CHAP. I. Of Counts, or Declarations.

A Declaration, A Declaration, what? is the setting forth, comprizing, or exhibiting in Wri­ting, the Cause of Action in any Suit, or Plaint, grounded upon the Common or Statute Law, wherein the Party supposeth himself to be injured. This hath been by some supposed in an Action Real, to be most properly termed a Count; but that, being a Norman (or Law- French) word, is frequently, if not as often, used in [Page 2] our Books, in all other Actions, whether Personal or Mixt, for a Declaration.

A Count or Declaration therefore (being Terms equivocal, Of the formal Parts of which a Declaration ought to con­sist. and so used in the fol­lowing Discourse) ought principally to contain Three things:

First, The Plaintiffs and the Defendant's Names, (which in Actions Real are called, Demandant and Tenant) and the Nature of the Action; and this by some is termed the Demonstration, or Demonstrative Part of the Count.

Secondly, The Time, the Place, and the Act; in which ought to be comprehended, How, and in what manner the Action did accrue, or first arise between the Parties; When, what Day, what Year, and what Place, and to Whom the Action shall be given; which is called the Declarative Part of the Count.

And Lastly, The Perclose or Conclusion, which is Unde deterioratus est, &c. In which the Plainti [...]f ought to Aver, and Profer to prove his Suit, and shew the Damage he hath sustained, by the Wrong and Injury done unto him by the Defendant.

And this Definition, (consisting of a Tria, somewhat resembling the Logical Major, Minor, and Conclusion) some of the Ancients (among whom none more fond of it than Mr. Fleetwood, Temp. Eliz. Regin. the Famous Recorder of Lon­don) conceived to be a perfect Syllogism.

The Statute of 36 Ed. 3. cap. ult. seemeth to help want of Form in Counts, in these words;— By the Ancient Terms and Forms [Page 3] of Pleaders, no Man shall be prejudiced; so that the Matter of the Action be fully shewed in the Declaration, and in the Writ—. However, it was always at least so presumed by the most Eminent Pleaders and Sages of the Law, by drawing this Conclusion from the words; Count ne abatera pur default de Form, issint que eyt Substance; that is to say in Eng­lish, A Declaration shall not abate for want of Form, so that it hath substance. But Counts are more especially Relieved, when defe­ctive, by the Statute of 18 Eliz. cap. 14. of Jeofails after Verdict, although they want Form or Agreement with the Register. Note well the Statute, and what Cases are remedied by the same. For, notwithstand­ing the Statute of 36 Ed. 3. Vide Tit. Jeo­fails & Re­pleaders, infra. Maxim. before recited, there is holden a Maxim in our Books, That, It sufficeth if a Bar be good to Common Intent; but a Count in the Substance thereof must be good to every Intent. And so is 3 H. 7. 11, & 12. where the Retorn of a Writ of Rescous was adjudged ill, because the Sheriff named no Place where the Rescous was made; the Re­torn of a Sheriff resembling a Count, which must be good to every Intent. And so is 3 Ed. 4. 21. That a Declaration must be certain to every Intent. And yet, In some Cases a Count shall be holden good by Intendment; as 3 H. 6 35. the Plaintiff in Debt did Declare upon an Obligation made at D. which extended into two Counties; yet it shall be taken without other Declaration to be made in the County where the Action is laid; where Note, that the County is not by express Name de­clared. [Page 4] And 20 H. 6. 23. the Plaintiff in Account did declare, that the Defendant was Receiver until the Feast of St. Michael, but shewed not which St. Michael; and by Intendment shall be taken for St. Michael the Archangel. And 38 H. 6. In Debt by a Ser­vant against his Master for Wages, he de­clared upon a Retainer for Eight years, taking for every year Twenty shillings; it shall be intended from year to year, accord­ing to the Statute.

Next is to be considered what shall vitiate a Count, and what shall not. And first Note well, that it hath been held for a Maxim, among the Sages of the Law and Ancient Pleaders, that for Surplusage the Count doth not abate; (Surplusagium non nocet) as is 9 H. 6. 25. by Rolfe: And so is 46 Ed. 3. 21. Where in a Quod ei deforceat the Demandant did alledge Esplees in himself, and likewise in the Donor, and yet good: Although, as it seemeth by the Book of 3 H. 6. 41. if the Count want Esplees, the same is ill. And so is 9 H. 6. 41. where said, That if one, in an Attachment upon a Pro­hibition doth not expresly declare, that the Prohibition was deliver'd to the Defendant; Ill: For there is said to be a Form to be observed. And by 4 Ed. 4. 14. and 20 H. 6. 18. a Blank or Space left in a Declaration doth abate the same. But, by 24 Ed. 3. 35, & 54. if the Obligation be Anno Domini only in the Date, without mentioning the King's Reign, the Declaration may be so also; and, as it seemeth, may be otherwise; viz. è contra.

[Page 5] By 11 H. 4. 72. its said, That in Debt against the Ordinary or Gaoler, you shall not need to declare how they were made Offi­cers, because an Action lieth against Officers in possession. And Note, that where a Con­dition contained in the Obligation is to the advantage of the Plaintiff, there he must declare thereof by 21 Ed. 4. 36. Other­wise if it be to his disadvantage, or con­tained in the Condition of the Obligation; and to that intent is 22 Ed. 4. Bro. tit. Count 13. where any thing is to be done by the Plaintiff; and 33 H. 6. 3. putteth the difference, where it is contained in the Obligation, and where in the Condition: And to that Intent is 9 H. 6. 15, & 16. But yet 26 H. 8. 1. the Con­dition was Indorsed to this purpose, That if the Obligee deliver to the Obligor a Bull, that then the Obligation shall be void; otherwise not: There the Plaintiff is to Declare upon the Condition; but Shelley doubted, if he shall be compelled to do the same of necessity. And by 3 H. 6. 8. If the Defendant do bind himself by Indenture in Forty Pounds, to perform all Covenants contained in the same, the Plaintiff shall declare upon the Breach of every Cove­nant, to which the Defendant shall plead, Covenants performed generally; and then the Plaintiff shall assign one or more Breaches specially, whereupon Issue shall be joyned. But as before, so in Annuity pro Consilio impenso & impendendo, the Plaintiff in An­nuity, or in Debt for the Arrearages thereof, ought to count that he did (or [Page 6] was ready to) give Counsel, because a Consideration Executory: Otherwise of Council Executed; as is 3 H. 6. 35. 38 H. 6. 22. 5 Ed. 4. 104.

But yet 21 Ed. 4. 49. Brook, Count 72. this difference is Ruled there, That where an Annuity is so brought by a Special Officer; as by a Keeper, Bailiff, Steward, &c. there he must declare of the Service; but other­wise in a Declaration pro Consilio, because more general, there the Defendant may assign the▪ Breach, or lay the default; quod Nota. Also, if an Annuity be granted to an Attorney pro Consilio impenso & impen­dendo, and a Suit happens to be depending, after the Grant made, between the Grantor and a Stranger, and the Attorney (not being requested to give Counsel in that Cause to the Grantor) gives Counsel to the Stranger therein: Resolved by the Court, that this is not against the Intent of the Grant, but that the Annuity (notwith­standing such Advice given against the Grantor) should continue, 4 H. 8. 13.

Note, it is not material, when you de­clare in Annuity, to set forth the Title or Estate of the Grantor, but only to say, that the Grantor did grant the Annuity, Co. En­tries, Annuity 49. And by 15 H. 7. 6. it ap­peareth that the Plaintiff in Formedon may declare of a Gift, Count de Done fans Seisin. without Seisin: And so is 34 H. 6. 48. upon Dimisit; and also Common Experience. And note, where there be two Defendants, Several Counts in one Declara­tion. and the one appears, and the Plaintiff Counts against him in Trespass in [Page 7] the Simulcum, that he with the other (such aday) did the Trespass, and when the other came, he counted against him in like Form, as is 46 E. 3. 25. But against the latter the Plaintiff varied in the Day. And 44 Ed. 3. 41. Br. 583. a Man may have Detinue of Charters and of Chattels joyntly, because there one thing is the ground of the Action, viz. the Detainer. And 41 Ed. 3. Damage 75. and 1 H. 5. 4. one may have an Action of Debt, where part of the Mony is due upon Bond, and other part by Contract, because there Debt is the only Cause of Action.

So, by 19 Ric. 2. Case 52. In things of the like Nature, one Declaration may contain divers several Wrongs; and therefore in an Action upon the Case, the Plaintiff declared a­gainst the Defendants, First, For hindring him to hold his Leet. Secondly, For di­sturbing his Servants and Tenants, in ga­thering his Tithe. Thirdly, For threat­ning so, that the People, &c. durst not come to a certain Chappel, to do their Devotion, and present their Offerings: And, Fourthly, For the taking away his Servants and Chattels. Where the Plaintiff shall Count de no­vo, and where not. And see 22 H. 7. Bro. 87. The Plaintiff did Count de novo against the Defendant, and the Priee in Aid, after Aid prier. And 5 H. 5. 13. He shall also Count against Te­nant by Resceit, mutatis mutandis. The like seemeth should be against the Vouchee. Yet by 8 H. 6. 16. the Plaintiff shall not Count de novo against the Garnishee. And 14 H. 6. 3. one shall not Count against him that com­eth in upon the Grand Cape, until he hath saved his Default.

[Page 8] And Note, Rules to be observed in declaring of the Day, the Year, and Place. touching the declaring of the Time and Place, first, by 9 H. 6. 115, 16. That in Wast, and such like Mixt Actions, as also in Actions Real, one shall not Count of the Day, Year, and Place; otherwise in Personal Actions. And to the same Intent is 7 H. 7. 5. And therefore 35 H. 6. 50. a Parson brought an Action of Debt for the Arrerages of an Annuity granted unto him until he should be promoted to a Benefice, and Declared, that he took a Wife, which determined the Annuity; yet because he did not shew the Place where he took her to Wife, the Count was ill. And so is 35 H. 6. In an Action of Debt brought by an Administrator, for not shewing in what Place the Administration was committed unto him: But it is other­wise of an Executor; for he is not bound to shew where he was made Executor, be­cause he may be Executor of his own Wrong.

And Note, 35 H. 6. 38. where the Plaintiff in Debt did Count upon a Lease of four Acres for the Rent of three Pounds; and the Defendant did plead to the Count, that he did Let those four Acres and other Lands, and a good Plea: But the greater Doubt, whether he should in that case take a Tra­vers; for in our Books it is obvious, That if the Plaintiff in his Declaration mistake the beginning of a term of Years, The disadvan­tage of mista­king the Time, Years, or Number of Acres. the Land, or number of Acres; or declare upon a simple Con­tract, when it is Conditional, the same is no good Declaration, and Advantage thereof may be had as well upon the General Issue, as otherwise. [Page 9] And in Fogassa's Case, in Pl. Com. If the Plaintiff Count generally upon a Lease, and the Defendant plead, ne Lessa pas (non di­misit,) the Plaintiff shall not give in Evidence a Lease by Deed. And 28 & 29 H. 8. Dier 32. an Action of Debt was brought upon a Lease of six and twenty Acres, the Defen­dant said, that the Plaintiff Let the same, and four Acres more; Absque hoc, that he Let the six and twenty Acres tantum; whereupon Issue was taken, and the Verdict found the Demise only of one and twenty Acres; and thereupon the Question was, Whether the Verdict had found for the Plaintiff, or for the Defendant? And by Fitz. and Englefield it was found for the Plaintiff, because Agreed of both sides, that six and twenty Acres were Let, and the Question was upon the four Acres: But Baldwin and Shelley seemed to be of Opi­nion, that the Verdict was ill: But Shelley said therein, That if the Defendant had pleaded a Plea without a Travers, (because he had confess'd the Count, and more, it would have been good.) Or if the Travers had been, Absque hoc quod predictus le Plain­tiff dimisit les four Acres more, it had been well enough.

But touching this Matter of Travers, Note. of the Quantity, Time, or Place, see more in the Titles Travers, Issue, and Verdict, afterwards in this Book.

And see 11 H. 6. 5. ‘That if in Debt for Rent it appeareth by the Count that one of the Days is not yet come, the Writ [Page 10] shall abate; Several days of payment, and where Executi­on upon the first default, where not. but otherwise in Avowry by all the Court: Nota diversitatem.’ And see Fitzherbert's Natura Brevium, in his Writ of Debt, ‘That where divers Days of payment are contained in a Recognizance, upon the first default shall go out a Scire facias; but upon a Bill for Debt, not until the last Day: Notwithstanding it hath been held, That in an Action upon the Case, upon an Executory Promise, the Plaintiff might have his Writ upon the first default, and Recover for that loss; and so upon every default.’

It appeareth by 7 Ed. 4. 15. and 1 Ed. 4. 4. 39 H. 6. 4. 11 H. 4. 55. and 50 Ed. 3. 4. in Brook, Title Brief, by the better Opinion, ‘That in Debt, Resceit of Parcel, Hanging the Writ, doth abate the whole Writ; but that (as it seemeth) is intended where the Count and Demand is of one entire Contract; as a Precipe of a Mannor, and Entry into part: For it is otherwise (as it seemeth) where a Precipe is of sundry Acres, and the Demandant enter into but one of the Acres: But (by the same Book 50 Ed. 3. 4.) that ought to be pleaded, Puis le darein Continuance: And (by most of the other Books) if the Action were upon Spe­cialty, then it can neither be pleaded to the Writ, or in Bar of the Action, without Specialty; and if the Defendant conclude his Plea, in Bar, it goeth but to the Action for part: But (as it seemeth) be the Action either upon Specialty, or not, if the Defendant plead in Bar the Resceit of [Page 11] parcel, either before, or hanging the Writ, he must plead the same by Deed, and it goeth but to that part: But if the Plaintiff bringeth an Action of twenty Pounds, and declare that he is satisfied of ten Pounds, the Writ doth abate of his own shewing; for he ought to bring his Action only for that which is behind, and declare himself to be satisfied of the rest: But if he bring his Action for the Whole, and Nil debet; or a Release be pleaded to Part, that goeth but to the same; and so it seemeth by the Plea, quod non debet predict as vigints libras, nec aliquem denarium inde.’

And in the said Book of 11 H. 4. Debt was brought for Forty Pounds, declaring part upon a Lease, parcel upon a Contract, and part for Work done: And to part the Defendant tendred his Law, to other part he pleaded, ne Lessa pas (non dimisit,) and to the residue he tendred the Mony in Court; and the Plaintiff, as to the Plea of the Lease, took Issue; and, to that of the Mony tendred, he Rejoyn'd, that he had received it accordingly; and, as to the residue, he refused the Law; and to that, and the Point of Receipt, the Writ only did abate, quod nota.

Where the Writ and Declaration are General, Reasons for Pleading the Common Bar, and giving a new Assign­ment by Re­plication. as in Trespass Quare clausum fregit, if the Plaintiff so Declare, the Defendant, as all the Books agree, may plead a Special Plea to inforce the Plaintaiff in his Repli­cation to assign the Place more certain: But this Plea of the Defendant must be also [Page 12] very certain, as 4 & 5 Ph. & Mar. Dyer 161. for the Defendant to say, That the Place where is six Acres, is no Plea, unless he also give it a Name, or Boundaries: And so is 22 H. 6. 24. that the Defendant shall plead certainly; and this for the advantage of the Defendant, for if he plead the General Issue, the Plaintiff may in any Place in that Town assign the Trespass: Or else, as is the Book 28 H. 8. Dyer 23. If the Defendant doth say, that the Place where is six Acres, which is his Freehold, and the Plaintiff Reply, That it is not his Freehold, &c. If the Plaintiff have a Close of like quantity, it shall be intended the same: But the Plaintiffs New Assignment must also be as true and certain to all Intents, as is 9 Eliz. Dyer 204. It must be both true in the Name, and in the Boundaries; and must not be (as there) una acr' prat' sive terr'.

And as 1 H. 7. 11. and 21 H. 6. 2. and other Books, the Plaintiff must say also in his Declaration, alia quam, &c. And then, as in 14 H. 4. 24. the Defendant shall not plead, that the Place where is all one, &c. but shall have advantage thereof best by the General Issue, if the Pleas aforesaid be entred; and so is, 1 Ed. 5. 4. Yet in the said Book 21 H. 6. 2. the Defendant did Re­joyn, that the Place was all one, &c. and known by one Name. But as 27 H. 8. 22. where the Defendant in his Bar said, The Place where was an Acre and three Roods; the Plaintiff might have assigned the Trespass in the three Roods, without the Acre, and [Page 13] the Bar, as to the Acre, to no purpose. And 1 H. 7. 11. the Defendant did plead, That the Place where was three Acres par­cel of the Mannor of B. of which A. did him enfeoff, &c. To which the Plaintiff Replied, That the Place where was the said three Acres, and thirty Acres more, parcel of the said Mannor; and no Plea, because he doth not say, Al' quam; or agreeing with the Defendant's Answer: So that it seemeth the Plaintiff may Reply to, or take Issue upon the Defendant's Plea, if it should be untrue, as for the most part, the first part of it is.

And it should seem also by 9 Ed. 4. 24. and divers other Books, Declaration, ab antiquo, certain in Trespass, as at this day, by Rule of Court in C. [...]. That the Plaintiff may at his pleasure, in his Declaration of Trespass, Count of the Place certain, by Name and Number of Acres, and there the Defendant must Plead at his Peril: And so are the Books of 5 Ed. 4. 124. and 9 H. 7. 6. in Trespass of Goods; and as 38 H. 6. 5 H. 7. 8. and other Books in Entry upon the Statute of R. 2. and 8 H. 6. But 21 Ed. 4. 18. in Trespass quare domum fregit, with­out giving a Name, the Defendant may enforce the Plaintiff to a new Assignment; notwithstanding by Brian and Littleton, 15 E. 4. 23. in manner Ruled, that the Plain­tiff in his Declaration in Trespass, naming the Place certain, is but Nugation; to which the Defendant by the Plaintiff's Act, shall not be enforced to Answer: As if the Plaintiff in Debt upon an Obligation doth declare, that the Defendant is of full Age, [Page 14] the Defendant may Plead, that he was with­in Age without Travers: But (as there it seemeth) in an Assize of Rent the Plaintiff may declare either Generally or Specially, at his pleasure; according to which last re­cited Book is 20 Ed. 4. 9 & 10.

Where it is said also, Rules for De­claring in Re­plevin and Trespass. that the better Opi­nion is, to Declare in Replevin, according to the Ancient Use, that is to say, to name only the Town in the Declaration, and not the Place, or number of Acres; and so is 9 Ed. 4. 43. And yet notwithstanding see the Book of 14▪ H. 6. 3. that in Ejectione Custodiae the Defendant did Plead Jointenancy, and the Plaintiff assigned anew: So 9 Ed. 4. 23. in Detinue of Charters; but there the bet­ter Opinion seemeth, that no New Assign­ment ought to be. By 38 H. 6. the Defen­dant in Trespass did Justifie for a Way through the Plaintiff's Close, and the Plain­tiff assigned the Trespass in another place of that Close. And 39 Ed. 4. 7. the Defen­dant Justified that day by the Plaintiff's License: To which the Plaintiff Replied, That the Defendant came back again the same Day, and re-entred his Close; where also it appeareth, that where one Justifieth the same Day, he need not conclude, Que est eadem Transgressio. Vide Brook, Tit. Trespass. Vide Noy's Reports, fol. 70. Roll's and Walter's Case; where in Replevin the Defendant avowed Damage fesant, as Tenant to I. S. who was seised in jure Ecclesiae, and demised to him for years; and held good without saying, that he was Parson: But, secus in [Page 15] Quare Impedit; for there the Plaintiff must name the Defendant Parson Imparsonee, be­cause till then, in that Case, he cannot plead in Bar.

By Co. 1 Inst. fol. 145. the Sheriff ought to take two sorts of Pledges in Replevin, one by the Common Law, ad prosequend' Quere­lam; and the other by the Statute, De Re­torno habendo. Note, the Plaintiff in Re­plevin must alledge a Place certain, where the Beasts, Cattle, or Goods were taken. By Co. 1 Inst. fol. 145. several persons, whose Beasts, Cattle, or Goods are taken, shall not joyn in Replevin; nor is it a good Plea to say, that the Property is to the Plaintiff and another. But by Co. lib. 7. in the Case of Swans, a Replevin lies of such things in which one hath but a qualified Property, as of Beasts that are ferae naturae, and made tame, so long as they have Animum rever­tendi. So 2 Ed. 2. Fitzherbert, Title Avowry 182. Replevin lies of a Leveret, or of a Fer­ret; and by the Register Original, fol. 81. it lies of a Swarm of Bees. And by 7 H. 4. 28. and 6 H. 7. 29. 'tis at the Plaintiff's Ele­ction in many Cases, to have Replevin or Trespass for his Cattle or Goods taken, which he will; but he cannot have an Action of Trespass against his Lord for taking them.

But by the Books of Entries, viz. Rastal. 567 & 572. and Coke 610. and Fitzh. Nat. Brevium, fol. 69. b. Replevin lies de averiis capt' & detent' quousque, &c. & de aliis ave­riis capt' & adhuc detent'; and there said, [Page 16] that when the Plaintiff declares, that the Defendant yet detains the Cattle, and the Defendant appears and makes default, the Plaintiff shall recover all in Damages; and also 'tis there said, that if 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. Also it appears in Dyer's Reports fol. 280. That if the Plaintiff be Nonsuited before Declara­tion, and he sueth out a Writ of Second Deliverance, and is again Nonsuited before Declaration, the Defendant shall have the Cattle irreplegiable, without any Avowry.

Note, If Replevin be before the Sheriff by Writ, it may be removed by the Plaintiff into the King's Bench or Common Pleas by Pone, without Cause, and by the Defendant with Cause mentioned in the Writ; but if it be before him by Plaint, then it may be re­moved by the Plaintiff, by a Writ of Recor­dari facias loquelam issuing out of Chancery, without shewing Cause; but if the Defen­dant removes the Plaint by that Writ, he must shew Cause therein.

Note also, If live Beasts or Cattle, and Goods and Chattels (which are Dead, or things Inanimate) are named together, and Replevied by one Writ, as they may, the live Beasts or Cattle must be named before the dead, as Quandam vaccam suam & que­dam averia sua, que J. S. cepit.

Note farther, That by the Common Law, when the Goods or Chattels of any Person are taken, he may have a Writ out of the [Page 17] Chancery, commanding the Sheriff to make Replevin of them, and this Writ is Vicontiel, and in the nature of a Iusticies, (by which the Sheriff may hold Plea of any value, and in all Cases;) but when the Defendant claims property, and when more than one live Beast is taken, then the Form of the Writ is, Quod Replegiari faceret J. S. quendam Spadonem, vel Equam, &c. And when many dead Chattels are taken, then the Writ shall be, Quod Replegiari faceret bona & catalla sua, and the Plaintiff must ascertain them in the Declaration; but if but one dead Chattel be taken, then the Writ shall be, Quod Re­plegiari▪ faceret J. S. quoddam Examen Apium.

3 Cro. 627, 628. the Plaintiff brought Trespass for taking an Hide; and the De­fendant pleaded in Justification, That the Major and Communalty of London were seis­ed of an House called Leaden-Hall, where he took the said Hide Damage-feasant, as their Servant, &c. To which the Plaintiff Re­plied, That Leaden-Hall is an ancient Mar­ket for Fridays, and that he bought the Hide there on such a Friday; and that he had the same on his Back, to carry away, quousque the Defendant took it prout in Narr': And tho' Objected, that the Repli­cation is not good, because he concludes not, Que est eadem Captio, &c. for that he varies from the manner of the Caption, and by his Pleading takes from the Defendant's Authority; yet Resolved good without it, be­cause it agrees with the Defendants Plea, in Time and Place of the Caption.

[Page 18] So, 3 Cro. 8. 98. in Trespass, the Defen­dant pleaded, that he is Clericus & seisitus de Rectoria de A. in jure Ecclesiae, and makes Prescription for him, and all his Predeces­sors, Parsons of that Church, to have had a Way, time out of Mind, in such a place; but says not, that he was a Parson; and notwithstanding it was Objected, that he had not enabled himself to make a Pre­scription; yet forasmuch as he hath alledged, that he is seised in jure Ecclesiae, it tanta­mounts thereto, and is good.

CHAP. II. Of Bars, or Pleas to Declarations.

A Bar, in our Law, signifies a Destru­ction for ever, or Taking away for a time the Action of him that hath Right; and it is called, A Plea in Bar, when such a Bar is pleaded, Co. 1 Inst. fol. 372. Plowd. fo. 26, 28. Colthirst's Case. Brook, Title Bar, Num. 101, and 5 H. 7. fo. 29. There are also Pleas in Abatement of a Writ, Plaint, or Count.

A Plea in Abatement, in our Law, being as much as Exceptio dilatoria with the Civilians, ( Britton, cap. 51.) or rather an Effect of it: For the Exception alledged and made good, works the Abatement. And this Exception may be taken either to the Insufficiency of the Matter, or Incertainty of the Allega­tion, [Page 19] by Misnaming the Plaintiff, Defendant or Place: To the Variance between the Writ or Count, or Specialty, &c. To the Incertainty of the Writ, Plaint or Count: To the Death of either of the Parties be­fore Judgment had, and for divers other Causes: Upon which Defaults the Defen­dant may pray, that the Writ, Plaint or Count may Abate, that is, the Plaintiff's Suit against him may Cease for that time.

There is also a Plea in Abatement to the Iurisdiction of the Court, called a Foreign Plea, which is, where a Matter is alledged in any Court, that ought to be tried in another: Or, a Refusal of the Judge as Incompetent, because the Matter in question is not within his Jurisdiction: As if one lay Bastardy to another in a Court Baron, Kitchin, fo. 95. Anno 4 H. 8. cap. 2. and 22 Ejusdem cap. 2, & 14.

But before we Treat of Pleas in Abate­ment, we shall consider, What Pleas shall Con­clude the Defendant, by his Appearance, Conti­nuance, &c. As to which the Tenant or Defendant ought especially to take Care, that by his Appearance, and taking of Idem dies or Imparlance, he Conclude not him­self of his Advantage in Pleading; for by our Law-Books Idem dies is before Continu­ance, and Imparlance after, and by Con­sent of the Party: And therefore Note, That after Imparlance General, one shall not plead to the Iurisdiction, as is 22 H. 6. a. But if the Imparlance be Special, viz. Salvis sibi omnibus & omnimodis Advantagiis tam ad Breve quam ad Narrationem, it is otherwise: [Page 20] But to the Writ (it seemeth after a General Imparlance one may plead Jointenancy, Non-tenure, Over-Dale and Nether-Dale, and the like, whereof he is not Estopped by his Appearance, as is the Book of 9 Ed. 4. 36. But Misnosmer, and the like, after a General Appearance, and Imparlance, he shall be Concluded of, as are the Books; and there­fore the way in that Case is to appear in this manner, viz. J. S. qui implacitatur per nomen J. D. comperuit & habet diem, vel petit licenciam Interl [...]quendi, vel petit visum, Salvis sibi omnibus Advantagiis, &c.

And by 8 H. 6. 18. Of Pleas to the Jurisdiction of the Court. If one plead to the Jurisdiction of the Court after Declaration, the same shall not be Entred until the Plea be discust, and the Continuance shall be upon the Writ. And by 50 E. 3. 9. upon the View, one shall plead Ancient Demesn to the Jurisdiction; and sometimes the Court shall oust the Parties of Jurisdiction, although they themselves seem to take no advantage thereby, as in 22 Ed 4. 23. b. in Trespass be­tween the Parson and Vicar; otherwise he ought to plead it, as before. And by 3 H. 4. 12. Foreign Pleas. and 8 H. 4. 18. a Foreign Plea in a Per­sonal Action, is to the Jurisdiction; other­wise in a Real Action. And by 21 Ed. 4. 10. the Judgment in that Case is, as in other Pleas, that the Writ shall Abate.

Next we shall consider what Pleas may be pleaded to the Jurisdiction, and they are Ancient Demesn, County Palatine, Cinque Ports, &c. But according to 44 Ed. 3. If the Defendant plead to the Iurisdiction, and Con­clude [Page 21] to the Action, the Iurisdiction is admitted; unless as in 1 R. 3. 1. Natura Brevium, and other Books, where Trespass is brought Vi & armis, or where the Freehold is pleaded in the County Court, or Court Baron, then the Court ought to take Consideration therein. And it appears by 49 Ed. 3. 34. That every Castle of the Cinque-Ports is intended Gildable, and not of the Ports, quod nota. And the Lieutenant of Dover Castle was Assest in King Iames the First's time, in the Subsidy; and 4 Ed. 4. 16. the Tower of London, by Middlesex.

This Plea to the Jurisdiction being to be pleaded at the first, unless in special Cases, as before: The next in order, is to the Per­son, then to the Count, after that to the Writ, and to the Action of the Writ, and the last is in Bar.

And therefore next to the Pleas to the Jurisdiction, Order of Plead­ing. are those to the Person, which according to Littleton are six in number, Of Pleas to the Person. viz. Villenage, Utlary, Alien, Hors de Protection, Profession, and Excommengement. In pleading the last of which, the Defendant must shew the Letters of Excommunication, which Plea doth not abate the Writ; for upon the Plaintiff's shewing his Letters of Absolution in Court, he shall have a Resummons against the Defendant; and by 33 H. 6. 23. Profession or Alien may be also pleaded to the Action.

And touching Pleas to the Count, Of Pleas to the Count. farther than before is mentioned, they are divers, as Variance from the Writ, wanting Form or [Page 22] sufficient Declaring upon the Condition, and the like, as the Case requires; for which see afterwards, and Brook, Title Count.

And as concerning those Pleas which are to be pleaded to the Writ, Of Pleas to the Writ. they be of two sorts, viz. the one ‘Apparent in the Writ, of which the Defendant may at all times take advantage, and the other resting up­on the Plea of the Defendant; as Mis­nosmer, Iointenancy, Non-tenure, Non habetur aliqua talis Villa, or Over-Dale and Nether-Dale, of the Place where the Action is laid, and not of which the Defendant is named; unless in Cases where Utlary lieth, and that the Lands lye in A. and not in B. and the like, which the Defen­dant is bound to take in time, and to look that he be not Concluded of them by his General Appearance, Continuance, or Imparlance, as before is mentioned: And Note, that it appeareth in a Report 3 Eliz. That if the Defendant for Matter appa­rent plead to the Writ, he shall in the beginning and ending of his Plea, petere Iudicium▪ de brevi; but otherwise in the Conclusion only.’

‘And touching Pleas to the Action of the Writ, Of Pleas to the Action of the Writ. they are, where by the Plaintiff's own Declaration, or the Defendant's Plea, it appeareth that the Plaintiff ought not to have the same, but another Writ. And, as 26 H. 8. Brook, Brief 409. The Defen­dant may choose either to Conclude to the Writ, or to the Action of the Writ.’ And so 9 Ed 4. 31. where Dower was brought [Page 23] against a Guardian; and he said, he was not Guardian: Iudgment de Brevi.

In the next place we will proceed to the Form of the Defendant's Pleadings: Of the De­fendant's Pleading, and first of his Defence. And first, touching his Defence against the Plain­tiff, it appeareth 34 H. 6. 33. and other Books, in Bro. Title Defence, That in divers Actions, as namely, Assise, Dower, Darein Presentment, Mortdancestor, Per quae servitia, Attaint, and Scire facias, the Defendant shall only say Venit & dicit, without other De­fence. And 46 Ed. 3. 23. in an Assise of Nu­sance in the Common Pleas, there shall be Defence, otherwise not; and in Brook's A­bridgment, Title Defence, Num. 67. where one Pleads to the Iurisdiction there shall be no Defence.

But it appears in the said Title 2 Ed. 4. Half Defence. and 40 Ed. 3. and 35 H. 6. That where the Defendant pleads to the Person, he may make half a Defence, viz. Venit & defendit vim & injuriam, without saying quando, &c. And so is 7 H. 6. there in a Praemunire, or Plea to the Jurisdiction, it is only said, Venit & defendit vim & injuriam: So as by these and other Books, in the said Title of De­fence it appears, that in Pleas to the Juris­diction, or the Person, the Defendant, as before, cannot make above Half Defence: For if he adds to the same the words quando, &c. which make the Whole Defence, the ability of the Jurisdiction and Person is thereby admitted; but in Pleading to the Writ one may make a Full Defence, as ap­pears by all the Books of Entries.

[Page 24] The Full Defence is in some Cases Ordi­nary, Of the Ordi­nary Full Defence. and in others Special: And the Ordi­nary Full Defence in some Actions is, Venit & defendit vim & injuriam quando, &c. and in others, Venit & defendit jus suum quando, &c. and where the Defendant shall in his Defence say, Venit & defendit vim & inju­riam quando, &c. are these Actions, viz. Ac­count, Action upon the Case, Covenant, Debt, Detinue, Ejectment, Ne injuste vexes, Par­tition, Parco fracto, Quare Impedit, Quo jure, Replevin, Rescous, Recaptione Averiorum, Recto, Rationabili parte bonorum, Rationabi­libus Estoveriis; in all Actions where Debt and Trespass are given by the Statute; in all Actions of Trespass de Clauso fracto, or de Clauso & domo fractis, with their Incidents, as, de Bladis & herba depast', conculcat', con­sumpt', succis'; Averiis, pedibus ambulando, &c. or, de Arboribus succis', amputat', &c. or, de Sepibus, Fossatis, Solo; Eradicat' vel amputat', implet', subvers', &c. or, de Bonis capt', aspor­tat', spoliat', &c. or for Battery, False Impri­sonment, or Menacing the Plaintiff or his Servants; as also in Waste, and other Per­sonal and Mixt Actions.

But in a Writ of Intrusion, and every Praecipe quod reddat, Ayel, Escheat, and the like, the Defence is, Venit & defendit Ius suum quando, &c. And in some Cases the Defence is more Special than before, as Brook, Defence 45. In Recto quando Dominus Remisit Curiam suam, the Defence shall be Venit & defendit Ius praedicti Petentis & Seisinam suam quando, &c. And ibid. 16, & 40. [Page 25] in Nativo habendo the Defence shall be, Venit & defendit jus suum, & omnem Nativitatem, quando, &c. And also vide Ibidem 23, 30, & 31. That in Actions upon the Statutes of Mainteance, Labourers, and the like; and in Recaptione averiorum, the Defence is Venit & defendit vim & Injuriam quando, &c. Et quicquid, &c. And in Prohibition upon the Statute of Ric. 2. & H. 4. Venit & defendit vim & injuriam, quando, &c. Et omnem Con­temptum. Et quicquid, &c. And in an Ap­peal of Mayhem, as appears 40 Assize 9. the Defence is, Ven' & defendit vim & inju­riam, Et omnes Felonias & Appella de May­hemio, Et quicquid quod est contra pacem Domini Regis Coronam & Dignitatem suas, &c.

And it also appeareth in Brook 46. that where the Defendant pleadeth Misnosmer, Misnosmer how pleaded. he shall alledge the same before Defence, and then shall make Defence, and shew the certainty of the Misnosmer: And the Vou­chee, as it appeareth there, Num. 24. shall make his Defence in this manner, Et prae­dictus A. B. ut Tenens per Warantiam suam defendit Ius sum quando, &c. And Ibidem 14 H. 6. 18. it is a Doubt, whether one shall take his Protestation before or after Defence; and by 21 H. 6. 'tis said, That to every of the Plaintiff's Pleas the Defendant shall make his Defence de novo; quod nota.

And touching Protestations, Of Protesta­tions. we shall first consider what they are, and in the next place inform you how, and in what manner they ought to be pleaded.

[Page 26] A Protestation in Pleading therefore, is by some defined to be a Defence of Safeguard to the Party that makes it, from being Concluded by the Act he is about to do, that Issue cannot be joyned upon it, Plowd. fol. 276, b. per Walsh ibidem. Or, it is a Form of Pleading, when one doth not directly affirm or deny any thing that is alledged by another, or which he himself alledg­eth.

But by Plowden, in Grayslake and Fox's Case in his Com. it is said to be, ‘A Saving or Excluding of a Conclusion, and (by that Book) ought to be after the Defence, which is (in that Point) left doubtful by the before-mentioned Book of 21 H. 6. 26. and may not be contrary in it self, or double.’ As in the before recited Case of Grayslake and Fox, Protestando, that he made no Testament, pro Placito, that he made not the Plaintiff his Executor; because if he made no Testament, he could make no Ex­ecutor: And, as it there appears, the Effe­ctual Matters of the Bar ought not to be taken by Protestation: Yet in Clere Haddon's Case, the Protestation was, Nul Wast fait; and he pleaded, that the Reversion descend­ed to another, and the like.

The next Point in order to be discussed, Of Colour in Pleading. is touching Colours in Pleading; what is pro­perly signified by the same, and in what Actions they shall be given.

Colour signifies a Probable Plea, but in truth, What it signi­fies. False; and hath this End, to draw the Trial of the Cause from the Jury to the [Page 27] Judges: As, in Trespass for taking the Plaintiff's Cattle, the Defendant saith, that before the Plaintiff had any thing in them, he was possessed of them, as of his own proper Goods, and delivered them to I. S. to re-deliver to him again, upon Request; but I. S. giving them to the Plaintiff, who supposing the Property was in I. S. at the time of the Gift, took them, and the De­fendant took them from the Plaintiff, and thereupon the Plaintiff brought his Action: This is a good Colour, and a good Plea. Vide Doct. & Stud. lib. 2. cap. 13. and Brook, fo. 104. Title Colour in Assize, Trespass, &c.

And, In what Acti­ons it may be given. First, Colours may be given in Actions of Trespass (as is said above) of Cattle, In Trespass. of Goods, or in Land; or in Assize, In Assize. where the Defendant is supposed a Wrong-doer, and doth not plead the General Issue, but a Special Plea to excuse himself of the Wrong, there the Law doth not allow his Plea good, unless he suppose in the Plaintiff some Colour to bring such an Action: For the Law of it self doth not intend any Man so injurious, without Colour, to charge another with Wrongs.

And Colour also by 19 & 21 Ed. 4. Br. 56. may be given in Entry sur Disseisin of Rent; In Entry sur Disseisin. and so is 2 Ed. 4. 17. and in the said Year-Book, fo. 27. Colour was given in Ra­vishment de Gard; and 19 & 22 H. 6. Br. 19, & 23. Colour may be given in For­cible Entries.

[Page 28] And so is 35 H. 6. 54. and other Books, that Colour may be given in an Action upon the Statute of 5 Ric. 2. In Action sur Stat. 5 R. 2. and in no other Writs, or Actions, as I can find: Nor in these neither, Upon what Plea. as the Pleading may be; as, if the Defendant pleadeth the General Issue, and do not Justifie; or pleadeth some Plea that meerly Determineth the Right; as appears in Brook 14 Assize, a Feoffment with Warranty, Fine, Recovery, and the like. The like Law is 21 Ed. 4. 18, & 15. where one Justi­fies for Distress, Wreck, or Waifs and Estrays, or by any other Matter of Record: But see there other Books, viz. 2 & 12 Ed. 4. 38 H. 6. 7. and 37 H. 6. 7. varying, whether one shall give Colour where the Defendant doth Justify for Wreck, Waifs, and the like, &c. And so 34 H. 6. 10. in the same, and for Offerings.

