is but Surplus; and the Sheriff needs not go thither but may inquire of it in any place in the County, because the waist is confessed; but if the Writ be to inquire 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 Waste lies: and so if Lessor have but two third parts of the house in which the waist is done, he shall assign waist to be done in the whole; for it cannot be done in part, but 'tis to all, and though not in all, yet it goes to each part. But 14 H. 8. where one lets several Leases of the same Lands to one person, not one, but several Actions. Pop. 24. 25. 3 Cro. 290. 14 H. 8. 12. b.  
Lease for Life without Impeachment of Waste, Lessee has an Interest in the Trees, etc. 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 inquire is not to inquire of the Wast, as it is when the Judgement 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 waste; but building a new house is, because it puts the Lord to more charge; and so is planting a Hop-ground, because it altars the Lord's Inheritance. Dyer 361. b. Hutton 19 103. Hob. 234. 1 Inst. 53. f.  
By Fitzh and Baldwin, Ch. Inst. One joint-tenant shall have Wast against his Companion by the Equity of the Statute, cum duo vel tres, etc. but not Parceners, because they were compellable to make Partition: and not denied. 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 Judgement 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 Waste. 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 moiety of the place wasted, and the Moiety of the damages & quoad, the Willows Assize for waist, Cur' advisari vult. P. 12. E. 4. Pl. 1.  
If one does waste, and repairs before Action brought, he may plead it and excuse himself; but, if the Condition of a Bond be not to do waist, and he does waste, and re-edifies, yet, Debt lies, for the Bond was once and ever forfeited. 20 E. 4. 18. b.  
Lessor sells Trees, Vendee cuts them; Lessee's  eat the Germines, no Waste, for he not bound to fence them in, against the Lessor's own tortuous Act. Tr. Mo. 9  
Lease for years, Remainder for Life, Tenant for years does waste, Action of Waste lies. So if Lessor covenant that he will not sue Lessee for waste within two years, yet after the two years, he may sue him for waste done within them. But if Tenant for Life be, Remainder to Baron and Feme in special Tail, Feme dies without Issue, waist lies 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, Waste lies. Co. 5. Rep. 76. b. Mo. pl. 64. Co. 5. Rep. 76. b. 2 Cro. 68 b.  
Tenants in Common cannot join in Waste in the Tenet, but joint-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 waist 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, etc. if not done by sudden violence; as if a small breach were, and he permits it grow greater, it seems waste, Et per omnes, the permitting Decay in the Banks of the River is waste. 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 died not seized, so she cannot have damages; yet it seems Etrepement lies not, because Damage lies in the Action. Mo. Pl. 186.  
Wast, and the Writ was quod fecit vastum in terr' In the Count assigns waste in cutting Trees; and adjudged, it maintained not the Writ, but if it had been assigned of digging Clay, etc. it had. Mo. Pl. 200.  
Waste and Count of Waste done contra prohibitionem, after the Estrepement sued upon a Formedon, Defendant pleads Quod non fuit vastum contra prohibitionem. Issue; Verdict, and Judgement pro querente. Mo. Pl. 1. or 245.  
'Tis Waste to take away a Partition, etc. fixed by the Lessee to the ; 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 Jointure of third part, makes her Jointure of a third part undivided. And this held by Popham, not according to the Power, which was to be sans impeachment of waist, and against the Tenant in common waist lies not: so it should have been done in Severalty, by Popham fo. 374. But that is denied by Mo. fo. 387. 388. And that waist lies against the Tenant in Common, of a third part also, by Popham, the Proviso being to do it, Sans Impeachment, etc. And he makes an Estate for Life, with Remainder, 'tis disjunctive by reason of the Remainder; whereto, More answers, that 'tis but the effect of the Law, not the word of the Party, and then Remainder were created before; so he must make it by operation of Law, Sans Impeachment, etc. or make none: Also, 'tis not eadem sans Impeachment, etc. 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 satisfy the Statute, Perrot's Case. Mo. Pl. 506.  
Tenant for Life Remainder for Life, though Wast in the Tenant for Life be dispunishable, yet the Chancery will by Injunction bind him to do no waist; and such a Precedent cited temps. R. 2. Mo. Pl. 748.  
Error to reverse a Recovery in Lancaster, and pendant it a Writ of Estrepement granted, and so resolved 'tis grantable in a Scire Facias. Holland, etc. against Jackson and Ogden, & sic vid. 2 H. 6. 13. Estrepement granted in Scire facias, on a Judgement in a Formedon. Mo. Pl. 850.  
Resolved, that great Birch is used in the Country as Timber, and esteemed in Law as Timber, and 'tis waist in the particular Tenant to cut them; and so in Cro. are black Thorns in some Countries. Countess of Cumberland's Case. Mo. Pl. 1099. 1 Cro. 283. 2 Cro. 126.  
Writ of Waste in two Towns, Count of Waste in three Towns ill; but è contra, if less be in the Count, than is in the Writ, 'tis good pro tanto. Earl of Cumberland against Countess Dowager Cumberland. Mo. Pl. 1185.  
To convert a Horse Mill to a Hand Mill, or a Corn Mill to a Fulling Mill, is, though it be better for the Reversion, and the reason seems, because it altars 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 opinion, 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 waist 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 reunited, 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, though in the Lessee's own setting up, fixed by Nails or otherwise; and so in Wainscot, set up by the Lessor or Lessee, and fastened 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 waste, and then assent to the Legacy, Wast lies against them in the Tenuit; and so if the Grantee on Condition do waste, and then the Grantor enters for the Condition, yet wast in the Tenuit lies 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, 'tis waist 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 lies against an Occupant, for he is within the words of the Statute, for he holds, Pur Term de auter vie, and it is against all Tenants for Life. But it lies 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 Waste accepts a Confirmation for Life, the Privilege 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 Waste per parol; mult' alter●at', and not resolved whether the Privilege be good without deed; but resolved, if the Privilege be void without Deed, yet the Estate is good, as an Estate without the Privilege. 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, etc. Lessor confirms his Estate for Life, the Term is merged, and he punishable for waste, so lease pur altar vie, Sans Impeachment, etc. Remainder in him for his own Life, it merges his first Estate, etc. he is bare Tenant for Life, punishable for waste. Co. 11. R. 83. b.  
