and discharged Three are bound in one Bond and every of them joyntly in the whole the Obligee afterwards gets Judgment against one of them and brings his Action against the other This Recovery is no Barr for it is no Satisfaction of the Debt but an Execution is a good plea in this Matter Obligation dated 8th of December 78. and doth not say the Year of our Lord God nor the Year of the King's Reign the Date is void and the Obligation good without Date and the Plaintiff may count how the Bond was delivered to him any day when he pleases Reg. 1. Acts and Statutes in pleading need not be recited wholly only the particular Branch that concerns the Matter in Hand because every Branch is an Act of it self Secus of a Record for that is grounded upon an Original and Judgment and ought therefore to be entirely recited when pleaded in Bar. If Tenant in Tail of a Manor whereunto a Villain is Reguardant discontinue and die and the Right of the Intail descend to the Villain himself who brings Formedon and the Discontinuee pleadeth Villanage This is no Plea because the Devesting of the Manor which is the Intention of the Suit doth include this plea because it determineth the Villanage Reg. 2. Pleadings must be certain that the Adverse Party may know whereunto to answer or else he were at a Mischief which Mischief is remedied by Demurrer If tenant in Ancient Demeasne be disseized by the Lord whereby the Seigniory is suspended and the Disseizee bringeth his Assize in the Court of the Lord. Frank Fee is no plea because the Suit is brought to undo the Disseison and so to revive the Seigniory in Ancient Demesne If a Man be Attainted and Executed and the Heir bring a Writ of Error upon the Attainder and the Corruption of Blood by the same Attainder be pleaded to interupt the conveying in of the same Writ This is nâ— plea for then he were without Remedy ever to reverse the Attainder If Tenant in Tayl discontinue for Life rendring a Rent and the Issue brings a Formedon and the Warranty of his Ancestor with Assets be pleaded against him and the Assetts is laid to be no other but his Reversion with the Rent This is no plea because the Formedon which is brought to undo the Discontinuance doth inclusively undo this new Reversion in Fee with the Rent thereunto annexed If a Man be attainted of two several Attainders and there is Error in them both there is no reason but that there should be a Remedy open for the Heir to reverse those Attainders being Erroneous as well if there were twenty as one And therefore if in a Writ of Error brought by the Heir of one of them the Attainder should be a plea peremptorily And so again if in a Writ of Error brought of the other the former should be a plea these were to exclude him utterly of his Right and therefore it should be a good Replication to say That he hath a Writ of Error depending of that also And so the Court shall proceed but no Judgment shall be given until both Pleas be dismissed and if either Plea be found without Error there shall be no Reversal either of the one or the other and if he discontinue either Writ then shall it be no longer a plea And so of several Outlawries in a Personal Action If Tenant in Tayl of two Acres make two several Discontinuances to several persons for Life rendring Rent and bringeth a Formedon of both and in the Formedon brought of W. Acre the Reversion and Rent reserved upon B. Acre and so contrary it seems to be a good Replication that he hath a Formedon also upon that depending whereunto the Tenant hath pleaded the Descent of the Reversion of W. Acre and so neither shall be a Barr And yet there is no doubt but if in a Formedon the Warranty of Tenant in Tayl with Assetts be pleaded it is no Replication for the Issue to say that a Precipe dependeth by J. S. to evict the Assetts An Attorney may plead not informed to an Action if his Client doth not give him order to plead otherwise For this will save the Attorney Damages in a Writ of Deceit if it should be brought against him In an Action of the Case if the Defendant plead to issue upon one part and Demurrer to the other part the Demurrer ought to be argued first because the Jury at the Tryal may give Intire Damages for the whole Scire Facias against Manucaptor ' they plead that after Judgment against the Principal viz. 6th die anno the Principal brought a Writ of Error whereby the Record was removed into the Exchequer and that pendente br ' de Errore the Principal rendred himself to the Marshal and there died and this he is ready to prove c. This Plea is nought because the Rendition ought to be tried by the Record Secondly The plea is double and imports two Issues the one the Rendring and the other the Death 3. The bringing the Writ of Error is a Supersedeas to the Execution and the Execution being suspended during the Error undetermined and depending the Bail was not sufficient Authority to bring them in So that his Rendition is in vain and nothing worth and the Death is only answerable which if true is a Discharge of the Bail Reg. 3. In all Imperfections of Pleading whether it be in Ambiguity of Words and double Intendments or want of Certainty and Averments the plea shall be strictly and strongly taken against him that pleads it For Ambiguity of Words If in a Writ of Entry upon Disseisin the Tenant pleads Joynt-Tenancy with J. S. of the Guift and Feoffment of J. D. Judgment del brief the Demandant says That long before J. D. any thing had the Defendant himself was seized in Fee Quousque predict ' id super possessionem ejus intravit and made a