And where the Defendant doth Convey from the Plaintiff himself, Conveyance from the Plaintiff. in some case he shall give Colour, and in some not: As 6 H. 7. 14. where the Defendant Conveyeth from the Plaintiff for life, or years, there he shall not give Colour; and so is 22 H. 6. 50. otherwise, as it seems by 8 Eliz. Dyer 146. where the Defendant pleads a Lease for years, from a Stranger. But by 15 Ed. 4. 31. If one plead a Feoffment in Fee from the Plaintiff, by mean Estates, he shall give Co­lour: Yet by Brook 86. If one plead a Feoff­ment from the Plaintiff himself immediate, he shall give no Colour.

[Page 29] And as it seems by the same Book, and 18 Ed. 4. 3. that he that Justifies, As Servant. as Servant to another, shall give no Colour; and by 22 H. 6. 50. and 12 E. 4. 15. he that pleadeth his Freehold shall give no Colour. His Freehold.

But by the same Book, and 12 H. 6. 18. He that pleadeth a Discent shall give Colour, Discent. because it bindeth only the Possession, and not the Right. And by 15 H. 7. 10. and 21 H. 7. 23, Aid le Roy. where one Prayeth in Aid of the King, there no Colour shall be given. And 21 Ed. 4. Brook 56. he that Pleadeth to the Writ, To the Writ, or to the Acti­on of the Writ. or to the Action of the Writ, shall give no Colour. But by 5 H. 7. 10. If the Defendant Entitle himself to a Devise, he shall give Colour: Whereof see more in the Title of Colour in Brook.

In the next place shall be shewn, What be suffi­cient Colours. what are Sufficient Colours, and in what manner they are to be pleaded.

And 50 E. 3. 18. where there were Lord, Mesn and Tenant, Lord, Mesu, and Tenant. by Ten shillings Rent; and the Mesn brought an Assize against the Lord, and he pleaded this Matter without giving any Colour. And by 20 H. 6. 27. If one brings an Action for Trespass done in D. and the Defendant Justifieth in another Place, Justification in another Place. and Traverseth Absque hoc quod ipse est Culpabilis in D. there he may give Colour.

And by 22 Ed. 4. 24. 5 Ed. 4. 134. and 21 H. 6. 32. &c. Colour must be always given by the first, Colour given by the first, not mean Con­veyance. and not by any mean in the Con­veyance. And therefore 38 H. 6. 5. the Defendant pleaded, that A. was seised, to [Page 30] whom B. Released, and gave Colour by B. and ill.

Neither may Colour be given by a Stran­ger, Not by a Stranger. as appears by 38 H. 6. Brook 16. and, as it seems, ought to be given by an Estate not apparently determined, Estate deter­mined. as is 19 & 21 Ed. 4. Br. 56. where, in Trespass against a Parson, Colour was given to the Plaintiff by a Lease for Life of his Predecessor; but yet there doubted: And 7 H. 7. 13 & 14. the Defen­dant gave Colour by a Lease pur auter vie, which was dead; and Good: So that it seems by these Books, that although the Estate appear determined, yet the Colour is Good.

But where a Possession defeated is given to the Plaintiff, Possession de­feated. as 9 H. 6. 32. where the Defen­dant in an Assize, or in Trespass, doth plead, that he was seised, until by A. disseised; who did enfeoff the Plaintiff, and he did Enter; a good Colour.

And so is 2 H. 4. and 9 Ed. 4. 15. where Colour was given by one whose Estate was defeated by Recovery: And so seems 35 & 37 H. 6. Brook 6. where the Defendant doth plead, [...]iens▪ that A. took his Goods, and gave them to the Plaintiff, and after that he, the Defen­dant, took them again; and held a good Plea.

And accordingly is 2 H. 4. 13. where it is not Immediate Wrong: Otherwise, where he doth plead, that he was possest until the Plaintiff took his Goods, and he did after­wards retake them from the Plaintiff, for that doth amount only to the General Issue; [Page 31] but there it is more doubted in another Case, where the Defendant in Trespass of Trees did plead, that he was seised, until by the Plaintiff disseised, who did Cut the Trees, and squared them; and then he, the Defen­dant did re-take them.

And see Brook 64. that Colour ought to be by a Title, Colour ought to be of a doubtful Title. or Possession, doubtful to the Lay-People, whether the same be good in Law, or not; Colour to the Plaintiff. and must be given to the Plaintiff, and not to another that enfeoffeth the Plaintiff: And therefore 2, & 19 H. 6. Br. 1, &c. it is a good Colour to say, That the Plaintiff Claiming as Executor, As Executor. when he was not, &c.

And for the Defendant to give the Plain­tiff Colour by the Bailment of A. Bailment. who after­wards gave to the Defendant, is a good Colour by 6 H. 7. 7. But 28 H. 6. 4. to give the Plaintiff Colour only by a Bailment, Ill; notwithstanding to give him Colour by the Gift of the Defendant, as Bailor, by 7 H. 6. 31. is good.

And so is 21 H. 6. 36. and 35 H. 6. 54. to say, That the Plaintiff pretending his Father to die seised, Discent pre­tended. when he did not, did Enter, no Colour; because the Defendant himself destroyeth the same. But 9 H. 4. Bro. 9. that the Plaintiff supposing his Father to die seised in Fee, when but for Life, is a good Colour.

It is a good Colour in Trespass, Parson. by a Par­son, to say, That he Claimeth by the Bishop, and not by the Predecessor of the Parson, as is 8 H. 6. 9. But 19 H. 6. 20. that the Plaintiff [Page 32] Claiming as Parson, when he never was Inducted; no Colour: Otherwise if Parson, 21 H. 6. 30.

But to say, That the Plaintiff Claimed as Heir, when he was a Bastard; Bastard. a good Colour; and so is that Year, fol. 21. Or to say, That the Plaintiff pretending Title to a Reversion, without Attornment, Attornment. a good Colour.

And 19 H. 6. 46. 16. to give Colour by a Coparcener or Iointenant, Coparcener, Joyntenant. Heir. is Good: And 21 H 6. 43. Doubted▪ whether a good Colour to say, that the Plaintiff claimeth by the Son and Heir of him, by whom the Defen­dant doth pretend Title: And 24 Ed. 3. 50. to give Colour as Heir of the part of the Fa­ther, Heir special. &c: Good.

By 2 Ass. 7. it is a good Colour to say, That the Plaintiff Claimed to Enter as Lord by Escheat, Escheat. &c. But otherwise, as it appeareth by the same Book, to give the Plaintiff Co­lour meerly by Abatement, Abatement. is no Colour: But by 12 H. 7. 25. it is a good Colour to say, That the Plaintiff Sowed the Corn, Emblement. and he did Reap and Cut the same.

And 18 Ed. 4 10. a good Colour by a Lease at Will. Lease a volunt. And 22 Ed. 4. 23. it is a good Co­lour in Trespass for Tithes, to say, That the Plaintiff claimeth as Parson, Parson. and the Defen­dant as Vicar. Vicar.

And by 40 Ed. 3. 23. it is a good Colour to plead, That the Plaintiff Claiming by Confirmation, Confirmation. made to her Husband and her self; or by the Confirmation of an Infant, or Tenant in Tail; or Claiming Dower, did Enter; although a Woman having Right, [Page 33] cannot enter into her Dower: Yet all these are good Colours.

Other Cases there be of Colours; but by those above-cited, the Reason of the others may well appear.

The next Point, touching Matter of Form in the Defendant's Plea, How the De­fendant shall Conclude his Plea. is the Con­clusion of his Plea; and when his Plea shall be to the Writ, or otherwise.

By 8 H. 6. 18, & 19. in London, or other Places where they have Special Grant not to be Impleaded elsewhere, there they Conclude Iudgment de brevi, and shall not Conclude to the Iurisdiction: And 38 H. 6. 19. where the Defendant's Plea doth prove, that the Plaintiff may have another Writ in the same Court, there he shall Conclude to the Writ, and not to the Jurisdiction: But by Prisot, 37 H. 6. 24. if the Plea be in Bar, and the Conclusion to the Writ, it shall be taken in Bar; and so is 34 H. 6. 1, & 2.

But of the contrary side is 37 H. 6. 48. in Forcible Entry, ‘If the Defendant Pleads to the Writ, and Concludes to the Action, he shall be Condemned; because by his Conclusion he hath admitted the Writ to be good. The like Law, if he Plead to the Jurisdiction, and Conclude to the Writ.’

And by 26 H. 8. Brook, Brief 409. If the Plea be to the Action of the Writ, he may so Conclude to the Writ: And as it appears in the Titles of Estoppel and Waranty, If a man Plead in Bar an Estoppel, Waranty, [Page 34] or the like, he shall Conclude upon the same, and not to the Action, although it were in a Writ of Right; as in Fitzherbert's Natura brevium, in the Writ of Right Pa­tent appeareth.

But it appears to be otherwise at this day, Nota. by all the Books of Entries: For the Tenant, or Defendant, after his Defence immediately, doth not only defend the Action by these words, Et dicit quod praedictus A. (the Plain­tiff) Actionem suam praedictam inde ver­sus eum (the Defendant) habere non debet; but also in the End of his Plea, immediately after his Averment useth again the same words with an Et cae­tera (&c.) And so is the Practice at this day.

Next in order, we shall Treat of Aver­ments, Of Averments in Pleading. their Natures and Signification, and in what Cases they are to be made use of in Pleading; and where not.

The word Averment, Averment defined. is diversly used in our Law; by some it is taken to be, where a man pleadeth a Plea in Abatement of the Writ, or Bar of the Action, which, he saith, he is ready to prove, as the Court shall award. Others say, it is an Offer of the Defendant, to make good or justifie an Exception pleaded in Abatement or Bar of the Plaintiff's Action; and signifies also the Act, as well as the Offer of Justifying the Exception.

[Page 35] Averment likewise, is either General or Particular.

A General Averment, which is the Con­clusion of every Plea to the Writ▪ or in Bar of Replications, or other Pleadings, containing Matter Affirmative, ought to be Averred with an, hoc paratus est verificare, &c.

Particular Averment is, where the Life of Tenant for Life, or Tenant in Tail, or the Age of an Executor, or the sense or mean­ing of Words in an Action of the Case for Slander, are Averred in these words, Cum hoc quod idem J. S. verificare vult, quod, &c.

And touching the General Averment, When the De­fendant shall aver his Plea. used in the Conclusion of the Defendants Plea, by the words, Et hoc paratus est verificare, &c. that ought to be to all Pleas in Bar, and to the Writ: But by 3 Mar. Bro. Averments 81. need not to be to an Avowry, because an Avowry is in the Nature of a Count or Declaration; yet in the Books of Entries, it is sometimes used in Avowries, and most commonly in all Pleas of Replication, but not in Rejoynders; neither seems it to be hurtful, if used where needless, for then but Surplusage, and Surplusagium non nocet.

But upon the General Issue, or a Plea in the Negative, or a Plea apparent in the Writ, ought to be no Averment; and 27 H. 8. 14. Adjudged, that upon a Challenge to the Array there needs no Averment.

[Page 36] And it appears by 2 H. 7. 2. that in a Repli­cation, Quod non habetur tale Recordum per quod liquet, &c. Et hoc paratus est verificare per Recordum illud, is contrarient and naught: Where it is said also, That if a Plea want an Averment, or have not a suf­ficient Averment, the same is not good; quod nota.

And it appears by 37 H. 6. 14. that in a Forcible Entry the Defendant pleaded Ex­commengement in the Plaintiff, without any Averment, because no Answer is to be made to that Plea.

But it appears in the Books of Entries, That where a Plea is either pleaded to the Jurisdiction, or to the Person, by Matter en fait, as Profession or Villenage, there be always Averments, whichs seem to be of Necessity, by the last recited Book, because to these Answers may be made; quod nota.

And Note, that by the Book of 37 H. 6. 23. If one have a Plea to the Whole, he may plead the same to a Part: Where it is said by Moyle, That a Release or Iustifica­tion, or any Matter in the Affirmative, pleaded without an Averment of the Plea; or pleaded in the Negative, as Nil debet, and the like, without the Conclusion, Et de hoc ponit se super Patriam, (and yet, 1 & 3 Mar. 124. the General Issue was pleaded without that Conclusion, and good) or to plead a Bar in an Assize, without taking the Tenancy upon him, where divers are named in the Writ, the same is Ill.

[Page 37] There needs no General Averment in a Plea, or Particular Averment in a Decla­ration, of that which will come in more properly on the other side, Hob. Rep. 78. 124.

And by the same Reports, 88. 106. there will need no Averment in a Declaration, where it appears there are Reciprocal Re­medies. But by the same Book, 251. where the Administrator, durante minori aetate, is Plaintiff in a Suit, there the Nonage of the Executor must be Averred; Secus, where he is Defendant.

Yet by Sheppard's Abridgment, Tit. Aver­ment, fo. 230. the Executor of a Grantee of a Rent or Reversion, expectant upon an Estate for Life, may not Avow his Distress without an Averment, that the Arrerages incurred after the Death of the Tenant for Life. Adjudged.

And so by Hobart, fo. 141, 142. he that pleads a Dispensation to hold in Commendam, confirmed by the Kings Charter, must aver the Performance of the Condition con­tained in it.

So by Perkins, cap. 147. If the Defeasance of a Recognizance be dated before, if in this Case any use be to be made of it, it must be Averred to be delivered at or after the time of the Recognizance entred into.

By Coke's Rep. lib. 8. Case of the. City of London, and lib. 9. 54. Averment needs not be of what is apparent; as the Constitution made in London, concerning the Sale of of Wares and Merchandizes appearing to [Page 38] be agreeable to, and waranted by their Charter, the same needs not be Averred to be so; and if the Son bring an Assize of Mortdancestor, he needs not to Aver, that it is within the time of Limitation, for that it appears to be so.

And by the same Author, Lib. 7. 40. al­though any other Consideration, than what is a Deed, may not be Averred; yet where there is an Express Consideration in it self in the Case; as where a Use of Land is limited to a Wife; this implies a sufficient Consideration in it self, and therefore needs no Averment.

By Hobart 32. an Averment may be upon a Will; but by Co. lib. 5. 68. an Averment will not lye of any thing that is against or besides that, which is against or besides that which is expressed in a Will, nor of any thing that cannot be gathered, to be the Mind of him that made the Will, by the Words thereof, nor of any thing that doth not cohere with the Will, especially if the Devise be of Lands: As where one Devises to A. and the Heirs of his Body, the Remainder to B. and the Heirs Males of his Body, on Con­dition that he or they, or any of them, shall not alien, &c. In this Case no Aver­ment may be taken by Witnesses, that it was the Intent of the Devisor to include A. within the Condition by the words He, or They, &c. So neither may an Averment be taken, that the Intent was to give it to any other besides the Devisee.

[Page 39] But by Hobart 50. an Arbitrement in Writing, may not be supplied by an Aver­ment. And by Bulstrode, first Part, fo. 220. and Popham, fo. 201. it appears, that if Te­nant for three Lives make a Lease to ano­ther, the Lessee, in an Action brought by him, needs not to aver the Lives under which he claimeth. Nor by Goldesborough, fo. 97. needs he that sueth an Administrator upon the Assumpsit of the Deceased, aver he had Assets, after Debts and Legacies paid.

So by Hobart 297, and Coke on Littleton 373. it appears, that if a Tenant disclaim upon an Avowry in Replevin, he shall have Judgment, tho' it be false: For no Aver­ment will lye against a violent Presumption, though it be false.

By the Book of 34. H. 6. 42. and of 9 Ed 4. 4. an Averment may be had against any part of the Rolls or Records of County-Courts, Hundred Courts, Courts-Baron, or other Courts belonging to Lords of Mannors.

But by Dyer 348. 177. no Averment will lye against such a Retorn as is definitive to the Trial of the thing Retorned; as the Retorn of a Sheriff upon his Writs, the Retorn of the Mayor, Aldermen and She­riffs of London upon a Writ of Habeas Corpus, sent to them, and the like.

But if it be such as is not Definitive, as upon a Rescous, or the like, there an Aver­ment, and a Trial upon it may lye. So, if it be such a Retorn as may endanger a mans Life or Inheritance.

[Page 40] Also by the Statute of 1 Ed. 3. cap. 3. and Goldesbrough 129, 130. and Croke 2 Part, fo. 13. an Averment will lye against the Bayliffs of Franchises, so that the Lords thereof be not prejudiced thereby.

The same Law of Certificates: For by Co. Lib. 7. 14. & Lib. 9. 31. and Bro. Abr. 332. no Averment will lye upon such a Certifi­cate, as is a Definitive Trial in Law of the thing Certified; as the Certificate of a Bi­shop touching Bastardy, Excommunication, Marriage, &c.

But by Co. Lib. 7. 14. & Lib. 8. 121. and Leon. 1 Part, Case 285. an Averment may lye, and shall be received against a Certificate which is only to give Information, and in the Nature of a Trial; and may also lye against a Certificate upon a Commission out of any Court; and may likewise be re­ceived against the Certificate of Commissio­ners, that affirm a man to be a Bank­rupt.

But by Bro. 332. If a Bishop Certify, that such a Parson doth not pay his Tenths Iuxta formam Statuti, no Averment shall be received against it.

And in More, Case 295. an Averment will not lye against a Justice of the Kings Bench, or Common Pleas, and the Custos Brevium, quod habetur Warantum Attorn', albeit the Party himself (against whom the Certificate is) be dead, and a Scire facias issued out against his Heir.

[Page 41] So in Yelverton 34. an Averment will not be admitted against a Fine taken by Com­mission, that there is no such man of the Name of one of the Commissioners.

By Co. on Littleton 171. If a Partition be by Writ, although it be unequal it may not be avoided by Averment; for such Aver­ment against the Retorn of a Sheriff, shall not be good: But by Winch, in his Reports fo. 100. an Averment may be made in ano­ther Action, tho' not in the same.

By Co. Lib. 8. 31. and Dyer 244. and Plow­den 277. where a man hath two Sons of one Name, and one of them hath been long absent and thought to be dead, and this is the Eldest, and by Will he gives his Land in general to his Son of that Name, and the Eldest Son is alive: In this Case an Averment will lye, that it was his intent to give it to the Youngest, and not to the Eldest Son; and upon a Trial the Jury may find it so.

But by Co. Lib. 4. fo. 4. no Averment will lye, that the Devise was to any other use, but to the use of the Devisee himself.

And by Godbolt in his Reports, fo. 131. If one devise Land to the Heirs of I. S. and the Clerk writes it, To J. S. and his Heirs; this may be holpen by Averment, for the Intent is written, and more, and it shall be naught for what is against his Will, and good for the rest. But if the Devise be to I. S. and his Heirs, and it is written, but to the Heirs of J. S. there an Averment will not help: For an Averment to take away a [Page 42] Surplusage, is good; but not to increase that which is defective in a Will.

And Note, That an Averment will lye against a Testament, or Letters of Admi­nistration, although they be under the Seal of the Court, and it shall be tried by the Country.

And by Godbolt 214. an Averment may be, that one is Sued out of his proper Diocess, if it doth not appear in the Libel, where one is Sued in the Arches. So where one Sueth in the Court of the Admiralty, for a thing done upon the Land, an Averment may be, that the Contract was made infra Corpus Comitatus.

And by 20 H. 7. 11. an Averment, in some Cases, shall be received against a Verdict, to prove it false.

But by Dyer 242. If the Matter contained in an Award, and the Matter contained in the Submission of that Award, do not agree, it will hardly be supplied by Averment.

And lastly, by Coke's Commentary upon Littleton, fo. 352. b. it appears, that the Use of an Averment is, to ascertain that to the Court which is generally or doubtfully al­ledged, that so the Court may not be per­plexed, of whom, or of what it ought to be understood; and a man shall never be Estopped from making such an Averment, to ascertain the Intent of the Parties; if it be not utterly inconsistent with that which is alledged: For an Estoppel being to Con­clude a man from speaking that which is Truth, must be certain to every Intent, [Page 43] and shall never be taken by Argument or Inference.

But of this see more Tit. Estoppel, infra.

Next in Order, Of Pleas in Bar. some Points shall be dis­cussed touching Matters in Bar; and herein shall be shewn, What Pleas are sufficient in Bar for the Matters of the same, and what not. And,

First, What Plea is good in Bar without Deed.

Touching which there is a Maxim in Law, That where the Action lieth meerly upon the Deed, Maxim in Law. as upon a Bill, or Obligation, or the like, there no Plea can go in discharge of the same, without Deed; as all the Books agree.

Yet 10 H. 7. 14. if one Count upon a Lease by Indenture, or a Bailment by In­denture, the Defendant may plead Nil debet, or Non detinet, but not Non dimisit, by Littleton.

Quaere, of a Bargain and Sale by Inden­ture, for Mony to be paid at a Day: For 28 H. 8. Dyer 20. upon a Bill testifying a Receipt of Mony to be laid out in Pruans, the Defendant shall not wage his Law.

The like 37 H. 6. 18. in an Annuity with Clause of Distress, Levied by Distress, or Payment without Acquittance, a good Plea: Otherwise, if granted without Distress; where holden also, that if one be bound in a Bond, with Condition to pay such an Annuity, be the same with Distress, or without, he may (as I conceive) plead Payment without Acquittance, because [Page 44] contained in the Condition of the Obliga­tion.

And by 27 H. 8. in Statam's Case, in an Action against the Sheriff, upon an Escape, because the Action is not meerly upon the Record, as Debt upon a Judgment, the Defendant may plead, That he let the Pri­soner go at large by the Commandment of the Plaintiff.

And yet it is holden in Trespass, for taking away the Plaintiff's Apprentice, 21 H. 6. 31. to be no Plea, to say, That be­fore taking of the Apprentice away, the Plaintiff discharged him of his Service without Deed; quod nota. And so indeed seemeth 1 H. 7. 14. in Dove's Case, in Cove­nant against an Apprentice.

And 30 H. 6. 40. no Plea in a Scire facias, to have Execution upon an Annuity, to say, That the Plaintiff did deliver him the Deed of Annuity as a Release, and afterwards took it away from him again.

The like seemeth by 1 H. 7. 14. in Dove's Case before recited, in Debt upon an Obli­gation; yet there holden, That by some Pleas, as Matters in Law, viz. Infancy, Du­ress, Razure, and the like, one may avoid a Deed en [...]ealed.

In the next place we shall observe, Of Bars to avoid Circuit of Action. What shall be taken to be good Bars, to avoid Circuit of Action; which it seems the two last recited Cases are not: And therefore see first, 19 H. 6. 62. That if I grant to my Tenant, to hold without Impeachment of Wast, in Cessavit, &c. Or, the King grants [Page 45] to one, to be discharged of Disms, the same may be pleaded by Rebutter, and the Party not put to bring his Action of Covenant, or to sue by Petition.

And so it seems of Wast, in 21 H. 6. 47. be the Grant by Lease; whereof Doubt is made afterwards in 21 H. 7. 23, & 30. where the Principal Case was, That the Obligee granted, that if he did Implead the Obligor (before such a Day) the Obligation should be void; and a good Bar. And upon that Reason shall the Garnishee, or Tenant by Resceit, Rebut by a Release or Waranty.

And upon the Reason aforesaid it is, that where one Thing is granted in Law, so another, (especially of Things Executory, and not Executed) if he be Interpleaded of that which to him appertains, he shall plead the same in Bar of that whereof he made the Grant; as appears by Perkins, in the Title of Exchanges, where Rent is granted for Distress.

But yet by 15 Ed. 4. 9 Ed. 4. and 24 Ed. 3. Abridged by Brook in the Title of Condi­tions, 61. it seems in that Case to be to the contrary, because Executed, and therefore not like where an Annuity is granted pro Consilio. The like, where one holdeth to Inclose, taking the ancient Pale, or where one granteth to me an Annuity, to have a Gorse, or a Gutter in my Land, because an Easment.

And by 15 H. 7. 10. If you Covenant to serve me, and I to give you Five Pounds for your Service: Or, you Covenant to [Page 46] Marry my Daughter; and I, in like man­ner, to give you Twenty Pounds, as a Mar­riage Portion: If you serve me not, or Marry not my Daughter, I may plead the same in Bar. Otherwise, if the Covenant on either part had been expresly, and not depending upon the others Act.

Next shall be shewn, How to plead the Perform­ance of a Con­dition of an Obligation. In what manner one shall plead in Bar, the Performance of a Condition of an Obligation. And,

First, Touching the Performance of Co­venants in Indentures, omitting the variety of Ancient Books, it appears 27 H. 8. 1. and 33 H. 8. Brook, Covenant 35. That the De­fendant ought to plead the Indenture, and the special manner particularly, how he hath performed every Covenant.

See also accordingly 10 & 11 Eliz. Dyer 279. and 28 H. 8 Dyer 26. But, as it seems there, need not aver, quae sunt omnia & singula Conventiones, &c. because referr'd to a Matter in Writing: The like of a Record. And for that Reason, it seems of necessity, that he need not to plead, prout in eadem Indentura. Quaere tamen.

But if not referr'd to Writing or Record, as hath been said before, then it shall be other­wise: As, if I am bound to Enfeoff you of all my Lands in Dale, I must shew the Number of Acres, and plead also, quae sunt omnia, &c.

Yet now, Note. at this Day the Course of the Practice is, (notwithstanding the Cove­nants are reduc'd into Writing, after they are recited in the Plea) to insert this Clause, Prout per eandem Indenturam ple­nius apparet.

[Page 47] And as to Pleading Performance of the Conditions of Obligations, they d [...] vary according as the several Cases are. And,

First, Conditions to save harmless. By 28 H. 8. Dyer 30. the Condition was, That the Obligee should peaceably enjoy, &c. And the Defendant pleaded, That the Plaintiff did peaceably continue his Pos­session, until such a day, at which time the Lord distrained for Rent; and a good Plea.

But 30 H. 8. Ibidem 43. where the Condi­tion was, to Warant and save harmless against Lord and King, and to have and peaceably Enjoy. The Defendant pleaded, Quod habuit & pacifice gavisus fuit; where said by divers, that the Plea is ill, and but Argumentative, that is, he hath peaceably Enjoyed the Land; Ergo, he hath Waranted the Land, and saved the Plaintiff harmless: For he might be Impleaded in a Praecipe, and the other not waranted, and yet hold it peaceably, or might be distrained for Issues lost, &c. and therefore ought to have plead­ed expresly, quod non fuit dampnificatus per Regem nec per aliquem alium; or, that the Plaintiff was Impleaded, and he did wa­rant, &c. Quaere inde, for Baldwin, è contra.

The Condition of an Obligation (2 Eliz. Dyer 184.) was to warant, defend, or save harmless, as well the Person of the Obligee, as the Premisses, against one Culpepper; where the Defendant alledged in his Bar a former Lease, by reason whereof neque le Obligee, nec les Premisses possint nec potuerunt esse damp­nificat' [Page 48] per praedictum (Culpeper.) To which the Defendant Replied the Special Matter in Law, without Concluding, Et issint dampni­ficat'; where holden the Defendant's Bar was ill; and that he ought to have pleaded, Non fuit dampnificatus, or the Special Matter, and Conclude, Issint non dampnificatus; and the Plaintiff's Replication, for want of a pro­per Conclusion, ill also.

And 3 Eliz. Ibidem 186. in the like Case, the Defendant Pleaded, quod Quer' non damp­nificat' fuit per A. and the Plaintiff in his Replication shewed a Special Damage, and Concluded, Et issint dampnificat'; and the Defendant by his Rejoynder pleaded, Nul tiel Record; quod nota.

Note also, That in an Action of Covenant, brought 28 H. 8. Dyer 31. One of the Cove­nants in the Indenture was, That the Defen­dant ought to make and suffer for the Assu­rance of the Plaintiff, all things that should be devised by the Counsel of the Plaintiff, if he were required: And the Defendant taking Protestation for Plea, said, that he was not required. To which the Plaintiff Re­plied, That I. S. was of his Counsel, who devised a Release, which he required the Defendant to Seal; but he refused to do the same: To which the Defendant Rejoyned, Que ne Refusa pas; and by all the Court holden a Departure, and that the Defen­dant ought to have Pleaded at first, Non requisitus fuit; and the Plaintiff in his Re­plication needed not to have spoken of any Refusal. But where the Condition was, for [Page 49] the Performance of an Arbitrement of I. S. touching, &c. so as it be delivered in wri­ting before, &c.

The Defendant, Mich. 7 & 8 Eliz. Dyer 242, & 243. pleaded by Protestation non fecerunt, &c. Pro Placito quod praedicti Arbitratores ante, &c. non deliberaverunt, &c. Upon which the Plaintiff in his Replication, shewed when, and where the Arbitrators made the Arbitrement, and the several parts thereof, and alledged the Breach in one Point: Upon which Replication the Defendant did Demur; because in his Plea he answered not the delivery of the Arbitrement, but by a glance, and not directly.

Note the words of the Condition and the Plea; notwithstanding quod Arbitratores non deliberaverunt, &c. and good.

It appears by Cro. 2 Part, fo. 352. in the Case of Staine against Wilde, that where there was Debt brought upon an Obligation, to perform an Award of all Suits and De­mands between the Parties, so as it be made of and upon the Premisses, ready to be delivered to the Parties before such a day, &c. and that they made such an Award de & super Praemissis, scil. that the Plaintiff should have and enjoy a Horse in Contro­versy between them, and that the Defen­dant should pay him 3 l. before Michaelmass towards his Charges, and they should Re­lease each to other all Matters whatsoever between that and Michaelmass. And the Plaintiff assign'd Breach for Non-payment of the 3 l. And on Demurrer, held good [Page 50] for the Plaintiff. For tho' it was pleaded, That the Arbitrement was made de & super Praemissis; yet these General words will not help the Plaintiff, unless he avers, that there were no more Causes between them, and then the Release appointed being void, there is nothing Ordered for the Defendant's benefit.

See more of this 7 H. 6. 6. 39 H. 6. 9. 2 R. 3. 18. and 22 H. 6. 22.

So in Tyer's Case, Trin. 23 Car. 1. in Banco Regis, Stile's Rep. fol. 4. Where in Debt upon an Obligation to perform an Award made the 10th of May, ready to be de­livered the 11th of May. The Defendant pleaded, quod Arbitratores nullum fecerunt Ar­bitrium, &c. To which the Plaintiff Replied, That the Award was made the 10th Day of May, ready to be delivered the same 10th day of May. The Defendant Demurred for Duplicity and Departure: Resolved, Not: It being a thing whereof Issue is to be of the Award, and not of the Day of the Award.

But by 1 Leon. 71. in Bret and Andrew's Case, In Debt on an Obligation with Con­dition to perform an Award, which was, To deliver up all the Houses that he had. The Defendant pleaded, That he delivered up all, &c. without shewing what they were, and Adjudged ill: And where it was Awarded, That he should discharge and save harmless A. from such an Obligation, he pleads, Non dampnificatus; and ill also: For he was not only to save him harmless, but to discharge him of the Bond, and both of [Page 51] them ought to be shewed, how done parti­cularly.

So by 27 H. 6. 1. in Debt upon an Obliga­tion with Condition to perform an Award; which was, To Enfeoff, or Release, or pay 20s. The Defendant pleads Performance generally, not shewing which of them he hath per­formed; and ill. For although Performance of any one of them would have been a good Excuse, yet he must shew what he hath performed.

So Bendloe's Rep. 5. A. and B. were joyntly and severally bound to stand to an Award to be made between them and I. S. The Arbitrators Awarded, that A. should pay 30 s. to B, and that B. should pay unto I. S. Ten shillings. In Debt on the Bond it will be no good Plea for A. to say, that he had performed the Award, without shewing in what manner it was performed; and like­wise how B. had performed it, for he is bound to him also.

And in Skinner and Andrews's Case, Hil. 20 Car. 2. in Banco Regis, Rotulo 292. In Debt on a Bond, to perform an Award, Ita quod it be made before the 25th of March; where the Defendant pleaded, Nul Arbitre­ment fait. To which the Plaintiff Replied, that ante vicesimum septimum diem Maii, the Arbitrators made an Award, and good, without saying, Infra tempus limitat'; for they may Traverse nullum Arbitrium, &c. without Traversing the Day, and if it be not before the Day; the Jury is bound to find it▪

[Page 52] Note, by Dyer 75. Kelway 121. Plowd. 11. 19 H. 6. 37. there is a difference between Arbitrement and Concord: For an Arbitre­ment may be pleaded, tho' the time of Per­formance of it be not yet come; but a Concord must be Executed and satisfied be­fore it can be pleaded; for there is no way to force the doing of it, as there is in Case of Arbitrement.

By Bridgman's Rep. 58. it appears, That if the Arbitrement be made of a thing sub­mitted unto, and of other things, it will be good for what is submitted unto, and void for the rest; and a Breach laid in that which was submitted unto, will give good Cause of Action.

Vide Croke 3 Rep. 549. Edwards versus Marks, in Debt upon an Obligation with Condi­tion, To appear in the Court of King's Bench (such a day) and there Elect two Arbitrators, who (with two more to be Elected by the Plain­tiff) shall Award, &c. The Defendant pleaded, That he appeared there at the Day, and there Elected two Arbitrators for himself; but that the Plaintiff was not there time enough for the Award to be made, nor had the Plaintiff his Arbitrators there; and good.

But in the Case of Corbet versus Cooke, Cro. 3▪ 466. In Debt upon an Obligation with Condition, to appear in the Court of Kings Bench such a day, &c. The Defendant pleaded, That the Court was Adjourned to Hartford, and that he appeared there, and Adjudged to be ill, because he said not prout patet per Recordum.

[Page 53] So in Dighton and Clark's Case, 2 Leon. 199. Debt was brought upon an Obligation, the Condition whereof was, That I. S. shall not disturb the Plaintiff in his Possession, by any Indirect means. To which the Defen­dant pleaded, That he did not disturb the Plaintiff in his Possession by any Indirect means, but by due Course of Law; and Objected, the Plea ill, because not shewed how by due Course, viz. what Suit: But Agreed, the Plea had been good, if he had only said, Not disturbed by any Indirect means; but doubted if not ill, because he Pleads over by lawful Means, and says not what, so that it may be tryed.

So, by Latch Rep. 16. and 1 Leon. 136. In Debt upon an Obligation, with Condition (inter alia) for the Obligor to Account: To which the Defendant pleads, Conditions performed. The Plaintiff Replies, That the Defendant did not Account, and ill, because he shews not what he had to ac­count for: And difference is taken, when the Condition is in the Negative, Not to do a thing, then 'tis sufficient to say, he did not do it; and when in the Affirmative, to do, as to perform his Office, or to Enfeoff him of all his Land, &c. there he might shew what his Office was, and what Lands he had, and that he did Enfeoff, &c.

Vide Mich. 2 R. 3. fo. 17. Placito 44. & Trin. 4 H. 7. Placito 6.

It appears by 9 Ed. 4. 12. Bar to Com­mon Int [...]t. and other Books, That if a Bar be good to Common Intent, it sufficeth.

[Page 54] But by 22 E. 4. 83. If the Defendant pleads in Bar a Record or Estoppel, that must be certain and good to every intent.

And therefore in 21 H. 6. 1. the Defen­dant in Maintenance did plead, That the Party was his Servant, and that he did Re­tain A. to be of his Counsel; and, for the Reason aforesaid, it shall be intended, that he retained him with his Servants Mony, and not with his own Mony; quod nota.

And by Touchstone of Precedents, Tit. Pleas and Pleading, fo. 192. 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 that they have 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 duly had against them; but according to the the Rule the Bar is good: For that by Com­mon Intendment it will be supposed, that the two others 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.

So by 3 H. 7. 2. Plowd. 26. If a Bar have Matter of Substance in it, and be good to Common Intent, it is sufficient, albeit it be not good to every Special Intent. As where one Sues as Executor, and the Defendant saith, That [Page 55] the Testator made the Plaintiff and one I. S. Executors, and do not say after this That he did not make the Plaintiff Execu­tor; yet this may be sufficient. So in Trespass, where the Defendant pleads, that the Place is his Freehold, this is good; yet the Plaintiff may have a particular Estate. So upon an Obligation to perform Co­venants; the Defendant alledgeth two Covenants, and saith, he hath Performed them, and doth not say, There are no more Covenants in the Deed to be by him per­formed; yet this is good, for it shall be In­tended that there are no more for him to perform.

But Ibidem, No substantial part of a Bar may be omitted: As, where one is bound to do a thing between such and such a time; and the Defendant saith, That he did it, or did it before the Day; this is not sufficient, but he must shew, that he did it such a Day within those times. So if one saith, He was Lord of a Mannor, and entred for an Alienation in Mortmain, and do not shew that he did it within the Year; for this shall not be Intended, unless it be shewed.

Yet per Plowden puis 28. If one plead a Feoffment in Bar, it shall be allowed as good, albeit it might be by an Infant, or per Duress, &c. unless it be shewed on the other side. And if the Lessor Covenants with the Lessee, that if he be ousted within the Term, that he shall have as much other Land, he must shew that he was Ousted on such a day in certain within the term.

[Page 56] So to plead in Bar, that I. S. died seised, and R. S. Entred as Son and Heir to him; this is good, tho' he say not that he was his Heir; for that shall be Intended, and the best shall be taken for the Defendant.

So Ibidem, in an Assize, if the Tenant plead in Bar a Discent to the Plaintiff, and two others, and that he hath the Estate of one of them; it is good, and yet he might have it by Disseisin; but it shall be taken in the best Sense, that he had it lawfully.

So per eandem, in Colthirst's Case, where the Ancestor is Tenant pur auter vie, and the Heir pleads, that he Entred as Heir to him, and says not, that he Entred first after his death, for Occupanti conceditur.

And Ibidem, if a Lease be made to A. and B. for Life, the Remainder to C. and if C. shall dye during the Life of A. or B. then that it shall remain to E. for Life, si ipse vellet esse Residens, &c. and E. (being Defen­dant) pleads his Entry, after the Death of A. and B. and C. and doth not say, when they died, nor when he entred; yet held to be good in a Plea in Bar.

For per eundem 32 & 33. if it be a Con­dition, it shall be Intended that the Defen­dant did Enter as soon as his Title accrued; and if the Case be otherwise in truth, than by Common Intendment it is taken to be, the Plaintiff must set it forth in his Plead­ing: As in a Formedon in Discender, if the Tenant pleads in Bar a Release of the De­mandant, without Waranty, it is good; and yet the Release might be made by the [Page 57] Demandant in the Life of his Father, and then it is no Bar to the Issue.

But it seems by Brook, in his Title of Pleading, 155. that in a Declaration or Re­plication this way of Pleading is not good: For tho' a Bar may be good to Common Intent, yet a Declaration (and consequently a Replica­tion, or other Pleadings of the Plaintiff) ought to be good to every Intent.

But by Co. Lib. 3. 52. If one declare upon an Escape in London, and the Defendant doth Justify by the Taking again of the Prisoner in another County, and answereth not the Escape in London; this will not be good, for every part of the Charge must be an­swered.

And Lastly, It appears by Hobart 127, 128. that a Plea that hath some Matter of Law in it, tho' it seems to amount but to the General Issue, is always allowed.

Note, There be some Pleas in Bar, Upon what Ple [...] the Plaintiff shall have pre­sent Judgment▪ upon which the Plaintiff shall have Present Iudg­ment.

As 16 H. 7. 19. where in Covenant to Perform Divine Service; The Defendant pleaded, that the Chappel was decayed. So in Curia Claudenda, if the Defendant plead Sufficient Inclosure; or in Warantia Chartae, Nient Implede; or in a Writ of Mesne, Nient Disir' in some Default; or upon the Plea of Riens Arrere in Annuity; or upon Ne sur­charga pas in Admeasurement of Pasture; or Ne disturba pas in a Quare Impedit, &c.