Term expires, Lessee continues in Tenant at Sufferance, and does voluntary waist, his Lessor also being Tenant for years, brings Action upon the Case; and adjudged it lies, and not Trespass, as objected by Littleton it ought to be, and the rather here, because the Plaintiff being but a Termor, subject to Waste, aught 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 Judgement in waist 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 inquire, and they not an Inquest of Office, as Writ to inquire of Damages for Attaint lies; 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 waste in some things, and no Waste 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 waste, not succidendo and vendendo, unless they grow in places for defence of , and it be so averred. 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 waist done, ad exhered ', 'tis found, that the Defendant was Lessee for years, Remainder to D. Sans Impeachment of Waste, who is dead; and if the waist was committed in the Life of B. yet good amover, for, though then no Action lay, and B. might have licenced him to do waist, yet now he may count of it, as Waste immediately done to himself. Bray against Tracey. 2 Cro. 688.  
Wast, and Counts of a Lease for Life, Defendant pleads, 'tis part of an Hospital whereto the Plaintiff presented him for life; it seems it lies not, for he is in from the Foundation, and though in but for Life, the person has the time, no Reversion in him. 21 H. 6. 2.  
Wast by an Abbot, and Counts of a Lease by the Predecessor, and assigns waste general, without saying whether in the Predecessors time, or his own; and good, for were the waist committed in the Predecessors time, the Successor shall punish it, and so is 42 E. 3. 22. And if the Predecessor had released it, yet the Predecessor may punish it; for, being in the Realty, the Predecessor could only release for his own Life. eod: Libr. E. 3. yet there 'tis doubted, if an Agreement had been made with the Predecessor for the waist, if it had not been a Bar. And in 21 H. 6. where one justifies to cut Ashes for Firewood could be had, and that per Curiam; yet note in the end of the Case 'tis pleaded, and that no under-wood was there. And in this case 'tis held by some, that Ashes, Oaks, etc. under twenty years' growth, may be taken for Fire-boot, etc. but denied by others, for they are Ashes, and 'tis held, that Lessee Sans fait may take House-boot, etc. 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 waist; and so seems Dyer 198 b. 124. a 24 H. 6. 46. 47. 48.  
The Summons, Attachment and Distress, all returned, nihil, and whether a Writ to inquire of the Waste shall be awarded, no Writ being returned, served, or an Alias distringas, multum dubitatur, & alter catur; but at last the Writ was awarded, To inquire of Waste, vide 41. or 14. H. 6. 2. b per Roll. If Baron and Feme Tenants in Common of a Term be, and waist is done, waist lies against her after his Death, quod alii concesserunt Trau. denied. Et vide F. N. B. 59 Baron and Feme Tenants for Life, she shall not be punishable after his Death for Waste done by him 46 E. 3. 25. vid. Case. 21 H. 6 56. a. b. H. 6 25. b.  
Waste, and assigns waste in cutting down so many Oaks, and in cutting down the Springs that came up from the Roots again: Resolved, this is double waist, and so may be double Assignment, and is not a double Assignment of the same waist, and triple Damages shall be given for each cutting; though by some it can be recovered but once, 2 H. 12. a. b.  
Tenant in Dower, or by the Courtesy, grants over their Estate, yet the Husband shall maintain an Action of Waste 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 Waste, one releases; it bars both, if it be in the Tenuit, wherein Damages only are to be recovered, not if in the tenet, where locum vastatum, is to be recovered also. Co. 1. Inst. 355. b.  
In Co. 1. Inst. 'tis held of one side, and denied by the other, that an Attachment lies upon an Inquiry of waist. But 1 Cro. 'tis held clearly, that it does. And F. N. B. fays it was foe resolved by the Court, 2 H. 4. But his Opinion is contrary Co 1. Inst. 355. b. 1 Cro. 299. F. N. B. 107. c.  
The Reversion must continue in him that brings the Action, at the time of the Action brought, because 'tis said, Ad Exheredationem, and it must be in him at the time of the waist done, unless in special Cases; as Tenant for Life makes a Feoffment on Condition, Waste is done, and he enters for the Condition, Lessor shall have waist, foe if Lessee of a Bishop commits waste in time of Vacancy the Successor shall have the Action; so if Tenant for Life be disseised, and waist is done, and the Tenant reenters, Lessor shall have waist, yet he had no Reversion. Note, 'tis no plea for Lessee in waist, to say generally that Lessor had no Reversion, etc. but must show how he lost it. But in waist, by Assignee of the Reversion, such Plea general is good, vid. 39 E. 3. 19 20. Wast by Successor of a Bishop, or waste 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 waist for waste done in the Predecessors time; or if a Bishop, Parson, etc. that can make Executors. Vid. 71 E. 3. 53. b. 43 E, 3. 8. 49 E. 3. 26. Successor of an Abbot, not chargeable for waste of a Predecessor.  
In waist, 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 seized, (so it might be for Life) yet being ad exheredationem, and that alleging of Seizing 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 lies. Sackervil against Bagnell. Con. to Dr. and Student. Co. 3. Cro. 356. 357.  