joynt Feoffment whereupon he the Demandant re-enter'd and was seized until by the Defendant alone he was disseized This is no Plea because the word intravit may be understood either of a Lawful Entry or of a tortious and the hardest against him shall be taken which is that it was a lawful Entry therefore he should have alleadged precisely that J. D. disseisivit Reg. 4. So upon Ambiguities that grow by References if an Action of Debt be brought against J. F. and J. B. Sheriffs of London upon an Escape and the Plaintiff doth declare upon an Execution by Force of a Recovery in the Prison of Ludgate sub Custodia J. S. and J. D. then Sheriffs in 1 H. 8. and that he so continued sub Custodia J. B. and J. G. in 2 H. 8. and so continued in Custodia J. F. and J. P. in 3 H. 8. and then was suffered to escape J. F. and J. P. plead that before the Escape at such a day Anno superius in narratione specificat ' the said J. S. and J. D.
adtunc Vicecomites suffered him to This is noo good Plea because there be three Years specified in the Declaration and it shall be hardest taken that it was 2 or 3 H. 8. when they were out of Office and yet it is nearly induced by the adtunc Vicecomites which should leave the Intendment to be of that Year in which the Declaration supposeth them to be Sheriffs but that sufficeth not but the Year must be alleadged in Fait For it may be mislaid by the Plaintiff And therefore the Defendants Meaning to discharge themselves by a former Escape which was not in their time must alleadge it precisely Dyer fo 66. Reg. 5. For uncertainty of Intendment if a Warranty Collateral be pleaded in Bar and the Plaintiff by Replication to avoid the Warranty saith he entred upon the Possession of the Defendant non Constat whether this Entry was in the Life time of the Ancestor or after the Warranty descended and therefore it shall be taken in the strictest Sence that it was after the Warranty descended if it be not otherwise averred 3 H. 7. 2 3 Plo. 46. a. For Improperty of Words If a man plead that his Ancestor died by Protestation serzed and that J. S. abated c. this is no Plea for there cannot be an Abatement unless there be a Dying seized alleadged in Fait and an Abatement shall not be improperly taken for Disseisin in pleading For Words make Pleas 38 H. 6. a. b. 39 H. 6. 5 6. Reg. 6. For Repugnancy in pleading if a Man in Avowry declare that he was seized in his Demesne as of Fee of 10 Acres and being so seized did demise the said 10 Acres to J. S. habend ' the Moiety for twenty one years from the Date of the Deed the other Moiety from the Surrender Expiration or other Determination of the Estate of J. D. qui tenet predict ' medietat ' ad terminum vitae suae Reddend 40 s. Rent This Declaration is insufficient because that the Seisin that he hath alledged in himself in his Demesme as of Fee in the whole and the Estate for Life of the Moyety is repugnant and it shall not be Cured by taking the last which is expressed to controul the former which is but general and formal but the plea is naught and yet the matter in Law had been good to have Intituled him to distrain for the whole Rent Reg. 7. A Bar may be good to a Common Intent tho' not to every Intent As if Debt be brought against Five Executors and Three of them make Default and two appear and plead in Barâ— a Recovery had against them two of 300 l. and nothing in their hands over and above that Summ If this Barr should be taken strongest against them it should be intended that they might have abated the first Suit because the other three were not named and so the Recovery not â—uly had against them but according to the Rule the Barr is good For that by Common Intendment it will be supposed that the two did only administer And so the Action well considered rather than to imagine that they would have lost the Benefit and Advantage of abating the first Writ Reg. 8. In pleading a Man shall not disclose that which is against himself and therefore if it be matter that is to be set forth on th' other side Then the plea shall not be taken in the hardest Sence but in the most Beneficial and to be left unto the contrary part to be alledged And therefore if a Man be bound in an Obligation that if the Wife of the Obligee does Decease before the Feast of St. John the Baptist which shall be in the Year of our Lord God 1598 without Issue of her Body by her Husband lawfully begotten then living that then the Bond shall be void And in Debt brought upon this Obligation the Defendant pleads that the Woman died before the said Feast without Issue of her Body then living If this Plea should be taken strongest against the Defendant then should it be taken that the Feme had Issue at the time of her Death but this Issue died before the Feast But this shall not be so understood because it makes against the Defendant and it is to be brought in on the Plaintiff's side and that without Traverse Dyer 16 17. Non dimisit to an Action of Debt upon a Lease in Writing was adjudged an ill Plea and a Repleader awarded thereupon by the Court Mich. 44 and 45 Eliz. Rot. 158. in Banco Reginae If J. S. Covenant to make me an Assurance I paying the Costs and Charges for making thereof he shall not barr my Action of Covenant by saying he was ready to do it unless he bring the Writings Ingrossed and ready to Seal and I refuse to pay the Charges accordingly Debt against an Executor who pleads three Judgments of an 100 l. a piece and that he had paid 40 l. in Satisfaction of two of the Judgments and that he hath not nor had c. praeterquam c. the