Day shall be given to the Parties to produce their Witneffes and prefumptive Evidence will be fufficient; but Quare, Whether if it be found against the Tenant, it will be peremptory, or whether he shall not plead to the Right of Dower.

By 16 & 17 Car. 2. c. 8. Execution fhall not be staid by Writ of Error upon any Judgment after Verdict, unlefs the Plaintiff become bound to pay Damages and Cofts in cafe the Judgment be affirmed, or the Plaintiff dif continue, or be nonfuited; and a Writ fhall iffue to inquire of mefne Profits and Damages by Waste done after Str. 971. the first Judgment.

Note; if the Judgment be affirmed in Dom. Proc. and Roe v. Cofts given, the Defendant may bring an Action on the Roach, E. 11 Recognizance for fuch Cofts, without fuing out a Writ G. 2. Andr. of Enquiry.

153.

B

CHAPTER VI.

Of Wafte.

Y the Statute of Gloucefter, the Plaintiff in an Acti-
on of Waste is to recover the Thing wasted, and

treble Damages.

If a Leafe be made excepting the Wood and Timber, Dy. 19. pl. an Action of Wafte will not lie against the Leffee for 110. cutting it down, because not demifed.

If a Termor affign his Term except the Trees, and 5 Co. 12. after the Trees are cut down, Waste will lie against the Affignee, for the Exception was void; but if Tenant for Life make a Leafe for Years he may except the Trees, because he ftill remains Tenant and is chargeable in Waste.

The Plaintiff declared that being seised in Fee of a

Farm called Strode's Farm, he leased the said Farm to the Strode v. Defendant for 99 Years, and that the Defendant did Devenish, M. Waste in the Farm, to wit, in cutting down 200 Oaks 1 G. 1. in a Clofe called Webb's Close, Parcel of the said Farm; and on Demurrer it was holden certain enough, for the Declaration follows the Leafe, and the Wafte is affigned in a particular Place alledged to be Parcel of the demifed Premifes.

If the Defendant plead Nul Wafte fait and Iffue is ta- Lutw. 1547. ken thereupon, the Plaintiff muft prove his Title as laid in the Declaration, for it is not admitted by the Plea. The Plaintiff muft likewise prove the Kind of Waste

13

laid

Co. L. 158.

Co. L. 283.

laid in his Declaration; and therefore if he alledge Wafte in cutting Trees, and the Jury find that he stubbed them and did not cut them, it is Variance.

Where-ever the Plaintiff is to recover per vifum Juratorum, there ought to be fix of the Jury that have had the View; therefore it feems a good Exception for the Defendant at the Trial, that there are not fix Viewers appear.

The Defendant, upon the general Iffue Nul Wafte fait, may give in Evidence any Thing which proves it no Wafte; as that it was by Tempeft, &c. but not that it was for Repairs, or that the Plaintiff gave him Leave to cut, or that he had repaired before the Action brought. Neither will it be any Defence that a Stranger did it, for if the Plaintiff should not have his Action of Waste, he would be without Remedy; and the Defendant may 50 H. 4. 2. b. bring Trefpafs against the Stranger, and recover his Damages. But it would be a good Plea to fay that the Plaintiff himself did it.

2 Inf. 145.

Cr. Car. 414.

452.

Winch. 5.

Co. L. 355, 356.

Br. Wafte,

79.

If Wafte be affigned in three Houfes, two Gardens, &c. the Jury ought to find Damages feverally for every of them, for if it be but of small Value for any of them, the Court will not adjudge it Waste as to that Part; but if the Jury give entire Damages, it fhall not be intended that there were petit Damages in any, and therefore the Verdict will be good.

If the Plaintiff have Judgment by nihil dicit, and a Writ of Enquiry iffue, the Jury fhall enquire of the Damages but not of the Place wafted, for that is confeffed. But after a Recovery by Default there goes out a Writ to enquire de vafto facto, et quod vaftum prædi&' A. (the Defendant) fecit, fo as the Defendant may give Evidence, and the Jury find that no Wafte was done, or if they find Damages only to a small Sum, the Plaintiff fhall not have Judgment.

CHAPTER VII.

Of Writs of Affize.

RITS of Affize are of two Sorts, Novel Dif

an Original out of Chancery directed to the Sheriff, commanding him to return a Jury, who are called Recognitors of the Affize; they are to be taken in K. B. or C. B. for the County in which they fit, and for

all

all others in their proper Counties, but to be adjourned
for Difficulty into C. B. The Tenant is to appear and
plead inftantly (unless the Court will allow him an Im-
parlance) on the fame Day the Writ is returnable, for the
Demandant is to count immediately; and therefore if he
be not ready he fhall be nonfuited, but he may bring a
new Affize. And note; if the Defendant plead in Abate- Salk. 82.
ment, he muft plead over in Bar at the fame Time; and Ibid. 83.
if there be several Defendants, and any of them do not
appear the first Day, it fhall be taken by Default against
them.

Though the Affize be awarded by Default, yet the Co. L. 355. Tenant may give Evidence, and the Jurors find for him, 2 Lev. 120. but he cannot plead in Abatement or Bar of the Affize, nor challenge.

An Affize of Novel Diffeifin, muft be founded upon a Seifin in him who brings the Writ, and therefore this Writ is rarely ufed now-a-days for any Thing befide the Recovery of an Office. It will lie as well for an Office Co. L. 47. for Life as in Fee, though the Statute of Westminster 2. c. 25. mentions only Offices in Fee, but that Statute is made in Affirmance of the Common Law. The Statute with the Reading upon it in 2 Inft. and Viner's Abr. Tit. Affize (A. 2.) is worth confulting, but it being a Suit not much in Ufe, I shall not tranfcribe their Learning.