In waist, 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 lie in this Action, though it do in Writ of Entry, etc. 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 satisfy him if he pull down his Houses; granted. Wright against Percy. 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 Judgement 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 field against Dennis. 3 Cro. 722.  
A. let's to B. B. assigns to C. and D.; D. assigns to E. except the Trees, then 'tis enacted by Parliament, that the Heir of the Body of A. shall have the Land, A. being dead, leaving three Daughters who took Husbands, one of them dies, the other two and their Husbands quit; the Tenant by the Courtesy brings waste against C. and E. in the Term, the Term being ended, adjudged first the Writ good, notwithstanding the settling the Estate by the Statute, without showing the special Title; and secondly, without joining the Tenant by the Courtesy, because he not entitled to the Damages non locum vastat: And thirdly, the Writ supposes quod tenuerunt, which implies a joint-tenancy, now they appear Tenants in Common, good, because the Land at first one and entire; but if waist 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, waist is committed, they shall join and Tenant for Life recover Locum vastatum, and he in Reversion the damages, Lessee for Life Sans Impeachment, etc. 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 waist, Semble non per Anderson; for they were excepted, whereas great, and not only what were great at the time of the Lease. Garrock versus cliff. 1 Leon. 61.  
A. let's to B. for years, and during the Term, let's to C. for years by Indenture to commence presently; B. commits waste, A. brings a Writ against B. the Defendant cannot plead nul waist, 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 waste, he in Reversion shall maintain an Action of waist 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 outside of the wood, 'tis good, without entering and viewing of every part, and so of a house; otherwise, if the waist 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 dies, she commits waste, the Writ must be general, Quas tenet de hereditate, etc. & 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 waist, 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 dies, quaere, whether B. may cut the Trees, not agreed; but ' 'tis agreed, that the Clause Sans Impeachment gave an Interest, and A. might have done what he would with the Trees, but not his Executor after his Death, because it was an Interest annexed to his Estate, and determined with it: the doubt of the Remainder chief 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. etc. as before.  
Lessor brings waste against Lessee for Trees of the Plaintiff, the Lessor himself cut them; 'tis a good Bar, and therefore in Trespass by the Lessee against Lessor for the cutting, he shall recover only for the Fruit and Shade, because not charged over, as if a Stranger had cut them he should. Co. 13. r. 96. 70. M. 10. H. 7. Pl. 3. 2 E. 4. 2. or 7. b.  
In waist for digging Gravel, Defendant justifies by. Command of the Lessor, no plea, for 'tis the Lessee's Land pur temps, not the Lessors, so he could not command him; also, 'tis per parol, and without Deed, and against the Tenant for Life, yet dict. such a Command to cut Trees, good, because not the Lessee's but Lessor's: and that is agreed in Co. 11. R. 48. b. H. 2. H. 7. Pl. 20. M. 10. H. 7. Pl. 3.  
Feoffee to use, Cestuy que use, makes a lease for years, according to the Statute R. 3. The Reversion remains in the Feoffee, for the Statute does but give Authority to Cestuy que use to dispose; as where one wills that his Executor shall sell, if Lessee commits waste, the Feoffee shall bring the Action, though no Privity; because they could not have any; so shall the Lord in Escheat maintain Waste, yet he had not Privity. Mi. 5. H. 7. Pl. 11. H. 8. H. 7. Pl. 1. Tr. 26. H. 8. Pl. 131. or 31.  
'Tis waist to pull down, or suffer a wall to go to Ruin, be it made of Wood, Mud, or Stone, or be it within the house for Separation, or without for Enclosure; so to destroy wood of hazel or willow, not to cut them Husbandly. To cut Fruit Trees in an Orchard, and destroy them, is waist, not if they grow in Hedges and Closures: and if a house be ruinous at the Entry, 'tis no waist to suffer it to decay; otherwise, if not ruinous at the Entry, but where 'tis held, ploughing Meadows is no waist, 'tis no Law. Hob. 234. Ow. 66. M. 10. H. 7. Pl. 3. 4.  
In an Action of Waste 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 Judgement in waist, one may have a Writ of Estrepement, or in any Suit where no Damages are to be recovered; but not Scire facias, of waist committed after the first Scire facias, because he might have had Estrepement at first: But for waste after Estrepement, a Scire facias lies to show Cause why he committed the waist; and a Scire facias lies in Assize for waste done after Judgement, not before Judgement, 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 Judgement in Assize, 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 Judgement, etc. 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 lies.  
Lessee does waste 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, Fats, Posts, Rails, etc. fixed to the  by Lessee for years, 'tis h●ld by some, that if he remove them during the Term, 'tis no Waste, 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 Waste; it is not pleadable in Bar, but to bind as a Covenant. Vide divers such Cases, 21 H. 7. 30.  
Tenant for life grants his Estate to one Parcener in Reversion, and her Husband, 'tis no Surrender; and if the Baron and Feme do waist, 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 waist by Lessor, the Lessee pleads not guilty, and gives in Evidence, a grant to cut etc. to repair etc. And per Brook, Pollard, and eliot, it was no waist, but aught to have been pleaded, and not given in Evidence, for thereby the Advantage thereof is lost, Ad quod Bradnet concessit, but held it waste, but not punishable Waste; and he held, that if a Lessor covenant to repair, and do not, Lessee may do it; and deduct it out of the Rent. And if one covenant to repair a ruinous house, if he do not, 'tis waste, 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 Waste; Lessee suffers Posts, Pales, etc. to decay, it is waste. Trin. 12. H. 8. Pl. 1. or 4.   