said 40 l. and 20 l. more which is not sufficient to satisfie the other Judgment upon which the Plaintiff demurred and adjudged for the Defendant for it s but in effect a plene administravit specially Administrator durante minore etate if he wasts the Goods of the Infant he shall be punished as an Executor in his own wrong If an Administrator brings an Action of Debt and averrs in his Declaration how that Administration was granted to him at London and the Letters of Administration bear Date in another place and County the Plaint shall abate Upon a Scire Facias against two Executors the Sheriff returns nulla bona against both and Devastavit to the Value of the Debt against one of them whereupon another Scire Facias issued forth and Judgment was obtained only against him thereupon by Default and after that a Fieri Facias de bonis propriis against him alone If there be two Executors and the one of them confess the Action and the other lets it go by Default or pleads non est factum or plene administravit Judgment shall be against both de bonis Testatoris Divers Executors are but in the Nature of one Person For they all represent the Person of their Testator And if the Action had been brought against him in his Life he should have made but one Answer If Debt and Damages be recovered against one and before Execution he dies upon a Scire Facias against his Executor or Administrator you shall recover only de bonis testatoris and not de bonis propriis because the Prayer of the Scire Facias is only de bonis Testatoris and the Court will not exceed the Prayer of your own Writ Reg. 9. The Defendant may plead an Outlawry in disability of the Plaintiff before Imparlance but after Imparlance he cannot plead in disability of the Person but he may plead it in Barr of the Action 32 H. 6 33.
pleaded it at first Also if the Plaintiff plead a Feoffment upon Condition to J. S. and that the Condition is broken and that thereupon he entred the Defendant may say that he released to J. S. after the Condition broken and then he enfeoffed him A Man pleads a Feoffment in Barr in Assize of the Plaintiff and the Plaintiff saith that he Let to him for Life and afterwards he made a Feoffment by which he entered the Tenant may well say that after the Lease and before the Feoffment the Plaintiff releas'd to him This is no Departure because that it is pursuant and yet it might have been said at first 1 E. 4. Quare Impedit against a Bishop he pleads that he claims nothing but as Ordinary and demands Judgment c. The Plaintiff replies that such a day he presented to him such a person whom he refused to which the Bishop rejoyns that the Church was void and shews how and that thereupon he collated by Laps Judgment c. This is no Departure 35 H. 6. In Assize the Defendant pleads a Lease of the Plaintiff for Years which is yet in being the Plaintiff shews the Alienation of the Tenant the Tenant saith that the Plaintiff released to him after the Lease This is a Departure by Marten 3 H. 6. Precipe quod reddat the Tenant pleads that J. S. was seized of the same Lands and that they were devised to him in Fee by Force whereof he entred and gives Colour c. The Plaintiff saith that J. S. was seized and that he died seized and that the Lands descended to him as Son and Heir and that he entred cum hoc that he will averr that the said J. S. was within the Age of 21 Years at the time of the Devise The Tenant rejoyns that the Custom is that every Infant of the Age of 15 Years may Devise and that he was of the Age of 15 Years at the time of the Devise The Court was of Opinion that it was a Departure 37 H. 6. In Assize the Tenant pleaded the Dying seized by Protestation of his Father The Plaintiff said that J. S. was seized and enfeoffed him and so seized c. To which the Tenant replied that his Father by Protestation died seized and that J. S. did abate and enfeoff the Plaintiff and that the Tenant as Heir to his Father entered and was seized by Fortescue This is no Departure because the Tenant hath maintained his Barr and hath only added new Matter to maintain it 37 H. 6. If a Man plead a Gift in Tayl in Barr and the Demandant reply ne dona pas if he shew a Recovery in Value it is no Departure In Assise the Tenant pleaded hors de son Fee the Plaintiff shewed that the Tenant held of him issint de son fee and the Defendant shewed a Release of all Right This is a Departure because this plea was a Barr 5 H. 7. In Formedon the Tenant pleaded ne dona pas the Demandant shewed a Recovery in Value issint dona The Tenant shall not plead a new Barr because that that would be a Departure quod nota 21 H. 6. Reg. 12. In all Pleadings where you claim as Legatee you must surmise the Consent of the Executor as cui quidem dimissioni idem J. S. consentivit After Verdict the Plaintiff dies viz. before the day in Bank in Error brought this is assigned for Error and the Plaintiff per Attornatum suum pleads that he was alive 't was tried and found that he was dead Argued by Mr. Allen That there was no Tryal proper for the Cause for that the Issue was joyned by a Stranger and that there ought to be a Scire Facias against the Executors or Administrators of the Plaintiff and that the Writ of Error is discontinued But per totam Curiam the Tryal is good and the Judgment revers'd for that Error in fait Mich 14 Car. 2. in B. R. Dove vers ' Dinkey Quare Impedit IN Quare Impedit to present by Turns to an Advowson in Gross Three Judges were of Opinion that the Commencement how it came presentable by turns must be shewed But two Judges