[Page 58] In other Cases the Plaintiff, upon the Defen­dants Plea, shall be barred for the present, and yet afterwards have the Effect of his Suit by Scire Facias, or the like Process upon that Iudg­ment, or by New Action.

As appears in 19 H. 6. 27. in Debt against an Executor, who pleads Plene Administravit, which is found for him, and so the Plaintiff is Barred pro tempore, viz. until Assets come afterwards to the Defendant's Hands, and then the Plaintiff may have a New Action. So in Debt against an Heir, who pleads Riens per Discent; or in a Formedon pleads the Waranty of his Ancestor with Assets, and after the Assets are Recovered against him, he shall have a New Formedon; and if he Alien the Assets, his Heir shall have a New Formedon.

But as 21 H. 7. 10. where in Formedon, Cui in vita, Mortdancestor, and the like, such a Plea is pleaded either against the Issue in Tail, or the Heir of Tenant by the Cour­tesy, &c. and no Assets found, and after Assets discend, the Defendant in the first Action shall have Scire facias for the Assets, if the first Action be a Formedon; other­wise, as it seems, for the first Land. Quaere.

And see 11 H. 4. and 4 H. 6. Bro. Tit. Scire fac' 74, & 130. in the last of which it is doubted, when Executors plead Fully Ad­ministred, and it is found for them, and afterwards Assets discend; whether the Plaintiff be not driven to a New Action, or may have a Scire facias thereupon, scil. upon the first Judgment.

[Page 59] Which seems not by the Books 40 Ed. 3, & 43 Ed. 3. abridged by Brook in Tit. Scire facias 17 & 29. where a difference is taken when the Plaintiff is Barred, and when he doth Recover.

In the next place shall be shewn, Of Pleading Accord, or Arbitrement. How an Accord or Arbitrement is a good Bar.

And for this see first 4 H. 7. 16. That in Debt upon a Contract, Lease, or Arrerages of Account before the Plaintiff himself, Arbitre­ment is a good Plea, (although the Demand be certain;) otherwise of Arrerages of Ac­count before Auditors, because it seems to be Matter of Record, and the Defendant cannot Wage his Law, Qu. then in Debt upon a Lease for years.

And 13 Ed. 4. 5. is, That an Award is no Plea in Attaint, or other Matter of Record; but if the Matter of Record be mixt with a Matter en fait, then it is a good Plea.

But in Wast, as is 11 H. 7. 13. Accord or Arbitrement no Plea, because the Action Mixt, nor in any Real Action; but in Forger of Faits, and other Actions upon Statutes, Accord or Arbitrement is a good Plea.

But 5 Ed. 4. 7. this difference is taken, that Accord pleaded is not good, without a Satis­faction executed before the Action brought, and that it must be Executed in the whole, and not in part; (as is 6 H. 7. 10.) But an Arbitrement is, without Execution, a good Plea, because an Action lieth thereupon.

[Page 60] And therefore 19 H. 6. 29. the Defendant did plead, That in Satisfaction he gave the Plaintiff a Pottle of Wine, and did not plead the same by way of Accord, soy prist.

But see thereof more especially for the Pleadings in the Books of Entries.

And in some Actions, Where VVa­ranty a good Bar. especially Actions Real, the Waranty of the Ancestor of the Plaintiff shall be a good Bar; but then the Conclusion of the Plea must be considered, which appears by the Books of Entries to be, Si encounter le Garanty son Auncestor qui Heir, &c.

But as it appears by 14 H. 4. and H. 7. 12. and other Books in the Title Garanty in Brook's Abridgment, the same by the better Opinion, is no Plea in Trespass, until the Freehold come in debate.

Yet 21 Ed. 4. 18. Ibidem 63. the Defendant in Trespass did plead, That I. S. was seised in Fee, to whom the Ancestor of the Plaintiff did Release with Waranty, whose Estate the Defendant had, and Concluded ut supra; and there is no Question made, whether that Plea might be in Trespass; but whether he that made himself no Title, shall plead the same.

Notwithstanding 20 H. 6. 20. in Trespass upon the Statute of Rich. the Feoffment of the Ancestor of the Plaintiff, with Wa­ranty, holden no Bar: But there it is said, That if the Defendant plead his Free-hold, the Plaintiff may have the Plea aforesaid, and Conclude, Iudgment si encounter le fait son Ancestor, &c.

[Page 61] And 20 H. 7. holden no Plea, that the Plaintiff did Confirm to the Defendant Lessee for years with Waranty; nor that in Assize by Tenant by Statute, the Waranty Collateral of his Ancestor, a good Bar, be­cause but a Chattel demanded; yet there holden, that a Ward may be granted with Waranty, and the Voucher may be in a Writ of Ward.

And see 5 H. 7. 18. and other Books, in the Title of Waranty, and 22 H. 7. That a Sale of a Chattel, without Esplees of Waranty, bindeth not the Seller to Warant, and that Waranty also must be made at the time of the Sale, and not after, and no advantage thereof to be taken by way of Bar, but by way of Action; quod nota.

In the next place we shall consider, Auterfoits Bar. where the Plea of Auterfoits bar shall be a good Bar, and where not.

And therefore for that, first see 12 Ed. 4. and Bro. Action sur le Case 92, & 110. that Ley gager in Detinue, is a good Bar in an Action on the Case for the same Goods.

And by Bryan 2 R. 3. 14, & 19. in Account upon Goods delivered, it is a good Plea to say, That in Detinue before brought by the Plaintiff, the Defendant did Wage his Law.

And so seems 15 Ed. 3. Fitz. Assize 96. that in an Assize, a Retraxit by the Plaintiff in another Assize, is a good Bar: Otherwise of a Nonsuit by Experience; for until the Sta­tute of Second Deliverance one might have [Page 62] one Nonsuit after another in Replevin ad infinitum; quod nota.

But if the Plaintiff be once barred by Judgment, in the same or in one of the like Nature, or in an Action of a higher Nature, he shall be also Barred in another meaner Action.

But as it appears in 14 Assize 6. the Using of a Writ of Entry is no Bar in a Formedon; nor in an Assize, to plead, That the Plaintiff had of this Land brought a Formedon; but the same is a good Plea to the Writ: And so is 4 Ed. 3. Bro. Bar. 61.

But, Recovery pleaded. as it seemeth, to Plead a Recovery of the Land in question against the Plaintiff, or one whose Estate he hath in the same, or higher Nature of Action, it is a good Bar, by many Books.

And 18 Ed. 4. 28. Bro. Ioynder in Action 70. that in Trespass upon the Statute of 5 Ric. 2. by three Persons, a Recovery of a Third part of a Moiety against one of them, and Exe­cution thereupon, a good Bar.

But, as it seems in 21 H. 6. 55. no Plea in Detinue of Goods to say, that before in De­tinue and Garnishment against him (the De­fendant) he did Recover the Goods.

And 19 H. 6. 239. in an Annuity by Pre­scription against a Parson, who Prayed in Aid, and Traversed the Prescription, and found against the Parson, and afterwards in a Scire facias he would have had the same Plea again, but could not, although all the first Jury were dead, because it was his Default.

[Page 63] But see Brook, Bar 12. 20 H. 6 and 43 Ed. 3. in Debt, A former Re­covery by the Plaintiff plead­ed, no Bar, without Exe­cution. where said, That if the Defendant plead a former Recovery by the Plaintiff in Plea Real, or Personal, without Execution, it is no Bar; because he that Recovered may at his pleasure bring a New Writ.

And so is 9 Ed. 4. 50. in Trespass; as like­wise 4 H. 7. 7. where Three are bound joyntly and severally, but Execution is had only against one of them; yet this shall be a good Bar for the other two.

The next Thing observable in Pleading, Where the Plea shall go to part, or to the whole. is to know, Where the Plea of the Defendants, or one of them, shall go to part, or to the whole.

For which see first, 9 H. 6. 46. That if in a Praecipe against Two, One doth plead in Bar for his Part, and the other doth plead a Plea that goeth to the Whole, as Bastardy, &c. yet it shall not bar the Plaintiff against the other: But it is otherwise in a Personal Action, for there the Plea to the Whole shall be first Tried, and if found against the Plaintiff, shall serve for both the Defen­dants.

And by 31 H. 6. 23. If one pleadeth a Plea in Bar in an Assize, that goeth to the Whole, he may at his pleasure Conclude it but to the Moiety: Where it is said by Prisot, That if one Pleads a good Matter in Bar, and Con­cludes to the Writ, it shall be taken in Bar.

[Page 64] In the next place we shall Treat of Cer­tainty in Pleading. Of Certainty in Pleading.

And first, Where the Defendant in his Bar, shall be forced to set down the Certainty of the Land, or give a Name to the same.

For which see 5 H. 7. 28. in Trespass of Goods, the Defendant did plead, that the Place was his Freehold, and that he took the Goods there Damage fesant; the Defen­dant was forced to set down the Land in certain, because he made Title to the Goods; so if he makes Title to the Land by Feoffment: But otherwise, if he Plead meerly his Freehold.

And so is 22 H. 6. 24. in Trespass: But see 5 H. 7. 28. that in Forcible Entry, because the number of Acres is set down in the Decla­ration (as in a Praecipe, or in an Assize) the Defendant shall not in his Bar give the Land a Name, or other Certainty, but ought to Plead at his peril: But otherwise (according to the Ancient Practice) in Trespass and Replevin; except (as before) where the Defendant pleaded his Free­hold, and the Plaintiff did not set forth the Particulars of the Land in his Declara­tion, which he is now of late compelled to by Rule of Court.

But for the understanding of this and all other Matters relating to Practice, more fully and at large, see before in the Introduction of this Discourse. And further, for Certainty in Pleading, take these General Observations.

[Page 65] First, see Plowden 32, 65, 80, 81, 86, 191, 229. that which is alledged by way of Conveyance and Inducement to the Substance of the Matter, needs not to be so Cer­tainly alledged, as that which is the Sub­stance it self; as before, where a Lease is made to A. and B. for Life, the Remainder to C. and if C. die during the Life of A. or B. that it shall go to E. for his Life, &c. and E. in Pleading shews the death of A.B. and C. but shews no time of their Death.

And by Plowden 80, 121, 123, 126, 128, 129. that which a man cannot have Cer­tain knowledge of, he is not bound to plead Certainly; nor to set forth that precisely that is out of his knowledge, or to which he is a Stranger, or by Common Intent he cannot see; as a Deed that belongs to ano­ther Man.

And by Co. Lib. 9. 108. that shall be said to be Certainly pleaded, which may be made Certain by Intendment, according to the Maxim, Id Certum est, quod Certum reddi potest.

But Co. Lib. 4. 97. and Plowd. 395. that is more Certain, which is Certain of it self. Yet, where the Defendant in Pleading makes Title to himself by a Lease, Haben­dum, for so many years as I. S. shall name, Cum hoc, that I. S. did name so many, there the Averment makes it Certain enough, and good.

So, many times when there is an Incer­tainty in a Case, by the addition of a Re­ference to a Certainty, it may be made good: [Page 66] As Perkins, Sect. 36. an Estate is granted to I. S. the Remainder to him that shall come first the next Morning to Pauls, and one doth come there that is capable; this is a good Remainder, for it may be made Cer­tain by Averment.

So, Pasch. 39 Eliz. in B. R. Morgan and Iohnson's Case, one binds himself by Obli­gation to pay me all such Sums of Mony as his Brother oweth unto me; this by Averment may be made Certain, and is good.

So, Plowd. 191. if one Grant his Mannors of A. and B. and say not in what Parish or County they are in; or make a Lease of all his Lands in the Parish of A. and says not in what County; these Grants in Pleading may be made good by Averment.

So, if the King by his Letters Patents grants to one all the Mannors and Advow­sons that did belong to the Priory of H. or that were of I. S. who was Attainted: These Grants by 32 H. 6. 20. and Co. Lib. 9. 47. may be made good in Pleading by Aver­ment.

But by Anderson 1 Part, 102. an Indict­ment was upon 8 H. 6. quod intravit in unum Tenementum; and held void for the Incer­tainty.

And March Rep. Case 168. in Ejectione firmae, and Not Guilty pleaded, the Jury found them Not Guilty for part, and Guilty in tanto ut Ius Mesuagii in Occupatione, &c. quantum stat super Ripam, and the Verdict was held void for Incertainty.

[Page 67] And so is 40 Ed. 3. 15. and Co. Lib. 9. 74. in Debt brought against Executors, who plead plene Administravit, and the Jury find they have Assets, but say not to what value; this is also void for Incertainty.

And by Plowd. 144, and Co. Lib. 10. 40. there must be a precise Affirmation of a thing in Pleading, where it relates to Matter of Substance; yet if the Pleading hit not the very Words, if it contain the Matter by necessary Implication, it may be good enough.

And by Plowd. 435. a man is not bound to one Form of Pleading, or to the Com­mon Form, so he plead the Substance of the Matter.

And by Hobart 72, 78. 124. That need not be said on the one side, that will come pro­perly on the other.

And by Plowd. 104. 202. and Co. Lib. 10. 40. If a Plea hath two Intendments, the strongest shall be taken against him that pleads it, and it shall be taken most for the advantage of his Adversary: As, in a Re­lease pleaded to an Action of Trespass, the time when it was made must be shewed, for it might be delivered before or after the Trespass: and if not shewed when, it shall be taken to be before.

And, Idem Lib. 9. 109, 110. where Covin is alledged in the Avoidance of an Act, it will be sufficient to shew it Generally, for it is secret and can hardly be known; and therefore a man shall not be forced in Pleading, to shew it exactly or certainly.

[Page 68] And by Hobart 163. General Issues may be pleaded without any Inducement.

Lastly, By Plowd. 84. 63, 65. Co. Lib. 9. 109. Dyer 27. Yelv. 103. Hob. 258, 297. Truth and Certainty ought to be in Pleading; and therefore Falshood, Incertainty and Repug­nancy ought to be avoided in Pleading. And although, as hath been said before, Surplusage doth seldom hurt the Pleading; yet Imperfect Pleading is always dange­rous.

Vide Brook' s Abridgment, Tit. Pleading 94, 95, 96. 115. Plowd. 179. 229. 431. Hob. 23. 208. Dyer 27. and Co. Lib. 7. Butt' s Case, for variety of Matter upon this Subject.

CHAP. III. Of Replications, Rejoynders, &c.

AFter the Defendant has made his Bar, Replication, Rejoynder, Sur-rejoynder, what. or Plea, that is to say, hath given in his Answer to the Plaintiff's Declaration, the next part of Pleading in Course must be the Plaintiff's Replication; which is an Answer, or Exception to the Defendant's Plea; and a Rejoynder is, where, after the Plaintiff in the Action hath Replied to the Answer of the Defendant, the Defendant doth again make Answer to the Plaintiff; and if after that the Plaintiff shall Answer again to the De­fendant, such Pleading is called a Sur-rejoynder.

As to Replications and Rejoynders, the Learning of them is more properly to be seen in every particular Action, under their respective Titles of Pleading; but touching some Particulars, we shall observe,

First, Where the Plaintiff is in a manner bound to an­swer the De­fendant's Plea; yet, if he will, may Plead at large, without Answering the same. Where the Plaintiff is in some sort bound to Answer the Bar of the Defendant, but may notwithstanding Plead at large, not answering the Bar; which is (in a manner) altogether in an Assize, where a General Bar, with Colour, is pleaded. And, by 34 H. 6. 46. not in Entry in nature of an Assize, nor other Action.

And so is 21 H. 6. 18. and also 34 H. 6. 22, & 48. in Trespass, and all other Actions (except [Page 70] Assize,) where although the Bar be at large; yet the Plaintiff ought either to Traverse it, or to Confess and Avoid the same.

Where it appeareth, Plea at Large, what. that a Plea at large is, where the Plaintiff in his Replication medleth not with the Defendant's Bar: As to say, That a Stranger was seised, and did Enfeoff him; or, That his Father was seised, and died seised, and so he was seised until, &c. not shewing expresly the Discent to be after the Defendant's Title.

And 38 Ed. 3. 10. the Defendant in Tres­pass did plead his Freehold; and the Plain­tiff Replied, Que il prist ses arbres, prist, and could not, but was forced to make Title.

And 1 & 2 Mariae, Dyer 171. the Defen­dant in a Replevin avowed, that B. was seised, and let to him for years; to which the Plaintiff Replied, that antequam B. aliquid habuit, A. was seised and let to C. whose Estate the Plaintiff had; and doubted, whe­ther it were not a meer Title, as before at large, because he doth no way encounter with the Avowry, nor Confess and Avoid the same, but only with the word Antequam.

Where also a Case is Vouched in 41 Ed. 3. how the Defendant in Trespass did plead his Freehold; to which the Plaintiff Replied, Que long temps devant le Defendant riens avoit en le Franktenement J. S. fuist seisie, Et Lesse a luy pur ans, and so was he possest until, &c. and holden a good Plea.

[Page 71] But 3 & 4 Mariae, Dyer 134. where the Defendant in Trespass doth plead his Free­hold, the Plaintiff is to Traverse the same, or to Convey a Title to himself, and alledge a Disseisin and Regress, and the Trespass mean; quod nota, & vide accordant 34. H. 6. 32.

And by 42 Ed. 3. 2. the Defendant in Trespass, for taking a Ship, pleaded the Gift of the Plaintiff; and the Plaintiff would have Replied, that he took his Ship prist, and ill; and after would have added to that his Plea, Absque hoc, that the Ship was the Plaintiffs tempore doni, and ill also; and lastly would have pleaded, that tempore doni the Ship was to Alice at Stile, and was not suffered; wherefore he added to his Plea, that (after the Gift) Alice gave the same unto him, and so he took his Ship, and that holden a good Plea: And the De­fendant Rejoyned, That it was the Ship of the Plaintiff at the time of the Gift.

And 49 Ed. 3. 19. the Defendant in Tres­pass did Prescribe in Common; to which the Plaintiff Replied, that the Place was his Several; Absque hoc, that the Defendant had Common there: But where the Plaintiff in an Assize shall be forced to Answer the Bar, without making Title at Large. Vide Bro. Abridgm. Tit. Assize, viz. to every Special Bar.

And what shall be good Replications and Titles, further than hath been before­mentioned, see the Abridgments of Fitz. and Bro. Tit. Replications and Titles, where the [Page 72] same more plainly appears: As, if against an Act of Parliament, Recovery, or Matter of Record, the Title must be set forth Specially, and de puisne temps; and so 10 Ass. 23. of a Waranty: But against a Matter en fait, the Plaintiff maywell say▪ That after his Father was seised, and died seised, without shewing coment.

And as it appears by 47 Ed. 3. 13. If the Title be before the Fine or Recovery, it may be general.

And 18 Ed. 4. 10. the Defendant in Tres­pass pleaded a Gift in Tail by the King; and the Plaintiff Replied, Ne dona pas; and good.

And 9 Ed. 4. 46. where the Defendant giveth to the Plaintiff a Title, and in his Plea destroyeth the same, That Matter the Plaintiff may Maintain, or Traverse, without other or further Title.

And so is 40 Ed. 3. 5. and 3 Ed. 4. 18. where holden, that where the Defendant in Trespass made Title by a Gift in Tail of a Stranger; the Plaintiff Replied, That he was seised until the Defendant did the Tres­pass, and Traversed the Gift in Tail; and good, although his Title was but of his own Possession.

Next shall be shewn, Where no need of Replication, or Rejoynder. In what Cases there is no occasion either for Replication or Rejoyn­der. And therefore,

First, It appears by 2 Ric. 3. 9. that where Error is alledged, in that which the Course of the Court doth approve and allow of, there needs no Answer to the same.

[Page 73] And by Littleton, 12 Ed. 4. 13. where one doth Counterplead the Possession upon a Voucher; or plead, Quod partes ad finem nihil habuerunt, mes A. &c. he shall add also, Et hoc petit quod, &c.

And so is 22 H. 6. Bro. Replic. 21. But 7 H. 6. 20. to the contrary in the Plea of Partes ad Finem.

But 31 H. 6. 21. as also 22 H. 6. and in all other Cases where the Plea is in the Nega­tive, as Non Culp', Ne dona pas, Ne unque seisie que Dower, Nul Tort, Nil debet, &c. Otherwise upon Pleas in the Affirmative.

But this Matter is more proper to be Treated of in the Title of Issues.

But by 2 H. 4. 4. where the Defendant in Debt did plead, that the Plaintiff had no­thing tempore dimissionis.

And 11 H. 4. 79. where said, that an Issue shall be always upon an Affirmative and Negative; except in Special Cases.

Vide Dyer 2 Eliz. 182. Where one Replication shall go to several Bars. the Tenant in a Formedon by Fish to parcel, did plead one Fine, and so to the other parcel another Fine. To which the Plaintiff Replied, Quod seperal' Fines minime proclam' fuerunt; and good, although there said, that it would have been better, to have made several Re­plications.

Then it is to be observed, where not only Rejoynders, but also Surrejoynders ought to be.

As 5 Ed. 4. 108. where in Debt upon an Obligation with Condition, for performing an Arbitrement, if the Defendant pleads, [Page 74] Quod Arbitratores non fecerunt, &c. And the Plaintiff doth say, Prist que cy, that is ill; for he ought to shew the Award and alledge the Breach, and the Defendant must thereto plead, That they made no such Award; to which the Plaintiff must say, Prist que cy, and the Defendant Rejoyn, Que prist que non.

And so you may see Count, Bar, Replication, Rejoynder, Surrejoynder, and Rebutter to Surrejoynder in Pleading.

A Rebutter is, Rebutter, what. where a man grants Land to the use of himself, and the Issue of his Body, to another in Fee with Waranty, and the Donee Leaseth out the Land to a Third person for years, the Heir of the Donor impleads the Tenant, alledging the Land was in Tail to him; the Donee comes in, and by virtue of the Waranty made by the Donor, Repels the Heir, because tho' the Land was Entailed to him, yet he is Heir to the Warantor likewise.

So, if I grant to the Tenant, to hold absque Impetitione Vasti, and afterwards Im­plead him for Wast made, he may Debar me of this Action, by shewing my Grant; which is likewise a Rebutter. Bro. Abr. Tit. Bar 23, 25. Nov. Lib. Intr. verbo Rebutter, Co. 1 Inst. 365. a. Vide 6 H. 7. 4.

But see hereof more properly in the Title of Pleading.

CHAP. IV. Of General Issue, and Special Evidence.

NExt in Order, we will proceed to Issues. And,

First, With those that may be brought under the Division of General Issue, and Spe­cial Evidence: In which we will set down the Evidence proper to the Nature of the Issue; and then, what Special Plea the De­fendant may have, and not be forced to the General Issue.

The word Issue hath divers Applications in our Law; but that which concerns our purpose, is taken for that Point of Matter depending in Suit, whereon the Parties joyn, and put their Cause to the Trial of the Jury, and is an Effect of a Cause pre­ceding; as the Point referr'd to 12 Men, is the Effect of Pleading or Process.

Issue in this signification is either General, or Special.

General Issue is, where the Defendant makes a short and peremptory Defence to the Plaintiff's Declaration, and is always in the Negative; as Non assumpsit to an Action upon the Case, Nil debet to an Action of Debt, and the like. And,

A Special Issue is that, whore Special Mat­ter being alledged by the Defendant for his Defence, both Parties joyn thereupon, and [Page 76] so it goes either to a Demurrer, if it be Quaestio Iuris; or to a Trial by the Iury, if it be Quaestio Facti. Anno 4. H. 8. cap. 3. Nov. Lib. Intration. verbo Issue, & 18 Eliz. cap. 12.

But Evidence is taken for any Proof, be it Testimony of Men, Records, or other Au­thentical Writings of Contracts, &c. written, sealed and delivered.

And it is called Evidence, because thereby the Point in Issue is to be made Evident to the Jury: Probationes debent esse Evidentes, i. e. Perspicuae & faciles, Co. 1 Inst. fo. 283. And,

First, Evidence upon Non Culpabilis. As to General Issues, we shall begin with the Proper Evidence upon the Plea of Non Culpabilis.

By 19 H. 8. 6. upon Non Culpabilis, it is no Evidence to say, that the Inclosure was de­fective, because thereby the Trespass is con­fest.

So, by 9 H. 7. 3. upon Non Culpabilis in Rescous, the Defendant shall not give Non Tenure in Evidence.

And Keilway 59. upon Non Culpabilis in Trespass, a Licence may not be given in Evidence to excuse the Trespassor, for this must be pleaded.

By Co. Lib. 10. fo. 56. upon the Issue, Non Culpabilis in Trover, it will be good Evidence to prove the Conversion, that the Plaintiff demanded the thing sued for, and the Defendant refused or denied to deliver it.

[Page 77] And by Plowd. 14. the Iury may find him Guilty upon this; but being Specially found, the Court cannot do it.

And by Hobart 187. an Unreasonable De­tainer is good Evidence for this.

Vide Godbolt's Rep. 234. where in Trespass for taking away Timber, and the Boughs of Trees felled, the Defendant pleaded, as to the Timber, Non Culpabilis; and to the Boughs, made a Special Iustification by Custom of the Mannor, that the Lord was to have the Timber, and the Tenants the Branches or Boughs for Estovers, to be burnt in Terris & Tenementis Custumar' Manerii: And because the Defendant did Entitle himself to a House and Land, and gave the Custom in Evidence for the Land only, it was held it did not maintain the Issue.

So, by Stile's Rep. 335. it appears, that where in an Action upon the Case the Plaintiff declared of a Nusance, viz. that in such a Way the Defendant had digged a Hole, ratione cujus, as he was Travelling in the said Way with his Horse, he did fall and hurt himself, &c. On Non Culpabilis pleaded, the Evidence was given, that the Plaintiff's Servant was driving his Masters Horse in the Way loaden with Lead, and by reason of this Hole he fell, &c. and it was held no good Evidence to maintain the Issue.

But by 18 H. 6. 22. where in Parco fracto the Defendant did plead Non Culpabilis, and gave in Evidence, That the Plaintiff had not a Park by Prescription, nor by Grant; and it was held good.

[Page 78] By the Books 11 H. 4. 24. and 19 H. 6. 34. in Trespass the Defendant may give in Evidence, Evidence for Abridgment of Damages. That the Plaintiff hath part of the Goods again in Abridgment of Da­mages.

And by 3 Ed. 4. Bro. 67. that a Shop is parcel of the House.

By 14 H. 3. & 16 Ed. 4. 1. upon this Plea the Defendant may give in Evidence a Lease; but by 25 H. 8. Bro. 82. cannot give in Evidence a Lease at Will, no more than a License.

And so is 12 H. 8. 1. in Wast, where said, that in Wast he cannot, upon Nul Wast fait pleaded, give in Evidence, That he Cut the Timber for Reparations; nor upon Non Culpabilis, to give in Evidence se defendendo, or a License; but a Gift he may: But in Wast he may give in Evidence, that the Pre­misses were ruinous at the time, or burned by Enemies, or the like.

But Title in an Estranger upon such a Plea (as is the said Book of 25 H. 8. Bro. 81.) and to Justifie by his Commandment, is no Evidence; but ought to plead the said An­swer, as the License of the Plaintiff himself (as it seems,) or one pretendeth Common, &c.

But if the Defendant pretend an Interest from a Stranger in the Land it self, al­though but an Estate at Will; yet he may plead Non Culpabilis.

[Page 79] The next, upon the Issue of Nihil debet.

By the Book of 28 H. 8. Dyer 29. the De­fendant may give in Evidence, What Evidence may be given upon the Issue of Nil debet. that the Contract was Conditional, or may plead the same, as appears there, without Traverse: The like, as it seems upon Non Assumpsit, in Action upon the Case.

And 27 H. 8. 21. in Debt upon the Statute of 21 H. 8. of Farms, upon the General Issue, viz. Non habuit, &c. he may give in Evi­dence the taking for Provision of his House, according to the Proviso of that Sta­tute.

And in 20 H. 6. 24. in Debt upon an Ac­count, the Defendant may plead Nul tiel Accompt, or Nil debet, and give in Evidence, that there is no Account between the Par­ties.

And so is 9 H. 7. 3. in Rescous, the Defen­dant shall not give in Evidence, Non-tenure; and yet may, upon Nil debet, give Ne Lessa pas in Evidence.

But there, and 22 H. 6. 33. upon the Plea of Non detinet, the Defendant shall not give in Evidence a Mortgage.

Nor by 16 H. 7. 15. may he upon that Issue give in Evidence, that he had the thing of the Plaintiff as a Pledge for Mony not yet paid.

But quaere, if he may give in Evidence an Agreement after the Bailment, that doth alter the Property.

[Page 80] And 21 Ed. 4. 20. Nota. If the Plaintiff in his Declaration mistake the Contract either in the Sum, or in the Thing sold, Nil debet will be a good Plea.

But 34 H. 8. Bro. 89. in Debt upon an Escape, if the Defendant plead Nul Escape, he cannot give in Evidence, No Arrest.

Then upon the Issue Ne Lessa, or Ne Enfeoffa pas, holden in Fogassa's Case, That upon the Issue Ne Lessa pas, the Plaintiff shall not give in Evidence a Lease by Deed; but may a Lease Conditional, as on an Agree­ment Conditional.

And so is 14 H. 8. 17. the Parties being in Issue upon a Grant, Evidence was given of a Grant; so he obtained the Will of his Lessor.

And 12 Ed. 4. 4. upon a Feoffment pleaded by Deed, Evidence cannot be given with­out, or by other Deed.

And 50 Ed. 3. 6. if a Demise to the Baron and Feme be pleaded, a Fine sur Release to them is no Evidence to prove the same.

And 18 Ed. 4. 29. if one plead Ne Enfeoffa pas, he may give in Evidence, that the Par­ties were Jointenants.

But 15 Ed. 3. Bro. 95. the Issue Ne dona pas may be Maintained by a Devise: And, as the Books are, upon a Feoffment, a Lease and Release are good Evidence.

And by 1 & 2 Mariae, Dyer 116. upon Non dimisit modo & forma, one shall have advantage of the Date and Number of years.

[Page 81] Next, Non est factum, &c. what Evidence shall be given upon the Pleas of Non est factum, riens passa, &c.

First, It is doubted 1 & 2 Mariae, Dyer 112. that whether upon the Plea, Non est factum, the Defendant may give in Evidence, that the Plaintiff afterwards pull'd off the Seal.

But 15 Ed. 4. 18. upon Non est factum ge­nerally, Minime Lit [...]ratus▪ he may give in Evidence, Nient Lettered, &c.

And so 14 H. 8. 28. upon Delivery, as an Escrow.

But 5 H. 7. 3, & 8. upon Riens passa, Non est factum it seems cannot be given in Evi­dence; tamen quaere.

And Note, That in Actions of Mainte­nance, or other Actions upon the Sta­tutes, in some Cases the General, and in others the Special Issue shall be taken: For which see their proper Issues in the Nature of every Action.

And therefore, First, in Maintenance it appears, by 28 H. 6. 6. that if the Defendant in Evidence shew a Special Maintenance, as sworn in a Iure Patronatus, and the like, that will not stand with the General Issue.

But 22 H. 6. 35. upon the General Issue he gave in Evidence, That at the Request of the Party he gave him Counsel to sue out a Supersedeas, and good, because no Main­tenance; but in that Case, ought of necessity to plead the General Issue.

[Page 82] And if the Defendant in Maintenance, be charged with a Special Point of Mainte­nance, he must Answer to the same, and the General Issue then shall be no Plea for him.

And what be the Proper Issues in Actions upon the Statutes, see that Title in Brook's Abridgment; as in Forcible Entry, Non in­gressus est contra formam Statuti.

But 3 Ed. 4. 1. doubted, whether he may not plead Non Culpabilis in Trespass upon 5 Ric. 2. and 1 Ed. 5. 4. In that Case the Plea of Non Culpabilis, admitted upon the Statute of 21 H. 8. of Farms (as before-cited,) Non habuit, nec, &c. And upon the Statute of Livery, Que ne dona pas les Robes, and not Non Culpabilis; quod nota, and the like.

And it appears in Dyer, 3 & 4 Mariae 145. that in Debt upon a Pain given by Statute, Nil debet per Patriam, is a good Plea: But there, and in 50 Ed. 3. doubted in Debt upon an Escape against a Gaoler.

And 18 Eliz. 346. in an Information upon the Statute of Usury, Non Culpabilis a good Plea.

Next, Hors de son Fee. of the Plea of Hors de son Fee.

Upon which it seems, 27 H. 8. 20. that the Avowant giving in Evidence Seisin of Rent, without a Fealty, not sufficient.

And 10 Ed. 4. 10. if one plead Hors de son Fee, the other shall not shew a Tenure, Et issint deins son Fee; but, Deins son Fee, prist, &c.

[Page 83] Then of the Issue, Ne unque Exe­cutor, or Plein­ment Admi­nister. Ne unques Executor, or Pleinment Administer, where 'tis holden, 9 H. 7. 14. that upon either of these Pleas, if the Plaintiff doth Reply, Assets, or, that he did Administer, he need not shew what Assets, or what thing he did Administer spe­cial.

And 9 Ed. 4. 40. upon the Plea of Ne un­ques Executor, the Defendant may give in Evidence, that he is Administrator, or, that the Goods were given him in another County; which the Jury are bound to find. The like of Assets in any other County, given in Evidence.

And 3 H. 6. 3. where the Issue upon Assets in mains del Executor, it is good Evidence for the Plaintiff to say, that he sold the Land by the Appointment of the Testator, &c.

And where the Issue is upon Prescription, Issue upon Pre­scription, or Custom. by 34 H. 6. 36. if the Plaintiff give in Evi­dence a Deed within time of Mind, the Defendant may Demur upon the Evi­dence. Demur upon Evidence.

Otherwise by 12 H. 4. 24. if the Deed be time out of Mind: For such a Deed, al­though it were the Kings Patent, cannot be pleaded.

And 4 & 5 Mariae, Dyer 164. if one Prescribe for Common Appurtenant to two several Houses, for twenty Beasts, and give in Evidence, that he hath Ten to either House, the Issue fails.

So, if he fail of his Proof in the same Nature his Plea is, it is ill.

[Page 84] As 1 & 2 Eliz. Dyer 192. Issue was taken upon the Custom of a Mannor, relating to a Copyhold Estate, whether the Widow ought to hold for Life, and the Evidence proved only during her Widowhood; and ill; quod nota.

So, by Co. 1 Inst. 283. if in Debt upon an Obligation the Defendant plead Non est factum, and give in Evidence the Bond is Joynt and not Several, this is ill, and will be no good Evidence; but if pleaded Specially, would have barred. Or, if in an Assise Nul tort is pleaded, and a Release after the Disseisin is given in Evidence.

So, by Keilway 55. where the Issue in Trespass, for Assault and Battery, is Not Guilty, and the Defendant gives in Evidence son Assault demesne: The Evidence in none of these Cases will be good.

But by Co. Lib. 5. 119. & Lib. 11. 27. if in Debt on an Obligation the Defendant plead Non est factum, and upon Trial gives in Evidence, That the Seal of the Bond was broken off, and put on again; or, That any part of it was Raz'd; it will be a good Proof to bar the Plaintiff.

And Idem, 1 Inst. 283. if the Point in Issue be upon a Transitory Trespass, done at a day or place certain, and the Proof given is, That it was done at another day before, or at another place; this is good enough: But otherwise it is, where the Proof is, that it was done at a time after the Day laid in the Declaration.

[Page 85] So, by Plowd. 8. if the the Point in Issue be a bare Agreement, or simple Contract, without any Complex Matter, and the Evidence prove it to be an Agreement Spe­cial; this will be good. So if it be of a Feoffment Absolute, and the Proof be of a Feoffment Conditional.

And by Co. 6. 47. if in a Suit against an Executor or Administrator, the Issue be Assets in London, the Proof of Assets in any place in the World besides, will be sufficient to maintain it.

So Dyer 271. and Crompt. Iurisdiction of Courts 12. if it be in case of Heir, on an Action grounded on a Specialty against him, and the Point in Issue be Assets by Dis­cent, it will be sufficient if he can prove Assets any where in England: And i [...] it be Assets in one County, it will be sufficient to prove Assets in another County.

And by Brownlow's Rep. fo. 233. Part 1. If there be two Batteries made between the Plaintiff and Defendant at several times, the Plaintiff to maintain the Issue, must prove the Battery made the same day he hath laid it in his Declaration, and shall not be admitted to give another Day in Evidence.

And now in the next place we will shew, Where the De­fendant may Traverse, and not be forc'd to the Genera [...] Issue. Where the Defendant may Traverse any part of the Plaintiff's Conveyance of his Action, and not be forced to the General Issue.

For which see, first, 2 & 3 Mar. Dyer 121. where the Lord Mountegle brought an Action [Page 86] upon the Case for a Chain of Gold, upon a Trover against the Countess of Worcester, sup­posing that he was possess'd, and lost the same, which came to the Defendant's hands, who sold the same to Persons unknown. To which the Defendant did plead, Quod non vendidit, &c. Modo & forma, &c. and seems good, because a principal part of the Decla­ration; and although but Conveyance, yet because he cannot Wage his Law, he may have this Traverse. As the Defendant in Debt upon a Lease for years may plead Non dimisit: And so in Debt upon Arrerages before Auditors, may plead Non Compu­tavit.

But as 22 Ed. 4. 29. in Debt upon an Award Nul tiel Arbitrement; in Detinue upon a Bailment Ne baila pas; or in Debt upon a Contract Ne achata pas, no Plea; because the Defendant may Wage his Law: And so the Defendant may plead Non ejecit, Non rapuit, Non manutenuit, Ne forga pas, &c. or Non est Culpabilis modo & forma, at his plea­sure.

But 28 H. 8. Dyer 26. Non dampnificatus no Plea in Action upon the Case; and holden lately, by better Opinion, That a Conversion in an Action upon the Case (for a Trover) simply, is never Traversable; but by an Alio modo, as a License to use the same, &c. quaere inde.

And 18 H. 6 Bro. 94. in an Action De Parco fracto, the Defendant cannot plead, that it is no Park.

[Page 87] But 12 Ed. 4. 7. in Trespass by a Prior, Warden or Sheriff, or by one for the Taking away of his Servant, a good Plea for the Defendant to say, that the Plaintiff was no Prior, no Warden, or no Sheriff, or that the Party was not Servant to the Plaintiff.

And yet in 11 Ed. 4. 4. if the Feoffment of the Master and Brethren, or of the Father be pleaded, it is no Plea to say, that there are no such Brethren, or that there is no such Fa­ther, but must plead Non est factum; for the other Pleas are but Argumentative.

Then ought to be known, Where the De­fendant shall be forced to the General Issue, or may Traverse the Place laid by the Plaintiff in his Declaration.

For which see 4 H. 6. 13. as Abridg'd by Bro. Tit. Traverse, where in Trespass laid in Dale, the Defendant doth Justifie in Sale, Absque hoc quod ipse est Culpabilis de aliqua Transgressione in Dale; and the Plaintiff driven to Answer to the same, and the Defendant not enforced to the General Issue.

And so is 12 Ed. 4. 19, & 39.

But 9 H. 6. 62. and 14 H. 6. 23. the Defen­dant in that Case forced to the General Issue, and the Jury bound to find it upon Pain of Attaint.

But in the last recited Book, viz. 14 H. 6. that the same is according to the Discretion of the Court.

[Page 88] And 28 H. 8. Dyer 19. Fitz against Bald­win, that the Defendant may have the Plea, where he said, That Baldwin spake for sparing of Parchment.

And 22 H. 6. 26. where, by his Justifica­tion in another County, he is driven to the General Issue.