Wills.  
will'ls and Testaments were originally proved at the Common Law, as Perkins confesses. and Leonard says, they are by the Courtesy of England proved in the Spiritual Court, not the communi jure, nor in other Nations; and in divers Manors, the Lords have the Probate at this day. Co. 5. Rep. 73. b. 16. a. 9 Rep. 38. a. 5. Rep. 30. b.  
Issue at Common Law, for Lands devised by Will, and the question, whether a Will or not; and now they moved at the Spiritual Court to it, which will blemish the Evidence at the Common Law; wherefore, prohibition prayed, but granted only quoad the lands, and that it be proved quoad bona. Hill against Thornton. 1 Cro. 118.  
Debt on a Bond, conditioned, he permit his Wife to make a Will to the value of 50 l. and 'tis found on Issue, Nullum fecit voluntatem, etc. that she did make a Will of 50 l. but was covert, 'tis for the Plaintiff; for, though properly a Feme-Covert can make no Will in Law, yet 'tis a Will within the Intent of the Condition, and the Husband is bound to perform it. Marriot vers. Kinsman. 1 Cro. 159. And so Tilly and Parryes' Case, 273, 274. Bond to pay 300 l. to such Persons and U●es as the Wife should appoint▪ she appoints in form of a Will, he is bound to pay it. And 433 Bond to permit her to make a Will, and pay, etc. Plea that he permitted, etc. without pleading payment, not good.  
Action upon the Case, lies not for Nonpayment 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 Judgement: 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, etc. 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; Praemunire, or Forgery upon 5 Eliz. or Felony, or that has stood in the Pillory, lost his Ears, been stigmatised, etc. 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 Trial 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 publicly, by Examination in Court, not privately to his Fellows. Styles Rep. 233.  
Bail for the Defendant being a Witness for him, upon motion was taken off the File, and new Bail filled. 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 Client, was denied to be examined on the other side; for he shall not be put to discover the Secrets of his Client's Cause. Idem 449.  
Debt on 5 Eliz. 9 because the Wife did not appear, whereas he served her, and tendered to her, her Charges, etc. to his Damage. And though not laid what Damage, yet being for the 10 l. upon the Statute, not for his damages for her not appearing, and a Feme Covert being within the Statute, 'twas held good enough. 3 Cro. 130. 1 Leon. 122. Note, she being the person who was to appear, the Charges are to be tendered to her or her Husband. jidem ibid.  
Debt for 10 l. against a Witness, that being Subpena●d, appeared not; moved first, 'tis not showed that the Subpena was left; resolved, it needs not, for it might be for more Witness. 2. There was but 12 d delivered, but resolved, since he promised to pay the rest, and the Witness accepted the 2 d. 'tis good, else the Witness had not been b●●nd till the whole Charges had been tendered. 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 Penalty, and not for the Damages over. R●●olved, it lies not. 1 Cro. 376. 388.  
Judgement stayed, because the Verdict was had upon the Testimony of one Witness, and he since convict of Perjury in the very same thing. Pasch. 17. Car. 2. Banco Regis.  
In Deceit for forging a Will, one that took a Legacy by the same Will, was allowed and sworn as a Witness in a Trial 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 compel him. Mich. 13. Car. 2. B. R.  
A Councillor may be examined as a Witness against his Client, so far as it is of his own Knowledge, not what he knows by the revealing of his Client. Pasc. 15. Car. 2. B. R.  
One shall not justify 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 endorsed to the Livery upon a Feoffment, having part of the Lands as Tenant at Will, was allowed as a Witness in the Trial on the Feoffment, afterwards in a Trial 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 lies 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 lies. Pasch. 5. Jac. B. R. Dame Morison against Case, adjudged.  
If a man says to J. S. Thou art a Whoremaster, 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. etc. 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 mar thy Marriage, by which she loseth her Marriage, an Action lies. Trin. 22 Jac. B. R. Tonson against Spring; adjudged upon Arrest of Judgement.  
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 Physic for it; whereby, she came into Disgrace, Et perdidit consortium vicinorum suorum, etc. Although that it be not alleged, that she lost any Marriage thereby, yet the Action lies. Mich. 21. Jac. B. R. Medhurst against Balam; adjudged in Arrest of Judgement.  
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. etc. 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 lies. Mich. 8. Car. B. R. Southal against Dawson; adjudged in Arrest of Judgement.  
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, etc. 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 lies 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 Basin 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 Basin tinged before thee; the Action well lies upon this Declaration for these Words. Trin. 15. Car. B. R. hassel against Capcot; adjudged in Arrest of Judgement.  
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 Judgement.  
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 scandalise 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 parishioners 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 scandalised, and hindered 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 lies, notwithstanding he doth not show 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, though to his Soul, and spiritual. Mich. Car. B. R. Barnabas against Traunter. Adjudged in Arrest of Judgement.  
If a man saith of another, who hath lands by descent, That he is a Bastard, an Action upon the Case lies, 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 intent 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 lies 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 Judgement.  
Where there was Grandfather, Father, and Son, and the Son brought an Action upon the Case, and declared that the Grandfather (whose heir he is) entailed certain Lands upon him and the Heirs males of his Body, and the Defendant intending to scandalise his possibility that he hath to inherit this Land, as Heir of the body of his Grandfather, said that he was a Bastard, notwithstanding that the Grandfather and Father were alive, yet the Action brought as above by the Son did lie. Humfries Case ubi supra.  
In an Action upon the Case, if the Plaintiff declare that he exhibited Articles in the King's 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 averred that the Oath was taken of Record; yet the Action lies, for it shall be intended the Articles exhibited in Court, and sworn before a Justice of the Court. Mich. 10. Car. B. R. yoleden against Wannel. Adjudged in Arrest of Judgement.  
If a man saith of an other, He hath written a forged Will, wherein I will prove him , forsworn, and perjured, in a Will that he made of John Hunt; an Action lies for these words, for it shall be intended, that he was perjured 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 Session's House; an Action lies for these words, although it was objected in Arrest of Judgement, 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 lies 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 perjured himself with J. S. (a Stranger) Action lies. Mich. 9 Car. in Camera Scaccarii. Adjudged in Writ of Error.  
If a man saith of J. S. I will prove J. S. forsworn, and that ten men can justify; and I could prove him perjured if I would. The Action lies not for the first words, but it lies for the latter; for it is a great Slander, to be reputed that it is in the power of any man to prove him perjured. 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 perjured or else I will bear his Charges.] Action lies for these words, although they are spoken conditionally to bea● his Charges, if he did not prove him perjured. Mich. 37. 38 Eliz. Woodroffs Case adjudged.  
If a man saith of an other, That he was perjured, and he would prove him so by two Witnesses. Action lies for these words, although he doth not say in what Court he was perjured, or how. Trin. 39 Eliz. B. R. Rayners case adjudged.  
If a man saith to an other, Thou wast perjured in a Court of Tottenham, Action lies, 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 waste indicted by twelve men, and hast compounded for it, Action lies, 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 Judgement.  
If a man saith to another, Thou art a forsworn Knave, and I will prove thee forsworn in the Ecclesiastical Court. Action lies 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 lies, 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 married man He hath had two Bastards thirty six years ago, and he should pay for keeping of them: no Action lies, although he aver that by force of those words there was Contention between him and his Wife, and he was in danger to be divorced, for there is not any temporal Loss, and the Offence was pardoned by many general Pardons, it being 36 years before. Pasch. 16. Jac. B. R. Randal against Beal; adjudged in Arrest of Judgement.  
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 lies 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 Chapel; no Action lies for these words, although 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 Judgement.  
In an Action upon the Case, if the plaintiff declare, that whereas divers persons conabantur & desiderabant, to marry their Cousins and Friends to him; the defendant (being a woman, on purpose to scandalise the Plaintiff, and to hinder him from marrying with any Woman) preferred 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 falsely and maliciously, whereby the plaintiff was so much scandalised, 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, etc. 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 scandalised 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 lies not upon this special Verdict, because here doth not appear any malicious Prosecution, and here there is not alleged 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 Cousins to him, is too general. Mich. 11. Car. B. R. int●r Norman and Simons, per Cur. Adjudged in the Exchequer Chamber, and the Judgement given è contra in B. R. reversed accordingly.  
If a man saith of another that hath Land by Descent, that he is base born, no Action lies; 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 lies, 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 lies, 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 Judgement, and the plaintiff never had Judgement 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 prejudiced in bargaining and selling, and put to great Expenses for the clearing of himself in hac parte; the Action lies 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 replied, The Quean hath been too long to my Cost. No Action lies 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 Judgement.  
If a man saith of another, He was the true Patron of the Advowson 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 lies, for by the Simony 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 Judgement.  
I● a man saith of an other, He hath forsworn himself; no Action lies for these words. Pasch. 40. Eliz. B. R.  
To say to a man, Thou hast forsworn thyself Leak Court, no Action lies, without showing 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 (inevendo the plaintiff) 46 s. worth of Tithes in Canterbury Court, no Action lies for these words, for there are divers Courts in Canterbury, and it is not shown 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 lies upon this Declaration, because that it is not alleged, that S. is within the Soak of Geton, and so peradventure, the Court was held out of their Jurisdiction; and also, because that it is not alleged 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 lies for those words, though he aver, that there was Communication between them of the matter at the Assizes, 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 Assizes. 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 lies, 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 Assizes at Hereford, against J. S. No Action lies for these words, without an Averment, that it was at a Trial or before the Court or Jury; for it might be at the Assizes 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 lies for these Words, because it only expresseth his Opinion and Judgement of him. Trin. 4. Jac. Inter Hake and Molton, adjudged.  
If a man saith to J. S. Thou art a scurvy bad Fellow, and hast done that thou deservest to be hanged. No Action lies. Mich. 11. Car. B. R. inter Fisher and Atkinson; adjudged per Cur. in arrest of Judgement. after Verdict for the plaintiff.  
If a man saith to another, You are no true Subject to the King, no Action lies 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 lies. Mich. 41. & 42. Eliz. B. R. adjudged.   
FINIS.   