were of a contrary Opinion Leek against Coventry 3 Cro. 111. A Viccarage and none presented to it for one hundred and sixty Years Resolved that all Viccarages are taken out of the Parsonage and are not remitted to them by Non-usage without some Act. Robinson against Beadle 3 Cro. 873. Quare Impedit by the King against A. he pleads that the King made a Lease for Years to J. S. and during the Term J. S. presented him c. And it was moved that he being Incumbent could not traverse the King's Title without making one for himself but shew that he came in by Usurpation during the Lease but in the Writ it was excepted that the Patron and Ordinary are not named but only the Incumbent which they ought to be in all Cases but that of Collation but because the Defendant shews that he came in during the Term in which Term the King could have no Right it was adjudged for the Defendant Regina versus Middleton vide Co. 7. rep 26 27. 25 H. 6. 62. a. 3 H. 4. 2 3 11. Writ against the Incumbent only adjudged ill and abated by 46 E. 3. vide 7 E. 3 11. 7 H. 4 26. Writ against the Incumbent only good 1 Leon. 44 45 46. vide 47. E. 3. 10 11. Quare Impedtt and Counts of an Advowson appendant that 't is become void and he presented J. S. The Defendant pleads that 't is in Gross and Let to him and that he presented J. S. absque hoc that 't is appendant the Traverse is good but where the Count is of an Advowson in gross c. and the Defendant pleads that 't is appendant there the Presentment is traversable not that it appendant For the Presentment makes it in gross Seignior Buckhurst against Epm. Winton 1 Leon. 154. In a Quare Impedit by Tenant for Life Exception was taken because he counted of a Presentment only in himself and laid not any in his Lessor but adjudged good For the Lessor may lay a Presentment on his Lessee therefore 't is good for the Lessee Palmes versus Epm. Peterborough 1 Leon. 230. Co. 5. rep 57. b. 3 Cro. 518. vid. M. 7 E. 4. pl. 22. con 8 H. 5. 4 Accord Quare Impedit against the Bishop and J. S. and Judgment they joyn in a Writ of Deceit and avoid the Judgment for Non Summons and of that a Writ of Error brought and assigned that they could not joyn and Adjourned Guilliams against Blower sed vide 3 Cro. 65. They joyn in a Writ of Error on a Judgment in a Quare Impedit 1 Leon. 293. One that had a Benefice was presented to another and then purchased a Dispensation it came too late and so the first was void and if that be such as that it avoids the last quaere Vnderhill against Savage 1
any other Title or to have any other Action to recover the Land than that by which he hath recovered and by the same reason that he shall not have a Cessavit he shall not have Eschete If a man hath Rent in Fee he may distrain or have a Writ of Annuity and if he brings a Writ of Annuity and hath Judgment to recover although that he sues not out Execution yet he shall never distrain for the Rent afterwards Tenant in Tail discontinues for Life and dyes and the Tenant for Life aliens in Fee and the Heir bring in consimili casu and recovers now by this Judgment he shall never have a Formedon of the same Land c. The disseisor enfeoffs the disseisee by deed indented upon Condition or makes a Lease for Life by Deed indented this is a good Conclusion to the disseisee to demand his Right and the Reason is that by the Deed indented the disseisee hath affirmed the Estate of the Disseisor which is as much as if he had confirmed his Estate before the Feoffment In Debt upon an Obligation the Defendant pleads a Release upon which the Plaintiff is Nonsuit afterwards the Plaintiff brings a new Action of Debt the Defendant shall be estopped to say that he was deins age or that the Obligation was made per minas But it is otherwise if the Plea be discontinued An Essoin is cast for the Tenant in a Writ of Dower yet the Tenant shall be received to say that he hath been allways ready to render Dower and because that an Essoin may be cast for a Stranger this Essoin is no Estoppel for an Estoppel shall be good to every intent but because an Essoin may be cast for a Stranger as well as for the Tenant himself it shall be said an Estoppel I bring an Assise of Mortdancestor and recover when in Truth I have no Right c. yet the Wife of the same Father shall be endowed c. Also in Avowry Tenant for life Aliens in Fee the Wife of Tenant for Life shall be endowed against the Feoffee Also Tenant in Tail is bound by Statute and makes Feoffment Execution against the Feoffee Of some Estoppels none shall have advantage but those who are parties or privies AS if I loose Land by Erroneous Judgment or false Verdict those that are Strangers shall have no advantage But of some Estoppels every one shall have advantage As Bastardy certified by the Bishop User of Action is no Estoppel to prejudice an other viz. Heir c. AS a man grants a Rent Charge in Fee to an Abbot and his Successors or to a Feme-Covert and her Heirs if the Abbot or Husband brings an Action it shall not prejudice the Successor or the Wife In no Case one person shall estopp another but in Dower AS where a Woman demands Dower and she hath Writings touching the Inheritance of the Heir for in debt it is no Plea to say that the Plaintiff is indebted to the Defendant in ten pounds because that it cannot be tryed by the Original 3 H. 6. In every Case where I am Barred of Land as if it be found that I am not next Heir this Estoppel shall pass with the Land and every one that claims the Land by me shall be Estopped but of other Lands it shall be no Estoppel against