Then we shall Consider, Where the De­fendant may plead Specially, and not be forced to the General Issue. In what other Cases the Defendant may plead Specially, and not be forced to the General Issue.

For which we must first Consult 9 H. 6. 11. where it is said, that the Defendant in Tres­pass of Goods pleaded, that A. was possessed, and gave them to him, without that, that he took any Goods of the Plaintiffs; and no­thing Entred, but the General Issue.

Vide 21 H. 6. 13. where the Special Matter did amount but to the Traverse of the Seisin; yet the same was Entred, for there said to be done or not at the Discretion of the Court.

So, by 22 H. 6. 17. upon Nontenure the Plaintiff Averred the Tenant Pernour of Profits, and the Tenant shewed how his Pernancy was a Rent reserved upon a Lease for Life, Absque hoc, &c. and suffered.

And 9 Ed. 4. 30. a Servant retained, taking yearly Twenty shillings, or a Robe; the Defendant in Debt pleaded, that he had paid the Robe; and good, by the better Opinion.

And 34 H. 6. 43. the Defendant in Tres­pass of Warren, did plead the Freehold in Iohn S. and that he by his Commandment [Page 89] did the Trespass, and enforced to the General Issue.

And 21 Ed. 3. 30. in Detinue of an Obliga­tion of 20 l. the Defendant said, That an Obligation of 30 l. was delvered to him; Absque hoc, &c. and suffered.

And 11 H. 6. 35. in Debt against an Exe­cutor the Defendant pleaded, that the Te­stator gave him all his Goods, except such, and to the residue plene Administravit; and suffered.

And 5 H. 7. 3. in Trespass of his Servant, the Defendant may plead, that he was not Servant.

And 39 Ed. 3. 19. in Trespass by a Bishop, the Defendant pleaded, that he did it when the Temporalties were in the King's hands; Absque hoc, that he was Culpabilis before; and good.

And 22 Ed. 4. 45. the Defendant in False Imprisonment pleaded, That his Master did Imprison the Plaintiff in a Chamber, Nota. and gave him the Key to keep, and because the Plaintiff was a Clerk of the Court, the De­fendant was forced to the General Issue.

And 14 H. 6. 2. the Defendant, in the like Action did plead, that, by agreement of the Plaintiff, he did lead him to Dale; and forced to the General Issue.

And 21 H. 6. 39. the Defendant in Tres­pass did plead, That the Plaintiff did Com­mand his Servant to put in the Defendant's Beasts, and that the Defendant, when he had Notice, put them out; and good.

[Page 90] And 39 Ed. 3. 15. the Tenant in Dower did plead, that the Demandant had an Eign Baron in Life, Et issint nient loyalment accouple, and nothing Entred but Nient loyalment ac­couple.

And so, 19 H. 6. 17. if the Defendant plead Bastardy, and the Plaintiff Replies, that he was born in Espousals, Et issint Mulier, nothing shall be Entred but Mulier. The like of the Pleas of Ne unques seisie que Dower.

Yet 39 H. 6. 9. the Tenant was admitted to plead, That he Let to the Plaintiff's Hus­band, at Will, which so continued; Absque hoc, que seisie de tiel Estate que Dower; and so may the Defendant in Debt plead Gene­rally, Non est factum, or that he is Un­lettered, &c. and so Conclude, Non est factum.

And, 11 H. 4. 83. in the like Case, the Defendant did plead, That the Baron of the Plaintiff nothing had but in Scil. Jointe­mncy. Jointure with A. To which the Plaintiff Replied, That A. did Release, and the Court did persuade her to plead only Seisie que Dower. And in Dower of Rent the Defendant did plead, Ne unques seisie: To which the Plaintiff Replied, That the Rent was granted payable at Michaelmass, before which day her Hus­band died, Et issint seisie que Dower, and the Special Matter ousted.

And 21 Ed. 4. 22. the Tenant in Dower did demand the View, which the Deman­dant did Counterplead, for that her Hus­band died seised, and the Defendant forced [Page 91] to the General Issue, without shewing Matter of an Especial Tail.

See more hereof in the Title of Tra­verse.

In the next place we shall Cite some Cases, Evidence agree, or disagree with the Issue. additional to the former, to shew, Where the Evidence doth stand with the Issue, and where not.

For which see first, 30 H. 8. Dyer 41. upon the Plea of Ne unques seisie que Dower, the Defendant shall not give in Evidence an Estate upon Condition, or other Estate in the Husband, defeated by the Remitter of the Heir, or the like.

And 1 & 2 Mar. Dyer 112. the Defen­dant, upon Non est factum, gave in Evidence, That the Plaintiff afterwards pull'd off one of the Seals of the Obligation; and Doubted.

And 3 Eliz. Dyer 192. upon the Plea of Ne unques son Baily pur Accompt render; the Defendant shall not give in Evidence, That according to the Bailment he did deliver the same over; nor is the same Plea good before Auditors; quod nota.

And 5 Eliz. Dyer 222. if the Defendant in Debt upon an Obligation, plead the Pay­ment at the Day, he cannot give in Evidence an Acceptance of the same, or other thing in lieu thereof before the day.

And 10 Eliz. Dyer 276. upon Nul Wast fait, the Defendant shall not give in Evi­dence, That the Premisses were amended before the Action brought; and yet see [Page 92] before that, to say, they were Ruinous at the time of the Lease, and the like, shall be good Evidence in this Case.

And 10 Eliz. Dyer 272. in Debt against an Heir, who pleaded Riens per discent; the Plaintiff Replied, Assets in London, and gave in Evidence Assets in Cornwal; and Doubt­ed: But clear of Assets of Goods.

Where 21 Ed. 3. is Vouched, That where Issue is upon Tender of Homage in a Foreign County, they cannot find the same Tender in the County where the Land is; but may in any other Place, in the same County where it is alledged to be Tendred; quod nota: Where it is also said, that Assets al­ledged in Dale, & alibi in Com. C. all the same must be Traversed.

And yet 13 & 14 Eliz. Dyer 305. in the Case of an Obligation made in Ireland, in Debt against the Obligor in London, Issue was taken, If the Obligation at the time of the death of the Obligee were then in London, viz. in Parochia beatae Mariae, when it was in the same Ward, but not in the same Parish, and therefore ill: But see more of this in this Title, in the several Titles be­fore and after.

Then also further than before is declared, Evidence suffi­cient for the Jury to take Cognizance of. shall be shewn, What is sufficient Evidence, that the Iury shall be obliged to take Cognizance of.

And therefore, first, see 9 Ed. 4. 40. where, upon the Plea of Ne unques Executor, if the Defendant give in Evidence a Gift, or Re­lease [Page 93] in a Foreign County, the Jury are bound to take Notice thereof upon pain of At­taint: Where said also, That if the Mise be joyned in a Writ of Right, the Grand Iury are bound, upon Pain of Attaint, to find a Release.

And so is 40 Ass. 23. and Brook in this Title 33. in Redisseisin, because but an In­quest of Office, and a Release not plead­able in those Actions.

But by 43 Ass. 41. a. Release in an Assize cannot be given in Evidence; otherwise of a Feoffment. But Littleton is of Opinion, that the Jury may, if they will, upon the General Issue, find a Condition broken, or a Release, as it seems, that doth Extinguish Right, al­though they may not be forced thereto upon pain of Attaint.

And so it appears 22 Ed. 4. 19. That in Decies tantum the Jury are not bound to find a Taking in a Foreign County, although they may, if they will; but if they find it by Express words, then the Verdict is also ill: And so of Assets, and such Things Transitory; but otherwise of Local Tres­passes.

And 4 Ed. 4. 1. in a Writ of Entry, in Nature of Assize of Common, the Plaintiff gave a Prescription in Evidence, and good; because in this Action, as in an Assize, there is no Title laid in the Count.

And 7 Ed. 4. 16. where Divorce or Restore pleaded to the Writ, the same may be given in Evidence.

[Page 94] And it seems by 3 H. 6. 33. That where a Matter in Law is given in Evidence by one, the other may Demur.

Next, What Writings the Jury shall take notice of, or may be de­livered unto them. we shall Observe, What Deeds and Writings are sufficient Evidence, such as the Iury are to take notice of, or shall be delivered unto them.

First, It appears 11 H. 4. 17. and there laid down as a Rule, Rules. That no Deed or Writing whatsoever, shall be privily or secretly deli­vered to the Jury, that was not openly shewed.

And, by 11 Ed. 4. 25, & 38. That an Office before an Escheator, unless Exempli­fied, not to be delivered to the Jury, no more than a Testimonial; nor, by that Reason, the Jury bound to Credit the same.

And 34. H. 6. 25. a Part of a Fine Indented, unless Exemplified, not to be delivered to the Jury, but with the Consent of both Parties.

No more shall any Copies of Books, by 9 H. 6. 6. But a Part of a Fine, not Exempli­fied, delivered in Evidence, (as in Newse and Scholastica's Case) or any other Evi­dence, that they are not bound to take notice of, they may yet, at their pleasure, respect in their Verdict, or find the same Specially.

But 7 Eliz. Dyer 239. doubted, where the Jury may find a Private Act of Parliament, not delivered to them in Evidence, Exem­plified, or otherwise.

[Page 95] And the Matters aforesaid (as it seems) are no Cause to Demur upon the Evidence, Demurrer upon Evidence. no more than in Fogassa's Case, because but one Witness; for that the Jury may, upon their own Knowledge, give a Verdict with­out Evidence: Nor in any Case may one Demur upon Evidence, unless he will admit the Evidence to be true: Nor without the Consent of the other Party (as it seems,) which, according to the Opinion of many, may put himself upon the Jury to find a Verdict, which they may do either Gene­rally or Specially, at their pleasure; which, if they do Specially, they avoid all occasions of Attaint.

See for Demurrers in Evidence the Books following, viz. 9 H. 6. 33. where it is said, That upon a Matter in Law, the other Party may Demur in Law, for it belongs not to the Lay-Jury to Judge thereof; but that, it seems, ought to be such a Matter that the Judge must take to be doubtful.

And so in the before-cited Case of Fogassa, That the King's Attorney did Demur upon the Evidence, and that (as it there appears) whether the other would agree, or not: But whether so in Newse and Scholastica's Case, quaere.

And see the Book of 34. H. 6. 36. where the Plaintiff in Annuity, by Prescription, shewed a Deed, in Evidence, within time of Mind; and the Defendant prayed, That the Evidence might be Entred, and he would Demur upon the same, and the Plaintiff [Page 96] would not agree to it; quod nota. But if the Court think the Evidence good, the other side may (as in Tatam's Action upon the Case 27 H. 8.) desire the Justices to Seal a Bill of Exception, Bill of Excep­tion. which in the Writ of Error he may alledge, and not in Arrest of Iudgment, ex Rigore Iuris.

And see Dyer, 6 H. 8. 2. where in Debt against an Executor, the Defendant did plead plene Administravit, and gave in Evidence a Redemption of a Pledge with his own Mony, upon which the Plaintiff did De­mur, and by Assent of both Parties the Jury was discharged; quod nota.

And so seems Experience at this day, that in Demurrer on Evidence the Consent of both Parties is requisite.

CHAP. V. Of Special Issues, and manner of Ioyning them.

IN the next place we shall Observe, Of Special Issues, and the manner of Joyning them▪ the Manner and Form of Ioyning other Issues, (that is to say) Special, being such as are different from the General Issues, we have al­ready treated of, in respect of the Special Mat­ter contained in them.

And, First, by 26 H. 8. 3. if the Issue be Joyned on the Defendant's part, then must it be, Et de hoc ponit se super Patriam; but if upon the Plaintiff's part, then in this man­ner, Et hoc petit quod inquiratur per Patriam; and so is Dyer 18 Eliz. 253.

But then it ought to be known, as that which is very Material in Pleading, Which of the Parties shall offer the Issue. which of the Parties, in their Pleas, shall first Offer the Issue; where holden generally in that Title in Brook, That he which Pleadeth the first Negative, shall (as before) Conclude the Issue.

And yet Ibid. 2 H. 7. 4. the Defendant in Debt upon a Lease did plead, That the Plaintiff, Riens ad tempore dimissionis, without such Conclusion; and the Plaintiff said, That I. S. did him Enfeoff, Et sic ussoit, &c. Et hoc petit quod inquiratur per Patriam.

[Page 98] And Ibid. 11 H. 4. 19. Issue shall be always Joyned upon a Negative, Rule. after an Affirmative alledged before; or, è contra.

And Ibid. 9 Ed. 4. 36. If the Defendant do plead in the Negative to the Writ, Rule. the Plain­tiff shall Reply in the Affirmative, and Con­clude the Issue.

And Ibid. 7 H. 6. 43. It appears, Rule. That if the Plaintiff declares in the Negative, (as in Disceit, That the Defendant did Sue the Plaintiff in Debt in the Name of N. absque voluntate sua) it sufficeth for the Defendant to say, Que il sua per son Assent, Et de hoc ponit se super Patriam; quod nota.

And Ibid. 19 H. 6. 1. the Defendant did plead to the Writ, Rule. That he was abiding at Dale; and no Plea, without saying also, and not at B. as the Plaintiff did Name him; because the Issue shall always be upon a Negative.

And there it appears, Rule. that one of the De­fendants in Trespass pleaded, That one of his Companions was dead the day of the Writ pur­chas'd; no Plea for the Plaintiff to Reply, Que il fuist en vie al Dale, but must also say, Et nemy mort; quod nota. As to say, by way of Replication, in the like Case, Mulier & nient Bastard, or Frank & nient Villein, Et hoc petit quod inquiratur per Patriam; quod nota.

And so 11 H. 4. 90. the Defendant plead­ed the Freehold of J. S. &c. and the Plaintiff Replied, that it was his Freehold; he must say also, Et nemy le Franktenement J. S. or, Absque hoc que est le Frank: enement J. S. &c.

[Page 99] And it appears 18 Eliz. Dyer 353. Rule. That he who taketh the Traverse by Absque hoc, ought not properly to Conclude the Issue; but the other Party, beginning his Plea with Ut prius dicit, &c. may.

It appears also by 33 H. 6. 22. That he who pleads, Partes ad Finem nichil habent, or doth Counterplead the Possession, or pleads Ne unque seisie que Dower, Ne dona pas, Nul Tort, Non Culpabilis, and the like; because these Pleas be in the Negative, he shall Conclude with the Issue, Et de hoc ponit se super Pa­triam.

But 12 Eliz. Dyer 290. in the Plea of Partes ad Finem, &c. the Party that did plead the same had his Election to Conclude the Issue, or not.

See also 2 & 3 Mar. Dyer. 121. That where the Defendant did plead in the Negative, (as in an Action upon the Case) he did Traverse the Sale, and did not Conclude, Et de hoc ponit se super Patriam, but with Unde petit Iudicium si praedictus Quer' Actionem suam praedictam versus eum habere debeat, &c. and yet good; because a Perfect Issue may be Joyned thereupon; quod nota.

Nevertheless, Where Issue shall be taken upon Affirmatives only, without Negatives. in some Cases, Issue shall be taken upon Affirmatives, without Nega­tives.

As 6 Ed. 4. 6. Where the Defendant in Replevin doth Avow, as within his Fee: The Plaintiff may Reply, Hors de son Fec, prist.

[Page 100] And so in Debt against an Executor, who pleads Pleinment Administer; and the Plaintiff Replies, Assets.

And in a Writ of Right the Tenant pleads, That he hath better Right, &c. and the Plaintiff Replies, That he hath better Right to Demand, &c. which is somewhat doubted in 32 H. 6. 25. touching the Plea of Hors de son Fee.

Next in Order, Of Tender, or Refusal. Of Tender and Refusal in Pleading.

Tender, What they are. in our Law, signifies, Carefully to Offer, or circumspectly to Endeavour the Performance of any thing belonging to us: And Refusal, is the Denying or Refusing to accept of the same, when offer'd.

As by 16 H. 7. 13. In Debt upon an Obli­gation the Defendant pleaded a Tender, and a Refusal by the Plaintiff; and the Plaintiff took the Refusal by Protestation, and Tra­versed the Tender, as he ought, because no Refusal without a Tender.

See Dyer 28 H. 8. 31. In Debt upon an Obligation, the Condition whereof was to make an Assurance of Lands upon Request, as by the Counsel of the Plaintiff should be devised: And the Defendant pleaded by Protestation, That the Plaintiff's Counsel made no Devise, and for Plea, That he was not Required. To which the Plaintiff Re­plied, That his Counsel devised a Release, which he Requested the Defendant to Seal, and he Refused: And the Defendant would have Traversed the Refusal, and could not, [Page 101] but ought to maintain his first Plea, that is, the Request; and the Plaintiff should not have mentioned a Refusal, but have Concluded the Issue upon the Request, the Defendant offering a Negative Plea before.

And so 36 H. 6. 15. the Defendant in Debt did plead an Award, to pay 10 l. at such a Place, which he was ready at the time to do, and the Plaintiff came not to receive the same. There the Plaintiff may say, That he was there ready, without Traverse; because the Defendant had Tendred a Nega­tive Plea before.

Then, Of the Issue Negative Preg­nant, what it is. Of the Issue, Negative Pregnant; which is, a Negative that implies, or contains in it self, an Affirmative.

As where an Action, Information, or such like, is brought against one, and he pleadeth in Bar to the Action: Or other­wise, a Negative Plea, which is not so direct an Answer to the Action, but that it in­cludeth also an Affirmative.

As if a man be Impleaded, to have done a Thing on such a Day, or in such a Place, denies that he did it Modo & forma declarata, which implies nevertheless, that in some sort he did it.

Or, if a Writ of Entry, in Casu proviso, be brought by him in the Reversion, upon an Alienation of Tenant for Life, supposing that he hath Aliened in Fee, which is a Forfeiture of his Estate, and the Tenant to the Writ saith, That he hath not Aliened in Fee; this is a Negative, wherein is included an [Page 102] Affirmative: For tho' it be true, that he hath not aliened in Fee; yet it may be, he hath made an Estate-Tail, which also is a Forfeiture, and then the Entry of him in the Reversion is Lawful.

Vide 33 H. 8. Br. Issue 81. Where upon an Information, for buying Cloaths at B. contra formam Statut', Ne achata al B. contra formam Statut', ill; but ought to be, Ne achata pas, Modo & forma, &c.

Yet 16 Ed. 4. 5. One pleads a Release puis le darein Continuance, Nient son fait puis le darein Continuance; a good Issue.

And 12 Ed. 4. 4. One did plead a Feoff­ment by Deed; and the other Replied, Que ne Enfeoffa pas, modo & forma; and good, without answering to the Deed.

As in a Formedon, to Count of a Special Gift, the other-ought to say, Ne dona pas, modo & forma: Where its said by Littleton, That if the Plaintiff proveth not the Feoff­ment by Deed, he faileth.

Now, Modo & forma, what. Modo & forma, are Words of Art in Pleading, namely, in the Answer of the Defendant, whereby he denies the Thing laid to his Charge, Modo & forma prout, the Plaintiff hath Declared against him: As the Civilians in like case say, Negat allegata, prout allegantur, esse vera.

And it is to be Observed, that (upon Issues) these Words, Modo & forma, are not always of Substance, as appears by Littleton, in his Chapter of Releases, where the Disseisee en­ters upon the Heir of the Disseisor, who brings his Writ of Right.

[Page 103] Or, where (as before) one in a Writ of Casu Proviso, doth Count upon an Aliena­tion in Fee; and the other doth say, Ne Aliena, modo & forma, and found that he Aliened for Life.

Or, where the Defendant in Trespass doth plead, That the Plaintiff doth hold of him by Fealty, and Ten shillings Rent, and so demandeth Judgment of the Writ, Vi & armis; and the Plaintiff Replieth, Que il ne teigne modo & forma: And if the Verdict find, that he holdeth only by Fealty, yet good.

And so in Trespass of Battery, If the Jury upon the General Issue find the Defendant Guilty at any other day and place, before the Plaintiff supposeth his Trespass.

But see more of Issues afterwards, in the Titles, Traverse, Pleading, &c.

The next in Order, Of Traverse in Pleading. What it is. is touching Traverse in Pleading; which signifies in Pleading, to deny some Point, Matter, or Thing al­ledged on the other side, the formal Words of which are in our French, Sans ceo, in Latin, Absque hoc, and in English, Without that.

And, first, to begin with the Time: It is plain, (as hath been already said) that if the Defendant in Trespass pleads Non Culpabilis, he shall have no advantage of the Time, but the Jury may find him Guilty at ano­ther day, be the Trespass Transitory or Local.

[Page 104] And by Littleton, in his Chapter of Re­leases, so. 13. In Trespass of Battery, and the General Issue pleaded, the Jury may find the Defendant Guilty at another day and place.

And so is also 19 H. 6. 47. and 39 Ed. 3. all in the Title of Traverse; But in Case of Trespass, and other Actions, if the Plaintiff in his Declaration, lay a time before his Cause of Action, the Defendant in all Cases upon the General Issue, shall have advantage thereof.

But, on the contrary, if once he have Cause of Action, it so still continueth until he have discharged the same, and there­fore he may lay it after the day: The like, as it seems upon the Issue of Non dimisit; for (as before, Littleton, in the Chapter Re­leases) the Words Modo & forma in an Issue be not always of Substance: Quaere tamen, if not, as if in the Number of years.

And, Time, where, and how Tra­versable. as divers Books be, In many Cases where the Defendant doth Iustify, he may Tra­verse the Time before, and in some Cases the Time after, and in other some, the Time before and after.

And therefore, where the Defendant, in Trespass of Lands or Goods, maketh himself Title, by a Feoffment, Gift, or otherwise, which still is in force such a day after, he shall only Traverse the Time before the Trespass supposed.

[Page 105] And so is 15 Ed. 4. 23. 22 H. 6. 29. and other Books in the Title of Traverse: And where by a Lease, or other Title, made and determined before the Day of the Tres­pass, there he must Traverse the Time after and before his Lease: But whether the Plaintiff may there Traverse that Iustifica­tion hath been a Question, because in so doing he Departeth from his Declaration. Departure.

And the better Opinion of the same Book of 15 Ed. 4. 23. is, That the Plaintiff may.

But 22 Ass. 36. the Defendant in Trespass of Battery did plead a Release, and Traversed the Time; and the Plantiff Replied, the Re­lease was obtained by Duress, and by the better Opinion no Plea, for the Reason afore­said.

And 2 R. 3. 11. the Defendant in Trespass of Assault and Battery, Justified at another day of the Plaintiff's own Assault, Absque hoc that he was Guilty antea vel postea; and the Plaintiff Replied, De injuria sua propria, and ill, for the Reasons aforesaid; quod nota.

And 43 Ed. 3. 11. the Plaintiff in a Re­plevin did Declare the Taking the 1st of May, and the Defendant did Avow in the same Place at another Day for Damage fesant: To which the Plaintiff Replied, That it was his Common.

And the Rule of the Book is, Rule. for that the Taking shall be intended the Day in the Avowry, Concerning Departure. the Plaintiff's Replication is a Departure.

[Page 106] And to that Intent is 33 H. 6. 14. where the Defendant in a Quare Impedit did Claim nothing, but as Ordinary; Judgment, if with­out a Special Disturbance: To which the Plaintiff Replied, That such a Day, Year and Place he did Present, &c. To which the De­fendant did Rejoyn, That at the same day the Church was Litigious, sans ceo, que il Refusa apres cel Iour: To which the Plaintiff al­ledged a Tender after, and a Refusal; and by the Whole Court holden a Departure; quod nota.

So that, by these later Books, it appears (if the same be Law) that the Day in most Cases, may be made Material upon the De­fendant's Plea and Traverse; which in some Cases shall be only to the Time before: As namely, when the Defendant pleading a Feoffment, and the like, which being intend­ed to continue, proveth that he cannot be Guilty after: And sometimes the Time after, as when in Trespass he pleadeth a Lease determined, made in another Kings Reign: Or else the Time before and after, as appears in Brook, in the Title of Traverse.

But where his Plea enableth him but to one Special Time, and Justifieth at another Day within his Special Time; as, De son Assault demesn, or a License for a Time, or a Special Maintenance, or for Common for a Time, or the like: There the Defendant is to Tra­verse the Time before and after, for the most part, as appears in the said Title of Traverse, 5 Ed. 4. 5. 10 Ed. 4. 2. 20 H. 6. 5, & 23. 31 H. 6. 37. and other Books there.

[Page 107] But, as 2 Ed. 4. 24, & 25. If the Defen­dant Justify for a Time in a former King's Reign, then he shall Traverse the Time after only; because upon that Writ he cannot be Guilty before.

And 27 Ass. 12. He that Justifieth in Main­tenance, as one of the Indictors, needs not Traverse the Time before, or after; and He that Justifieth as a Commissioner, the Time before.

Then shall be shewn, Place and County, where Traversable. Where the Place and County are, by the Defendant in his Answer, to be Traversed.

For which see partly before, in the Title of General Issue, That in Trespass Local, if the Defendant Justify in another Place in the same County, he may chuse so to do, and Traverse the Place, or plead the Ge­neral Issue at his Pleasure; but if, in that Case, his Justification be in another County, (by the better Opinion) he shall be forced to the General Issue; (and so seems 9 H. 6. 62. in this Title of Traverse) and the Jury bound to find the same, upon Pain of At­taint.

It appears also, in the same Title, that although the Matter in the Declaration be Transitory; yet if the Defendant's Justifi­cation goeth only to another County, or other Place, there the County or Place is Traversable, and he cannot plead the Gene­ral Issue.

[Page 108] For which see 27 H. 6. 1. 43 Ed. 3. 29. 7 H. 6. 35. 9 H. 6. 50, & 71. 21 H. 6. 8, & 9. and divers other Books in the same Title of Traverse, in Brook; where it appears, That if the Special Justification be in any other County, the County is Traversed; other­wise the Place, if the Justification be in the said County.

And by many of these Books it appears, That if the Defendant doth Justify, by reason of a Special Bailment in another County, or of the Plaintiff's own Assent, he is to Traverse the County; but if he Justify for the like Matter in the said County, he is to take no Traverse; quod nota.

And so is 21 Ed. 4. 29. by all the Court, That if the Defendant in Debt upon a Contract of a Horse, alledge the same to be in another County, upon Condition, and Traverse the former County; tamen quaere, because in that Action and Detinue the De­fendant may Wage his Law.

And 22 Ed. 4. 39. the Defendant in Tres­pass for Taking away his Goods, did Justifie by Commandment Conditional, viz. to Take them only in another County, and Traversed the County where the Plaintiff laid his Action, and good

And so is 34 H. 8. Bro. Traverse 36. 8. In an Action of Disceit, for Making of False Cloaths in Bartholomew-Fair, contra formam Statut'; the Defendant said, That he made them bien & duement at D. in another County, and Traversed the Making of them in Bartholomew-Fair; and good.

[Page 109] And always, in a Replevin, the Place of the Taking is Traversable; for which see 16 H. 7. 7. where the Plaintiff declared of a Taking in A. in the County of Oxon, in a Place called P. and the Defendant said, That the Taking was in P. in the Town of O. sans ceo que il prist in A. and holden, That the Defendant at his pleasure may either Traverse the Town or the Place; quod nota.

Next shall be shewn, Where the Plea is good without Traverse. Where the Plea is good without Traverse, and where the Traverse doth make the Plea ill.

And therefore, first, see 28 H. 8. Dyer 29. where the Defendant in Debt upon a Con­tract shewed, That the Contract was Con­ditional, without Traverse, and good, and the Traverse was on the other part.

And Ibid. eodem Anno 33. one did declare upon a Lease of 24 Acres; and the Defen­dant pleaded, That he Let the same, and 4 Acres more, and good; and ought to take no Traverse, because Confest, and more.

Yet 35 H. 6. 38. and 32 H. 6. 3. Bro. Tit. Traverse, seem to the contrary, and their Pleas to the Count.

And 3 Eliz. Dyer 202. in Account by Edward Clere, Administrator of Sir Iohn Clere, against Barty and the Dutchess of Suffolk his Wife, who pleaded, that Sir Iohn Clere made Walter Herend his Executor without Traverse, and Demurr'd to in Law.

[Page 110] See Mich. 10, & 11 Eliz. 280. in a Replevin between Wootton and Sir Anthony Cook, in Dyer; where Cook did Avow, as in his Free­hold: To which Wootton did Reply, That the Land did discend to him and Cook in Coparcenary, without Traverse.

But it is there said, That if one Avow, that A. was seised in Fee, and granted to him a Rent-Charge; and the Plaintiff Re­plies, That A. was seised in Tail at the time of the Grant, and died, he ought to Traverse, Absque hoc quod fuit seisitus in feodo.

And see the Case of Vernon, Mich. 21 & 22 Eliz. Dyer 366. Rul'd, according to a like Precedent 12 H. 8. Rotulo 639. That where Vernon in his Avowry did Claim by discent, as Heir to the Lord Powis; Gray in his Replication to that Avowry did shew, That the Lord Powis did Will it to him, Absque hoc quod terr' discend'. The like, as it seems, if Gray had Conveyed as Heir in a nearer Degree.

And so is 19 H. 8. 60. there Vouched. But otherwise, as it seems, if he had Claimed by Survivorship, or in Coparcenary.

And 11 H. 7. 9. the Defendant in Trespass, as Servant to another, Justified the putting in his Master's Cattle: To which the Plaintiff Replied, That he put in his own Cattle, and good, without Traverse on his part; for it may be he put in his own and his Masters also.

[Page 111] And see 22 Ed. 4. 39. that the Writ and the Count is but a Supposal; and therefore, the Defendant pleading a Matter in Fait, shall take no Traverse, but the same shall first begin on the Plaintiff's part: As if the Defendant doth plead, Iointenancy; or the De­fendant in Dower doth plead, That the Hus­band of the Plaintiff had nothing but in Join­tenancy with B. Or where Bastardy is plead­ed, or the like.

And so is 2 Ed. 4. 28, & 29. where in Ravishment de Gard the Defendant did al­ledge Iointenancy in the Ancestor, and others. And so where one doth plead the like, either in Abatement of the Writ, or A­vowry.

See 21 Ed. 4. 36. the Defendant in Debt did plead, That the Plaintiff was Born in Scotland, Iudicium de Brevi; and the Plain­tiff Replied, That he was Born in England, without Traverse, and that for the Mischief of the Trial.

As is 6 H. 7. 5. where said also, That if one plead a Feoffment, the other may say, That it was upon Condition, without Tra­verse.

Vide cel Liver, and see 5 H. 7. 11, & 12. where it doth stand upon a Matter in Law; as against a Priest, to alledge Unity of Pos­session, and the like; there no Traverse.

And see 7 Ass. 10. a Plaint in an Assize of 4 Acres of Meadow; the Defendant did demand Judgment of the Plaint, because it was Pasture; quod nota.

[Page 112] And see 14 H. 6. 17. in Ravishment de Gard of which side the Traverse shall be, and where any Confessing or Avoiding is, there no Traverse.

And so Note, in what Cases there shall not be any Traverse; as namely, where the Defendant doth but plead in Abatement of the Writ, Count, or Avowry; (or doth (as before in most Cases) plead in Bar, because the Writ and Count is but a Supposal) where one in his Plea doth Answer the other, and more; or for the Mischief of the Trial; or because of a Matter in Law, &c.

Next is to be known, Where the Dying seised, or Discent, Traversable. Where the Dying seised, or the Discent, is Traversable.

For which see the said Book 19 H. 8. mentioned in the last Division, where it is said, That the dying seised, and not the discent, is Traversable.

And as that Book, so seems Brook in Tra­verse 6. and yet in the last Division in Ver­non's Case, and others, the discent Tra­versable.

And 22 H. 7. 31. the Defendant in Tres­pass made Title by Discent, and the Plaintiff in his Replication, by the same Person, did so too, with a Traverse, Absque hoc quod Tenementa discend' al Defendant.

[Page 113] Then, Where the Dying seised, or Abatement, Traversable. When the Dying seised, or the Abate­ment, shall be Traversed.

By 18 Ed. 4. 1. 26. the Defendant in Tres­pass did plead, That A. was seised, and did Enfeoff him: To which the Plaintiff Re­plied, That long time before A. was seised, his Father was seised, and died seised; after whose death A. did Abate, and Enfeoffed the Defendant, and the Plaintiff Entred, &c. And by all the Court the Defendant may maintain his Bar, and Traverse the Dying seised, or the Abatement, at his pleasure; because it is the Plaintiff's Title, and if any part of his Title be false, the other shall have the advantage thereof.

The like 5 Ed. 4. 137. in a Writ of Entry, in the Nature of Assize.

See 5 Ed. 4. 85. in the like Case of an Intrusion, where it seems the Special Matter of the Title, and not of the Intrusion, is Traversable.

And so seems to be 3 H. 7. 7. in the former Case of the Abatement, because the discent not answered, which doth Entitle the Plaintiff, where his Ancestor died seised of such an Estate as doth Toll an Entry.

And 39 H. 6. 26, & 27. an Abatement is Material and Traversable, where he that alledgeth the same, maketh Title by him that died seised; otherwise not.

And 38 H. 6. 22. in the like Case as before, in a Writ of Entry the Defendant did Tra­verse the Abatement, and not the Gift in Tail.

[Page 114] Then is to be observed, Where Dying seised, Convey­ance, or Dissei­sin, Traversable. Where the Dying seised, the Conveyance, or the Disseisin alledged, shall be Traversable.

For which see, first, Andrews his Case, Mich. 21 & 22 Eliz. Dyer 365. the Plaintiff in an Ejectione firmae did declare upon a Lease, made by my Lord Cromwell, against which, the Defendant being Andrews his Farmer, did plead, Quod diu antequam le Plaintiff, ou son Lessee, aliquid habuit in Prae­missis, one Iohn Blount was [...]eised, who En­feoffed Andrews his Father, who died seised; and that Andrews let it to the Defendant, upon whom Blount Re-entred, and did him oust, and Disseised Andrews, and did Enfeoff my Lord Cromwell: To which, the Plaintiff taking the Parts of the Defendant's Plea by Protestation, did maintain Blount's Feoffment to my Lord Cromwell, Absque hoc that Blount Disseised Andrews. And it was long De­bated, Whether in this Case he ought to Answer the Discent, or the Feoffment to An­drews; and the rather, because both the Plaintiff and Defendant Claim by one Per­son.

And Lastly, notwithstanding the Books of 21 H. 6. 12. and 30 H. 6. 2. and 5 Ed. 4. and 4 & 5 H. 7. which Cases were in Trespass and Assize, for that this Case was in Ejectione firmae, which contained Title in the Decla­ration, which Title ought to be answered by the Defendant, and no Bar with a Co­lour good; and for that the Disseisin is also a Substantial part of the Bar, it was holden, to be in the Plaintiff's Election, either to [Page 115] Traverse the same, or the Discent, or Feoff­ment, at his pleasure.

And according to the same was Vouched 5 Ed. 4. 5. in a Formedon, and 9 H. 6. where taken for a Rule, Rule. That a Disseism alledged either in Bar, or Replication, is always Tra­versable.

And 15 Ed. 4. 22. taketh difference, where the Disseisin is alledged in Fait, and where only by way of Supposal; as in a Declaration, in a Writ of Entry, and the like.

And 5 Ed. 4. & 4. in this Title in Bro. 218. the Disseisin Traversable.

And 30 H. 6. 7. Bro. in this Title 360. is, That in Trespass, the Disseisin, and not the Discent is Traversable; but otherwise in an Assize.

And divers other Cases there be hereof, but the Case of my Lord Dyer may now serve.

Then we shall shew, Where Seisin in Fee alledged, shall be Tra­versed. Where the Seisin alledged in Fee, is to be Traversed.

Touching which Point there be many Cases in our Books, the first whereof we shall Cite, is 26 H. 8. 4. where the Plaintiff in a Quare Impedit declar'd, That he was seised in Fee, and did Present: To which the Defendant did plead, That he himself was seised, and granted proximam Advoca­tionem to A. and the Plaintiff by the Grant of A. did Present, and took no Traverse, intending the Plaintiff's Declaration to be sufficiently Confessed and Avoided: Where the Reporter maketh a Mirum, Mirum. because he [Page 116] did not Traverse the Seisin in Fee of the Plaintiff.

See the like 11 Ed. 4. 11. because Confessed and Avoided.

And see 33 H. 6. 49. where the Defendant in an Assize did plead, That his Father was Seised in Fee, and by Protestation died seised, &c. that the Plaintiff may make Title by a Stranger, Absque hoc quod Pater le Plaintiff aliquod habuit in Praemissis.

In the Abridgment of which Case it is said, That by the Book 8 H. 8. he may say, Absque hoc quod Pater Querentis fuit Seisitus in Feodo.

And 5 Ed. 4. 1. the Defendant in Trespass of Goods did plead, That the Property was in him, and he Bailed them to A. to keep, who gave them to the Plaintiff, and he, &c. To which the Plaintiff Replied, That he was possessed, &c. Absque hoc, that the Pro­perty was in the Defendant, prout, &c. And so, where the Defendant pleaded, That A. is seised in Fee, &c. the Plaintiff may say, That B. Let it to him at Will, &c. Absque hoc, that A. was seised in Fee; or, Absque hoc, que Riens avoit forsque al volunt; quod nota.

And see accordingly 18 Ed. 4. 3. 21 Ed. 4. 17, & 83. and 4 Ed. 2. Bro. in the Title of Traverse 372. which Book is, That the De­fendant alledged one A. to be seised in Fee, &c. and the Plaintiff Traversed the same; but not, Absque hoc, que Riens avoit, quod nota.

[Page 117] And such a Traverse, Traverse holde [...] a Ieofail. 1 & 2 Mar. Dyer 112, holden a Ieofail.

But 22 Ed. 4. 38. if the Defendant say, His Father was seised in Fee; and the Plaintiff Replies. That A. did Let it to his Father, who held over his Term, He shall take no such Traverse, because of the Doubt­fulness.

And upon this manner of Pleading is a Notable Case in Dyer 365. Anno 21 Eliz. where in Replevin the Defendant, as Baily to Sir Francis Leak, made Conusance for Da­mage fesant, as in the Freehold of the said Leak: To which the Plaintiff Replied, That he was seised of Butt-Close, contigue adja­cen' in Dominico suo ut de Feodo; against which Sir Francis Leak ought to Inclose, &c. To which the Defendant Rejoyn'd, That Butt-Close was the Freehold of I. S. Absque hoc, quod le Plaintiff fuit seisit' in Dominico suo ut de Feodo; where holden, that the Traverse was good, and if the Plaintiff be Mistaken in his Estate, it shall be found against him; where holden also, That it was his Folly to alledge such a Precise Estate in himself, whereof the other, by this Issue, shall have advantage; and that it had been sufficient for him to alledge, That he was seised of Butt-Close, without shewing how; and then the Defen­dant had been enforced to have Traversed, Absque hoc, quod Querens aliquid habuit: And so if the Plaintiff had had but an Estate at Will, or a License of the Owner, hac vice, it had been sufficient; quod nota.

[Page 118] Then, Of the Tra­verse, Aliquo alio modo. as to the Traverse, Aliquo alio modo.

If, according to 22 H. 6. 35. and other Books, the Defendant doth Justify by an Especial Maintenance, he must Traverse, Absque hoc, que il mainteine in aliquo alio modo; but otherwise, if his Cause of Justification prove no Maintenance.

And so 5 Ed. 4. 119. in a Petition, where the Petitioner gave to the King a Special Possession, Sans ceo, que il avoit unque possession de ascun auter Corody, nisi in forma prae­dicta.