THE TABLE.  

Abatement. 

WHERE the Death of one of the Parties, after Summons and Severans, shall abate the Writ, and where not. page 1, 2.  
What shall be a good Plea to a Writ, what not. p. 2, 3.  
In what Cases the Writ shall abate de facto. p. 4.  
What Pleas shall abate the Writ in the whole. and what in part. p. 5▪ 6, 7, 8, 9,  
What Pleas in Abatement go only to the person, and what to the Writ or A●tion. p. 9, 10.  
How matters of Record shall be pleaded in Abatement. p. 12. 13.  
Who shall be admitted to plead in Abatement, who not. p. 14.  
Where the Writ abates in part by the Act of the Court, and where by the Parties Confession. p. 15, 16.  
That a Defendant or Tenant cannot abate a Writ by his own Act, but the Act of the Plaintiff or Demandant, Act of God, or of an Estranger may abate the Writ. p. 17, 18, 19, 20.    
Ab Initio. Where the Grant shall be good Ab Initio, although it was incertain at the Commencement. p. 20, 21, 22, 23.  
Able and Disable. Where an Obligee was able at the time of the making the Obligation, and afterwards disabled by his own Act, & è contra. p. 23, 24.  
Acceptance. Where it shall be no Prejudice to the Acceptor. p. 24.  
Action. 

Where the principal thing is devested, yet the Plaintiff shall have an Action, which is accrued to him, by reason thereof, ibid.  
Where the Husband shall have an Action without naming his Wife, and where not. p. 25, 26, 27, 29, 33, 34.  
Where the Plaintiff hath Election to bring his Action against the Heir or Executor. p. 27.  
Bill teneri etc. in 20. l. solvend. in Watches, Action shall be brought for the Money, not the Watches; but if the number had been expressed, contra. p. 28.  
Assault and Battery and Ejectment, will both lie in one Declaration. ib.  
Of bringing Actions of Trespass, and what words are most proper to be used therein, upon several occasions. p. 28, 29.  
How Executors, and Executors of Executors, shall sue and be sued. p. 29.  
Of bringing Actions of Covenant. p. 30, 31, 32.  
Of Infants bringing their Actions. p. 32, 33.  
Where several things may be put into one Declaration. p. 35.  
Of bringing Actions upon the Statute. ib.  
Where a man shall have an Action against his own Deed. p. 36, 37, 38.  
Where a man hath good cause of Action sometimes, and yet by matter ex post facto, and by the Action of a Stranger his Action is destroyed. p. 38, 39  
Of bringing Actions upon the Case, Sur assumpsit. p. 40, 41.    
Amendment. 

In what Cases the Court will suffer an Original Writ, Venire Facias, Quare Impedit, Habeas Corpora, or Writ of Nisi prius, etc. to be amended. p. 43. to 51.  
Misprisions of the Clerk, no Errors; shall be amended. p. 45, 46.    
Appearance. 

The Defendant having given Bond to the Sheriff to appear, if supersedeas comes to the Sheriff before day of Appearance, yet he must appear to save his Bond. p. 51.  
By W. 2. a man of 70 not bound to appear upon Juries. ibid.    
Annuity. 

Grantee in Annuity pro Consilio, etc. not bound to give Counsel to the Grantor, unless required. p. 51.  
How to declare in Annuity. p. 52.    
Arbitrement. Where good, where not. p. 52, 53.  
Audita Querela. 

Brought by an Infant who was non-prosed, and why. p. 53, 54.  
It lies upon Nihil Facias, not Scire Facias. ibid.  
Brought by Conusor in Stat. Merch. against Administrator of Executor of the Conusee, after Release. p. 54.    
Avowry. 

Avowry for Amercement in Court Baron, ill, and why. ibid.  
Set forth in Avowry, that Dean and Chapter were seized in Jure Ecclesiae (not saying in Fee) ill, and why. ibid.  
Pleading in Avowry, Damage pheasant, and on a new grant. p. 55.  
Exceptions to an Avowry, by an Executor. ibid.  
Costs to Avowant. ibid.  
Judgement for Avowant reversed, and why. p. 56.  
The Lord hath Election to avow at Common Law, or upon the Statute, and which most beneficial. ibid.  
Avowry for two Sums nomine penae, without alleging Demand of Rent, insufficient, etc. ibid.  
Donee aliens, Donor cannot avow upon Alienee. ibid.  
Avowry adjudged ill upon Demurrer, and why. ibid.  
Stranger to Avowry shall plead nothing but horse de son fee, or matter tantamount. p. 57  
Stranger to Avowry cannot disclaim, nor any person in altar droit. ibid.  
Five things to be known in Avowries. p. 58, 59  
Where, in Avowries the Defendant shall answer to the Seisin, and where he shall traverse. p. 61.  
Where the Effect of the Fee shall be traversed. p. 62.    
Bail. 