me 33 H. 6. IF I bring a Praecipe quod reddat by the name of Richard when my name is John and recover by default against the Tenant and afterwards I bring another Writ by my right name against the same Tenant he shall not estopp himself by that Recovery So if I have misnamed the Tenant in the first Record because he shall not be grieved by it Mich. 33 H. 6. contra per Prisot contra per Fortescue 34. By Prisot none shall be received to plead an Estoppel against another but he that pleads may be estopped by the same plea and this is where both parties are parties to the Record otherwise not For if I bring an Action by the name of Robert when my name is John against one that pleads with me if afterwards I sue him by the name of John he shall estopp me by that Record but against a Stranger I shall not be estopped by it by Prisott and by Fortescue 30 H. 6. 26 H. 6. 14 E. 4. contra Bastardy certified against me or found against me every Stranger shall estopp me because that every Stranger is estopped to say that I am mulier But if I am certified mulier a Stranger shall not be estopped by it to plead special Bastardy because that it may be that I am a Bastard in our Law and a mulier in the spiritual Law but not è contra No Stranger shall take advantage by an Estoppel but where the Estoppel extinguisheth the Right AS if a Man makes a Lease to me for Term of years of my own Land and the Term passeth and he enters and grants a Rent Charge in Fee and afterwards I recover against the Grantor the Land by default the Grantee shall not falsify the Recovery by Estoppel A Stranger shall not take advantage of an Estoppel in fait if it be in the Realty but by matter of Record it is otherwise A Man takes a Lease of Lands for years or for Life of which Lands he himself â—s seâ—sed in Fee or in Tail at the time of the Lease made if it be by Deed indented he is estopped to say that he had any Estate or Right in those Lands at the time of the Lease The same Law if a man be disseised and takes a Lease of the disseisor for a term of years of the same Lands by Deed indented But if a man takes a Lease for term of life of his disseisor he shall not be thereby estopped notwithstanding it be by Deed indented because that by the Livery he is remitted and the Lease is void ut dicitur quaere tamen for the Indenture is strong against him but if it be indented it is cleer Law but if it be by Fine it shall be an Estoppel because that the Estoppel takes effect before his Entry Or if Livery be made out of the Lands within View c. If a man makes a Lease by Deed indented to one of his own Lands now he is concluded after the Lease determines the Lessor enters by force of the conclusion and a stranger comes in aid of him the Lessee shall punish the stranger for this Trespass and he shall not conclude him by force of the Lease because he is wholly a stranger to the Judgment per totam Curiam 14 H. 6. But quaere if he justify as servant if he shall conclude himself Fines and Recoveries A Fine was Levied of Lands in two Counties and but one County mentioned in the Fine yet because it was for the uses declared in an Indenture which did mention the Lands in the other County all the Lands mentioned in the Indenture did pass If
to cut Beeches is wast Lopping Oak Ash or Elme or any thing to prejudice Trees is wast Making Charcoal of wood is wast Felling Timber to repair voluntary wast is double wast To dig for Gravel Stone c. is wast unless for Reparation of the house To suffer a Sea-wall or against a River to decay is wast To take Timber c. to make new Fences is wast Tenant cuts Trees for Repair and sells them though he buyes them again and employs them 't is wast Burning a house by Negligence or Mischance is wast 1 Inst 53. 40. E. 3. 15. b. Willows cut in view of the House is wast 40 E. 3. 25. b. So to cut Hasels in a Wood where there is no other Timber If one grants in his Leafe that Wast shall be redressed by Neihgbours and not by Plea yet he may bring an Action of Wast for the place wasted is not otherwise recoverable 1 Inst 53. a. If the Tenant repair houses before any Action of Wast be brought the Action of Wast is not maintainable but he must not plead Quòd non fecit vastum but the special matter 38 Ass 1 Reparation after the Writ brought not pending the Action seems no Plea 1 Inst 55. D. None shall have wast unless he had the immediate Inheritance yet an other may joyn with him against Tenant by the Curtesie with the surviving Partner Joyntenant for life with him that hath the Fee Where the Estate is determinable the Wast is general as Tail becomes Tail after possibility c. The Heir cannot have it of Wast in his Ancestors time nor a Bishop of his Predecessor nor shall Executors be punished for Testators wast Aunt and Neece may joyn 45 E. 3. 