And so 4 Ed. 4. 13. the Defendant in Tres­pass, upon the Statute of 5 R. 2. Justified, That a Distress being Awarded against the Plaintiff, out of the Court of A. he desired the Bailiff, to Aid him to Distrain, Quae est eadem Intraco', &c. and ill, because he claim­ed nothing in the Soil; but when he added further the Traverse, Absque hoc, quod ipse Intravit in aliquo alio modo, then good, for doubt of the La [...]gents: And by Others, he sall say, Absque hoc, quod ipse Intravit, (sicome le Brief suppose) prout per Breve sup­ponitur: And by Others, in this Case he ought to plead the General Issue.

And 13 H. 6. 13. in Debt against an Exe­cutor, the Defendant pleaded, that the Party died Intestate, and that the Ordinary com­mitted the Administration to A. and the Defendant, as Servant to A. sold the Goods, Absque hoc, quod ipse Administravit in aliquo al [...]o mod [...].

[Page 119] But this manner of Pleading seems to be, for the Avoiding the danger of the General Issue; for which see more in that Special Title.

Then, Which of the Conveyances to be Tra­versed. Which of the Conveyances alledged, is to be Traversed.

And therefore see first, 27 H. 8. 2 & 3. where said, That if the Defendant in Tres­pass do plead, That the Plaintiff Let it to A. who granted his Estate to the Defendant; the Plaintiff shall not Traverse the Grant to the Defendant, but his own Lease.

And so is 15 H. 7. 2. & 3. In an Action of Trespass brought by the Prior of Tower-Hill, because the Plaintiff's own Lease; where it was also Agreed, That the most Material Matter, alledged by the Defendant, is always Traversable; as a Recovery, or Discent, and the like; and not any the mean Convey­ances, because he is in Possession, against which the Plaintiff ought to make a suffici­ent Title.

But by Fineux and Keble, Nota. Where by way of Replication many Conveyances are pleaded, the Defendant may Traverse which of them it pleaseth him.

But as the said Year of H. 7. fo. 11. If the Defendant in Trespass Convey a Title by Mean Estates from a Stranger, and not from the Plaintiff, and give Colour; the Plaintiff may Traverse which of them he will.

[Page 120] And so is 16 H. 6. Bro. Traverse 346. be­cause a Bar at large.

But if he say, That A. did Enfeoff him, by force whereof he was seised, until by the Plaintiff disseised, and he did Re-enter, &c. (which Plea, as it seems, is good without Colour) the Plaintiff ought, in that Case, to Traverse the Disseisin.

But if, as in that last Case, the Defendant had Conveyed, as by a Gift in Tail, the Plaintiff there may Traverse the Gift in Tail; quod nota.

And see 4 Ed. 6. Nota. Bro. Traverse 154. The Plaintiff in Assize against a General Bar, did make Title by Feoffment and Dis­cent, which did Remit him; Remitter. where holden, That the Defendant cannot Traverse the Feoffment, but the Discent, which is the Material Matter of the Title.

And 35 H. 6. 59. in Trespass by a Bishop against a Prior, who said, That his Prede­cessor was seised, and died, and then him­self Elected, and gave Colour: To which the Plaintiff Replied, That he was seised, until by A. disseised, upon whom the Predecessor of the Defendant did Enter, &c. There the Defendant is to Traverse the Dissesin by A. Nota. as most Material.

But as it appears by the same Book 27 H. 8. first cited in this Division, That although the Defendant Convey by Mean Degrees from the Plaintiff himself; yet if he plead [Page 121] false in any Point, the Plaintiff by like Pleading may Traverse him.

As, in the said Case of 27 H. 8. he may say, That after his Lessee did surrender to him, Absque hoc, that he did assign his Estate to the Defendant, modo & forma, &c.

And 43 Ed. 3. 7. the King in a Quare Im­pedit made Title by an Heir in his Ward, Conveying the Discent to him by Mean Degrees of Cosinage, the Defendant shall not say, Nul tiel in Reie nature (nulla talis persona in Rerum natura) as in the Mean Convey­ance of Kindred; quod nota.

But in a Mortdancestor, or other Action Ancestrel, as is 9 Ed. 4. 6. the Mean Convey­ance of Kindred is Traversable: But there said, to be otherwise in any other Action, by the Books, in all Cases of Challenge.

In the next place, Commandment, where Traver­sable. it will be requisite to know, Where the Commandment is Traver­sable.

For which see 37 H. 6, 7. where the Defen­dant in Trespass did plead, That the Free­hold was to I. S. and that he by his Com­mandment did the Trespass; and the Plain­tiff made Title by a Lease from a Stranger, Absque hoc, que le Defendant Enter per Com­mandment J. S. and good, per Cur.

And see 14. H. 6. and divers other Books there Vouched in Bro. Traverse 325. That if the Defendant in Trespass do Justify by the Commandment of the Owner, the Com­mandment is Traversable; quaere tamen.

[Page 122] But in all Cases where the other Conveys from the same Person, the Commandment is Traversable.

The like, Qui Estate, where Traver­sable. as it seems, of Qui Estate, if both Parties Claim from one Person, as 11 H. 4. 81. 19 H. 6. 56, & 57. 10 Ed. 4. 6. 18 Ed. 4. 10. and 6 Ed. 4. 12. in the Title of Traverse in Brook.

But see more hereof in the Title Qui Estate, where the same is Traversed, al­though they do not Convey by one Per­son.

And in some Cases there are several Tra­verses to be taken in one Plea; Several Tra­verses to be taken in one Plea. as, by Expe­rience, the Defendant in an Information, that pleads a Special Plea, or is to Traverse an Office, ought to Confess and Avoid, or Traverse every of the Kings Titles al­ledged.

And see 12 Ed. 4. 14, & 19. That the De­fendant in Trespass did plead a Gift in Tail to his Father, and gave Colour; and the Plaintiff made Title by a Common Recovery: To which the Defendant did Rejoyn, That his Father, before the Recovery made a Feoffment, and took an Estate back again, and then after the Recovery, and before Exe­cution, died; Sans ceo, que le Recoveror entra en vie son Pier; Three Traverses to one Repli­cation. Et sans ceo, que son Pier avoit auter Estate tempore brevis; Et sans ceo, que le Recoveror fuit seisie prout in Replicatione specifi­ca [...]': Et issint le Recovery feint, &c. and ad­mitted.

[Page 123] And 22 H. 6. 16. Two Traverses to one Plea. One Utlaw'd by the Name of I. S. of D. Butcher, came in upon the Capias Utlagatum, and said, That he was Demurrant at S. and not at D. and was a Husbandman, and not a Butcher; and so two Traverses taken.

In some Cases there shall be Traverse upon Traverse: Where a Tra­verse may be upon a Tra­verse.

As 9 H. 6. 1, & 2. and other Books, where in a Praecipe against Two, one pleaded Non-tenure, and the other Iointenancy with a Stranger, and Traversed, Sans ceo, que le auter Riens avoit; and the Plaintiff Replied, That the Defendants are Tenants, as the Writ supposeth, and Traverseth Absque hoc, que le Stranger Riens avoit.

And see 18 Ed. 4. 10. Where the De­fendant may Traverse with­out making Title. That if the Defen­dant in Trespass make Title by a Feoffment or Gift in Tail, and give Colour to the Plain­tiff, the Plaintiff without making any Title, may Traverse the Feoffment or Gift, per totam Curiam praeter Brian; but contrary in Assize.

Yet by Brook, or the Reporter, the Law seemeth with Brian; and for that the De­fendant is in possession (it seems) the Plain­tiff shall be forced to make Title against him, as well in Trespass as in Assize; quod nota.

Next, of the Plea of Tout temps prist, Tout Temps prist, what. or Semper paratus; which is a Plea by way of Excuse, or Defence, for him that is Sued for any Debt or Duty belonging to the Plaintiff.

[Page 124] As in Debt upon an Obligation, with Condition for the Payment of a lesser Sum to the Obligee; although the Place be named in the Obligation, yet the Obligor, by 7 Edw. 4. 3. is bound to plead, Tout temps prist, & Tender les deniers in Court; yea, al­though the Obligee (as it was pleaded there) Refused the same, because part of the Sum contained in the Bond.

Otherwise, if the Condition be to Per­form an Arbitrement, &c. as is 16 H. 7. 7. &c.

And yet 7 H. 6. 18. the Obligor is not bound to Tender at another Place than where mentioned in the Obligation, no more than the Tenant, who Tendred his Rent upon the Land at the time of the Distress.

And if a Defeasance to an Obligation be for the Payment of a Lesser Sum, the Ob­ligor, according to 33 H. 6. 3. need not to plead, Uncore prist.

And 21 Ed. 4. 42, & 52. If an Obliga­tion be with Condition for the payment of a Lesser Sum, and the Obligor Tender, and the other Refuse, he shall not plead, Uncore prist.

But 21 H. 6. and other Books against the same, and so is Experience at this day.

And 21 Ed. 4. 25. the Obligor did in this Case of Payment of a Lesser Sum, plead Uncore prist, where its said, That if the Ob­ligee take Issue upon the Tender, and found against him, he hath lost the Advantage of the Obligation for ever.

[Page 125] And according to this Learning is 20 Ed. 4. 1. and other Books.

But if the Condition be to make a Feoff­ment, or to perform an Arbitrement, or to pay Mony to a Stranger, he shall not plead Uncore prist.

The like 16 H. 7. 7. 11 H. 6. 27. & 22 H. 6. 39. of an Abitrement.

The like 19 H. 8. 12. 27 H. 8. 1. and 14 H. 6. 23. where to do any Collateral Act, al­though to perform Covenants, and one of the Covenants be, to pay his Rent; as the same Book 27 H. 8. is.

Then is to be known, Where Tender shall be made in Court, and where not. Where the Tender shall be made in Court, and where not.

Vide 7 H. 4. Bro. Tit. Arbitrement 12. where the Defendant in Trespass pleaded an Arbi­trement in Bar, to give a Piece of Cloth, and had the same in Court.

The like 8 H. 6. 25. of Mony to be paid.

And yet 21 Ed. 4. 8. in Dower, the Defen­dant pleaded, That the Plaintiff detained a Hamper of Evidences: To which the Plain­tiff Reply'd, That she was always ready to deliver the Hamper of Evidences; by Reason whereof she had Iudgment Maintenant, and yet she had not the Hamper in Court.

And 24 Ed. 3. 31. if the Defendant in a Writ of Ward Claim nothing, but because of Nurture, he ought to have the Infant in Court.

And so is 24 Ed. 3. although the Infant be Sick.

[Page 126] And yet Fitz. 8 Ed. 3. he found Mainprize to have the Infant in Court.

And 6 Ed. 4. 11. the Defendant in Detinue of Corn did plead. Tout Temps & uncore est, without having the Corn in Court; and the Plaintiff Replied, That (such a Day) he Re­quired the same, and the other Refused to pay; and Issue thereupon.

Then, Uncore prist, in what other Case to be pleaded. In what other Case a man shall plead, Uncore prist.

As 14. H. 7. 32. and 15 H. 7. 1. in a Writ of Annuity, which was granted until the Plain­tiff was Promoted to a Benefice: If the Defendant do plead a Tender hanging the Writ, he ought not to Tender the Arre­rages also, because the Plaintiff shall have Debt for the same.

And 33 H. 6. 26. the Garnishee in Detinue did plead, That the Goods were delivered to the Defendant upon this Condition, That if the Garnishee did perform the Arbitrement of I. S. then he should have them; and that I. S. did Arbitrate, he should pay to the Plaintiff Forty shillings, which he did Tender, and need not plead, Uncore prist; for that the Mony was not in demand in that Action.

And upon that Reason is 7 H. 4. 3. That if the Defendant in Trespass of Goods make a sufficient Iustification, although he Confess a Detainer, yet he need not plead, Uncore prist.

[Page 127] And by the Book of 1 R. 3. 1. in Debt upon a Single Bill, or Obligation, by the way, the Defendant may plead, That he was, and yet is ready to pay, if the Plaintiff would have delivered him an Acquittance: by which it should seem, that the Plaintiff in that Case ought to Offer an Acquittance, as he is to demand Rent that is payable on the Ground; quaere inde.

In which said Case, and 21 Ed. 3. which are abridged by Fitzherbert, in his Title of Verdict 13. If the Defendant Tender Parcel, the Payments being several; as Rents at several Feasts, and the like: There, if the Defendant, upon the Demand of the Plain­tiff, or otherwise, where he is bound to Tender, without demand, do Offer Parcel, the Plaintiff is bound to Receive the same, and the Defendant may plead it, as it seems, to the Whole.

The like in Detinue of several Parcels; (but otherwise of an Entire Sum, or Parcel) where in the said Book of 1 R. 3. its said, That if the Plaintiff in Detinue of several Parcels, lay an Entire Value, as he may, then if the Defendant can plead, Tout temps prist, of any Parcel (or, according to some, do, before Verdict, Offer any Parcel in Court) the Plaintiff is at a Mischief, touching his Recovery of the Value of the rest, because he hath not laid several Values: But if in that Case there be a Verdict, then is the Sum of the Value made a thing Entire, whereof the Plaintiff is not bound to Receive part without the whole

[Page 128] But of this Plea of Tout temps prist, Estoppel, or Counterplea. the Defendant may be Concluded.

As if he Imparl, by the Book of 5 Ed. 4. 141. which was in Dower.

Otherwise, if in Debt he came in upon the Distress, as is 7 H. 4. 9. because it may be he was Nient Summon' by the Sheriff.

Otherwise in Annuity, 2 H. 4. 3. and 14 H. 6. 3, & 4. after an Essoin in Dower, because it may be laid by an Estranger, the Defen­dant shall plead, Tout temps prist.

And so is 7 H. 6 7, & 17.

And by 2 H. 4. 7. if the Tenant in Dower came in the first day, and pleaded Tout temps prist; the Demandant cannot Reply, That before she demanded Dower in the Country, because the Writ affirms the Te­nant's Title; quod nota.

Then is to be Considered, Of the Plea, De son Tort demesn. the Plea of De son Tort demesn, That upon many Iustifica­tions, the Plaintiff is to Answer to the Mat­ter of the Defendant's Plea especially, and not to Traverse generally, De son Tort de­mesne sans tiel Cause.

As 16 H. 7. 3. where the Defendant in Trespass doth Justify, as by Commandment, License, or Delivery of the Plaintiff.

And so is also 12 Ed. 4. 11, and 20 Ed. 4. 4. And so is 9 Ed. 4. 4.

The like by Brian and Townsend, 2 H. 7. 3. where the Defendant in False Imprisonment doth Justify by Reason of a Robbery, and that the Common Voice and Fame went upon the Plaintiff.

[Page 129] The like, as it seems by the same Book, 20 Ed. 4. where the Defendant doth Iustify by reason of a Matter in Law, and to see if Wast were done; or, To Enter a Tavern to Drink.

And by 33 H. 6. 41. and 14 H. 4. 31. the Defendant in Trespass did Justify, for that the Ancestor of the Plaintiff held of his Master by Knights Service, and that by the Commandment of his Master he seised the Plaintiff; here the Plaintiff is to Traverse the Commandment.

And so is also 14 H. 4. 32. in the Case of an Apprentice.

And so 44. Ed. 3. 18. where the Plaintiff pleaded a Grant.

And 38 Ed. 3. 3. the Defendant in a Re­plevin did Justify by reason of an Execution upon a Recovery in a Court Baron, and De son Tort demesn General, no Plea.

And so is 33 H. 6. 29. if the Defendant do Justify by the Kings Patent, because a Matter of Record.

The like 10 H. 6. 3. where the Defendant in Trespass did Justify, to make Replevin by a Warrant of the Sheriff; or came in Aid of the Servant that had a Warrant to Arrest the Plaintiff, as is 2 H. 4. 6.

The like 2 H. 5. 1. where the Defendant in a Replevin doth make Conusance, as Bailiff to A.

And so 28 Ed. 3. 98. if the Defendant do Justifie the Taking of Goods by the Com­mandment of A, to whom the Plaintiff is Villain.

[Page 130] And so 16 Ed. 4. 4. where the Defendant in Trespass doth Justifie for Disms, Tithes. severed from the Nine parts.

And 28 H. 6. 9. the Defendant did Justify in Trespass by reason of a Way, and the Plaintiff Replied De son Tort demesn, Absque hoc, que le Defendant & ses Auncestors ount use d'aver tiel Chymin, &c.

Notwithstanding see this Title in Brook, in many of these Cases, the Issue of De son Tort demesn sans tiel Cause, sufficient; and espe­cially where the Defendant doth himself make no Title, but as Servant, or doth come in Aid of the Sheriff, or the like; and in all Cases d'Assault le Plaintiff; or, where the Sheriff maketh a Warrant to his Ser­vant; or, for Suspicion of Felony, or the like.

And as 5 H. 7. 9. where the Defendant doth Justify by Custom of Faldage.

Or 9 Ed. 4. 22. where the Defendant in Trespass Justified for Wreck; and in many other Cases where the Defendant doth Justify by Matter in Fait, the same General Replicati [...], De son Tort demesn, hath been admitted.

Next, Qu [...] Estate, what. of the Plea of Que Estate, which signifies verbatim, Which Estate, or the Same Estate; and is a Plea, whereby a man En­titling another to Land, &c. saith, That the Same Estate himself had, he had from him.

[Page 131] As in a Quare Impedit the Plaintiff alledg­eth, That such Four Persons were seised of Lands, whereunto the Advowson in question was appendant, in Fee, and Presented to the Church; and that afterwards the Church became void, Que Estate—, that is, Which Estate of the said Four Persons he hath now during the Vacation, by virtue whereof he Presented, &c. Vide Bro. 175. Tit. Que Estate, & Co. 1 Inst. 121.

And see also 2 H. 6. 10. where holden, That the Plaintiff in his Declaration, or Title, shall not Convey to himself by a Que Estate.

Otherwise in a Replevin after Avowry; for after Avowry, the Defendant is become Actor.

And so is 3 H. 6. 28. and accordingly are divers Books in Brook, in this Title Que Estate.

And Mich. 1 & 2 Mar. Dyer 172.

And yet, as appears in the same Title, 2 H. 4. 13. and other Cases there, that where the Defendant by his Bar doth admit the Plaintiff Tenant to the Land, there the Plaintiff in his Replication, Conveying to himself Title to the same, may do it by a Que Estate.

And by the Book 3 H. 6. 11. 22 H. 6. 34. and divers other Books in this Title in Brook, The Avowant may in his Avowry Convey to the Plaintiff an Estate in the Tenancy by a Que Estate, because he is a Stranger to his Title, which seemeth Reason.

[Page 132] And it appears by the same Book in Dyer, fo. 172. That a Term cannot be Conveyed in Pleading (be the Party Actor, or other­wise) by a Que Estate.

And to that Intent is 7 Ed. 3. Brook in this Title 31. be the same a Term, or Estate for Life, or in Tail.

And yet there 38 Ass. 4. the Defendant in an Assize did Convey from T. by Statute, by a Que Estate.

And see 5 H. 7. 39. 40 Ass. 28. 15 Ed. 4. 16. and 2 H. 4. 20. of Tenant in Tail, especially if the Party be to aver his Life.

And see in this Title Bro. 12 Ed. 3. That the Tenant may Rebut by reason of a Wa­ranty by a Que Estate; but not be Vouch­ed.

And see 22 H. 6. 13. and 26 Ass. 8. But 10 Ass. 5. to the contrary.

And see also the Books 11 H. 4. 81. 37 H. 6. 32. and 1 Ed. 6. in this Title 4. That a Que Estate is not to be alledged in any of the Mean Conveyances, Shewing how. but to the Tenant himself, without shewing Coment, notwith­standing the same hath been suffered.

And it appeareth also, that in Pleading a Que Estate, the Party by whom such Estate is Conveyed, must be shewed in Pleading, to have a Good Estate; as by Recovery, Feoff­ment, or Release, or the like; and not suffici­ent to say, That A. was seised, whose Estate the Defendant hath.

And so is 7 Ed. 4. 26. and 9 H. 7. 14.

[Page 133] Vide 21 Ed. 4. 21. That Tenant in Dower coming in by Law, Conveyed her Estate by a Que Estate.

And so, 6 Ed. 4. 12. although he came to the Land by Disseisin.

And so seems 31 H. 8. Bro. 48. if he Re­cover the same; but against that is the Book of 39 H. 6.

And it appears also, Chose in Grant, That a Thing that lieth in Grant, cannot be made Title to by Que Estate, although by way of Bar.

And so 11 H. 4. 89. of an Hundred.

And so 24 Ed. 3. 22. and 31 Ass. and 12 H. 7. 16, & 18. of a Rent or Common; except it be incident to some thing that may pass without Deed, unless he shew a Deed to maintain his Prescription.

And although in many Cases it be sufficient Title; Not Traversa­ble, but in particular Cases. yet, as it seems 6 Ed. 4. 12. is never Tra­versable, but where both Parties Claim by one Person.

And yet see 19 H. 6. 56. and 11 H. 4. 81. where the Que Estate Traversed, although the Party that did take the Traverse, did not Claim by the same Person.

And see in that Title 6 Ed. 4. 12. and 18 Ed. 4. 29. That where the Defendant doth give to the Plaintiff Title by a Que Estate, there the same is Traversable by the Plaintiff.

[Page 134] Next in Order, Double Plea, what. we shall say something of Double Pleas.

A Double Plea is that, wherein the Defen­dant alledgeth for himself Two several Mat­ters in Bar of the Plaintiff's Action, whereof either is sufficient to Effect his Desire, which shall not be admitted for a Plea.

As, if a man alledge Several Matters, the one nothing depending upon the other, the Plea is accounted Double, and not ad­mittable; but if they be mutually depend­ing each upon the other, then it shall be ac­counted single.

And touching Double Pleas, see thereof the said Title in Brook's Abridgment; as namely, where one Answer will make an End of all, as Ne dona pas, and the like, there no Doubleness; or if the Defendant plead divers Matters, and rely upon One of them; or do shew in his Pleading divers Matters of Inducement, or of Suspicion; or doth alledge Two Presentments in a Quare Impedit, the one in the Guardian or Parti­cular Tenant, and the other in the Party himself.

And 40 Ed. 3. 11. divers Matters alledged to oust the Conusance.

11 H. 6. 10. to prove a Maintenance, the Party may shew divers Matters.

And Ibid. 11. That Appendancy and Pre­scription is double.

But 13 H. 8. è contra.

And by divers Books, a Lease and Release, double.

[Page 135] And where one bindeth himself in 10 l. in the Indenture, to perform divers Cove­nants, the Plaintiff can declare but upon the Breach of one, if he demand the 10 l.

Otherwise, if he bring an Action upon the Covenants, as appears by 11 Ed. 4. 10.

And by 9 H. 7. 23. One pleads, that he was seised, until by the other disseised; against whom he did Recover, and not Double, because the one is Conveyance to the other.

And by 5 H. 7. 36. where one cannot come to the one Plea without the other, there no Doubleness, as Seisin and Feoffment, and the like.

And 4 H. 7. 17. and 1 H. 7. 14.

And by 5 H. 7. 1. Non dederunt arbitrium in scriptis, Double.

And by 21 H. 7. 10. a Collateral Waranty and Assets, Double; and the like.

Whereof see more at large in this Title of Double Plea, in Brook and Fitzherbert; and in Partridge and Strange's Case in Plowden's Com. and in that Case in Dyer, That Bar­ganizasset and Concessisset, not double, because words of one signification.

And accordingly also 35 H. 6.

Then ought to be known, Divers Pleas▪ and one goes to the Whole. How one shall have Divers Pleas, when one of them shall go to the Whole.

And therefore, first, see 1 Ed. 4. 29. In an Assize of the Office of Clerk of the Crown, [Page 136] brought by two Persons, where the Defen­dant pleaded to one of the Plaintiffs, That he was an Alien, and to the other Nul tiel Office, because the last went to the Whole; it was holden to be double.

And yet 37 H. 6. 30. the Defendant pleaded a Fine to the Whole, and did Conclude to the Moiety, and so for the other Moiety, and good.

And eodem Anno 38. the Defendant did Justify to the Third Part for one Cause, and to the other Two Parts by another Cause.

And Mich. 13 & 14 Eliz. Dyer 305. the Defendant in Trespass of Trees may plead, as to the Cutting, Not Guilty; and as to the Taking, he may plead a Gift of them.

And so 33 H. 6. 12. and 48 Ed. 3. 18. in Debt against an Executor, the Defendant did Plead to part an Acquittance, and to the rest, plene Administravit.

And so is 28 Ed. 3. 91.

See more hereof in this especial Title, Deux Pleas & un va al Tout, in Brook, where this Difference is holden, That if one Per­son pleads divers Pleas, and the one of them goeth to the whole Writ or Action, that only shall be received.

And where several Pleas are pleaded by divers Defendants, Which of the Pleas shall be first Tried. in any Personal Action, and one of them goeth to the Whole, that Plea shall be first Tried, and the rest of the Defendants shall have Advantage there­of.

[Page 137] Where also a difference is taken between this kind of Pleading and a Double Plea; and touching this, any Person may shew the same to the Court, as Amicus Curiae; and the other, none but the Party.

And see the Book of 9 H. 6. in that Ti­tle 4. which takes this difference, That if there be two Defendants in a Real Action, and they plead severally to the Action, and One of their Pleas goeth to the whole, as Bastardy, and the like, the other shall have no Advantage: But otherwise, if one of them doth Plead to the Writ, the same shall be first Tried, and the other shall have ad­vantage of it.

The like in Personal Actions to the Action.

But if there be but one Defendant either in Real or Personal Actions, and he pleads several Pleas to the Writ or Action, and one of them goeth to the Whole, that which goth to the whole shall only be taken.

And accordingly seems 37 H. 6. 37.

Then shall be shewed, Monstrans de Faits, ou Re­cords. Where the Plea is ill, without shewing of the Deed, or Re­cord.

First, It appears 20 H. 7. 6. That he which is a Stranger to the Patent and Deed, and claimeth nothing by the same, or by him that hath Right, shall not shew the same: And some question 1 H. 7. 24. if the Termor of a Common shall.

[Page 138] And 29 Ass. 21. seems, That he that de­riveth but a Particular Estate shall not. But 14 H. 4. he that deriveth any Interest, be it Particular, or otherwise, by Commandment shall shew.

And 21 Ed. 4. 50. a Servant that Justifieth a Distress for his Master, shall shew the Deed; but otherwise of an Incumbent that pleadeth a Grant of Prochein Avoidance to his Patron, because he claimeth only the Incumbency and not the Patronage.

And 9 H. 7. 13. one brought a Quare Im­pedit, and Counted, that A. was seised, and did Grant proximam Advocationem to B. and after did grant to C. who granted the same to him; and the Question was, Whether he should shew the Deed made to B.?

And 42 Ass. 2. one shall plead a Will without shewing, because it appertains not to him.

And 22 Ass. 52. the Under-Escheator shall shew the Patent. But 28 H. 8. Dyer 29. not.

And 39 Ed. 3. 37. the Grantee of Prochein Avoidance, was not enforced to shew a Com­position, which declared to be his Gran­tor's Title, because he had not his whole Estate.

But 22 H. 6. 42. the Servant shall; but otherwise of the Servant of a Collector that Distrained for a Tax, because an Act of Parliament the Principal Matter of his Title.

[Page 139] And 7 H. 6. 1. he that prays to be Re­ceived by reason of a Remainder; or a Woman that demandeth Dower of Rent, shall not shew the Deed, because it doth not belong to them.

And upon this Reason see the Books 38 Ed. 3. 37. 14 H. 4. 30. 11 H. 4. 83. and divers other Books, That where the Deed doth appertain to him, there he shall not be forced to shew the same.

And so 35 H. 6. 31, & 32▪ where his Au­thority is determined, and the Patent doth appertain to another; as to another Officer, and the like.

And this Learning is approved of in Plow­den, in the Case of Second Deliverance, brought by Throgmorton against Tracy, where one pleaded a Lease by a Corporation, to begin after another was determined; where holden, That the first Lease need not be shewed for Three Reasons:

First, Because it did not belong to him.

Secondly, Because that Estate was deter­mined. And,

Thirdly, Because the Defendant's Estate was Executed.

And further, touching the Learning in this Point, see Dyer, first, 28 H. 8. fol. 29. left doubtful, whether a Particular Grantee shall shew the Main Grant.

And Ibid. 30 H. 8. 54. rather that he shall; and therefore learn what the Law in that Case is.

[Page 140] And some Books take a difference, where one deriveth himself an Interest to the Whole in Part of the thing, there he shall shew; but if but to part of the Estate, then not.

Next, Where the Estate is Exe­cuted. Where the Estate is Executed, there need not the Deed, for the most part, to be shewed.

And first, 15 Ed. 4. 16. If one Convey to a Possession Executed in himself by the Grantee of a Reversion and Attornment, there he need not shew the Deed. Otherwise to a Rent, or to Land in Remainder by Grant of a Corporation.

But the Issue in Tail of a Rent Executed shall have a Formedon in the Discender.

And by 11 H. 4. 39. and 14 H. 4. 31. if a Remainder be once Executed, the Issue in Tail may have a Formedon, as of a Gift in Possession.

But in a Formedon in Remainder, the Deed must be shewed.

And so is 18 H. 8. 4. and 34 Ed. 3.

Yet 10 Eliz. Dyer 277. in a Formedon in Remainder, upon a Gift to Uses in Tail, holden, that he need not shew the Deed for two Causes: One, because the Estate may be made without Deed; and the other, because it appertained to the Feoffor.

And therefore 1 & 2 Mar. Dyer 174. a Stranger to a Deed shall plead a Grant without saying, that it was by Deed.

[Page 141] And by Dyer 28 H. 8. 29. Tenants in Com­mon, making Partition to Present by Turns, when it is once Executed, the Deed thereof need not after to be shewed; quod nota.

The like Law, Executors and Administrators. as it seems of Executors and Administrators, touching the shewing of the Will; where the difference is, that being Defendant, or bringing an Action of his own Possession, he shall not be compelled to shew the Will, or Letters of Administra­tion.

And so is 21 H. 6. 23. 10 Ed. 4. 1. 16 Ed. 4. 1. and divers other Books, although the Plea be but to the Writ, as that he is Admini­strator.

But 42 Ed. 3. 4. 3 Ed. 3. 31. and 7 H. 6. 41. In Trespass de bonis asportat' in vita Testa­toris, he must shew the Will.

And so is 6 E. 4. 1. and 16 Ed. 4. 8.

But by 19 H. 6. he need not shew it in another Term.

And this difference of Plaintiff and De­fendant is confirmed in Plowden's Com. in Graysbrook and Fox's Case.

Next, Vouchee. we shall shew, How the Vouchee shall be forced to shew a Deed.

And therefore, First, by 22 Ass. 88. he that Voucheth as Assignee, shall not only shew the first Deed, but the Deeds of Assignment also; and to that intent is 3 H. 6. and other Books in this Title in Bro. 5.

But he may Rebut by the first Deed. Quaere tamen.

[Page 142] For 3 H. 7. 13 & 14. seems, that he need not shew the Deeds of Assignment upon Voucher.

And see 48 Ed. 3. 5. That the Tenant in Dower vouching the Heir of full Age, yet ought to shew a Deed; quod nota.

But yet see 50 Ed. 3. 25. That in the same Case, or in any other, as it seems, he that doth Vouch one, unless he do pray also that the Parol may demur for Nonage, shall not need to shew any Deed to the Deman­dant.

For which see more at large in Brook and Fitzherbert's Abridgments, in the Title Voucher.

And 10 H. 7. 21. he that Voucheth as Assignee of the Reversion, to save the Tail, shall shew: But Keble è contra, and Vouched divers Books.

And then, Action sur Record. How an Action may be upon Record without shewing.

It appears 9 Ed. 4. 5 H. 7. and 32 H. 6. in Brook, hoc Titulo 158 & 159. Be the Action in the same Court, or another, the Party that brings the Action shall not be enforced to shew the same: But if the Record be in the same Court unremoved by Error, or other­wise, the Defendant may demand Oyer of of the same, and shall have it; but if other­wise, he is bound to take Conusance thereof, and to plead Nul tiel Record, and thereupon the Record it self shall be sent down by Mittimus.

[Page 143] And so is 39 H. 6. 4. But by that Book it sufficeth if the Tenor of the Record be Certified.

And 7 H. 6. 18. one brought Debt in the Common Pleas, upon Damages recovered in Trespass at York, in a Court of Piepowder, containing the Tenour of the said Record in his Count, and how it came into the Chancery, and thither by Mittimus; and yet the Defendant did plead, Nul tiel Record, quod nota.

But touching this Point further, How the Record shall be Certified, and where the Tenour of the Record will serve, or not, see Dyer 8 Eliz. 250. 6 Eliz. 227. 3 Eliz. 187, 188. and otherwise there.

Then it appears, That although one have not the Deed, yet if it appear of Re­cord in the same Court, pleaded by another at that time, he shall have advantage of it.

As 40 Ass. 34. In an Assize against two, the one having a Waranty to Bar the Plaintiff, pleaded the same for his part; and although he would not suffer his Companion to help himself by the same, yet the other took advantage thereof.

As by Littleton, in his Chapter of Estates upon Condition 90 & 91. If a Deed be once pleaded, the other may shew, That in the same there is a Condition, &c.

[Page 144] And 24 Ed. 3. 73. the Defendant pleaded a Release, which the Plaintiff did deny, and after was Nonsuit: And in another Action brought in the same Court, the Defendant did plead the same again, without shew­ing as a Deed gainsaid, remaining in the Court.

And by 21 Ed. 4. 48 & 49. If a man plead Letters Patents remaining of Record in the said Court, he shall not shew them; and so said to be the use of the Exchequer.

And 1 Eliz. in Dyer 17. a Lease of a Bishop Inrolled in the Chancery, pleaded without shewing, and it seems ill by that Book.

CHAP. VI. Of Pleading in General.

THen touching Pleading in General, Nul Seisin al­ledge. more than before hath been discoursed of in the several Divisions. And,

First, Where one in Pleading shall shew, how he was seised.

And therefore in some Cases, One may Convey to himself an Estate, without shewing how he that gave it was seised.

And by 34 H. 6. 48. in the Writ or Count may be said ( quod quidam J. S. dimisit) That such an one Let, without shewing that he was seised. Otherwise by way of Bar or Title.

And so 9 H. 4. 5. 21 H. 7. 26. and 10 H. 6. in a Formedon, may say, Dedit.

And next, Where one shall say he was seised; In Dominico suo, &c. In Dominico suo, &c.

For which see, first, Littleton, where the Thing lieth in Demean, as Land, or Rent, &c. Or where otherwise, as Advowsons.

And 30 H. 6. 7. one of a Way did say, In Dominico suo ut de feodo & de jure.

And 21 Ed. 4. 80. of a Copyhold, in Do­minico suo, &c. secundum Consuetud'.

And see 7 H. 6. Dyer 83. of Tithes, one shall say in Dominico suo ut de feodo, because palbable, &c.

[Page 146] And see in Wortley's Ejectione firmae, in Plowden, That of a Reversion dependant upon an Estate for Years, In Dominico suo, is the proper Pleading; but the Plea of De Feodo admitted.

Then next, Where in Pleading shall be said, In Iure Uxoris, &c. In Iure Uxoris.

See, first, 27 H. 8. 21. where Lands are given to the Baron and Feme, and the Heirs of the Body of the Feme, the Plea shall be, Quod fuerunt seisit' simul, & haered' de Corpore le Feme.

And 12 H. 7. 14. the Defendant in Tres­pass did plead, That He and his Wife were seised in their Demean, as of Fee; and said not In jure Uxoris, or Conjunctim, and yet good; because, if he have Title to any part, it is not material in what manner.

And so in Wortley's Case in Plowden, of a Term in Right of his Wife.

Next, Where two Persons are seised. VVhere more, and one Interessed.

See 37 H. 6. 24. where Lands are given to Two, and the Heirs of One of them; the Pleading shall be, Quod fuer' seisit', viz. the one, In Dominico suo ut de feodo, and the other, In Dominico suo ut de lib'o Tenemento.

And then of the Plea, In Iure Coronae. In Iure Coronae.

34 H. 6. 34. In a Quare Impedit, the Plaintiff made Title, for that King Henry the Fourth was seised, &c. and did not say, In Iure Coronae, and good; for there is said to be no other Form.

[Page 147] And see 7 Ed. 6. Dyer 83. accordingly, touching Religious Lands, where the said Book of 34 H. 6. is Vouched, and shewed to be the better Pleading.

And so is 1 & 2 Mar. Dyer 103.

And touching the Pleading of In Iure Domus, In Iure Domus. the said Book of 1 & 2 Mar. hold­eth the same good, being alledged in a Master and Brother, without shewing, In jure Domus; because it cannot be intended other­wise.

The like in Fulmerston's and Steward's Case, in Plowden: Otherwise of a Bi­shop.

And see a good Difference in Grindon's Quare Impedit, in Plowden, If a Religious House be seised of a Parsonage Impropriate, and part of the same be in Question, the Seisin must be alledged, ut in Iure Rectoriae: But if the Advowson, or the whole Parsonage be in Debate, then the Seisin must be al­ledged, ut in Iure Domus.

Then, Seisin alledged, without shew­ing of what Estate. VVhether it be sufficient to alledge a Seisin in any, without shewing of what E­state.

See, first, 24 Ed. 3. 75. where one pleaded, That his Father was seised, and died seised, &c. and shewed not of what Estate; and ill; because a Title made thereby.

But otherwise in Dyer, 21 & 22 Eliz. 365. in Sir Francis Leak's Case, in a Replevin, where the Question was about keeping the Inclosure; the Avowant did say, That he [Page 148] was seised in his Demean, as of Fee, &c. which was Traversed; where said, That he need not in this Case shew any Estate whereof he is seised, because touching this Matter his Estate is not Material.

Yet holden 21 Ed. 4. 52. He that pleadeth an Estate for Years, shall shew, how he that Let it him was seised; Particular E­state, how to be pleaded. quod nota.

Then, How he that hath but an Estate for Life, or an Estate-Tail, or an Use, shall plead the same without shewing the beginning there­of.

And, first, touching an Use, the Books, for the most part, are, That such an one was seised to his Use, without shewing how the same was Created.

And 36 H. 8. Bro. Pl. 160. is, That it is good.

And so 21 H. 7. 6. and 28 H. 8. Dyer. But cannot say, That A. was seised in Tail, without shewing de quo dono.

And touching that, 16 H. 7. hath a diffe­rence between an Office and Pleading.

And 13 H. 7. 18. is, That one may plead, that A. and others were seised to his Use in Fee; but not in Tail, without shewing Co­ment.

Vide Dyer 1 Eliz. Doubtful.

And 1 Ed. 4. 65. where one did Justify for Tithes, as Parson Imparsonee, he ought to shew, How he came to the Parson­age.

[Page 149] And Mich. 6 & 7 Eliz. in Dyer 79. the Plaintiff in Partition did declare her self to be Co-heir in Tail, with the Defendants, of the Inheritance of the Duke of Suffolk, without shewing the Beginning of the Tail, because it doth affect the Possession of the Defendants, and doth demand no Lan [...].

And 1 Mar. Dyer 100. If Tenant for Life or in Tail, bring a Writ of Entry, he shall declare the Seisin, Ut de libero Tene­mento.

Then, Where the Estate must be shew'd to Continue at the time, &c. VVhere in Pleading for Certainty to every Intent, it must be shewed, that the Estate did Continue at the time; or the like.

As 10 H. 7. 26. and 7 H. 7. 3. If one Justify by the Commandment or Lease of Cestuy que Use, he must shew expresly, that the Use Continued at the time.