UPON Latitat. 64. Upon Capias, ib. for Husband and Wife, ib. Upon Writ of Error. p. 65.  
Difference of being Bail in King's Bench, and Common Pleas. ibid.  
Bail sells his Lands, if chargeable. p. 66.  
If one puts in Bail to a Debt, in C. B. and be afterwards arrested in London for the same Debt, he shall have an Attachment. ib.    
Bankrupt. 

Creditors (after refusal) may upon Tener of their Proportions towards the Charge of the Commission, be received to have their parts, as other Creditors, if no Distribution hath been made of the Bankrupt's Estate before. ibid.  
Commissioners may sell Bankrupt's Goods, if by him before disposed to his Creditors, after he became Bankrupt. ibid.  
They may sell his Copyhold Lands. p. 67.  
Two brought Debt jointly, as assigned to them by Commissioners, per Cur. they ought to have assigned pro rata to every Creditor. ibid.  
A Bankrupt cannot sell his own Goods after he becomes Bankrupt, but Goods which he hath as Executor, or a Legacy before it be invested in him, or a Grant of a Reversion before Entry, he may. ibid.    
Barr. 

A man may be barred pro tempore, and yet afterwards he shall have his Action. p. 68  
To plead a thing by way of Bar or Estoppel, which the Demandant or Plaintiff is to defeat or destroy by the Usage of his Action, is no good Plea. ibid.  
Of pleading Recoveries in Barr. p. 69.  
Where a man demands a Debt, or any thing by Deed, he shall not be barred, but by Deed, or something of as high Nature. p. 70.  
Where a man shall plead a Bar which shall comprehend one matter in Fact, and where it shall comprehend more, p. 71.  
Of Barrs perpetual, ibid.    
Cinque-Ports. 

HOW Lands shall be extended in the Cinque-Ports, p. 72.  
Customs and Prescriptions.  
Customs against Canon Law, how to be tried, p. 72.  
Customs payable to the King by the Common Law, and why, ibid.  
Difference between malum in se and malum prohibitum, ibid.  
Bailiff ought not to sell Goods taken in Execution for Debt or Damages in a Court Baron, but impound, and keep them as Pledges, till the Defendant makes his Agreement; but where the Court hath used to award a Levari Facias, 'tis good by Custom, p. 73.  
Custom of Burrough English. ibid.  
Custom for the Court of King's Bench, every Term to send the Coroner to the Marshal, to view the Prisoners, that the Coroner might mark the Names of those were wanting in his Book, and inform the Court thereof, who would record their Escape against the Marshal, as an Abuse of his Office, and cause of Forfeiture, ibid.  
The Law and Usage of the Realm, concerning Aliens, and their Issue, p. 74.  
Custom of London concerning Feme sole Merchant, ibid.  
Custom and Usage binding to particular places, ibid.  
In what Cases the Custom of the Realm is the Common Law, ibid.  
Prescription what, and how to be alleged, p. 75, 76, 77.  
Profit Apprendre cannot be claimed by Custom in the Lands of another, except in Cases of Necessity, p. 77.  
Where a man may have an Action upon the Case, for a Tort, and where he must prescribe and show his Title, p. 78.  
How and where Customs pro bono privato, and pro bono publico, are to be alleged, ibid.  
How Copy-holders' ought to allege Customs,. ibid.  
Of alleging Customs in particular places, p. 79.  
In what manner Customs shall be pleaded, ib.  
Of Prescription by Parishioners, ib. 80.  
Custom of England concerning Innkeepers, ib.  
Of Tithes. ibid.  
No Prescription of Lands makes a Right, but of Rents or Profits it doth, p. 81.  
Women may prescribe to be endowed of a moiety of the Lands of her Husband, but not of the Rent, ibid.  
Gavelkind Lands shall escheat, if the Father abjure, or be outlawed for Felony, ibid.  
Every Custom against Common Law shall be taken strictly, ibid.    
Debt. SEE variety of Pleading in Debt, from 81. to 104.  
Detinue. 

Inter-pleader in Detinue, p. 104.  
Upon general Issue in Detinue, that which would make a special Bar, cannot be given in Evidence, or if found by the Jury is it material, p. 105.  
Detinue will lie of Charters not specially and particularly named what they are, ibid.  
Improper words in Detinue, adjudged good enough after Verdict.  
Disclaimers and Discontinuances of    
Actions. 

Action of Covenant discontinued after Judgement, and Writ of Inquiry, by Rule of Court, p. 106.  
Action of Tresp. in three Towns, and mentions but two Towns where it was committed, the whole is discontinued, ibid. So in  
Debt, for that the Writ was 10. l. 6. s. 8. d. and the Declaration but 10. l. ib. So if the Declaration be of several things, and it be discontinued as to one, it shall be discontinued as to all, ibid.  
Debt brought against two Jointly and Severally bound, it being discontinued against, one did abate against both, ibid.  
In what Cases (where two Persons bring their Action) the Nonsuit of one shall not be the Nonsuit of them both, & è contra, p. 107.  
If after Verdict for the Avowant in Replevin the Plea be discontinued, and he sues a Scire Facias, the Plaintiff may plead a Release of the Avowant, after Verdict of all Actions, or other matter to discharge himself, ibid.  
Trespass, Defendant pleads two Pleas, Plt' demurs to one, and doth not plead over to the other, it is a discontinuance, ibid.  
In Pr. quod reddat, if the Tenant disclaims, the Judgement shall be, that the Demandant nihil capiat per breve, p. 108.  
Writ of Inquiry awarded upon Disclaimer in Replevin, ibid.  
No man can disclaim against a Termor, ib.  
Husband and Wife cannot disclaim in Avowry, ibid.  
In Replevin the Defendant avows upon the Plaintiff, and he disclaims to it, he shall not be received, 109.  
He that is in of his own Wrong, shall not disclaim in a Writ of Entry, in le quibus, ib.    
Distress. 