8. b. Gift to two and the Heirs of one he that hath Fee cannot have Wast against his Joyntenant but his heir may if wast after if the other survive if the Reversion be not continued in the same it was at the time of the wast done the Action is gone though taken back again 1 Inst 53. D. Wast lyes against Tenant by the Curtesie and in Dower though they have assigned unless the Reversioner have assigned also All others shall answer for their own wast unless Guardians And if the Guardian assign it lyes against the Assignee Guardian shall not answer wast by an other because 't is poenal unless he is Joynt-Guardian If one recovers against him under Age he recovers the Land else only Damages Infants Feme coverts c. shall answer Wast c. done by Strangers and she for her Husband Co. 1. Inst 53 b. 54. a. Husband Tenant for Life in his Wives Right does wast she dyes 't is dispunishable but if tenant for years in her Right not because the marriage is a Gift of it to him Tenant for Life grants his Estate on Condition Grantee does wast Grantor entâ—rs Wast lyes against the Grantee and the place shall be recovered Lord not punishable for wast done by his Villein before Entry Occupant punishable generally or specially Tenant afsigns and takes the Profits wast lyes against the Tenant Wast done sparsim in Woods or Houses all is to be recovered No Action of wast lyes against Guardian in Socage but Trespass or Account 3 Cro. 357. If Lessee take Trees c. to repair houses 't is not wast though he was not bound to repair them as his Lessor covenanted to repair them for if it was sans Impeachment of wast for the houses as the house was ruinous at his Entry and this for that Favour the Law gives to houses of Habitation Co. 1. Inst 54. b. a. Dyer 194. 198. b. Brook 463. Tit. Wast Lease of lands he may dig in open Mines and if it were of lands and mines if any were not open he can open none new but if none were then open he may open new ones Co. 1. Inst 54. b. 5 R. 1. 2. Tenant for Life makes Feoffment wast is done 't was upon Condition Lessee enters for Condition broken Lessor shall have wast So Successor of a Bishop shall have Wast on his Predecessors Lease for wast done in time of Vacation So if Lessee for Life be disseised and wast done if he enters he shall be charge able for the rest yet in none of these cases had the Lessor any Reversion in him at the time of the wast as regularly he ought but these cases stand upon their particular Reasons 1 Inst 13. b. The Aunt and Neece joyn in Action of Wast done in the old Sisters Life the Aunt alone recovers the damages Co. 1. Inst 233. b. Tenant for Life makes a Lease for years and enters upon his Lessee and consents to a Recovery in Wast against him the Lessee for years shall be for ever excluded for of necessity the place wasted must be recovered but if he had granted a Rent charge and committed Wast and the land recovered the Rent had continued Co. 1. Inst 233. b. Perkins 844. Tenant for Life does wast and grants over his Estate Lessor releaseth all wast to the Grantee it shall discharge the Lessee Idem of Tenant in Dower or by the Curtesie for besides the Privity that endures if the Lessor should maintain his Action he should recover Locum vastatum against the Grantee contrary to his own Release Co. 1. Inst 269. b. Lessee does wast and then surrenders 't is said the Lessor shall maitain wast but the Book seems to be misprinted and that it should be shall not maintain c. for by his own Act he hath determined his Action in part Co. 1. Inst 285. 5 Rep. 12. b. Wast brought against Tenant pur auter vie in Ass he dyes pending the Writ it shall not abate but proceed for the damages because altered by Act in Law but if Baron and Feme Tenants in Tail special bring Wast and she dies without Issue pendente brevi so as the Husband becomes Tenant in Tail apres possibility d'issue extinct it shall abate because all wast must be ad exheredationem And note that Release of actions real bar wast and so doth Actions personal for he shall not apportion his own Action Co. 1. Inst 285. a. One devises Lands by the general words Bosc ' Maherem ' Miner ' Carbon ' in tam amplis modo forma as the Lessee habuit or habere potuit the Lessee opens a Mine and cuts Trees to use about it the cutting is wast for the Trees were not granted it being a Lease nor do they pass as incident to the Mine it not being open And Hobard holds that if the Mine had been open at the time of the Lease it had been wast Hobard 234. Darcy against Ashwich Hutton 190. 191. Lessee cannot change the nature of the thing devised and therefore not turn Meadow into Arrable or Wood into Pasture dry up an ancient Poole suffer a Park pale to decay destroy a stock of Deer Fish c. but may better a thing in the same kind and therefore may
dig to make a drayne in a Meadow Ibidem Owen 66. 67. Hutt 103. Dy. 37. a. Co. 1. Inst 53. 2 Leon. 174. Lessee builds a new house 't is wast to suffer it to decay not if the Lessor builds it after the Devise Ibidem Co. 1. Inst 35. s. Hutt 103. Whether Tenant by the Curtefie were punishable for wast by the Common Law Or not Vide Co. 2. Instit 299. 145. The first Statute that gave prohibition of wast and damages against Farmers was Marlbcapâ— 23. And where the Statute says vastum c. non facient 't is to be understood also non permittent vastum and so 't is in the Condition of a Lease Co. 2. Inst 145. None can claim to be dispunishable of wast in a particular Estate but by deed because 't is the Lessor's disherison Co. 2. Inst 146. Dyâ— 281. a. Lessee of a Mannor commits wast in a Tenement escheated the Lessor shall declare in wast of a Lease of the Tenement and maintain it by special Matter Co. 2. Inst 146. At the Common Law to prevent wast by Guardian Tenant in dower or by the Curtesie the Party might have a Prohibion to the Sheriff and by that he might have a posse Comitatus and so it may be done at this day And such Remedy as is against them at the Common Law is against Farmers c. by Marlb ca. 23. Co. 2. Inst 299. Vide Stat. 10 R. 2. c 14. If a Lease be made to A. for his own life Remainder to him for the life of B. or where a Remainder for years is upon an Estate for life there if A. does wast it shall be punished because himself had both Estates and in the latter case the Remainder shall not destroy the Term for years Co. 1. Instit 54. 