And so 10 H. 6. 21. If a Recovery be pleaded against one by Default, he must say expresly, That he was Tenant at the time: Or, in Pleading of a Release by Fine, or otherwise, That the Party was Tenant at the time.

And so 21 & 22 E. 4.

And see Dyer, 2 Eliz. 178. where one pleaded, That a Prior and Convent were seised of a Reversion, Ac postea Concesser' Reversionem: And did not say, Et sic inde seisitus; or, de tali statu seisit'; and there said, it shall be intended to Continue.

[Page 150] And Ibid. 3 & 4 Mar. 143. In Pleading of a Discent the Form is, Et sic seisit', de tali statu suo obiit inde seisit'.

And 20 Eliz. Dyer 361. One pleaded a Grant of a Rent to him out of Land, with­out shewing expresly, That the Grantor was seised of the Land at the time, &c.

Then is to be known, Which of the Parties shall set forth the Place where, &c. in Plead­ing. When, and of which Side the Place in Pleading shall be shewed.

For which see a good Case, 1 Ed. 5. 3. where holden, That if the Defendant plead, that A. was possest, it shall be intended in the same County where the Action lay.

The like, if one plead a Release of Action, Arbitrement, or the like.

But if one plead a Surrender, and Release of Right, and doth alledge no Place, it shall be intended upon the Land, per totam Cu­riam.

And 10 H. 7. 6. In Debt against an Exe­cutor, the Defendant did plead, That there was another Executor in Life, and shewed not at what Place; because if the other deny the same, he shall in his Rejoynder say, In vie al Dale, &c.

And so 2 Ed. 4. 14. In Debt against an Abbot, upon a Contract, Quod venit ad Usum Domus; the Defendant said, Quod non venit ad Usum Domus; and the Plaintiff in his Replication shewed at what Place.

And 12 Ed. 4. 10. He that Justifies by Commandment of a Stranger, shall shew the Place; but otherwise, as Servant.

[Page 151] And 6 Ed. 4. 10. taketh this Diversity, That where one by way of Bar (where he shall recover nothing) doth plead a Release, Ac­quittance, vel hujusmodi, there he shall need to shew no Place: Nor where the Defen­dant doth Justify in a Replevin, and doth not pray a Retorn.

But in another Avowry, Declaration, or Title, otherwise; there the Place is Tra­versable.

And so is 3 H. 7. 11. in a Retorn of Rescous.

And 3 Ed. 4. 27. He that pleadeth a Lease for Years, shall set forth the Place: Other­wise of an Estate for Life.

And 5 Ed. 4. 121. He that pleadeth a Pay­ment upon an Obligation, must plead a Place.

And 28 H. 8. Dyer 14. He that pleads the Birth of one, by the Better Opinion, shall not need to shew the Place where, &c. but it may be alledged after, where it is shewed, that he is in Life; yet there holden, That in Debt upon the Arrerages of an Annuity, 35 H. 6. granted till he was Promoted to a Benefice, and that he had taken a Wife; there the Place where ought to be Specially alledged; quod nota.

And in VVortley's Ejectione firmae, in Plow­den's Com. where the Plaintiff in his Count did Declare upon a Lease by divers Mean Conveyances; holden there sufficient, to shew where his own Lease was made, and not where the Farmer, or where the [Page 152] Parties died; nor when, and where the Prior was Elected, &c.

And 10 H. 7. 18. where it is pleaded, Bona Notabilia, in divers Dio­ceses, how to be pleaded. That the Testator had Goods in divers Dioceses, moveable; he ought to shew, in what Place, and what Goods, that the Court may Ad­judge, if sufficient.

But 30 H. 6. 1. If the Plaintiff upon the Plea, Ne unques Executor, or Riens per Discent, Reply, That the Defendant did Administer as Executor; or that he had Assets Enter mains, or Assets by Discent, he shall shew in what Place, but not what Things, or what Lands.

And so is also 19 H. 7. 14 & 29. unless in some Special Case there declared; as, the Defendant doth shew how he administred certain Goods Circa Funeralia, ultra quae, &c. There if the Plaintiff will shew he Admi­nistred any other, he must shew what they were; quod nota.

Then, Where the County shall be taken by Intendment. VVhere, if a Place be shewed in Plead­ing, the County shall be intended.

As 5 Ed. 4. 138. the Defendant in Debt pleaded, That the Plaintiff had Received parcel at D. pendente Brevi, and no Plea, without shewing in what County D. is: But otherwise in a Writ, where the County is alledged before in the same.

And 4 H. 7. 8. where it was Surmized, that A. had broken the Peace at B. and because not shewed in what County B. was, there­fore ill.

[Page 153] But 39 H. 6. 13. in an Annuity by Pre­scription, and Seisin alledged by the Plaintiff at B. not shewing in what County, and whether B. was a Town or not; and yet holden, that it shall be intended in the same County: As in a Writ of Praecipe de terris in B. or a Writ of Trespass, &c.

And 36 H. 6. 12. one brought a Writ of Maintenance, and declared of a Maintenance in the Common Pleas, not shewing where the Bench was; and doubted.

Then, Where the Day or Time shall be cer­tainly alledged in Pleading. in the next place, shall be shewn, Where, when, and how, a Day or Time certain shall be alledged in Pleading.

As by 38 H. 6. 3. it seemeth to be sufficient to Plead, That the King granted to A. for Life, and after by his Letters Patents of such a Dare granted the Reversion to him, not shewing the Date of the first, or by his Letters Patents reciting, how that he had granted for Life, before he had granted the Reversion to him; Quaere inde.

For 9 Eliz. Dyer 259. such a Plea, in the Case of a Common Person, thought ill.

And 20 Ass. 16. is said, That in an Assize in London, is used to put in the Plaint the Day and Year of the Assize, as in Personal Actions: But otherwise in other Assizes, no more than in Real or Mixt Actions.

And so is 7 H. 7. 5. That in Real Actions the Plaintiff shall not need to declare of the Day, Plac, and Year, as in Personal.

[Page 154] Yet 10 H. 6. 17. the Defendant in Trespass did plead the Gift of the Plaintiff: To which the Plaintiff Replied, That, after that, the Defendant gave the same to him again. And the Defendant by his Rejoynder did maintain his Bar, Absque hoc, That he did Re-give those Goods after the first Gift; and suffered.

And see 20 H. 8. Dyer 27. where one pleaded a Defeazance, not shewing any Day. Vide Librum.

And 3 H. 6. 31. in Trespass for Taking his Servant; the Defendant pleaded, That be­fore he was Retained with the Plaintiff, he was Retained with him; there the Plaintiff shall say in his Replication, That, such a day, he was Retained with him, before which Time he was not Retained with the Defendant.

And 36 H. 6. 44. in an Accompt by an Exe­cutor, the Defendant did plead, That the Testator made the Plaintiff and A. his Exe­cutors. To which the Plaintiff Replied, That afterwards he made the Plaintiff his Sole Executor: To which the Defendant in his Rejoynder, was forced to shew what Day the Testator made the Plaintiff and the other his Executors, Absque hoc, That he made the Plaintiff afterwards his Sole Executor; quod nota.

And Note, That in Bullock's Case in Dyer, 10 Eliz. 281. The Plaintiff in Replevin did plead the Feoffment of the Bishop of Sarum, without shewing it to be by Deed, or at what Time.

[Page 155] Then shall be considered, How an Act Spiritual shall be Pleaded. Act Spiritual▪ how to be pleaded.

And therefore, first, 11 H. 7. 8. Concurren­tibus hiis quae de Iure requiruntur, is not sufficient in Pleading of an Union; but must shew, who made the same, as the Pope, or the Ordinary, &c.

Anno 7 Ed. 4. 32. one Conveyed by a Prior, who was afterwards Translated to be an Abbot, was forced to shew how he was made Abbot; as that the Pope granted to such a Bishop to make him.

And 5 Ed. 4. 7. one brought Debt against the Provost of the College of T. in Cam­bridge, of a Sale of Goods to his Predecessor; who afterwards was amoved, and the De­fendant Elected, and without shewing Co­ment; quod nota.

And Mich. 12 & 13 Eliz. Dyer 292. it appeareth in a Quare Impedit, that one did declare of a Deprivation, and did not shew before whom the same was, and holden very sufficient; for if it be gainsaid, it may come in the Replication, for to have a Writ to the Bishop for the same.

Then, Of Pleading Matters of Re­cord; as, touching the Pleading of Matters of Record.

It is said in 21 Ed. 4. 54. That he that Pleadeth an Utlary in the same Court, Utlary. may begin at the Exigent, if he will, because good, Recoveoy in Debt. until it be Reversed; and that in Debt upon a Recovery, he may begin at the Iudgment, or at the Original, at his pleasure, per totam Curiam.

[Page 156] And see 36 H. 6. 5. That in Debt upon a Recognizance, Recognizance. omitting the Condition, good, Adjudged upon the Plea of Nul tiel Record; where 'twas said by Danvers, That if part of a Record make for one, and part against him, he may in Pleading, or in his Delaration, take the one, omitting the other.

But Ashton and Prisot were to the con­trary, viz. That the party in Pleading a Reco­very, is to begin at the Original, and not to omit so much as any Continuance, Summons, or Severance.

And 37 H. 6. 14. Retorn of a Writ. by Prisot, If one plead a Retorn of a Writ, he shall plead, That I. S. Vic', did Retorn the same before Iohn Prisot, and other his Companions, Justices, &c. But in pleading the Purchase of a Writ, he must not say, Que tiel Iour il purchase un Brief, mes que il purchase un Brief portart Teste tiel Iour, retornable devant les Iustices del Common Bank, and not as in the Case of a Retorn of the Sheriff devant Prisot, & ses Compagnions, &c. quod Nota.

For which see more in Brook and Fitz­herbert in their Abridgments, in the Titles of Record, and Failer de ceo.

And for pleading of a Record, see Yelver­ton 39. Cro. 2 Part 817. Preston versus Preston, Style' s Rep. 22. Case 1. Co. 1 Inst. 225, 453. Co. Lib. 10. 92. Lib. 5. 52, 218, 260.

[Page 157] But see Plowden's Com. in Dyve and Maningham's Case; where in Debt brought by Dyve upon an Obligation, the Defen­dant shewed, That one was in Execution upon a Statute, and for his Delivery was this Obligation made to the Plaintiff, as Sheriff; where holden, that this Record of Execution, not being the Force of the De­fendant's Bar, but the Conveyance thereof, need not be pleaded Specially from the be­ginning.

So in an Action of Disceit against an Attorney; or where one doth Avow, by reason of an Execution upon a Statute; as is 34 H. 6.

But, Inter alia. as it appears 22 Ed. 4. 8. to plead a Recovery of Twenty Acres, (Inter alia) ill; but ought to plead, That he did Recover Forty Acres, whereof these Twenty Acres were parcel: Nor shall he plead, That I. S. was seised of Twenty Acres (Inter alia,) and did Enfeoff him (Inter alia;) but ought to plead as before: Yet said there, it might be permitted in pleading a Feoff­ment.

And the same Case of Dyve and Maning­ham, Acts of Parlia­ment, how pleaded. taketh this difference between the Pleading of an Act of Parliament, and a Recovery; quod nota.

Where holden also, That the Defendant in that Action, could not take advantage of the Statute of 23 H. 6. being but Particular, although it be touching all Sheriff's in Gene­ral, without Pleading; but containing divers [Page 158] Things, may well be pleaded (Inter alia) or so much as doth avail him.

And in Fulmerstons and Steward's Case there, either of the Parties may take advan­tage by Pleading of so much of the Sta­tute of 31 H. 8. of Monasteries.

But in the Case of Debt there brought by Partridge, against Strange and Croke, upon the Statute of 32 H. 8. of Buying of Titles, holden by all the Justices, except Mountague, That the same being General; need not Specially to be recited; as, to pray to be Received, and to Demur Generally upon a Vouchee out of the Lieu.

But by all the Iustices there, the Mis­recital maketh the Declaration ill: For in Pleading many times, a thing not Material is made Effectual.

And there in Debt, by Stradling against Morgan, a Receiver, upon the Statute of 7 Ed. 6. for Taking great Fees there, set down by Statute, Exception was taken, for not reciting the Statute of 34 H. 8. that set down the Fees.

And in Williams and Barkley's Case, in Coke's Reports; although one did but plead part of that Act, which did Enable the Queen to Take, yet sufficient; where said, That every one hath Interest in the King, there­fore the same is a General Act.

See the like Learning in Dyer, as 28 H. 8. 27. where a Condition of a Lease made to a Parson, was, That he should not Grant the Estate over, if he will have advantage of the Statute of 21 H. 8. which Enacteth, [Page 159] That such shall be granted their Terms over, it must be Specially pleaded, because Particular, as a Private Custom. And this Statute is but General in Particularity; as a Statute that Pardoneth all that were of the Party of Richard the Third; of the Statute De Medietate Linguae; or if a Sta­tute were made, That Tenants for Life shall not be punished in Wast, and the like.

And as it hath been taken of late, in all Cases of Pardons, by Act of Parliament, if any Persons be Excepted for the same thing.

And Ibid. 7 Ed. 6. 83. by the Better Opi­nion, in an Assize of Tithes, given by the Statute of 31 H. 8. the Plaintiff in his Plaint need not to mention the same Statute, as well in respect the said Statute is General, as that it is to give Jurisdiction to the Com­mon Law, as a General Pardon by Parlia­ment; and Resembled it to the Case of 14 H. 4. were Conusance granted, and after a New Action is given by Parliament, the Grant shall not extend to the same: But otherwise where the Action was before, and other Things granted to be within the same.

Where said also, That in Pleading a Feoffment by Cestuy que Use, according to the Statute of Ric. 3. need not to mention the Statute; or in Pleading a Feoffment to use at this day, to say, That it was Executed Vigore, &c. of the Statute of 27 H. 8. Or, in Pleading a Devise, to Recite the Statute of Wills; quod nota.

[Page 160] Then, Per Nomen, how pleaded. How one shall Plead by a Per No­men.

And, First, 30 Ed. 3. Fitz. Tit. Feoffments 18. One pleaded a Grant to I. S. & A. sa Feme, Per Nomen I. S. & Uxoris ejus.

And 1 H. 7. 28. the Tenant in Assize did plead a Feoffment, de praedicta terra, per No­men omnium Terrarum, quae sibi discendebant de parte Patris; and took no Averment, be­cause of the word Praedict'.

And so 33 H. 8. Bro. Tit. Pleading 143. in a Praecipe de Manerio de B. the Tenant pleaded a Recovery de praedicto Manerio, Per Nomen, &c.

So, if I. S. pleads a Feoffment made to him Per Nomen I. N.

Where holden also, That he may plead the Feoffment Generally of the same thing, without a Per Nomen; and the Variance in the Deed, not Material: But there said, to be better to Plead it with a Per No­men.

Touching which, see more in Dyers and Plowden's Reports; as namely 7 Ed. 6. Dyer. 83. where, in Serjeant's Case, the Plaint being of a Portion of Tithes, issuing out of 300 Acres in N. did make his Title in the same Plaint, That Hen. 8. dedit & concessit praedictam Por­tionem (inter alia) Per Nomen totius Portionis, &c. provenien' de Terris Dominicalibus Archi­episcopi Eborum jacen' in N. nuper Monasterii dudum spectan', adtunc vel nuper in Tenura A. and did not Aver in facto, That the Lands put in View were the Demean Lands of the Archbishop, in the Tenure of A.; and yet [Page 161] (as there seemeth) good; but not for the Rea­son aforesaid, but in respect there was other Certainty enough.

As 26 Ass. of a Grant of 20 Carucat' Ligni in Bosco de D. quas habuit de dono Patris; that Deed De dono Patris needs not to be shewn or averr'd, because of other Certainty enough.

And so 2 Ed. 4. where one doth Release all his Right in White-Acre, quem habuit per discensum, &c.

Where said also, That if one of the Reci­tals be false, yet the Patent good enough, because Certain in some part; and then in Averring that which was false might be hurtful, and that the Counsel should then deserve their Fees ill.

Where said also, That if false in all, yet the Patent good, and aided by the Statutes of 34 & 35 H. 8. of Confirmations, &c. but there not stood upon; but if the Patent had been of the Land, which the King had by the Attainder of I. S. or in a Release in a Common Person's Case, of all such Lands as discended, &c. there, although pleaded by a Praedict', yet an Averment ought to be.

The like Learning, where sufficient Cer­tainty is in the Patent, as 3 & 4 Mariae in Wast, between Wyburn and Dorril.

The like in Wortley's Ejectione firmae, in Plowden; where the Grant was, of all that his Farm in the Occupation of A. needs no Averment of the Occupation.

[Page 162] But in Throgmorton and Tracy's Case, his Per Nomen must not be direct contrary, or repugnant.

Then, Of the word Continetur Continetur. in Plead­ing.

First, Holden 28 H. 6. 3. that to plead, Quod patet by the Obligation, That A. and B. was bound Joyntly, ill; but ought to say, In facto, that they were bound.

But 21 H. 6. 51. good Pleading of a Condi­tion of an Obligation, Quod patet ni dorso, &c. or, Quod patet ni dorso, that part paid; but with a Quaere inde.

And 1 & 2 Mar. Dyer 118. to plead, Quod Indentura Testatur quod dimisit, ill.

As 21 Ed. 4. 44. Quod patet per Recordum, &c. and in Browing and Beaston's Case, it was holden ill, to plead the Condition of a Lease by way of Continetur in the Indenture, although the said Indenture is Confest in Pleading: Otherwise, if Entred, de verbo in verbum.

As 9 H. 6. to plead the Grant of a Rent, cum Clausula districtionis.

Then, Touching the Pleading, by, or without the word Praedict'. Praedict'.

And therefore, first, see 21 H. 7. 30. where one pleaded a Release apud Villam Westm', and after in the same Pleading, naming Villam Westm', did not say Praedict'; and yet the Justices held, That it should be taken by Intendment to be in the same County.

[Page 163] Yet 5 Ed. 6. Dyer 7. the Plea, Quod quidam I. S. shall not be intended the same Person named before, but another.

And in the Case of Throgmorton and Tracy, in Plowden, on a Writ of Second Deli­verance, one pleaded a Lease made apud Dale Praedict', when not before mentioned, and good.

Notwithstanding, Nota ben [...]. in News and Scholasti­ca's Case, in the Reports, upon an Assize; the Writ having this word Praedict' more than necessary, Iudgment was therefore stayed; quod nota.

Then, as to this Word, Ut, in Plead­ing. Of the word, Ut, in Plead­ing.

It is said 5 H. 7. 2. That in Pleading a Discent one shall say, That it did discend to him, ut filio, &c. or, as in a Iustification, Quod ipse ut Ballivus, &c. and need not to say in Fait, That he is Bailiff, or Heir.

But in a Special Verdict, in an Assize, 3 & 4 Mar. Dyer 132. found, That I. S. and I. D. Where a Ge­neral Plea shall be pleaded for avoiding of Mischief. Ut Supervisores, did Let, and doubted if good.

Vide 6 Ed. 4. 2. where the Condition of an Obligation was, To serve one by Seven years, without absenting himself at any time without License. And the Defendant did plead, Quod servivit per septem Annos, & se non absentavit per idem Tempus, sine Licentia; without shew­ing the Number of Years, he might be Licensed more times.

[Page 164] And therefore in the Case between Bulk­ley and Rice Thomas, in Plowden's Com. the Plaintiff did alledge, That he was Chosen Knight, per Majorem Numerum, without shewing the Number in certain; quod nota.

Then, Of Pleading an Entry, &c. it appears 22 H. 6. 43. If one do alledge an Abatement, Intrusion, or Disseisin, he ought to alledge it so Specially, and not, That the Party did Enter, &c. for that may be intended a Lawful Entry.

And so it is in Plowden's Com. in the Eje­ctione firmae brought by Williams against the Lord Berkley, touching the Pleading of an Entry upon him, and Letting to another; when he should have said, That he did Enter, and him Disseise: For by his Entry only he could not Let to the other, he being in Pos­session; quod nota.

But in alledging an Intrusion for an Abate­ment, it hath not been holden, such a Suffi­cient Matter to make the Plea, ill; quod nota.

Then, touching the Plea of Negative Pregnant, Negative Pregnant. see before in Title Issue, there set down under the Division of Modo & forma, and in the Special Title thereof in Brook's Abridgment.

And see Dyer fo. 17. Num. 95.

But especially Plowden's Commentaries, fo. 121. That although the Plaintiff in his De­claration did but shew quod licet, he was Chosen Knight, Per Majorem Numerum; [Page 165] yet holden good, and the most Eloquent Pleading: Where you may see also divers Writs, Pleas, and Latin Authors there Vouch­ed, to prove the word Licet an Express Affirmative. Licet, an Ex­press Affirma­mative.

Then, Where an express Seisin, or Possession, must be alledged, and not implied, Express Seisin, or Possession to be alledged, not implied. in Plead­ing.

For which see 9 Eliz. Dyer 257. where one brought an Action of Covenant upon this word Demise, declaring of a Lease by Te­nant for Life to himself, shewing his Death also during the Term, and how that he in the Reversion did Enter, and oust him; and Exception taken to the Declaration, for that he did not shew Expresly, that he was possest, and after expulst, but by Implica­tion.

Where holden also, That this word De­mise, Nota bene. doth not Charge the Executor.

And in Dyer 9 & 10 Eliz. 254. Of the words, Virtute Cujus, or, Per quod, &c. one brought Debt upon a Lease made by himself to A. who Devised the same to the Defendant, who did Enter, and was possest: And Ex­ception taken, because he said not, Virtute cujus he did Enter and was Possest; because he might Enter by reason of another Title.

And in the Sergeant's Case, Quorum prae­textu. in Dyer 7 Ed. 6. 83. where divers Mesn Steps and Degrees are shewed in the Plaint, how the Tithes came from the Abbot to the King's Hands; and that to say, Quorum praetextu is very good, and refers to all of them.

[Page 166] But as its said 7 H. 7. Nec auget aut minuet sententiam; for there, by reason of Virtute cujus, it shall not be intended that the Use there alledged doth continue.

Then, How a Deed shall be Pleaded. A Deed, how to be pleaded.

See 5 Eliz. Dyer 221. in a Writ of Annuity against the Successor of a Prebend of A. granted by his Predecessor; he did Declare, That the Predecessor, Per scriptum suum ge­ren' dat' vicesimo die Januarii, & deliberat' eidem Quer' tricesimo die ejusdem Mensis; and did not say, primo deliberat' ut Factum; so that this word, Suum, doth suppose a per­fect Deed 20 Ianuarii, at which time the Predecessor was not Inducted.

See, touching this Matter, a Case 1 Eliz. Dyer 167.

Then, Of the Pleas, Non est Factum, or Riens passa. Of the Pleas, Non est factum, or Riens passa.

For which see, first, 1 & 2 Mar. Dyer 116. where in an Ejectione firmae of Tithes, the Defendant pleaded a Grant and Assignment from the Plaintiff himself; and the Plaintiff, by his Replication, maintaining his Count, took a Traverse, Absque hoc quod vendidit per praedictam Indenturam totum statum, &c. To which Exception was taken, That he, being privy to the Deed, ought to Traverse the same, especially when the thing granted doth not pass without Deed.

[Page 167] But by Stamford, he ought to have plead­ed, That he had nothing in the Term at the time of the Grant: As, in avoiding a Release, to plead, That the Party to whom, &c. had nothing at the Time: Or, to have pleaded, Non est Factum: And for these Reasons, and others, the Jury were dis­charged, and a Replegiar' awarded.

But touching this Matter, Whether he that is privy to a Deed may plead Riens passa; or where one Privy or Estranger shall plead, Ne Enfeoffa; or Ne Granta pas per le Fait; or, Ne Charga pas, Ne Relessa, Non est Factum, Nient Comprise, or the like, see accordingly in Brook, in his Title Estraunge al Fait.

Then, Where an ill Plea is made good by Refe­rence to ano­ther. Where a Plea in it self is not good, but by Referring the same to another Plea.

First, See 28 H. 8. Dyer 27. in Debt upon an Obligation, brought by the Abbot of Westminster, declaring the same to be made at VVestminster 10 die Novembris, Anno duo­decimo Henrici Octavi: To which the De­fendant did plead, an Indenture of Defea­sance, not alledging any Date, or saying post Confectionem scripti praedicti; and the words in his Plea, Eisdem die & anno, shall not be referr'd to the Date of the Obliga­tion mentioned in the Plaintiff's Declara­tion; because the Defendant is a Stranger to the same, and his Adversary.

[Page 168] And further, If one of the Defendants in Trespass plead a Release of the Plaintiff made after, and the other plead a Release also Eisdem die & Anno; that's ill.

And 14 H. 7. one of the Defendants in a Quare Impedit, made Title as Patron, &c. and the Incumbent did plead, That he was Presented by the other ex Causa supradicta; and ill. Quaere tamen.

And in the same Case its said, That in Pleading an Indenture, he shall not need to say, Prout per Indenturam praedictam plenius liquet, or apparet; Of Pleading, Prout per In­denturam, or Scriptum ple­nius liquet & apparet. yet he may say so if he will.

And so is Mich. 7 & 8 Eliz. Dyer 242. in Pleading an Arbitrement; and likewise in Pleading the Covenants of an Indenture, or a Record, need not say, Quae sunt omnia & singula; Quae sunt om­nia, &c. as in pleading a Condition, to En­feoff the Plaintiff of all my Lands in Mid­dlesex, &c.

And 19 Eliz. Dyer the Defendant in an Ejectione firmae did plead, That the Lessor Devised to the Plaintiff for years, and then alledged in his Plea, a Custom to destroy the same, and did not say in his pleading, Quae est eadem dimissio; Quae est eadem dimissio. and ill, as it seems. Quaere inde.

And see 29 H. 8. Dyer The Defendant in Wast did Justify the Cutting of Trees, to Convert to Arable, pro melioratione, without shewing, Quod est idem Vastum; Quod est idem Vastum. and Excep­tion taken for that Cause.

[Page 169] And in the same Book Mich. 7 & 8 Eliz. Dyer 242. the Submission was touching Kel­storne, and the Arbitrement was of Brokes by another Name, and took an Aver­ment, That the same Place and Kelstorne being all one, and ill, without the usual Course. Et non al' neque divers.

In Partridges Case in Plowden's Com. Et non alia neque diversa. Surplusage. fol. 77. b. is said, That Surplusage in a Plea doth not make the same ill, where was pleaded the Grant of a House, and ten Acres to the same appertaining. And so of the word Praedict', when the thing is not before spoken of.

Then ought to be observed, Pleading▪ De­vant son temps or Mispleading, That a man take care he Plead not his Cause, but in due Time, for otherwise it shall be taken for no­thing.

For which see in Walsingham's Case, in Plowden's Commentaries, where before it ap­peared in Pleading what Estate Sir Thomas Wyat had; he pleaded, that Sir, Thomas had Issue yet living.

As if one Declaring upon an Obligation doth shew, That the Obligor was of full Age.

The like in Pleading a Feoffment to say, It was Simple, and without Condition; and if Issue be taken upon the same, it is Mis­pleading and a Ieofail.

[Page 170] Then shall be shewn, Un Plea fait auter bon. Where an Ill Plea may be made good by Admittance.

For which see, first, 29 H. 8. Dyer 39. In Debt upon an Obligation, not Declaring at what Place, and the Defendant pleaded a Release; the Declaration good.

The like 18 Ed. 4. 17. If in Debt the Plaintiff Count in like manner of a Lease for years, and the Defendant pleads, Non dimisit; but otherwise it would have been, if he had demurr'd: But more question, as the Case was there in Dyer, in an Appeal against an Accessary, declaring his Notice in another County, to which the Defen­dant did demur in Law: For by Demurring all Matters in Fait, contained in a Decla­ration, or Pleading, are Confest.

As if the Defendant in an Ejectione firmae, will Confess and Avoid the Plaintiff's Lease, by saying, It was made by Tenant for Life, although his Plea be otherwise appa­rently ill, and the Plaintiff demur upon the same.

And see 6 H. 7. 10. where the Defendant in Trespass did plead a Concord to do Two things, and pleaded the doing of One; and the Plaintiff Replied, Nul tiel Concord; and found for the Plaintiff, and yet taken to be a Ieofail Ieofail. by the Court: For that the Bar is not good to any Intent; because a Concord without Satisfaction, is an apparent ill Plea in the Law: And where there shall be such an ill Plea, that is not good to any intent, a Replication or a Verdict cannot make it good.

[Page 171] But it is otherwise where the Bar is good to some Intent, and to other Intent not: As in this Plea, Riens entermains Iour del' Brief Purchase, or Nontenure, in like form, without saying, Ou, ne unque puis, there the Replication, Assets, or Tout Iour del Brief; and Verdict thereupon will make it good, because good to some Intent.

Vide 12 Ed. 4. 6. where an ill Issue; as Ne­gative pregnant, Double Plea, or the like; and found with the same, is made good by the Verdict: Otherwise, if found against it.

See more hereof in the Titles of Re­pleaders and Ieofails, as also of Ver­dicts.

And Note, That the Defendant in Time may waive his Pleading, and betake him to the General Issue.

As 34 H. 6. 29. the Defendant in an Assize did plead in Bar, and although the same was Entred, and in another Term, yet he pleaded the General Issue.

And see Mich. 9 & 10 Eliz. Dyer 265. the Defendant did Wage his Law, and at the Day would have Confest for part, and Wa­ged his Law for the rest; and by the Better Opinion could not, nor Waive his Law, and plead to the Country, without the Consent of the Plaintiff, as it seems.

For which, see more in the Title of Wai­ver, in Brook:

As namely there 31 Ed. 1. The Tenant did Vouch one who was found; and yet he afterwards Waived his Vouchee, and pleaded the General Issue.

[Page 172] So there 4 Ed. 4. 28. touching Aid Prayer.

And 4 Ed. 3. 56. one that doth Counter­plead the Voucher, may at another Day waive the same, and admit the Vouchee.

And see there also, That he who plead­eth to the Writ, or in Bar, may afterwards waive the same, and plead the General Issue.

Quaere, If after Issue, or Demurrer En­tred.

For by the Book of 11 R. 2. Fitzh. Issue 146. after Demurrer, without Consent of the Parties, the Defendant cannot waive the same, and plead the General Issue.

And so seems 50 Ed. 3. 19. If one plead to the Writ in an Assize, whereupon Issue is Joyned, and Adjorn'd for Trial, he cannot waive the same, and Plead in Bar.

Quaere, If altogether in respect of the Adjornment; for otherwise it were an ad­vantage for the Plaintiff to have his Writ Confest to be good.

And 50 Ed. 3. 19. the Defendant in Cosi­nage did plead an Estoppel: Estoppel. Judgment, if the Plaintiff shall be received to say, That his Father died seised; and the Plaintiff did Con­fess and Avoid the Estoppel, and therefore the Tenant would have waived his Plea, and pleaded in Bar, and could not; but said there, That he might well do it in an Assize de Mort d'Ancestor: Nota diversita­tem.

And see the same Book of 50 Ed. 3. 19. and sundry other Books, and Experience, That after Plea by Baily, the Defendant in [Page 173] Person, or by an Attorney, may plead Matter in Bar, whereof a Certificate of an Assize doth lye.

But 3 H. 6. 16. if an Infant plead by Guar­dian, he may afterwards come in Person, and Plead himself at his pleasure: For that the Admittance of a Guardian for him is the Act of the Court, which shall in no case prejudice him.

And also see 5 Ed. 4. 122. The King after Demurrer entred by himself, may waive the same by his Prerogative, and take Issue.

And so is 28 H. 6. 2. and that he may De­clare, de Novo, the same Term; but not in another.

But see in the Title Prerogative 116. That in an Information he shall not waive his Issue, and Demur; but otherwise upon a Tra­verse.

And see accordingly in Plowden's Com. in Partridge's Case, touching his waiving of De­murrer, and taking Issue; and è contra: But if another Party be joyned with the King, as there, then the King shall have no advan­tage.

CHAP. VII. Of Repleaders and Ieofails.

THen the Learning touching Repleaders and Ieofails, Repleader. ought to be known. And, First, Its Cause. Touching the Cause of Repleaders; which is, for that the Pleading hath been ill and vicious, Ieofail, what. Or the Issue misjoyned, and then its called a Ieofail.

Or, as 22 & 23 H. 6. and other Books, where part of the Matter contained in the Plaintiff's Suit, is Omitted to be answered, and the like.

But as 6 Ed. 4. 2. if an ill Plea be made good afterwards by Admittance (as hath been said before) that is no Cause of Re­pleader.

But otherwise, as it seems by the Books of 7 Ed. 4. 1. and 35 H. 8. The Court (the Jury being at the Bar) if there be a Ieofail apparent in the Record, Ieofail. will discharge the Jury.

And this Repleader, for the most part, hath been upon Misjoyning of Issues, or be­fore Demurrer, and not after.

Yet 9 H. 6. 35. in a Replevin, the Defen­dant did plead an ill Bar, and the Plaintiff a worse Replication; whereupon the Defen­dant did Demur, and a Repleader award­ed.

[Page 175] And so is Dyer 3 & 4 Mar. 139. the like; If the Rejoynder had been ill, and they shall begin at the first ill Plea.

But see Plowden, in Trespass, brought by Hill against Grange, That the Plaintiff Demur­ring upon the Rejoynder, his Replication being good, Judgment shall be gien for or against him, as the Law doth fall out. But his Replication being ill, it seems there, that they shall Replead.

Quaere inde; for at this time greatly doubt­ed, Whether Judgment shall not, in like case, be given against him that pleadeth the first ill Plea: For, by the greater Opinion, no Repleader after Demurrer.

And in Smith and Hart's Case, 31 Eliz. the Avowry being good, and the Bar and Rejoynder in a Replevin ill, no Repleader after a Demurrer: But if the Declaration be ill, or such an Avowry, which is in nature of a Declaration; or, by that Reason, a Replication where no Title is made in the Declaration; there Judgment shall be given against the Plaintiff without any Repleader. Quaere tamen.

Then, At what Plea the Parties shall begin to Replead. Where the Parties shall begin to Re­plead.

The same Book, 9 H. 6. saith, At that Plea which first was faulty; and so is 21 H. 6. 14. 22 H. 6. 19. and 5 Ed. 4. 18.

And by that Book 22 H. 6. In what Place. it appears, That an Issue in an Assize, Adjourned in the Common-Pleas to be Tried, in which plead­ing there was a Ieofail, the Parties shall [Page 176] Re-plead in the Bench, and not be Remanded to Replead in the Country; quod nota.

Then, At what time. At what time they shall Replead.

For which see 22 H. 6. 57. where Mis­pleading was, and the Parties after Verdict, by Nisi prius, were awarded to Replead; quod nota.

Where its said also, That it hath been often so used until Judgment, although the Defendant have no Day in Court to be de­manded.

And see in Brook, in this Title 39, in Abridging the same Case 9 H. 6. That after the Defendant hath Confest the Action, yet there may be a Repleader.

These Mis-pleadings, Statutes aiding Ieofails, or Mis-pleadings. in some sort, are Aided by the Statutes of Ieofails, of which there be four in number; namely,

• Anno 32 H. 8. cap. 30.
• Anno 18 Eliz. cap. 14.
• Anno 21 Iac. 1. cap. 13. &
• Annis 16 & 17 Car. 2. cap. 2.

The, 32 H. 8. cap. 30. first, after this manner, viz. ‘That upon Issues tried in any the King's Courts of Record, Judgment shall be given, any Mis-pleading, want of Colour, Insufficient Pleading, Ieofail, Mis-continuance, Dis­continuance, Mis-conveyance of Process, Mis­joyning of Issues, want of Warrant of At­torney for the Party against whom, &c. or other default of the Parties, their Coun­sellors, &c.’

[Page 177] The Second, 18 Eliz. cap. 14▪ namely, 18 Eliz. cap. 14. to this purpose, viz. ‘After Verdict, upon Acti­on in any Court of Record, notwithstand­ing default of Form, False Latin, or Vari­ance from the Register, or other default in Form in Writs Original or Judicial, Count, Declaration, Bill, Plaint, Suit, or Demand, or Want of Original or Judicial Writ, Imperfect or Insufficient Retorn, Want of Warrant of Attorney, Default in Process upon, or after, any Aid Prayer or Vou­cher; but not to extend to Informations’: As by the two first Statutes may ap­pear.

Now hereupon it is observed, That neither of the two Statutes, above-recited, extends to Aid any person be­fore, but after Verdict, and not upon De­murrer.

And that the Statute of 32 H. 8. which goeth only to Defaults in Pleading and Matters therein mentioned, and not to De­clarations, extends but to the Kings Courts of Record, and not to other Inferiour Courts.

But touching Mis-pleading, and the Mat­ters therein mentioned, it helpeth in In­dictments and Informations after Verdict, which the Statute of 18 Eliz. doth not, but Aids only in Declarations, Writs, and the Cases therein particularly set down; quod nota.

[Page 178] Out of both which Statutes of 32 H. 8. and 18 Eliz. have since been taken divers Cases, as namely upon the first Statute, if no Issue be joyned at all; or as a Report 8 Eliz. by Catlyn, where an Issue is joyned that is not proper to the Action, as Not Guilty, in Debt.

See, touching that, the Book 28 Eliz. Dyer 347. where Not Guilty is pleaded upon an Information of Usury. The like upon the Statute of 18 Eliz. if the Declaration be ill for Matter.

As if Tenant for Life doth bring a Quod permittat in the Debet only, when the same ought to be in the Debet and Solet: And Agreed by all the Court 31 Eliz. where the Venire facias to the Coroners, without Cause at all; or, as the Case there lies, where the Justices of Nisi prius awarded to the Coro­ners a Tales, and Verdict thereupon, which was no such Mis-continuance of Process, as is helped by the Statute of 32 H. 8.

So if the Trial be in a wrong Coun­ty.

Quaera tamen inde, for Mich. 2 & 3 Eliz. Dyer 188. and Mich. 21 & 22 Eliz. ibid. 367. seem contrary, although Process awarded to the Coroners without Cause; and although (as the first of the said two Books is) the Trial was not between the Parties to the Writ; but between the Tenant and the Vouchee.

[Page 179] Yet Ann [...] 32 Eliz. it was said to be Ruled, That if one pleadeth an Award in Trespass without Satisfaction and Issue, and Verdict taken upon the same, yet not helped by that Statute; quaere inde.

And Mich. 33 Eliz. in the Case between Upton and Walsh, no Venire facias being put upon the File, Ruled to be aided by the Sta­tute, although it could not be found.

See a Report 1 & 2 Mariae, where the Declaration doth not warant the Writ: As in Debt, where it doth appear, that the Day is not yet come; or in Trespass, that the same is committed after the Date of the Writ; or, a Declaration be in the Debet and Detinet, by an Executor. The same, and the like, although Issue and Verdict thereupon, are not helped by the Statute of 32 H. 8.

Note, by what hath been said, it appears, That the said Statute of 32 H. 8. being (touching Mis-pleading, and the Matters therein contained) in any of the King's Courts of Record, that the same helpeth not, in that Case, in any other Court of Record.

For, as it seems in Stradling's Case, in Plowden's Commentaries, If a Statute give an Action in any of the King's Courts of Re­cord, the same will not extend to Oxford, although the Style be Cur' Domini Regis, or to the Exchequer or Chancery.

[Page 180] And yet if a Statute provides Remedy for a thing by an Action that lay before (as it appears in Bro. Tit. Conusance,) and doth not limit by Express Terms where the Suit shall lye, there it will lye in any of the said Courts.