If Household Goods be Distrained, they ought to be preserved in an House from the Injury of the Wether; but if put in an open place, where they are spoiled, the Distrainor shall not answer for them, ibid.  
If an Horse Distrained happen to strangle himself, the Distrainor shall be punished in an Action of Trespass, ibid.  
A man shall not milk a Cow he hath distrained without the Owners Consent; and if the Cow perish for want of Milking, he may distrain again, and so be at no Damage, ibid. 110, 112.  
Sheriff's Officer cannot justify breaking open Doors, to distrain for the King's Rend, much less a Landlord's, ibid.  
Things distrained shall not be used, because but Pledges in Law, ibid.  
Distress not to be driven out of the Hundred, or to a Pound above three Miles, or to several Pounds, or out of the County. No Man shall distrain in the Highway, nor drive Distress into a Castle or Hold, ib.  
The Tenant shall not disturb the Landlord in taking his Distress, or hinder him of the Lawful Means to come by his Rent, ib.  
Distress of a Strangers Goods for the Tenant's Rent, unlawful, ibid.  
Owner must bring Replevin, not break the Pound, tho' the Distress be unlawful, p. 112.  
Where Limitation of Distress void, ibid.    
Error. 

WHere the Plaintiff in the Action may sue out a Scire Facias against the  
Executors or Administrators of the Plaintiff in the Writ of Error, p. 113.  
After Writ of Error allowed, Execution upon the former Judgement shall not be awarded, and why? ibid.  
Where there is Fine and Recovery of Lands, and Error in them both, a Writ of Error cannot be brought first upon the Fine, but upon the Recovery, ibid.  
In what case a Fine shall bar a Writ of Error brought of a Recovery, p. 114.    
Execution. 

Action lies not against the Sheriff for Escape (of a Prisoner in Execution) in the time of his Predecessor, ibid.  
Sheriff may not break open Doors to execute Fieri Facias, p. 115.  
Ca sa. against Principal, returned non est invent', then Sci. Fa. against Sureties, before the Return whereof the Principal Surrenders his Body in Execution, allowed per Cur', ibid.  
Execution granted by the Court, upon Motion, after a Writ of Error brought because the return was too long, ibid.    
Estoppels and Conclusions. 

He who claims nothing by him that was estopped, shall not be estopped by his Act. Where he no Reversion or Remainder, p. 115.  
claims nothing by Tenant for Life, he shall not be estopped, p. 116.  
If a Man pleads a Plea in which he confesseth a thing that is not material, it shall not be an Estoppel, p. 117.  
If a man plead a Record to Estop him that was privy, he ought to show what end the Action had, p. 118.  
Where a Man hath Judgement to recover Land, by that Judgement he shall be Estopped to claim any other Title than he hath by the Recovery, ibid.  
Of some Estoppels, none shall have Advantage but Parties or Privies, 120. And of some, every one shall have advantage, ibid.  
Vser of Action no Estoppel to prejudice another, ibid.  
In what case one shall estop another, ibid.  
Where I am barred of Land the Estoppel shall pass with it; but of other Lands it shall be no Estoppel against me, ibid.  
None shall be received to plead an Estoppel against another, but may be estopped by the same Plea, and both must be Parties to the Record, otherwise not, p. 122.  
In what cases a Stranger shall take Advantage by an Estoppel, p. 123.    
Fines and Recoveries. SEveral Cases of Fines and Recoveries, p. 125, 126.  
Heir. The manner of Suing an Heir upon a Bond entered into by his Ancestor, p. 159.  
Outlawries. 

PLeaded in Bar, and Disability, p. 161, 163, 165, 175, 177, 181, 196, 197.  
Reversed for several causes, p. 161, 162, 163, 164, 165, 168, 170, 171, 172, 173, 178, 179, 181.    
Partition. TWo Tenants in Common of a Manor, before Partition one of them is said to have dimidium Manerii; but after Partition, medietatem Manerii, and an Indictment of forceable Entry after Partition, it shall be Medietas, not Dimidium Manerii, p. 183  
Privilege. Lost by Chancery Clerk by suing out Supers ' in C. B.  
Parson. 

Parsonage becomes void by Acceptance of a Bishopric, p. 183.  
And Acceptance of a second Benefice, makes the first void, p. 184.  
tithe of things proceeding from the Earth, as Corn, Hay, etc. shall be severed upon the Ground, but secus of Sheep, etc. ibid.  
What Trees are Tithable, what not, see ibid.  
Parson makes parol Agreement of Tithes for his Life, afterwards grants to another who sues for them, Concord is no Plea, ibid.  
Simony to give 10. l. to Patron, to present Parson to next Avoidance, the Church being full, ibid.  
If Parson in, by Simony, dies, shall the King present? ibid.    
Pleas and Plead. 