2. Inst 301. The Husband that holds in Right of his Wife Lessee for life does wast the Wife dyes the wast is not punishable because the Husband held not but in his Wife 's Right and the Estate was her's Clifton's Case ibidem Co. 5. Rep. 75. b. Although Tenant in Tail after possibility of Issue extinct be dispun of wast yet if he grant over his Estate it is punishable in the Assignee ibidem 302. Tenant by Statute Merchant Staple or Elegit though they have but a Chattel are not within the Statute of Glocester 1. 5. Executors shall be punished for wast done in their own time not in the Testators He that holds a third or fourth part pro indiviso is within the Act. Tenant for years assigns upon Condition the Assignee does wast and he enters for that Condition the Action must be against the Assignee Ibidem Tenant for Years or Life assigns and takes the profits and does wast the Action lyes against the pernor of the profits by 11 H. 6. c. 5 Co. 5. Rep. Booth's Case 77. Tenant assigns the Term except the Trees Wast is done in the Trees the Action lyes against the Assignee Co. 5. Rep. Saunder's Case Lessee commits Wast and then assigns Wast in the Tenant shall be maintained against the Lessee and the place wasted and treble Damages shall be recovered against him Non Tenure general is no Plea in Wast but special non Tenure is Assignment and no Wast done before the Assignment or Wast done by the King's Enemies or Tempest or Lightning is not punishable Co. 2. Inst 302. 303. The Tenant shall answer for permissive Wast unless in such case where he could not prevent the Wast as where he is ousted by Cotssee of a Statute entred into before his Lease and that Cotssee does wast or by any precedent Title ibid. 303. Feme Tenant in Dower of a Mannor and Copy hold commits Wast the Action lies against the Tenant in Dower Ibid. 303. Femes Coverts and Infants shall answer for Wast done by Strangers though some have held the contrary and so shall the Wife for wast done by the Husband for Lease made to them for Life if she agree to the Estate Ibid. 303. Where the Wast is done Sparsim in houses Woods or Meadow there the whole shall be recovered ibid. 304. One may have an Action of Wast in the Tenct after the Term is determined by Expiration Death or the Act or Wrong of the Tenant and theresore if the Term end hanging the Writ it shall not abate because maintainable for the damages but if the Tenant surrender after the Wast done no Writ is maintainable for the Lessor cannot by his own Act alter the form of the Action Ibid. 304. The Heir cannot maintain an Action for Wast done to the Ancestor because the damage belongs not to him yet if two parceners be and wast is done and one of them dyes and wast is done again one Action shall be maintained for both and the Writ shall say both Wastes were to both their Disherison but the Judgment shall be for the place wasted to them both and for the damages severally in their several Tenures Ibid. 305. Guardian shall not be punished for Wast done by Strangers unless it be such as he might have prevented and would not for then qui non prohibet jubet ibidem 305. If the Gnardian commit Wast he shall by Gloue ' Ca. 5. lose the Wardship and single Damage and if it be done so near his Age as he could not bring his Action of Wast or had not notice of it then he shall recover treble damages upon the said Statute as a common person shall Ibidem 306. Wast upon the Stat. of Glouc ' Ca. 5. lyeth not in Ancient Demesne because they cannot award a Writ to the Sheriff to inquire Ibid. 306. Owen 24. contra In an Action of Wast by two in the Tenuit if one relinguisheth it barrs both not so of an Action in the Tenet Ibid. 307. A. has B. and C. in his Wardship Ratione Custodiae and commits Wast in the Lands of B. yet he shall not lose the Wardship of C. because the Wast was not to his Disherison Ibid. 306. At the Common Law there lay an Estrepement after Judgment Glouc. c. 13. gives it Pendente placito and may be sued out with the Original If the Tenant alien pendent the Plea the Estrepement may be against him and his Alienee and the Defendant shall not have his Age in it And tho the Statute says Du Tenement in demand yet in the Scire Facias to execute a Fine in a Quid juris clamat or in Wast an Estrepement may be had yet no Land is demanded in the Writ Upon the Statute the party shall recover damages after delivery of the Lands Co. 5. Rep. 114. b. It lyes before or after Judgment in Wast and the Sheriff may take the Posse Comitatus to prevent the Wast Co. 2. Inst 328. 329. In Wast the Process is Summons Attachment Distress and then upon default a Writ ad Inquirend ' and the Sheriff by the Statute is to go in Person and with the Jury view every place in every