The Plaint need not be fo certain (where it is for Land) Dy. 84. as in other Writs, because the Judgment is to recover per Cr. J. 335 vifum recognitorum, therefore if it be fo certain that the Recognitors may put the Demandant into Poffeffion, it is fufficient. But the Plaintiff muft prove his Title precifely as laid.

If the Affize be brought for an ancient Office, the De- Webb's Cafe, mandant need not fhew what Fee or Profit is belonging to 8 Co. 49. it, for it shall be intended there is fome; but for an Office newly created, he muft fhew what Fee or Profit is granted for the Execution of it, for no Affize lies for an Office without Fee or Profit.

An Affize of Novel Diffeifin must be founded on an actual Seifin: And therefore in an Affize for the Office 2 Lev. 7o8. of Serjeant at Mace of the Houfe of Commons, where to prove the Seifin, he proved that he went to the House and demanded his Place, but received no Fees, but that in an Action on the Cafe for this Disturbance he recovered 300l. Damage; it was holden not to be fufficient Proof of Seifin, and the Plaintiff was nonfuited. But in a new 2 Lev. 120. Affize, the Plaintiff giving in Evidence, that one committed by the Houfe to the Defendant, compounded with

Hob. 39.
Co. L. 283.

the Plaintiff for the Fees, (though the Defendant was in Poffeffon both before and after) it was holden to be a good Seifin: It was also proved that the Plaintiff in the Lobby laid his Hands upon the Mace then in the Defendant's Hands, and would have taken it, but the Defendant hindered him; and this was holden good Evidence of Seifin and Diffeifin, and the Demandant had a Verdict.

In an Affize for Eftovers to a Houfe, upon Iffue nul Tort, nul Diffeifin, the Defendant may give in Evidence, that the Houfe is fallen down. So in an Affize for Land, he may upon the general Iffue give in Evidence a Leafe of the Land made to him before the Diffeifin, but not a Release after.

A

CHAPTER VIII.

Of Quare Impedit.

QUARE IMPEDIT is a poffeffory Action, for which Reafon the Plaintiff muft fhew an actual Seifin, which in general muft be by alledging a Prefentation in himself, or in fome Perfon under whom he claims; though there may be Cafes in which that is not neceffary, as where a Man recovers in a Writ of Right of Advowfon, and has Execution. So where it is a new created Advowfon to which there has been no Prefentment. And where a Presentation is neceffary to be fhewn, that of a Grantee of the next Avoidance, or of a Tenant at Will, is a fufficient Title for the Patron in Fee to have this Writ. However, this Defect of not fetting out a Prefentment will be aided by a Verdict, where it was neceffary for the Plaintiff to prove it in order to prove the Iffue; for it is not a Defect of Title, but a Title defectively fet out.

By Weftminster 2. c. 5. If a Stranger ufurp upon an Infant claiming by Defcent, or upon Tenant for Life, by the Curtefy, in Dower, in Tail, or upon Tenant for Years by Demife of the Anceftor, the Heir fhall not be put to his Writ of Right, but on the next Avoidance may prefent, or if he be difturbed bring his Quare Impedit, in which he muft lay the laft Prefentation in his

Anceftor,

Ancestor, and skip over the Ufurpation, for by the Statute that is to be counted as none to this Purpose; but if one ufurp on an Infant Heir who comes of Age within fix Months, if the Heir remove not the Incumbent by Suit, he is out of the Statute. The Infant in fuch Cafe Fitz. Q. Imp. cannot grant the Advowfon, because he has but a Right; 67. for in this Point the Statute has made no Change, but has left the Poffeffion with the Ufurper, only has given the Ufurpee a readier Action.

By the 7 An. c. 18. It is enacted, That no Ufurpation upon any Avoidance in any Church, &c. fhall difplace the Eftate or Intereft of any Perfon, but he may prefent, or maintain his Quare Impedit upon the next or any other Avoidance (if disturbed) notwithstanding fuch UfurpatiAnd if Coparceners, Jointenants or Tenants in Common, make Partition to prefent by Turns, each shall be adjudged to be feised of his separate Part to present in his Turn.

on.

If the Iffue be found for the Plaintiff, the Jury are to enquire, firft, Whether the Church be full; fecondly, Upon whofe Prefentment; thirdly, How long fince it was void; fourthly, The yearly Value; which being found, Damages are to be given according to Weftmin. 2. c. 5. before which no Damages were allowed; but by that Statute, if fix Months pafs by the Disturbance of any, fo that the Bishop do confer to the Church, and the very Patron lofeth his Presentation for that Time, Damages fhall be awarded to two Years Value of the Church, and if fix Months be not paffed, but the Prefentment bé deranged within the faid Time, then Damages shall be awarded to the Half Year's Value of the Church.

Note; the Plaintiff fhall recover no Damages where 3 Lev. 59. the Church remains void, and if the Jury tax Damages, 2 Inft, 362. a Remittitur de damnis must be entered. The Damages are to be recovered against the Disturber, and therefore if the Incumbent counterplead the Title of the Plaintiff as well as the Patron, the Plaintiff shall recover the Value as well against him as against the Patron. But no Damages fhall be recovered against the Bishop, where he claims only as Ordinary. The King is not within the Statute, because by his Prerogative he cannot lofe his 6 Co. 52. Presentation.

By Westminster 2. c. 30. The Judge of Nifi Prius has Power to give Judgment immediately; yet if he do not, upon the Return to the Poftea Judgment may be given by the Court to which the Return is made.