Special non est factum, to Debt upon Bond delivered as an Es●r●ul, whole matter pleaded, Judgement on Demurer for Plaintiff, p. 185.  
Solvit ad diem pleaded specially, ibid.  
Recovery pleaded in Barr (ill) instead of Execution, ibid.  
Bond ill dated, how to declare upon it, ibid.  
Acts of Parliament and Records, how to be recited in pleading, p. 186.  
Where Villeinage no good Plea, ibid.  
Pleading must be certain, and why, ibid.  
Where Frankf●e no good Plea, ibid.  
Where Corruption of Blood by Attainder, no good Plea, ibid.  
In what case Warranty of Ancestor with Assets no good Plea in Formedon, ibid.  
Of reversing Attainders, ibid. 188.  
Of pleading in Formedon, ibid.  
Attorney may plead not informed, if no Order to the contrary, ibid.  
If Defendant in case pleads to issue for part and demurs to other part, Demurrer shall be argued first, p. 189.  
Plea by Manucaptors to Sci. Fa. ill, double, etc. ibid.  
Plea shall be taken most strictly against him that pleads it, ibid.  
Pleas ill for Ambiguity, p. 191.  
For Incertainty of Intendment, ib. Impropriety of words, ibid. Repugnancy in pleading. p. 192.  
Barrs may be good to common Intent, though not to every Intent, ibid.  
In pleading, a man shall not disclose that which is against himself, p. 193.  
Repleader awarded upon non dimisit, p. 194.  
Covenant to make Assurance at my Charge, 'tis no Plea to say he was ready to do it, unless he tender the Writings ready to seal, and I refuse to pay the Charges, ibid.  
Pleading of Judgements by Executor, adjudged upon Demurrer to amount but to Plene Administravit specially, ibid.  
Administrator durante minoritate, etc. Wasting Goods shall be punished as Executor in his own Wrong, ibid.  
Administration brings Debt, and avers Administration granted at L. when it bears date in another place, the Plaintiff shall abate, p. 195.  
Sci. Fa. against two Executors, nulla bona returned to both, and Devastavit to the value of the Debt against one, and another Sci. Fa. and Judgement against him only by default, and Fi. Fa. de bonis propriis against him alone, ibid.  
Two Executors, one confesseth the Action, the other lets it go by default, etc. or pleads, Non est factum, or Plene administravit, Judgement shall be against both, de bonis Testatoris; for divers Executors but as one representing the Person of the Testator, who (if living) should have made but one Answer to the Action, ibid.  
After Imparlance, the Tenant cannot plead to the Writ, that the Demandant is a Bastard, but he may plead it in Bar of the Action, p. 196.  
If Husband and Wife bring Assize and Feoffment, or Release of either of them, or the Ancestor of one of them be pleaded in Bar, both shall be barred, p. 197.  
Excommunication pleaded in disability of the Plaintiff or Demandant, p. 198.  
Action of the Case, wherein Legitimo modo acquietatus, is set forth, makes the Declaration erroneous. p. 198.  
If a man pleads a general Act of Parliament, and mis-recite the same, yet it shall not prejudice him, and why. p. 199.  
Where a thing alleged, doth confess and avoid my Plea, I may traverse it. ibid.▪  
Departure in pleading, what. Several Cases of Departures. ibid. 200, 201, 202, 203, 204.    
Quare Impedit. 

TO present by Turns in an Advowson in gross, the Commencement how it came presentable by Turns, aught to be showed, per 3 Justice. 2 contra. p. 205.  
Descent of three Manors to three Sisters, Advowson is Appendent to one, Partition is made of all, except the Advowson; the Advowson seems to be in gross pro toto, but if not excepted, it had been clear, p. 209.  
A Church may be appendent, and in gross alterternis vicibus. ibid.  
See the Method of bringing Writs of Quare Impedit, of counting thereon, and variety of Pleading therein. p. 205 to 248.    
Release. 

OF part of the Money due upon Recognizance (if not mentions the Recognizance) shall be for so much as is paid only, and not destroy the Recognizance, p. 248.  
A man bound to pay 100 l. tenders the same at the day, he is not bound to pay the same at another day, without Acquittance or Release, ibid.    
Replevin; see Avowry. Variety of pleading in Replevin, p. 248. to 254.  
Scire Facias. HOw to be brought, and pleading thereto, 254. to 261.  
Statute. Observations on the Statute of 29 Car. 2. for prevention of Frauds and Perjuries, p. 266.  
Trespass. WHere it lies, how to declare therein, and plead thereto, p. 261.  
Wager of Law. IN what Cases Wager of Law doth lie, and in what not; what persons shall wage Law; and the manner of performing it. p. 294. to 316.  
Wast. Where an Action of Waste doth properly lie, how it is to be brought, and the manner of pleading to the same. p. 317. to 357.  
Wills. 

Wills and Testaments originally proved at Common Law, 358. They are proved in the Spiritual Court, not de Communi Jure, but by Courtesy. ibid.  
Prohibition granted to the Spiritual Court, to hinder the Probate of a Will quoad Lands, and allowing that it may be proved quoad bona. ibid.  
Bond conditioned, he permit his Wife to make a Will, he is bound to perform it. ib. 350.  
Action upon the Case lies not for Nonpayment of a Legacy. 359.  
Bond conditioned that the Wife shall make a Will of so much, in the presence of her Husband, if he will be present, if not, in his Absence, she makes it, not requesting him to be (neither doth it appear that he was) present; yet good. ibid.  
Memorandum, quod A. B. fecit Testamentum suum nuncupativum in hunc modum, viz. constituit C. D. fore Executorem; Resolved a good Will, and he Executor, and well able to sue. ib. 360.    
Witnesses. 

Of the Crimes which render Persons incapable of being Witnesses. p. 360.  
One under the Age of Discretion, or interessed, or a man's Wife for or against her Husband, cannot be Witnesses. ibid.  
One outlawed in personal Actions, may be ● Witness. ibid.  
Witnesses are not to prove a Negative. ib.  
Where Trial is by Witnesses, there ought to be two at the least. ibid.  
A Juror may give Evidence publicly, not privately to his Fellows. p. 361.  
Bail cannot be Witness for the Defendant. ib.  
A Felon burned in the hand may be a Witness. ibid.  
In Ejectment, he that had the Inheritance of the Land, was admitted as a Witness. ibid.  
A Councillor at Bar being examined as a Witness for his Client, was denied to be examined on the other side, and why. ibid.  
Debt for 10 l. brought on 5 Eliz. ca 9 against the Wife for not appearing, being served, and Charges tendered, held good. ibid.  
Debt for 10. l. against a Witness, that being subpened, appeared not, does not lie, without averring that he was damnified by the Nonappearance of the Witness. p. 362.  
Judgement stayed, because the Verdict was had upon the single Testimony of one convict of Perjury in the very same thing. ibid.  
In Deceit for forging a Will, a Legatee allowed as a Witness in a Trial for the Forgery. ibid.  
A material Witness that lies dying, may be examined by consent of both Parties, not otherwise. p. 363.  
A Councillor may be examined as a Witness against his Client, so far as it is of his own Knowledge, not what his Client bathe revealed to him. ibid.  
One shall not justify what he heard an other say. ibid.  
Witnesses may be sworn against the King, in Indictments, Battery, etc. because, though Criminal, not Capital. ibid.  
Tenant at Will of Lands, in Question allowed a Witness in Trial at Bar. ibid.  
Person attainted of Felony, and afterwards pardoned by the King, is uncapable after of being a Witness. ibid.    
Words. What Words are actionable, and what not, see fol. 265. to the end.   
FINIS.