In which, if the Law be so, then touching Mis-pleading and Mis-joyning of Issues in other Courts, the same is, as it was at the Common Law before the Statute of 32 H. 8.

See Trin. 29 Eliz. Of Matter [...] Remediable by the Statutes of Ieosails. Goldsborough's Reports 48. where, in Case sur Assumpsit, the Defendant pleaded Non Assumpsit, and found for the Plaintiff; and Moved, There's no Place laid in the Declaration, where the Promise was made; and its there said, That when an Issue is Mis-tryed, it is not helped by the Statute, and here no place is alledged, whereupon the Trial may be had: But per Cur. the Statute shall be taken liberally; so that if the Verdict be once given, it shall be a great Cause that shall hinder the Judg­ment; for when it is Tried and Found for the Plaintiff, he ought to have Judg­ment.

And Trin. 10 Iac. 1. Godbolt 194. In an Action brought in the Common Pleas, after Verdict moved to stay Judgment, that the Venire facias did vary from the Roll in the Plaintiff's Name; for that the Roll was Peter, and the Venire, Iohn, and the Postea agreed with the Roll, his true Name: Where holden, That if no Venire goes forth, the same is aided by the Statute of Ieofails; [Page 181] and it is in Effect here, as if there were no Venire fac. or Hab. Corpora; yet, if the Sheriff do Return a Jury, the same is helped by the Statute of Ieofails.

And Pasch. 12 Iac. Brownl. 2 Part 167. Upon a Motion to stay Iudgment, it was Objected, That the words, Et habeas ibi Nomina Iur', were omitted in the Venire fac', but Venire fac' Duodecim, &c. were in the Writ, and good per totam Curiam; for that the first words are supplied by the last, and the Omission helped by the Statute of Ieofails, after Verdict.

And see Mich. 21 Iac. Cro. 2 Part 672. In Case for Words, brought in Chancery by a Clerk there, a Venire was awarded Retorn­able in B. R. in this Form; viz. Venire facias duodecim quorum quilibet habet 4 l. terrarum, aut minus, &c. Moved to stay Judgment, that the Venire was ill, and not helped by the Statute of 27 Eliz. cap. 6. for that extends only to Writs of Venire fac. in the Kings-Bench, Common-Pleas, [Exchequer Excepted in Stradling's Case before, pag. 179.,] Iustices of Assize, and no other Courts, and the Chancery is omitted, and therefore the Ve­nire not waranted by the Statute. But per Cur. This Clause inserted in the Writ, al­though not waranted by the Statute, yet is not prejudicial to any, but makes the better Trial.

And, by the Common Law, the Judges may direct a Venire, to be Quorum quilibet habeat tantum de Terris; and Precedents were shewed out of Chancery, where the Venire was, as in this Case.

[Page 182] And per Cur. If it was not good at the Common Law; yet now c [...]early made good by 32 H. 8. Wherefore Adjudged pro Quer.

So Trin. 9 Car. 1. Cro. 1 Part 215, & 228. In a Scire facias in Chancery against C. upon a Recognizance of 200 l. The Defendant was Returned Dead, whereupon a Second Scire facias issued against the Heir of C. and the Tenants of the Lands of C. tempore Recognitionis; upon which the Sheriff Re­turned T. Terr-Tenant of such Lands, omitted to Return any thing concerning the Heir: Whereupon the Defendant plead­ed, That he had nothing in the Lands at the time of the Recognizance, nor ever after.

It was found for the Plaintiff, that C. was seised, and moved in Arrest of Judgment; because nothing was Returned against the Heir, viz. That there was not any Heir, or the Heir had nothing: And it is a Non-Return of the Sheriff, and not a Mis-Return, and is not helped by the Statute of Ieofails.

But per Cur', Though the Return had been better, if it had been found who was Heir, and that he was Warned, or that there was not any Heir in the said County; yet it was well enough, and the Mis-Return or Insuffi­cient-Return of the Sheriff, quoad the Heir (not being named in the Retnrn) is but a Dis-continuance, helped by the Statute of Ieofails.

[Page 183] Vide Hob [...] 326. Where the Plaintiff De­clared in Debt, upon a Demise for Rent: To which the Defendant pleaded, That before the Rent became due, the Plaintiff did Enter upon him, not saying, He did Expel, or Hold him out; so that Issue was only, Quod Quer' non Intravit; and found for the Defendant, and Judgment given for him: For tho' the Plea was Insufficient; yet the Verdict did fully answer the Issue.

And see Hob. 76. Banks versus Parker, In Trespass, for taking a Kettle at W. The Defendant Justified, by reason of the Cu­stom of the Mannor of T. And the Plain­tiff took Issue de Injuria sua propria absque tali Causa; and the Venire was awarded de Visn' de W. & Manerio de T. upon the Roll, and a Verdict for the Plaintiff: And tho' the Plaintiff should not have Traversed the Cause generally, but the Custom; yet that was Adjudged to be helped by the Statute of Ieofails, as Matter of Form; because Absque tali Causa contained the Custom, and more.

And Idem ibid. Parker versus Parker, The Plaintiff brought Trover and Conversion of certain Goods against the Defendant, and the Declaration was Entred upon the Im­parlance-Roll, with Blanks or Spaces for the Day and Year of the Plaintiff's losing the Goods, and of the Defendant's finding and converting them to his own proper use; but the Issue-Roll, and the other Proceed­ings were perfect in this Point.

[Page 184] And per Cur', the Imparlance-Roll, being the Original, cannot be made perfect by the Issue-Roll, which was waranted by it; but in regard a Verdict was given for the Plaintiff, upon the Issue of Not Guilty, the Court gave Judgment for him: For the De­claration, as Entred on the Imparlance-Roll, was good enough in Substance; for the Tro­ver and Conversion being laid in the Praeter­perfect Tense, was before the Action brought, and so the Fault in the Declaration being only in Form, is helped by the Statute of Ieofails.

And Idem 117. Napper versus Iasper and George; where Issue was taken in Trespass upon a Prescription, That I. S. Prebendary of the Prebend of P. in the Church of S. and all his Predecessors, Prebendaries, &c. had used Time out of Mind, to keep a Shepherd for certain Sheep of theirs, fol­lowing the same Sheep, for the better keep­ing of them feeding together in a certain Pasture, from the Sheep of the Earl of S. in the same Place; and the Issue was found accordingly: And Moved, That this was a Void Verdict; for the Prescription was sensless, and could not stand, That the Sheep could be kept Time out of Mind, from the Sheep of the Earl of S. being but one man's Life.

But yet the Plaintiff had Judgment ac­cording to the Verdict; for the Substance of the Issue was, The keeping the Prebendaries Sheep feeding together, and the other part was but a Consequent of it, That by that [Page 185] means they were kept from the Earl's Sheep.

Vide Stiles Rep. 206. where the Plaintiff declar'd upon an Assault and Battery in Surrey: To which the Defendant pleaded Justification in Middlesex; and the Plaintiff Replied, That the Defendant did Beat him in Southwark, which is in Surrey, de Injuria sua propria, absque tali Causa; and the Issue was tryed by a Jury in Middlesex, and found for the Plaintiff; and Objected, That the Trial was not good, because the Venire fa­cias was from one Place, when it should have been from both; for here are two Issues to be Tried, and so not within the Statute of Ieofails.

But per Cur', the Trial is well enough, for tho' two Issues, yet by Pleading they are made one, and so within the Statute of Ieofails, and helped by it.

And see Godbolt 85. where the Plaintiff declared in Account of divers Receipts and Parcels: To all which, except one, the De­fendant pleaded to Issue, but for that one Parcel he pleaded nothing: Whereupon it was Moved, That the Plea was Dis-continued for not answering to that Parcel, which Dis-continuance was not aided by the Statute of 32 H. 8. and the Plaintiff could not have Judgment according to his Declaration, be­cause of the Parcel to which no Answer was made, no Judgment could be given.

[Page 186] But per Cur', the Statute of 32 H. 8. did Extend to it; for the words of that Statute are,— After Verdict found Iudgment shall be given, any Discontinuace notwithstanding.

And see Cro. Part 2. 534. where the Plaintiff declar'd in Trespass,—Quare Clau­sum fregit, Et alia Enormia ei intulit: The Defendant pleaded the General Issue, Non Culp. and the Jury found 400 l. Damages, in respect of the Abuse done by the Defen­dant to the Plaintiff's Wife; and to stay Judgment, it was moved, that the Venire fa­cias wanted these words,— Quilibet Iur' per Pleg', and therefore is, as if there had been no Return of the Writ.

But per Cur', this is not a Blank Return, where no Return is at all, or where the Name of the Sheriff is omitted; but this is an Insufficient Return, helped by the Sta­tute of Ieofails: For the Omission of the Pledges, is but want of Form, and not like to Hussey's Case, where there was no Pledges Returned upon the Original.

And Idem Part 2. 353. where the Plaintiff did declare in Trespass against the Defen­dant, for Entring his Close and House in G. To which the Defendant pleaded in Justi­fication, That the Sheriff had directed a Warrant to him upon a Capias Utlagatum, to Take one I. S. who (as the Common Voice went) was at the Plaintiff's House; whereupon he went thither in a Foot-Path through the said Close, and asked the Plain­tiff's Leave to Enter his House, to search for the said I. S. and the Plaintiff giving [Page 187] him Leave, he Entred the same, and not finding I. S. there, returned the same way: The Plaintiff took Issue upon the License, and had a Verdict; and to stay Judgment, it was Objected, That there was not any Replication for the Close, or any Issue joyn'd thereupon; so that all was Dis­continued.

But per Cur', Judgment shall be given for that which is found; and that which is Dis­continued, is helped by the Statute of Ieo­fails.

Vide Hob. 176. where in Trespass the De­fendant did plead, That Locus in quo (no Place being assigned) was two Acres called B. in L. which was his Freehold. And the Plaintiff Replied, That Locus in quo, was a Piece of Land containing Twenty Acres, Al' quam, &c. To which the Defendant Rejoyn'd, Quoad aliquam Transgr' in praedictis viginti Acris—Non Culp'. Upon which the Plaintiff joyn'd Issue, and the Verdict found for him: And to stay Judgment, the Defendant moved, That this was no Issue; for there was no Twenty Acres, nor Place certain in the Declaration.

Yet per Cur', the Plaintiff shall have Judg­ment; for tho' it be not in the Declaration, yet cannot be said a Departure from the Declaration, for both Parties agree the Trespass to be done at L. and so no Verdict out of the Matter, nor Issue; but a Verdict help'd by the Statute of Ieofails.

[Page 188] And see Goldesbrough's Rep. 158. where in Trespass, for Entring the Plaintiff's House, and breaking his Close, the Defendant pleaded, That the House and Close con­tain'd Twenty Acres, and was his Freehold: To which the Plaintiff Reply'd,— Quod locus in quo est unum Mesuagium, to which he Entitles himself; and because by his Repli­cation he only made Title to a Messuage, and did not maintain his Declaration, which was the Mesuage and Close, Awarded Nil Capiat per Billam.

Quaere, If this amounts to any more, than a Dis-continuance of the Close only, and so help'd by the Verdict.

But Cro. Part 2. 528. In Debt upon four Bonds, for payment of Mony, three of them were Tried in London in Trinity Term, and the fourth at Lent Assizes after; and there was not any Continuance from Trinity Term to Lent Assizes, which was much insisted upon; yet the Court gave Judgment for the Plaintiff.

So Brownlow's Rep. Part 1. fo. 81. a Bill was Exhibited against one of the Clerks of the Court of Kings-Bench for Mony due upon Bond; and Issue being joyn'd, the Cause was Tried, and found for the Plain­tiff: And to stay Judgment it was Objected, That the Bill not being filed, was not helped by the Statute of Ieofails, nor with­in the same.

[Page 189] To which Opinion the Court seemed to Incline, but gave leave to the Plaintiff, to File a Bill, that so the Matter might be put to Arbitration.

So Hob. 181. a Bill was Exhibited in Debt against an Attorney of the Common Pleas, upon which a Verdict was had for the Plaintiff; and to stay Judgment it was Ob­jected, That the Original Bill was not Filed with the Custos Brevium, as it ought to be: But because the Tenor of the Bill was Entred of Record in haec verba, it seem'd to be in the Nature of the want of an Ori­ginal after Verdict, and so help'd by the Statute of Ieofails.

To which Opinion the Court did in­cline; but would Advise of it, because it had been otherwise Adjudged in that Court before.

But then we shall Enquire, Matters not Remedied by the Statute. What Matters are not Remedied or Helped by any, or either of the Statutes of 32 H. 8. and 18 El. before­mentioned.

For which see, first, Goldesbrough's Rep. fo. 49. where the Plaintiff brought his Action against the Defendant for an Assault and Battery; and the Defendant was Condemned therein by Nichil dicit, and a Writ of En­quiry of Damages issued out; and then the Plaintiff's Attorney died, and another Attorney, without Warant, prayed the Second Judgment, and had Execution there­upon.

[Page 190] Cur', If the Attorney dies after Judgment, a New Attorney may pray Execution with­out Warant; but here the Attorney died before the Second Judgment, and therefore he that comes after, ought to have a Warant of Attorney.

Prothon. If one of the Parties dies after Judgment, the Writ shall abate.

And per Cur', This is not within the Sta­tute of Ieofails; for a Verdict is that, which is put in Issue by the Joyning of the Par­ties.

So Hob. 112, 113. The Plaintiff declared in Trespass for an Assault and Battery made upon him by the Defendant, who pleaded Iustification, and Conveyed an Estate to himself by Copy of Court-Roll in a certain Piece of Ground, Parcel of the Mannor of D. whereof I. S. was seised in Fee; and because the Plaintiff came upon it, he laid his Hands molliter upon him.

And the Plaintiff, in his Replication also, Convey'd to himself an Estate by Copy of Court-Roll to another Piece of Ground with­in the said Mannor, and lays a Prescription in the said I. S. Lord of the Mannor, to have a Way over the Defendant's Piece of Ground: Upon which they were at Issue, and Verdict for the Plaintiff.

And per Melieur Opinion, this was no Issue at all, nor Thing, nor possibly Issuable, and therefore the Verdict must also be void, and so not holpen by the Statute of Ieofails: For a Verdict cannot make that good, which the Court sees cannot be in Law; [Page 191] so that this is in the Office of the Court to judge.

So Cro. Part 2. 526. In Trespass brought in the Kings-Bench, for Taking and Carrying away three Loads of Wheat, set out for Tithes, contra Pacem Domini Regis, the words Vi & Armis were omitted.

Per Cur', the Bill shall abate, for it is the Essential part of the Declaration, and that which induceth the Court to set a Fine for the King, and it is not help'd by the Statute of Ieofails: And so Adjudged Hill. 13 Iac. in the Case between Welsted and Taylor, where Judgment was Reversed, because Vi & Armis was omitted.

Vide Hoh. 127. In Debt upon the Statute of 21 H. 8. the Writ was, Praecipe A. quod reddat Nobis & B. qui tam pro Nobis, quam pro seipso sequitur Centum & decem Libras, quas Nobis & praefat' B. debet. And the Count was, for Taking to Farm six Acres of Land, and holding the same for six Months, Per quod Actio accrevit, for 60 l. And for further Taking to Farm other Lands, and holding the same for five Months, Per quod Actio accrevit, for 50 l. To which the Defendant pleaded,— Quod ipse non debet praefat' B. qui tam, &c. praedict as Centum & decem Libras, neque aliquem inde Denarium in forma qua, &c. whereupon Issue was Joyned, and the Jury found, That the Defendant did owe 30 l. and for the Residue — Quod non debet.

[Page 192] And to stay Judgment, it was Ob­jected,

(1) That the Verdict expresses not for which Farm, nor which of the Months the 30 l. was due; sed non allocatur, for the Demand and Issue were for 110 l. in several, tho' it would have been more formal to have distinguished them.

(2) The Defendant hath not Answered the Writ and Declaration, for the Plea ought to have been as the Demand is,— Quod ipse non debet dicto Domino Regi, & praefat' B. qui tam, &c. And this was allowed, because Penal Laws are Excepted out of the Statute of Ieofails.

And see Hob. 101. where Judgment was Reversed, because there were no Pledges to Prosecute Entred for the Plaintiff, and so not within the Statute of Ieofails; because a Penal Law excepted out of the same.

But see Trin. 30 Eliz. in Com. B. Goldes­brough 90. where a Writ of Right was brought against Baron & Feme, of two parts of Forty Acres of Land in S. who pleaded, That I. S. was seised, and devised to his Wife one of the Tenants for Life, the Re­mainder to B. in Fee, who was his Heir, who died, and they prayed in Aid of B. who joyned in Aid with them, and then they came and pleaded to the Grand Assize; and the first Day of the Term the Assize ap­peared, and sixteen of them were Sworn, whereof four were Knights, the rest Esquires and Gentlemen; and the Title was, as befor in Trinity Term, Anno 28. for B. was [Page 193] Tenant in that other Action for the Third part.

Per Cur', This is not aided by the Statute, for here is no Certainty in the Grant; yet if the Thing granted had had a certain Name given to it, as Black-Acre, or the like; then, tho' the Parish had been mistaken, it would have been good enough.

See more of these two Statutes of 32 H. 8. and 18 Eliz. after, in the Title Error.

In the next place, We shall take a view of the two last Statutes, concerning Ieofails, viz. 21 Jac. 1. cap. 13 & 16. and 17 Car. 2. cap. 8. and enquire, what Mis-pleadings are aided by the same, and what are not.

By the Statute of 21 Iac. 1. cap. 13. Stat. 21 Iac. concerning Ieofails. after Verdict given in any Court of Record, the Judgment thereupon shall not be stayed, or reversed for any Variance in Form only, between the Original Writ or Bill, and the Declaration, Plaint, or Demand, or for lack of an Averment of the Parties Life, or Lives, so as it be proved he or they be in Life; or for that the Venire facias, Habeas Corpora, or Distringas, was awarded to a wrong Officer, upon an Insufficient Sugge­stion; or that the Visne was in some part Mis-awarded, or sued out of more or fewer places than it ought to be, so as some one place be right named; or for Mis-naming any of the Jurors, either in the Sir-name or Addition, in any of the Writs or Returns thereof, so as Constat de persona; or for want [Page 194] of a Return of any of the said Writs, so as a Panel be returned and annexed thereunto; or for that the Officer's Name is not set to the Return, so as it appears by Proof that the Writ was returned by him; or by rea­son that the Plaintiff, in an Ejectione firmae, or in any Personal Action, being under Age, did appear by Attorney, and the Verdict pass for him.

This Act shall not extend to any Writ, Declaration or Suit of Appeal of Felony or Murder, nor to any Indictment or Present­ment of Felony, Murder, or Treason, nor to any Process upon any of them; nor to any Writ, Bill, Action or Information upon any Penal Statute.

And by 16 & 17 Car. 2. cap. 8. Stat. 16 & 17 Car. 2. con­cering Ieofails. it is En­acted, That after Verdict Judgment shall not be stayed nor reversed in the King's Courts of Record at Westminster, or Courts of Record in the Counties Palatine of Che­ster, Lancaster, or Durham, or Courts of the great Sessions, in any of the Twelve Shires of Wales, for default of Form, lack of Pledges; or but one Pledge to Prosecute, Returned on the Original Writ, for default of Entry of Pledges upon a Bill or Decla­ration; or for default of bringing into any Court, of any Bond, Bill, Indenture, or other Deed, mentioned in the Pleading; or for lack of Allegation, of bringing into Court of Letters Testamentary, or Letters of Ad­ministration; or by reason of the Omission of Vi & Armis, or Contra pacem; or for [Page 195] mistake of the Christian Name, or Sur­name of the Plaintiff or Defendant, Sum of Mony, Day, Month, or Year, being rightly named in any Record preceding; or in the same Record, whereunto the Defen­dant might have Demurred.

Nor for want of Hoc paratus est verificare, or Hoc paratus est verificare per Recordum; or for that there is no right Visne, so the Cause were Tried by a Jury of the County or Place where the Action is laid; nor for not Alledging or Omission of Prout patet per Recordum.

Nor shall any Judgment be Reversed after Verdict, Confession by Cognovit Actionem, or Relicta Verificatione; or for lack of Miseri­cordia or Capiatur; or by reason that a Ca­piatur is Entred for a Misericordia, or a Mise­ricordia for a Capiatur.

Nor by reason that Ideo Concessum est per Curiam is Entred, for Ideo Consideratum est per Curiam.

Nor for that Increase of Costs, after a Verdict in any Action; or where a Non-suit in Replevin is not Entred to be, at the Request of the Party to whom the Judgment is given.

Nor by reason that the Costs are not En­tred to be by Consent of the Plaintiff,

But that all such Omissions, Mistakes, and such like as these, not being against the Right of the Matter of Suit; nor whereby the Issue or Trial are entred, may be Amended by the Judges of the Courts.

[Page 196] This Act shall not Extend to Appeals, Indictments, or Presentments of Treason, Felony, or Murder; nor to Bills, Actions, &c. upon Penal Statutes, other than concerning Customs and Subsidies of Tonnage and Poundage.

And by the same Statute it is provided, That no Execution shall be stayed in the same Courts by Writ of Error, or Supersedeas after Verdict and Judgment in any Action Personal, whatsoever, till Security given, according to the Statute made in the Third Year of the Reign of King Iames the First, Chap. 8. whereby it is Enacted,

That in Writs of Errour brought upon any Judgment after Verdict, in any Writ of Dower, or Ejectione firmae, Execution is not to be stayed, unless the Plaintiff in the Writ of Errour become bound to the Plaintiff in the Action, as the Court shall Order, That if the Judgment be affirmed, or the Writ of Errour discontinued by default of the Plain­tiff; or the Plaintiff be Nonsuit in the Writ of Errour, that they shall pay such Costs and Damages as the Court shall appoint: And the Court may Enquire, what Special Loss the Plaintiff in the first Execution hath by this Delay; and this the Court must also give him by way of Increase of Dama­ges.

[Page 197] This Act doth not Extend to Writs of Errour brought by Executors, nor Admini­strators, nor any Action Popular, nor other Action brought on a Penal Statute, Except Debt for not Setting out of Tithes; not to any Indictment, Presentment, Inqui­sition, Information, or Appeal.

And here we may also Observe, as before, That neither of these two last cited Sta­tutes extend to Aid any Person before, but after Verdict, and not upon Demurrer. Nor doth either of them help Mis-pleading, or defects in Indictments, Appeals, Informations, Inquisitions, or Presentments, or any Actions or Suits upon Penal Statutes; except such as relate to Customs and Subsidies of Tonnage and Poundage.

What Defects in Pleading, or otherwise, are aided by the said Statutes, we shall give you some Examples of, as fol­lows:

And, first, see Pasch. 23 Car. 1. Rotulo 51. in B. R. Morefield and Webb's Case, Reported by Aleyn, fo. Placito Where, in a Writ of Errour upon a Judgment in the Pa­lace Court at Westminster, in an Action upon the Case, upon a Promise, and Verdict for the Plaintiff; it was moved for Errour, That the Habeas Corpora Iur' was not Returned Served, but only a Panel of the Juror's Names annexed to it; which Case is Aided by the Statute of 21 Iac. 1. cap. 13. of Ieo­fails, which helpeth, when there is not any Return upon the Writs of Venire facias, [Page 198] Habeas Corpora Iur', and Distring as Iur'; so as a Panel of the Names of the Jurors be Returned and annexed to the said Writs.

Whereupon it was Objected;

(1) That the Statute of 21 Iacobi extends only to Writs, and not Precepts, which issue out of the Palace-Court.

(2) That the Palace-Court was Erected by Letters Patents 6 Car. 1. which was after the Statute.

But Resolved,

1. That the Palace-Court is within the Intention of that Statute; for it provides Amendment in any Action, Suit, Plaint, Bill, or Demand.

And Justice Iones was angry, That Rolls question'd, if this Statute did extend to the Grand Sessions in Wales.

But agreed per Cur. That the Statute shall not extend to Inferiour Courts in these Points.

2. Resolved, That it Extends to Courts, Erected after the Statute, and so not within the Equity thereof.

And see Mich. 13 Car. 2. in B. R. Tubb and Walwyn's Case, Keble Vol. 1. Pl. 137. Tit. Aver­ment, where the Plaintiff moved to stay Judgment in Ejectment, because the Life of the Party (during whose Life the Defen­dant [Page 199] hath a Lease) was not Averred (ac­cording to 10 Ed. 4. 18.) Averment de vie. which by 21 Iac. 1. cap. 13. is to be Inquired of by the Sheriff, or other Officer, as the Court shall think fit.

And by Foster, the like Rule was made before the Statute, in the Lady Morleys Case, after Verdict, as here.

But see Mich. 21 Car. 2. Lee versus Edwards, in Modern Reports fo. 14. Averment de Cure. where an Action upon the Case was brought upon two Pro­mises:

And the First was, That in Consideration the Plaintiff would bestow his Labour and Pains about the Defendant's Daughter, and would Cure her, the Defendant did Promise to pay so much, and would also pay for the Medica­ments.

Secondly, In Consideration the Plaintiff had Cured the Defendants Daughter, the Defendant did Promise to pay so much.

And to stay Judgment, it was Objected by Raymond, That the Plaintiff did not Aver in his Declaration, That he had Cured the Defendants Daughter, the Consideration of the first Promise being Future; and both Promises found, and entire Damages given.

But Twisden said, It is well enough; for now it lies upon the whole Record, whether he hath Cured her, or not; but if it had rested upon the first Promise only, it had been ill.

[Page 200] And in the second Promise, there is an Averment of the Cure; so that now, after Verdict, it is helped; and the want of an Averment is helped by a Verdict, in many Cases.

Vide Hil. 22 & 23 Car. 2. Rotulo 233. in B. R. Hoskins versus Robins, License Mis-pleaded. in Sander's Re­ports, Part 2. fo. 32. where said, That the Insufficiency of Pleading a License, is helped by the Statute of Ieofails, after Verdict.

And see Mich. 24 Car. 2. in B. R. Holman against Dodde, Issue Mis-joyned. Keb. Vol. 3. Tit. Amendment, Pl. 15. where the Plaintiff in Debt, upon an Obligation to perform Covenants in an Indenture, assigns Breach for Non-payment of Rent at Michaelmass, according to the Lease, but then, or 40 Days after, by the Bond.

To which the Defendant did Rejoyn, That he paid the same at Michaelmass; Et de hoc ponit se super Patriam, Et praedictus, the Plaintiff similiter.

After Verdict, it was Moved by Staples to stay Judgment, for that the Issue is Mis-joyned; and tho' it were quod praedictus Robertus (who was the Defendant) for Row­landus (the Lessee,) and the Directions to the Clerk were right; yet being no Issue, there was no Verdict, and so not Aided by the Statutes of 16 & 17 Car. 2. cap. 8.

And here its no Issue, That the Defen­dant did Perform, Et de hoc ponit, &c. Et praedictus, the Plaintiff similiter.

[Page 201] For (as in 1 Cro. 317. Pl. 380.) its an Issue by the Rejoynder, That Robert did not pay, &c. therefore not Aided by the Statute; according to 2 Cro. 579. Pl. 9. in Aldridge's Case:) But the Rent being Reserved only at Michaelmass by the Lease, tho' the Bond be at Michaelmass, or 40 days after, is well enough.

Vide Pasch. 26. Car. 2. in C. B. Naylor versus Sharpley, & al', Coronator' Com' Palatin' Lanc', in Modern Reports 188, 189. where one brings Debt against the Sheriff of that County, and Sues him to the Outlawry, and directs a Capias to the Chancellor, who makes a Precept to the Coroners of the same Coun­ty, being Six, to take his Body, and have him before the Justices of the Common Pleas at Westminster at such a day: And one of the Coroners being in sight of the Defendant, and having Opportunity enough to Arrest him, doth it not; but they all Re­turn— Non est inventus, tho' he might have been Taken every day.

Whereupon the Plaintiff brings his Action in Middlesex against all the Coroners, and has a Verdict for 100 l.

And to stay Judgment, Serjeant Baldwyn Objected, That the Action ought to have been brought in Lancaster.

He agreed to the Cases put in Bulwer's Case, in Co. Lib. 7. where the Cause of Action ariseth equally in two Counties; but here, all that the Coroners do, subsists and determines in the County Palatine of Lancaster; for they make a Return to the [Page 202] Chancellor of the County Palatine only, who makes a Return to the Court.

He insisted upon Hussey and Gibb's Case, in Dyer 38. and further said, That this Action is grounded upon two Wrongs; one, The not Arresting him when he was in sight; and the other, For the Returning, Non est inven­tus, when he might have easily been taken. Now, for the Wrong of one of them, they are all charged, and entire Damages given.

He Allow'd, That two Sheriffs make but one Officer; but said, That every Coroner is responsible for himself only, and not for his Companion.

Serjeant Turner and Pemberton, contra; That the Action was well brought in Mid­dlesex, because the Plaintiff's Damage arose there, by not having the Body here at the Day.

They cited Bulwer's Case, and Dyer 159. b. and Agreed, That the Chancellor of the County Palatine Returns to the Court, the same Answer that the Coroners Return to him; so that their False Return is the Cause of the Prejudice that accr [...]es to the Plaintiff in this Action, the Ground whereof is the Return of Non est inventus; which is the Act of them all.

That one of them saw him, and might have Arrested him, and that the Defendant was daily to be found, &c. are but men­tioned as Arguments, to prove the False Return.

[Page 203] And they Conceiv'd, That an Action would no more lye against one Coroner, than against one Sheriff in London, or any other Place, where there are two.

Then, as to the first Objection taken by Baldwyn, they said, That admitting the Action to be laid in another County than where it ought; yet after Verdict it is Aided by the Statute of 16 & 17 Car. 2. if the Venire come from any place of the County where the Action is laid: It is not said, in any place of the County where the Cause of Action ariseth. Now, this Action is laid in Middlesex, and so the Trial by a Middlesex Jury is good, let the Cause of Action arise where it will.

Cur', That Statute doth not help your Case; for it is to be intended, when the Action is laid in the proper County, where it ought to be laid, which the words Proper County implies.

But they inclined to give Judgment for the Plaintiff, upon the Reasons given by Turner and Pemberton.

And see Keble, Vol. 2. Pl. 8. Tit. Escape, Hepping against Huneyard, where, in an Acti­on on the Case, for Rescuing of one taken in Execution, after Verdict.

Stroud moved to stay Judgment, on Het­ley 34. That no Action upon the Case will lye against the Sheriff, or by him: Sed non allocatur, for the Sheriff may be a Beggar; and therefore though the Plaintiff may have an Action upon the Case against him [Page 204] for the Escape, yet he may take the Prisoner again.

And as to its being said, That the Party being Arrested by the Sheriff of Devon, at Topsham, the Defendant rescued him at Exeter; the Court agreed, the Escape to be the same all over England; but that it ought to have been shewed, how the Party came into Exe­ter: For this cannot be intended; nor (be­ing the Substance of the Matter) is it Aided by the Statute of 16 & 17 Car. 2. cap. 8.

And Idem Vol. eodem Pl. 26. Frain & Uxor Administratrix of Smalman versus Painter, where, in an Action of Debt for Rent, the Plaintiffs did declare, That the Intestate, out of his Term, made an Under-Lease to the Defendant, yielding and paying, &c. and that the Intestate died (such a Day,) and Administration was committed to the Plain­tiff's Wife.

To which the Defendant did plead, That the Intestate Assigned to K. to commence after his Death; Absque hoc, That he died possessed of such a Term, prout: And upon this Traverse Issue was joyned, and Verdict for the Plaintiff.

And to stay Judgment, Sanders Ob­jected:

(1) That the Action was in the Debet and Detinet; which cannot be by Admini­strators, as Plaintiffs.

[Page 205] (2) That the Rent is reserved Half-yearly, and there is a Year and Quarters Rent found due, which is impossible.

Iones pro Quer', The Right is Tried, and so the Declaring in the Debet and Detinet, when it ought to have been in the Detinet only, is Aided by the Statute of 16 & 17 Car. 2. cap. 8. of Ieofails, as in the Case of Cumber against Walton.

(3) The Exposition of the Year and Quarter is well enough, the Time being one of the Terms upon which it was re­served.

Cur', If it did not appear the Plaintiff were Administrator, as it doth, the Debet were of the Substance, and Aided by the Statute, which the Court agreed; and the Second Exception was mistaken, otherwise it had been ill.

And Idem Vol. eodem Pl. 51. Tit. Slander, Croft against Winter; where an Action upon the Case was brought for words spoken in London of a Minister, viz. He is a Thievish Rogue, and stole a Plate out of Wadham-Col­lege in Oxon. And the Plaintiff having a Verdict in London to stay Judgment,

Sanders moved for the Defendant, That here was a Mis-Trial, Mis-Trial. which ought to have been at Oxford; as in Ford and Brook's Case, Cro. Part 3. 261.

[Page 206] Iones contra, on the Statute of 16 & 17 Car. 2. cap. 8. this being Tried by a Jury in the proper Place, and the Justification should have been in London, the Felony being Transitory and not Local; as Robbery, &c.

And the Court Agreed, this was a Ieo­fail. Ieofail.

Twisden, The Felony is Local, whether it come in by way of Justification or Declara­tion; and as in the Case of Throbwalke, the Justification makes the Matter to arise there; as where a Constable, on an Action laid here in London, doth Justify in Essex, there the Trial must be in Essex.

Keeling Chief Justice, and the Court Agreed to it in the Case of a Constable: But in Case of a Sheriff, or Bailiff, its Aided by the Statute, especially the words being confest to be spoken in London. And Judgment was Affirmed.

CHAP. VIII. Of Intendment.

IN the next place we shall give an Ac­count, more amply than before, What Construction the Law doth make of the Intention of the Parties, as to Contracts, and other Mat­ters.

And for this, first, see Cro. 1 Part 141. Paynter versus Paynter, Trin. 6 Car. 1. in B. R. where, in an Action upon the Case sur As­sumpsit, the Plaintiff declared, That the De­fendant Promised, if the Plaintiff, ad ejus Instanciam, would Marry his Daughter, he would pay unto him 20 l. and give to him 20 French Crowns towards a Wedding-Din­ner.

And the Plaintiff saith in Fact, That he Married the Defendants Daughter, and re­quired him to pay the 20 l. which he had not paid.

Upon Non Assumpsit, it being found for the Plaintiff, it was Moved, That the De­claration was not good; for the Promise is but Conditional, viz. If the Plaintiff, ad In­stanciam Defendentis, would Marry the De­fendants Daughter; and so he hath not Averred the Performance of the Condi­tion.

[Page 208] But the Whole Court conceived upon this Agreement, To Marry the Daughter ad Instanciam, and he Marrying her; it shall be Intended, ad Instanciam, without Aver­ment.

And see Cro. 1 Part 163. Mich. 7 Car. 1. in B. R. Taverner and Skingles Case; where the Plaintiff Declared in Debt upon an Obligation, with Condition to Perform the Award of I. S. and I. D. so that they made it before the 10th Day of October next, under their Hands and Seals: And if they do not Agree, then to stand to the Umpirage of I. N. so that he made it in Writing under his Hand and Seal, before the 28th of October following.

The Defendant pleaded, That I. S. and I. D. did make no Award before the 10th day of October.

The Plaintiff Replied, It is true, They did not; but I. N. did make the Umpirage and Award before the 28th day of October, (inter alia) the Defendant was to pay 30 l. unto the Plaintiff upon such a day, at such a place: And for Non-payment, &c.

It was Moved, That the Submission was void, and incertain; for it is,— That if they do not Agree; and it doth not appear to what they should agree; sed non allocatur, for the words, If they do not Agree, have the Intend­ment— If they do not Agree, to make their Award under their Hands and Seals before such a day. For otherwise it is quasi a Non-Agree­ment within the Condition.

[Page 209] (2) It was Objected, That the Award was void, because the Money was appointed to be paid at the House of one W. S. a Stranger; sed non allocatur; for the Appoint­ment of the Payment of the Money at a Strangers House (especially as here, being a Common Inn) cannot be unreasonable, nor an unlawful Act; for, by Intendment, the Plaintiff shall procure such Kindness, that the Mony may be paid there; so the Award was Adjudged good prima facie, and the Plaintiff had Judgment.

And see Style's Rep. 465. Wood and Gun­ston's Case, Mich. 1655. in B. R. where in an Action upon the Case, for Scandalous words spoken of the Plaintiff, viz. for calling him Traytor; the Issue was tried at the Bar, and the Jury found for the Plaintiff, and gave him 1500 l. Damages: And upon Supposi­tion, that the Damages were Excessive, the Defendant moved for a New Trial.

It was said, That after a Verdict, Par­tiality of the Jury ought not to be Objected or questioned, and therefore no New Trial.

Glyn Chief Justice: It is in the Discretion of the Court to grant a New Trial; but that must be a Judicial, and not an Arbitrary Discretion; and the Court may take notice of the Miscarriages of Juries, and grant New Trials upon them: For a Jury may sometimes, by Indirect Dealing, be moved to side with one Party, and not to be Indiffe­rent between both Parties; but it cannot be so Intended of the Court. And a New Trial was Awarded.

[Page 210] And see Co. Lib. 5. 120. Long's Case, where in an Indictment of Murder, Error was alledged, because the Indictment was said to be taken before W. S. Coronatore Do­minae Reginae infra Libertatem dictae Dominae Reginae Villae suae de Cossam praedict' per Vi­sum Corporis; and it was not alledged to what Places the Liberty did Extend, nor what part, or any part of the Town of Cos­sam, was within the Liberty: So as it doth not appear, that the Coroner had Juris­diction; and it was said, That Indictments which do concern Life, and which are the King's Counts, ought to have a plain and precise Certainty, to which the Party may answer, and shall not be taken by Argu­ment.

But Resolved by the Court, that the In­dictment was good enough: For if an In­dictment be Certain to a general Intent, the same is good enough: And in this Case the Indictment is certain enough to a general Intendment, because Cossam is within the Liberty of Cossam; and that the Town it self shall be Intended to be out of the Liberty of the Town, is a strain'd Construction, which the Law will never allow of.

And see Co. Lib. 4. 65. Fulwood's Case, Mich. 33 Eliz. where A. being seised of a House in London, acknowledges a Statute to the Chamberlain of London, for Orphanage-Mony, according to the Custom; and after­wards acknowledges another Recognizance before the Recorder and Mayor, to B. who [Page 211] sued Execution thereupon, and had a Li­berate, but it was not Returned; and the Sheriffs, upon that, delivered the House in Execution to B.

The Successor of the Chamberlain sued Execution upon his Recognizance, by Elegit, to the Serjeant at Mace.

Amongst other Matters in this Case, it was Objected;

That here was no Recognizance in the nature of a Statute found; for the Jurors have found— Quod A. veniebat coram Re­cordatore Civitatis London, & T. O. Majore Stapulae, Et recognovit se debere B. 200 l. and doth not say,— Secundum formam Sta­tuti, &c. nor— Per scriptum suum Obligato­rium.

Whereas the Statute of 32 H. 8. provides, that it shall be by Bill Obligatory, sealed with three Seals. But it doth not appear by the Verdict, that it was according to the Statute, and although that Verdict, being the words of Lay-men, shall be taken ac­cording to their meaning, and there needs not so precise Form in them, as in Pleading; yet the Substance of the Matter ought to appear either by Express words, or by words Equivalent; so as there ought to be a convenient Certainty, the which, if it be false, the Party for such Falsity may have an Attaint.