makes a Feoffment on Condition VVast is done and he enters for the Condition Lessor shall have wast fo if Lessee of a Bishop commits wast in time of Vacancy the Successor shall have the Action so if Tenant for Life be disseised and wast is done and the Tenant re-enters Lessor shall have wast yet he had no Reversion Note 't is no plea for Lessee in wast to say generally that Lessor had no Reversion c. but must shew how he lost it But in wast by Assignee of the Reversion such Plea general is good vid. 39 E. 3. 19. 20. Wast by Successor of a Bishop or wast done in the Predecessors time quaere sc bon for laid ad exheredationem Ecclesiae Co. 1. Inst 356. a. vid. 1. H. 4. 26. Opinion that Successor of an Abbot or Prior shall have wast for wast done in the Predecessors time or if a Bishop Parson c. that can make Executors Vid. 71 E. 3. 53. b. 43 E 3. 8. 49 E. 3. 26. Successor of an Abbot not chargable for wast of a Predecessor In wast if the Plaintiff's Reversion determine either before or pendant the Suit his Action is gone but if it be pendente the Suit it must be so specified Ewer against Moyle Yel 141. In Wast the Plaintiff declares Quod cùm seisitus fuit and let for years the Defendant had wasted and though not said of what Estate seised so it might be for Life yet being ad exheredationem and that alledging of Seizin but Surplus held by most good enough Sir Walter Astoâ— against Sweten hall 3 Cro. 47. Wast assigned in the house where it appears the Plaintiff has but two parts of the Reversion yet good he cannot assign it otherways Wast inquired of by the Sheriff where it was confessed by Nihil dicit yet no Error Warnford against Haydock 3 Cro. 290. Wast against a Husband Tenant for life in right of his Wife dead not being in the Tenet or Tenuit ill also the Writ is Quod fecit vastum and being in her right it should have been fecerunt vastum But by Co. 1. Inst this Wast is dispunishable by her death otherwise if it had been a term for years Co. 1. Inst 54. P. Note the Estate was made to the use of the Wife for Life yet Action lyes Sackervil against Bagnell Con. to Dr. and Student Co. 3. Cro. 356. 357. In wast the plaintiff prayed a writ of Etrepement against the Tenant and his Servants and at last a Warrant against both though doubted at first if it lye in this Action though it do in Writ of Entry c. Anderne against Anderne 3 Cro. 393. F. N. B. 61. In a Writ of Entry sur disseisin done to himself the plaintiff prayed a writ of Etrepement doubted if allowable because in that Action he is to recover Damages but because Non constat whether the Tenant be able to satisfie him if he pull down his Houses granted Wright against Pearcy 3 Cro. 484. 774. Tenant in cutting three hundred Oaks Defendant as to two hundred justifies that the House was ruinous and he cut and employed them in repairs and for the other hundred he cut them to have them ready to repair Tempore opportuno adjudged an ill Plea on Demurrer for so every Lessee might â—ut where there is no Necessity Grey against Stanfeild 3 Cro. 593. vid. 498. 499. Waâ—t the writ was general and that the woman held c. ex dimissione A. her former Husband and counted that A. enfeoffed B. to the intent a Rocovery be had against him to the use of A. for Life Remainder to the woman for Life which was done accordingly and for this Judgment against the Plaintiff for the writ ought to have been recited for the Husband could not let to the Wife but she is in by the Husband and so has the Estate from the Feoffee Green feild against Dennis 3 Cro. 722. A. le ts to B. B. assigns to C. and D. D. assigns to E. except the Trees then 't is enacted by Parliament that the Heir of the Body of A. shall have the Land A. being dead leaving three Daughters who took Husbands one of them dyes the other two and their Husbands quitt the Tenant by the Curtesie brings wast against C. and E. in the Term the Term being ended adjudged first the Writ good notwithstanding the setling the Estate by the Statute without shewing the special Title and secondly without joyning the Tenant by the Curtesie because he not intitled to the Damages non locum vastat And thirdly the Writ supposes quod tenuerunt which implies a Joynt-tenancy now they appear Tenants in Common good because the Land at first one and entire but if wast can be committed in the Trees excepted by the Lessee not agreed but in Co. 5. Rep. adjudged it does and the Exception void Sir Roger Leuknor against Freed 1 Leon. 48. 3. Cro. 17. Co. 6. Rep. 12. b. Lessee for Life and he in Reversion make a Lease wast is committed they shall joyn and Tenant for Life recover Locum vastatum and he in Reversion the damages Lessee for Life Sans Impeachment c. Wast is committed by a Stranger the Lessee in Trespass shall recover no Damages for the Trees cut but only for the Entry for the property of the Trees remaining in the Lessor 1 Leon. 49. Co. 1. Inst 42. a. p. 27. H. 8. p. 36. Lease of Lands exceptis arboribus grossis super Praemissa crescentibus Trees then little grow great and are cut if wast Semble non per Anderson for they were excepted whereas great and not only what were great at the time of the Lease Garrock versus Cliffe 1 Leon. 61. A. le ts to B. for years and during the Term le ts to C. for years by Indenture to commence presently B. commits wast A. brings a Writ against B. the Defendant cannot plead nul wast nor can he plead that the Lessor had nothing for the Plaintiff will estop him by the Indenture and though the Count be general of a Lease and says not per Indenturam yet a Replication that by Indenture is no departure but a coroborating of the Declaration 1 Leon. 156. Tenant for Life is disseised and Disseisor commits wast he in Reversion shall maintain an Action of wast against Tenant for Life yet note that by the disseisin the Reversion was out of him 1 Leon. 264. If wast be assigned in a whole wood sparsim if the Jury have view of the out-side of the wood 't is good without entring and viewing of every part and so of a house otherwise if the wast were assigned in certain part of the wood or Rooms in the house 1 Leon. 267. Feoffment to the use of himself and wife for Life Remainder to his own Heir he dyes she commits wast the Writ must be general Quas tenet de hereditate c. non ex dimissione for she comes in by the Statute 2 Leon. 222. vid. Co. Entr.