But it was Resolved, that the Verdict was good; for inasmuch as they have found a Recognizance before the Mayor and Re­corder, [Page 212] &c. It shall be in a Verdict of Lay-men, Intended according to the Statute, for otherwise they cannot take any Record; and also the sequel of the Verdict doth im­ply, That there was a Recognizance in the Nature of a Statute, otherwise no Execution could be sued thereupon.

CHAP. IX. Of Bills of Exception.

THen touching Bills of Exception.

This (as it seems by 27 H. 8. in Ta­tam's Action upon the Case) is, when one of the Parties, for the Insufficiency of the Evidence on the other side (as he conceives it) doth offer to Demur upon the same, and the Court thinking it to be good, or the other Party Refusing the same, do not Agree to it; then the Court ought (upon Request) to Seal to the Party, so refusing, this Exception in a Bill, which upon a Writ of Error (as appears by Fitzh. Nat. Brevium) may be assigned for Error; Stat. VVestm. 2. cap. 31. whereupon, by the Statute, a Writ (if need be) is to be Awarded to those Ju­stices, to acknowledge or deny their Deed; but (as it seems) by the said Book of 27 H. 8. need not, de Rigore Iuris, be allowed in Arrest of Iudgment.

[Page 213] And it appears by Fitz. Natura Brevium, and 11 H. 4. That this Bill must be Sealed be­fore Iudgment, and not after.

For the Formal Drawing up of Bills of Exception, see one to the Evidence upon the Trial at the Assizes, in an Action of Tres­pass, Assault, and False Imprisonment, brought by Verdon against Decele, Heyward, and others, in the King's- Bench, Hill. 33 & 34 Car. 2. in Brownl. Latine Redivivus, Tit. Bills des Ex­ceptions, and ibid. Mich. 32 Car. 2. where a Writ of Error was brought in the King's- Bench at Westminster, upon a Bill of Exception, to Evidence upon a Trial at the Bar of the Common-Pleas Court in Ireland, upon an Ejectione firmae, with some others there, under the same Title.

CHAP. X. Of Verdicts.

A Verdict, is the Answer of a Iury, made upon any Cause committed by the Court to their Trial: Which is twofold, Special, or General.

A Special Verdict is, when they say at large, That they find such and such Matters to be done by the Tenant, or Defendant, so de­claring the Course of the Fact, as in their Opinions it is proved; and as to the Law upon the Fact, they pray the Advice of the Court thereupon.

And this Special Verdict, if it contain any ample Declaration of the Cause, from the beginning to the end, is also called a Verdict at large.

Whereof see divers Examples in Stam­ford's Pleas of the Crown, Lib. 3. cap. 9.

A General Verdict is that which the Jury find in General Terms, upon a General Issue:

As in an Action of Disseisin, the Defen­dant pleads, No Wrong, No Disseisin; then the Issue is General, whether the Fact be a Wrong, or not; which being put to the Jury, they weighing the Evidence, do either bring in their Verdict for the Plaintiff, That it is a Wrong, and Disseisin; or for the De­fendant, [Page 215] That it is No Wrong, No Disseisin. Vid. Co. 1 Inst. fo. 228. a. and New Book of Entries, Tit. Verdict.

First, As to a Verdict, it must be sufficient in Matter and Form, be the same Special or General; as, if the Jury do not Assess Costs and Damages, where the same ought to be found, and the like.

And therefore 21 Ed. 4. 11. where a Tender of Homage was found to be made, and not shewed in what County; the same was ill. Quaere thereof, for it appeared in the Plead­ing, &c.

Next, Damages; where to be found Entire, and where Several. where the Damages are to be found entire or several,

Touching which, see a good Case in 1 Ed. 5. 5. where the Plaintiff did Count in Detinue of Damages touching every part in several; and the Jury found for the Plaintiff to the Damage of Twenty Pounds entirely, if the Things could not be had; where, by the Better Opinion, the Damages ought to be found several, as the Declaration was.

See the same Case more at large in Bro. Tit. Count; and so is 3 H. 6. 43.

And by 9 H. 6. 66. in Wast, the Iury ought to sever the Damages for every several Tree, and every several Parcel; but in a Writ to Enquire of Damages, shall find none, be­cause Confest.

And 8 H. 4. 6. The Iury severed the Da­mages in a Praemunire, against the Principal and Accessary, as they ought to do.

[Page 216] And so 19 H. 6. 32. in Forcible Entry, where some found, to Detain Forcibly, and others, to Enter Forcibly.

And see also in the Title Damages, in Brook, 22 H. 6. 73. where several Issues, several Damages.

And see there afterwards, how Damages may be severed; and so it is better to be many times: But Costs, according to 36 H. 6. must be entire.

And 17 Ass. 22. in Trespass against Two, where one was found guilty of part, and the other of other part, the Damages severed. And so is 22 Ass. 76.

But 29 Ass. 33. if one Person be found guilty of several Trespasses, the Damages may be assest entirely.

And see Bro. Damages 118. 5 Ed. 4. That if one of the Issues be a Ieofail, and the Da­mages entirely Assest, 'tis both ill.

And 11 H. 7. 19 & 20. in Trespass against Two, of two Horses taken severally, Damages must be several: Otherwise, if one be charged with several Trespasses.

See more hereof in the said Title of Da­mages, in Bro. Abridgment.

And, Verdict ayd bon Pleading. Where a Verdict shall make ill Pleading good, see before in the Title of Pleading, in that Special Division.

As 21 H. 6. Bro. Verdict 91. where the Demandant intending to Counter-plead a Resceit said, That the Plaintiff Riens avoit Iour del Brief, and said not, Ne unque puis, which was ill; yet, if it be found for [Page 217] the Priee, the Verdict hath made the Plea good; otherwise not. The like of Non­tenure.

But by Brook, The same after Verdict is helped by the Statute of Ieofails.

The like 22 Ed. 4. 46. Que le Baron ne suit seisie que Dower jour del' Espousals.

The like 5 H. 7. 14. If an Executor plead, Riens entermains Iour del Brief, &c.

The like 6 H. 7. 6. 3. H. 7. 8. and 20 H. 6. 22.

Then, Verdict contr­al' Matter de Record. Where the Verdict is contrary to other Matter of Record.

As 11 H. 6. 42. Bro. 96. in a Writ of Error, the Death of one of the Parties to the Writ was alledged such a Day, Et alii è contra; and the Death found accordingly; yet be­cause it appeared by the same Record, That the said Party alledged to be dead, had ap­peared three Days after in Person at the Nisi prius in the first Action, therefore this Verdict was holden a Ieofail.

And 14 Ass. 9. the Special Verdict was found a Record for the Defendant; and the Plain­tiff, to disable the Verdict, shewed the Record to be otherwise, and good.

And 25 Ass. 2. The Defendant in an Assize did plead, That he did Enfeoff the Plaintiff within Age, and after did Enter upon him. To which the Plaintiff Replied, That the Defen­dant was at Age the same time, and so found accordingly; and the Party being in the Court in Person, was Adjudged by Inspection within Age, and that stood, and the Verdict holden for none.

[Page 218] And so 9 H. 6. 37. If the Defendant in Debt Plead Matter, that proveth his Deed, and yet conclude Non est factum, and it be found accordingly; yet Judgment shall not be given upon the Verdict, but upon his own Confession; quod nota.

And 3 & 4 Mar. Dyer 147. a Verdict could not find, That the Party himself was Estopped by Indenture.

Then, Of Special Verdicts. touching Special Verdicts, there is a Statute, viz. Westminster the 2d, which says, Quod Iustic' ad Assisas non Compellerentur, &c.

By Equity whereof, as it appears in the Parson of Homeland's Assize of Fresh-Force, in Plowden's Commentaries, as well upon every Special Issue, as General, the Jury may give a Special Verdict; where the Issue in that Case was upon the Entry, pendant le Brief.

And so are divers other Books to that Intent; as 33 H. 6. 30, & 31. and 18 Ed. 4. 48. upon the Plea of Non Detinet.

And so 43 Ass. 1. upon the Issue Frank, & de Frank Estate.

And so 42 Ed. 3. Bro. 85. upon the Issue, Ne unque seisie que Dower, or, Ne dona pas.

And so 41 Ed. 3. 10. where the Resceipt was Traversed.

And so 33 H. 6. where the Issue was, If the Grantor of a Rent, had any thing at the Time of the Grant.

[Page 219] And so 3 H. 6. 3. upon the Issue of Assets entermains, and Assets per discent. And so in every General Issue.

Yet 7 H. 4. 11. upon the Issue of son Frank­tenement, the Court would not suffer a Special Verdict.

But 1 & 2 Mar. Dyer 117. One did Tra­verse a Lease, and the Iury found specially, and awarded to Replead.

And so 11 Eliz. Dyer 284. in Crowch and Butler's Case, where the Issue was by an Absque hoc, and not a General Issue.

But 30 Ed. 3. Fitzh. Abridgment Tit. Iudg­ment, in Parco fracto the Defendant said, That the Plaintiff's Wife delivered the Beasts out of the Pound, Absque hoc, que il infreint le Pound; and the Jury found a special Verdict, That the Headborough, in the absence of the Baily (according to Custom) did deliver the same, and good; and the Defendant dis­charged, although the Verdict be Special, upon the Issue of Absque hoc, because there it is as a General Issue.

And so is 32 H. 8. in an Assumpsit to make Two things: The Defendant said, That he did assume to make other Two things, without that, that he did assume in such man­ner, &c. and found that he did assume to make one of the Things contained in the Declaration, and not the other, and the Ver­dict, for that last recited Reason, good for the Plaintiff for that one Thing. Otherwise, if an Issue be upon a Traverse Absque hoc, That A. and B. did Enfeoff.

[Page 220] And see in Plowden's Commentaries in Walsh's and Sander's Case, That upon an Indictment of Felony a Special Verdict may be found.

And it appeareth also, Mich. 1 & 2 Eliz. Dyer 173. That in an Attaint a Special Ver­dict was received.

Then ought to be known, Of what things the Jury may take Cogni­zance. What things the Iury may take Conuzance of in their Verdicts; as namely, Matters in a Foreign County, Condi­tions, Records, Releases, and the like.

And, Of Matters in a Foreign County. first, touching Matters in a Foreign County, the Book of 22 Ed. 4. 19. is, That upon the General Issue in Decies tantum, the Jury may take Conusance of Mony taken in ano­ther County: The like of Assets, but need not be thereunto enforced; Qu. inde, because Transitory, and not like to Trespass in Land; but may not Specially find the Ta­king in another County.

And so seems 1 Ass. 16. That they could not find the Death, or a Letter of At­torney expresly in another County. Quaere tamen. Et vide Bro. 24.

The like 7 Ed. 4. 15 & 16. of a Resignation in another County, or a Divorce.

And 3 & 4 Mar. Dyer 132. the Iury found a Lease in London, and alledged as an Ex­ception. And touching the Damage that ariseth in another County by an Act they are bound to find; as Battery of the Plain­tiffs Servants in one County, by reason where­of he lost their Service in another County, although it be so declared.

[Page 221] And by 9 H. 6. 62. in Trespass of Battery, or Taking of Goods, the Iury may find him Guilty in another Town in the same County: Otherwise of Trespass Local.

But by 2 Ed. 3. 11. cannot Expresly find a Tender of Homage in another County.

And it appeareth 7 H. 6. Fitzh. Abridgment, Tit. Assize 359. that the Iury may Specially find a Condition annexed to a Feoffment, ac­cording to Littleton: But otherwise to a Release; but may not find a Waranty, because that cannot be without Deed. And in a Writ of Right, the Iury may find a Release of Right; but not a Collateral Waranty.

And so is 33 Ass. 11. touching a Feoffment upon Condition.

And so 28 Ass. 17. and 17 Ass. 20. of a Confirmation that doth Enlarge an Estate; otherwise not: But not a Release.

16 Ass. 15. and 43 Ass. 41. A Feoffment given in Evidence, the Iury in respect of the Livery are bound to find; but may not take Conusance of a Release.

And by 21 Ass. 28. the Jury did find a Feoffment upon Condition, not given in Evi­dence.

Then, How the Iury may find a Matter of Record. How the Jury may find a Matter of Record.

See, first, 3 H. 7. and 2. H. 4. That if a Iury find an Utlary, or a Writ of Non Mo­lestando, or another Matter of Record, the same is void.

Yet 28 Ass. 17. a Verdict found a Recovery, &c.

[Page 222] And 26 Ass. 5. Verdict found a Fine not pleaded, or given in Evidence sub pede sigilli, whereof is a Mirum made in the Case, by the Reporter: And so the like, the same Year, Placito 3. upon a Recovery found by Verdict.

And 26 Ass. 2. The Verdict in an Assize found an Attainder, and the Court there took it ill.

But touching this Learning see Newse's and Scholastica's Assize in Plowden's Com­mentaries; where 'tis said, That a Note of a Fine, or a Recovery, without the Record it self, Sub pede sigilli, or the Number-Roll, may be given in Evidence, if the Jury will so accept of it: Otherwise of Pleading the same.

And so holden without doubt upon the same Book 26 Ass. and other Books, That the Iury may; and in some Cases ought to find a Matter of Record, which seems, when given in Evidence, Sub pede sigilli.

See more hereof in the Chap. of General Issue, and Special Evidence, antea.

Then, Spiritual Mat­ter, how to be found by the Jury. How the Iury shall find a Spiritual Matter.

First, see 21 H. 3. 9. where a Verdict in an Assize found, That the Father of the Te­nant had taken the Order of a Deacon, and after Married the Defendants Mother, &c.

And 8 Ass. 5. it was holden, That the Jury in an Assize, may find the Plaintiff or De­fendant to be a Bastard; but if it were [Page 223] Pleaded, it shall be Tried by a Certificate from the Bishop.

And 29 Ass. 2. A Verdict in an Assize found a Divorce; for that it is not a Matter of Record, but a Matter in Fait; quod nota.

Then, Where the Jury find a Special Matter, and Conclude con­trary. it appears in Amy Townsends Case, in Plowden's Commentaries, That if the Jury, or an Office, find a Special Matter, and Conclude contrary, the Court shall not in their Judgment respect the Conclusion, but the Special Matter found; quod nota.

And so is 28 Ass. 17.

But, as appears, 16 Ass. 15. if they find a Special Matter, and Conclude according to the Law, the Special Matter is waived.

And see 18 Eliz. Dyer 153. The Jury found, Quod non Concessit prout Def. &c. when it should be the Plaintiff, and Assigned in Error.

Then, Verdict vary­ing from Issue; where good, and where ill. In what Cases the Verdict, varying from the Issue, shall be good, and where ill, and for whom the same doth find.

For which see before in this Chapter of Verdicts in the Division of Special Verdict, and in the Chapter of Issues, where they find Part, or another Day, and the like: And see the Titles Count or Declaration, and Tra­verse; as also the Cases ensuing, viz.

36 H. 6. 2. In the Case of Nul tiel Record pleaded, and a Recognizance upon Condition certified.

[Page 224] And 16 Ass. 19. it's holden, That upon the Issue, Ne enfeoffa pas, the Verdict may find a Conditional Feoffment.

And 30 Ed. 3. 5. the Defendant in Account did plead Pleinment Accompt devant A. & B. and the Verdict found, That he did Ac­count before B. tantum; and a good Verdict for the Defendant; quod nota.

And 21 Ed. 4. 10. in Entry, upon the Sta­tute of Ric. 2. the Verdict upon the General Issue found him guilty of Entry only into two parts of the same, and good accord­ingly.

And 10 H. 6. 13. in Debt against the Heir, who pleaded Riens per Discent; to which the Plaintiff Replied, Assets in Dale, and the Verdict found Assets in S; and a good Verdict, for the Place is not material.

And 1 Ass. 14. if one of the Defendants in an Assize be acquitted, yet the Plaintiff shall have Judgment against the other; and yet they Pleaded Joyntly to the Plaint, Non Disseisiverunt.

See 2 Ed. 3. 49. Brook, Tit. Verdict 20. If Executors plead, Plene administraverunt, and it be found, That they did fully Admi­nister to Ten shillings, the Verdict doth pass against them, and shall answer the whole Action. Quaere inde.

And 7 H. 6. 33. the Issue was upon the Feoffment of A. and B. and the Verdict found, That A. did only Enfeoff; and, by the Better Opinion, found against him that doth plead the same. Quaere inde.

[Page 225] And 40 Ed. 3. 35. If in Debt against Two, who plead Non est factum, it be found to be the Deed of one of them, and not of the other, yet the Plaintiff shall Reco­ver.

And see 28 & 29 H. 8. Dyer 32. where one Declared in Debt upon a Lease of Twenty Acres: To which the Defendant pleaded, That the Plaintiff Lett the same Twenty Acres, and Four Acres over, sans ceo que il demise les 20 Acres tantum; whereupon they were at Issue, and the Verdict found the Demise only of 21 Acres; and great Doubt was, for whom the Verdict was found, or whether for neither of them, and so a Ieofail.

And see Dyer 1 & 2 Mar. 115. in Debt upon an Obligation, the Breach of the Con­dition was assign'd in Cutting down Twen­ty Oaks, and Issue thereupon; viz. Quod non succidit praedict as viginti Quercus, nec earum aliquam: And the Jury found, that he Cut Twelve, and the Plaintiff had Judg­ment.

And see 22 Eliz. Dyer 367. in an Infor­mation of Usury the Defendant did plead; Quod non habuit aut acceptavit praedictas Octo­ginta libr as pro lacro, &c. and the Jury found, Quod acceptavit quadraginta libras; Et pro Resid', Non Culpabilis; which was there (among other things) assigned for Error, and nothing else taken notice of.

[Page 226] And see 47 Ed. 3. 19. One did pray to be Resceived in Default of the Tenant for Life, and the Demandant said, That the Tenant had Riens, Prist, and so at Issue; and the Verdict found, That neither the Tenant, or the Priee, had any thing: Where holden, That it was found against the Priee; and the other Matter, Que ils ne unque ount Riens, not Material; quod nota.

And see 36 H. 6. 29 & 30. If a man in Pleading confess any thing contrary to his Form of Action, his Writ shall abate; but otherwise if the Verdict find the same.

Then, Where the Jury find more than is in the Issue. Where the Iury find more than their Issue.

Vide 45 Ed. 3. 25. the Defendant in Trespass of Battery did plead the General Issue, and the Verdict found the Defendant Guilty the day mentioned in the Declaration, and ano­ther day also, ad dampnum decem librarum; and good, for intended the Assault did con­tinue.

And 26 Ass. 35. the Verdict did find, that the Plaintiff in the Assize, was seised and disseised, but no Disseisor named, and the Writ did abate, although not pleaded.

But 39 H. 6. 13. in Mordancestor the Defen­dant did plead a Bar, which was found against him; and the Jury enquiring fur­ther of the Points of the Writ, did find against the Plaintiff; and yet Judgment given for him, because there the Points of the Writ ought not to be enquired of.

[Page 227] And see 7 H. 6. 8, 9, 20. if the Verdict found the Issue, and more; as the Issue there being upon a Discent, do find the same, and a Continual Claim, that, as to the Continual Claim, is Surplusage.

And so 39 Ed. 3. 38. the Plaintiff did Count in Annuity by Prescription, which was Tra­versed by the Defendant, and the Verdict found for the Plaintiff, and also Riens arrear, and Holden, as to that Surplusage.

The like 13 Ass. 4. in an Assise of Rent the Defendant made Default, and the Plaintiff, to ascertain the Count made Title to a Rent-Service, and the Jury found a Rent by Prescription, and yet the Plaintiff Reco­vered; quod nota.

And 13 Ass. 2. in an Assize by I. S. Clerk; the Verdict found, That he was Prebend, Nient nosm; and the Assize did abate.

See more hereof in the Division, imme­diately before the last Case.

And, Verdict for the Plaintiff; yet he is Barred. In some Cases the Verdict found for the Plaintiff, and yet he shall be Barred.

As 40 Ass. 6. in a Mortdancestor all the Points of the Writ found for the Plaintiff, and yet he was Barred for this Reason; for although he was Heir to his Father, yet because his Elder Brother by the Half-Blood did Enter, he was Barred.

[Page 228] Then, Where the Jury give divers Verdicts. Where the Iury give divers Ver­dicts.

As Mich. 3. & 4 Eliz. Dyer 204. To part they gave a Verdict at the Bar for the Plaintiff, and being Remanded to enquire of the rest, came again and changed that Verdict, and with the rest gave for the De­fendant.

So in Sander's Quid Iuris clamat, more strongly, where the first was but a Private Verdict; quod nota.

And know, Verdict must be by 12, except by Writ of Inquiry. That every Verdict, unless by Writ to Inquire of Damages, ought to be by Twelve.

And therefore 41 Ass. 1. a Verdict taken at the Assizes by Eleven, when the Twelfth would not agree, 'twas holden ill, and a new Venire facias awarded, and so the Original stood; quod nota.

Where said, That the Justices ought to have carried them in Carts; and by other Authority, The Justices may Fine such a Jury for their Obstinacy, after Examination.

And Observe, Verdict de bene Esse. That if a Protection be laid at the Assizes, and the Justices doubt, whether the same do lye, or not, they may take the Verdict de bene Esse; as 35 H. 6. 58. and other Books are.

Then, Where the Verdict shall be void in part, or a Ieofail. Where the Verdict shall be void in part, or in the whole; or where a Repleader, and a Scire facias de novo.

[Page 229] See the Cases before in this Chapter of Verdict, especially in the Division of Special Verdict; or where it doth vary, or is con­trary to the Issue.

And see afterwards in Misdemeanour of the Iury, and the same Case of 41 Ass. of the Verdict by Eleven; and 2 & 3 Mar. Dyer 132. a Doubt only moved, Whether a Verdict shall be void in the Whole, or not.

And, Lastly, Misdemeanour of the Jury, where it makes a Verdict ill. Where the Misdemeanour of the Iury, or one of them, shall make the Verdict ill.

See Brook in the Title of Verdict; as namely 20 H. 7. 3. where all of them did Eat before they did Commune of the Ver­dict, at their own Costs, and the Verdict good; but if at the Costs of the Party for whom they found, then ill; otherwise not.

Where its said also, That in respect of Necessity or Sickness, one or more of them may Eat, or Drink.

And accordingly is 14 H. 7. 29. where the Jury, at the Nisi prius, by reason of a sudden Tempest departing from the Bar, one of them entred into an House, where he drank at the Request of a Stranger; that told him, The Earl of Kent' s Part was better; as well for that the Verdict was found against the Earl of Kent, as that the Matter was not shewed in time before Ver­dict; but it was Cause sufficient to Fine the Juror.

[Page 230] The like of an Escrowl delivered to one of the Jurors, &c.

And accordingly is 24 Ed. 3. 24. the Justice at Nisi prius being informed, That the She­riff had let the Jury go at large, to Eat and Drink, Refused the Verdict, Fined the Jury and the Sheriff, and awarded a New Venire facias for Trial of the Cause.

Yet see 14 H. 7. 1. where, in the Common-Pleas, the Jury found for the Plain­tiff, and yet the Defendant had a New Venire facias; for that the Jurors, after their Charge, did Eat and Drink, and Disallowed the first Verdict.

And it appears in Welden and Elkington's Case, in Plowden's Commentaries, That one of the Iurors was Fined, for having a Box of Marmalade about him; but the Verdict not avoided: But after a Privy Verdict, as is 2 H. 4. 21. and 5 Ed. 4. 6. 1. and at their own Expences, the Iury are suffered to Eat and Drink together, until, &c.

CHAP. XI. Of Iudgments.

NExt in Order, Forms of Judg­ment [...]. We shall Treat of Iudg­ments.

And, First, touching the Form of a Iudg­ment, see 3 H. 4. 2. That whether the Plea be to the Writ, Count, or in Bar, and Judgment thereupon to be given for the Defendant, that the Words of the Iudg­ment are all one, and shall be Expounded either Peremptory to other Actions; or otherwise, as the Matter of the said Plea doth require.

As if one doth Demur upon the Count, the Judgment shall be, Eo quod Insufficiens est in Lege Quer' nichil Capiat per Breve: Or Generally, Nichil Capiat per Breve (sive Billam,) Et quod Defend' Eat sine die; and shall, as before, in another Action be Pe­remptory, or not, as the Case of the first Plea requireth.

And 3 H. 4. 11. In Debt in London, the Defendant pleaded a Foreign Plea, and Iudg­ment was given for the Plaintiff, Quod Quer' sequatur ad Communem Legem, Et quod Def­eat sine die; and there, in a New Action doubted, whether this Judgment might be pleaded in Bar.

[Page 232] And 3 H. 4. 18. in that Case the Iudg­ment is recited to be, Quod Quer' nichil Ca­piat per Breve, Et quod Def. Eat sine die; quod nota.

In the next place, What Day Judgment shall be given. What Day Iudgment shall be given.

For which see 9 Ass. 11. That it shall not be given until the Fourth Day; and if a Writ of Attaint bears Date before the said Fourth Day, it shall abate.

Then, Where, i. e. in what Court Judgment shall be given. Where Iudgment shall be given.

For which see 21 H. 7. 35. where its said, That if an Office Traversed in the Chancery, be sent into the Common-Pleas to be Tried, the Judgment shall be given there, because the one Court and the other is coram Rege.

And 6 Ass 4. 16. That if an Assize upon a Foreign Release pleaded, be Adjourned to be Tried in Banco, and found for the Plain­tiff; if he will Release his Damage, he may have Judgment there: Otherwise, it shall be Remanded to Inquire of Damages.

Then shall be shewn, Causes to stay Iudgment. What be Causes to stay Iudgment.

As 11 H. 4. 10. and 19 H. 6. 10. If the Court think the Damages given to be too great (as the Cases were there in Trespass and Replevin) the Court may stay Iudg­ment, until the Plaintiff have Released part of the Damages.

[Page 233] And so 11 H. 4. 17. where, after Verdict, it did appear by Examination, that one of the Parties had delivered an Escrowl to the Jurors.

And so 11 H. 4. 71. If it appear by Matter of Record, That the Land is in the King's Hands.

And 39 Ed. 3. 35. The Court upon Dis­cretion did stay Iudgment, because it was supposed the Action to be brought by Co­vin.

Then, Judgment final. Where Iudgment shall be Final.

It appears 26 H. 8. 8. That before the Mise is joyned in a Writ of Right, or where the Tenant in that Action Voucheth, no Iudg­ment shall be final against the Vouchee.

Yet see 44 Ed. 3. Bro. Iudgment 45. A Feme Covert was Received, and did Joyn the Mise, and Judgment final given against her; yet thereof, and of an Infant, left doubtful, 9 Ed. 4. 16.

See Fitzh. Nat. Brevium, in his Writ of Right.

Then, Where the Plaintiff may have Judgment for part, and relinquish the rest. Where the Plaintiff may have Iudg­ment for part, and Relinquish for the rest.

For which see, first, 16 H. 7. 17. where the Plaintiff in Debt did Count part upon a Lease of Land in London, and part of other Land: As to the first, they were at Issue in London; and to the rest, at Issue also to be Tried in a Foreign County; and the first Issue found for the Plaintiff ad damp­num xx d. and Costs xx s. and the Plaintiff [Page 234] did Relinquish the other Issue, and prayed Iudgment for that, and had it.

And in the like Case 32 H. 6. 4. the Plain­tiff demanded Judgment of that Debt found, and Damages, and Relinquished his Costs until the other Verdict found.

And so seems 3 H. 6. 37. and 42 Ed. 3. 25. In Debt, part upon an Obligation, and part upon a Contract: As to the Obligation the Defendant did Confess, and to the other the Plaintiff was Nonsuit, and yet had Judg­ment for the other.

And 50 Ed. 3. 11. in Trespass against Two, if the one of them be Attainted before the other appears, the Plaintiff shall not have Judgment against him before the other appear and Plead also; except he will Re­lease against the other.

And so 45 Ed. 3. 3. Where one of the De­fendants in Trespass doth make default.

And 36 H. 6. 13. the Defendant in Debt, as to Parcel pleaded tout Temps prist, and to the rest Nil debet; where its said, That the Plaintiff may have Judgment of the Parcel confest Maintenant, and of the Damages, for the Court may Tax the same; but Cesset Executio quousque, because of the Costs.

But 22 H. 6. 48. if in Debt the Defendant plead to the Issue for Part, and a Nil dicit to the Residue; as to the same the Plaintiff shall have Judgment presently; but as to the Damages, he shall stay until the other Issue be Tried, although it be in Cases where Damages ought to be severed.

[Page 235] But see 5 Ed. 4. 108. where in Trespass against Baron and Feme, the Baron did plead Non Culpabilis, and the Feme a Foreign Plea; whereupon Issue was taken, that was a Ieofail; the Plaintiff cannot relinquish the same, and Pray Iudgment against the Hus­band, because the Damages are not to be severed; but the Husband shall have advan­tage or disadvantage of the Verdict of his Wife, if the Issue were good.

So if Two other persons in Trespass plead severally, and the one of the Verdicts a Ieofail, because of the Entirety of the Da­mages: Otherwise, if the Defendants were severed in the Process, Pleading, or Demur­rer.

And in Trespass against Two, who plead Non Culp', the Plaintiff cannot sever his Judgment, but his Execution; and he must have Judgment before the Release.

And 5 Ed. 4. 124. it appears, That if divers Pleas be pleaded, and one of them goeth to the Whole, the Plaintiff may Release that for doubt of the Sequel.

And see 15 Ed. 4. 25 & 26. That if in Trespass against Three, one maketh default, and the other pleadeth a Plea that goeth to the Whole, the Plaintiff may pray his Judg­ment against him that made Default, and Relinquish against the other.

[Page 236] Then, Two Judgments in one Action. Of Two Iudgments in one Action.

As 36 H. 6. 2 & 3. by Prisot, in Ravishment of a Ward, the Judgment shall be of Da­mages with the Body; and if the Sheriff Re­turn, That the Heir is married, the Plaintiff shall have a Scire facias for the greater Da­mages; and upon that he shall have another Iudgment and Execucion.

The like by him in Detinue, and also in Debt against Executors; where in the one Case, if the Sheriff Return, That they are lost, and in the other a Devastavit, the Plain­tiff shall have a New Scire facias, and have Judgment de bonis propriis. Quaere, For, ac­cording to Littleton, the first Judgment shall be Conditional, viz. De recover les biens cu Gard, &c. Et si, &c.

And so is 22 H. 6. 41. in Detinue, according to Littleton.

And, Where Judg­ment shall be with Cesset Executio. Where the Plaintiff shall have Iudg­ment, but Execution shall cease.

See 24 Ed. 3. 61. in Dower, of Rent granted to Cease during the Nonage of the Heir.

Also in Perkins; and there likewise, where Dower is brought, and a Term in being before the Marriage.

And see 15 Ed. 4. 11. & 3. or 4 Ed. 3. 42. in Trespass against Three, they all plead Non Culp' as to part; and quoad resid' plead a Gift of the Goods, and Issue thereupon; and at the Nisi prius two make Default, and a third pleads a Concord, puis darrein Continu­ance, and prayed the Issue might be Tried against the two by Default; for that no [Page 237] Continuance can be made of it, they being absent; and if not Tried now, 'twill be Dis­continued.

Objected, That goes but to Part, and there is now a Plea which goes to the Whole, which is to be Tried first: For if that be against the Plaintiff, tho' he should have Verdict on the other, he can have no Judg­ment.

But for the Inconveniency, and for that this Plea to the Whole comes after the Venire facias, and the other was before, therefore 'twas Tried; but if both had been before the Venire facias, it could not have been: and 'twas found for the Plaintiff, and Judgment was had with a Cesset Executio till the other was Tried; for the Concord was laid in another County. So the Plaintiff Re­leased to him, and took Execution, tho' the Judgment was on the first Plea.

CHAP. XII. Of Executions.

EXecution is the last Performance of an Act, Execution, what. as of a Judgment in a Suit, viz. Where Judgment is given in any Action, That the Plaintiff shall Recover the Land, Debt, or Damages, as the Case is; and where a Writ is awarded to put him in Possession, or to do some other thing whereby the Plaintiff may be the better satisfied his Debt or Damages, that is called a Writ of Exe­cution; and when he hath the Possession of the Land he sues for, or is paid off his Debt or Damages, or hath the Body of the Defendant awarded to Prison, then he hath Execution.

And where the Plea is in an Inferiour Court, as County-Court, Hundred-Court, or Court-Baron, and they defer Execution in favour of either Party, or other Cause, then the Party may have a Writ de Executione Iudicii.

Vide Co. Lib. 6. fol. 87. a. Where is said to be two sorts of Executions, the one final, the other with a quousque, tending to an End.

An Execution final, is that which makes Mony of the Defendant's Goods, or Extends his Lands, and delivers them to the Plaintiff, which he accepts in Satisfaction, and is the End of the Suit, and all that the King's Writ Commands to be done.

[Page 239] The other Execution, with a Quousque, is tending to an End, but not final; as in the Case of a Capias ad Satisfaciendum, &c. which is not final, but the Body of the Party is to be taken, to the intent to satisfie the Plaintiff; and his Imprisonment is not absolute, but until the same be performed.

And by Co. Lib. 8. 141. the Method of ob­taining these Executions, are by certain Iudi­cial Writs, some of which are against the Person, some of them against the Goods and Chattels, some of them against the Lands, and some against the Body, Goods, and Lands.

And by Co. ubi supra, The Execution for Debt, is Fourfold:

• 1. Of Goods only, by Fieri facias.
• 2. Of the Moiety of Lands, by Elegit.
• 3. Upon a Statute, or Recognizance.
• 4. Of the Body, by Capias ad Satisfacien­dum.

Then, Against whom Execution by Capias will lye. Touching Executions upon Iudgments by Writs of Capias ad Satisfaciendum.

First, Shall be declared against what Per­son an Execution will lye by Capias.

As namely, 26 H. 8. 7. Not against an Ab­bot; but upon a Testatum, the Plaintiff may have an Elegit into another County: Otherwise of a Knight; the like as an Abbot, of a Bishop, Duke, &c. if it be not upon a Rescous, or other Contempt, as 11 H. 4. 15. and other Books are.

[Page 240] And by Co. Lib. 8. 141. & Lib. 5. 88. & Lib. 6. 53. & Lib. 3. 12. Magna Charta 2. 18. Westm. 2. 11. This Writ of Execution may not be had against a Duke, Earl, or Baron, or their Wives, but in some Special Cases; nor against an Heir, or an Executor, but in some especial Cases.

Then, In what Cases Execution may be had by Capias. In what Actions, and other Cases, Exe­cution may be had by Capias.

See, first, 34 H. 6. and 48 Ed. 3. Bro. 12. That in Scire facias upon a Recognizance, no Capias.

Yet 7 H. 4. 34. granted for the King in a Recognizance for the Peace.

Nor against Executors, in whose hands Assets were found, if not (as it seems) upon a Devastavit Return'd.

See more touching Executions against Exe­cutors in that special Title Devastavit, in Brook's Abridgment.

And in 42 Ed. 3. 11. if one Recover in an Action upon the Case against an Hostler, because he is not charged upon a Wrong, but a Laches, no Execution lieth by Capias.

The like in an Action upon the Statute of Hue and Cry.

And so is 42 Ass. 17. in the Case of an Hostler, although there was a Capias in the Mean Process.

But 2 H. 4. 6. and Roll. Abridg. 898. one in Dower did Recover Damages, and could not have Execution of them by Capias, because no Capias in the Mean Process.

And so 11 H. 7. 15. in an Assize.

[Page 241] And 7 H. 6. 45. No Execution by Capias against one not Party to the Writ; as there, where, upon Issue in Detinue found against the Garnishee, the Plaintiff recovered the Thing against the Defendant, and Damages against the Garnishee, and could not have Execution of the Damages by Capias.

And Note this Difference, 40 Edw. 3. 25. That in Detinue of a Bag or Box of Writings, Execution lieth by Capias: Otherwise if there be one or more Writings in Certain; quod Nota.

Vide Pluis in Bro. Tit. Capias and Process, Court Baron, Antient Demeasn, Statute Merchant, &c.

And yet as appears, 11 H. 7. 15. In an Assise, where no Execution by Capias lieth against the Party for the Damages; yet if the Disseisin be found to have been with force, and the Party to be taken by Capias pro Fine, Execution by Capias pro Fine. (either within or after the year, as the said Book is) he shall remain in Execution for the Party, Quod Nota, Et quaere inde.

And so is 7 H. 4. 39, & 40. Not menti­oning whether the Capias were within the year or after; for in all other Cases the dif­ference is taken, where the Defendant is taken within the year upon the Capias pro Fine, and where after:

For in Fitz. Nat. Br. 121. In the one Case he shall remain in Execution without the Plaintiffs Request, and in the other not, altho' he do request the same. [Page 240] [...] [Page 241] [...]

[Page 242] And 7 H. 6. 5. Somewhat doubtful, if the Plaintiff request not the same.

But 7 H. 4. 4. is clear without request of the Plaintiff, because the words of the Writ are, Ad Respondend' tam Nobis quam Parti.

And see 14 H. 7. 15. and 15 H. 7. 5. In an Assise, where the Disseisin was found with Force, and the Record removed, and the Defendant taken pro Fine Regis within the year; yet could not remain in Execution at the request of the Party, because there he could not have Execution without Scire Fa­cias.

And so is 1 H. 7. 20. When it is after the Year, or in the time of another King.

But as appears 11 Ed. 4. 67. This is no Execution for the Party, but at his Election; for altho', as the Case was there, he was discharged by consent of the Plaintiff upon Recognizance given; yet the Plaintiff had at his Pleasure a new Execution.

And so is 4 Edw. 4. 16. Escape. But more doubted, whether there the Gaoler may let him go at large by the Commandment of the King, and it seems there that he cannot.

And 22 Ass. 74. One taken pro Fine Regis upon a Disseisin, found Pledges pro Fine, and there said, That he should not go at large, if the Plaintiff request him to be in Executi­on; quod nota.

And see the Book of 14 H. 7. 28. That after a Fieri Facias awarded, and not re­turned, the Defendant was taken within the year upon the Capias pro Fine, and at the request of the Plaintiff could not be detained [Page 243] for his Execution, but found Pledges for the Fine, and went at large: Otherwise if the Scire Facias had been returned Nichil; quod nota.

Vide Rolls Abridgment, fol. 901. Where said, That if one be condemned for a Fine to the King, and Damages to the Party, in an Action where a Capias lies in the Original, and he is taken by Capias pro Fine at the suit of the King, and after suffered to escape, the Party Plaintiff may have Execution by Fieri Facias or Elegit, or he may sue the She­riff for an Escape.

Vide March's Reports, Case 86. Where one is imprisoned for the Kings Fine, and upon an Habeas Corpus it is returned, That he is in Execution also for the Damages of the Party, it shall be intended at the Prayer of the Party.

But by 13 H. 7. 6. If one be taken by Capias pro Fine, in such a Case wherein he shall be said to be in Execution for the Plaintiff also, and he do after sue Execution against the Defendant by Fieri Facias, or Ele­git; in that Case the Defendants Body is dis­charged from Execution as to the Plaintiff.

Vide Mores Reports, Capi [...]s Utla­gatum. Case 172, and Leo­nards Reports, First Part, 51. Where G. re­covers in Debt in the Common Pleas, and upon Error the Judgment was affirmed, and he had Process of Outlawry, and the Party was taken upon the Capias Utlagatum, within the year after the Judgment, upon Process continued, without Discontinuance against him: And it was held that he should be in Execution without any Prayer for it, [Page 244] and without Scire Facias, because the Pro­cess was continued; and tho' the Original Judgment were in another Court, and that after the year he might have a Scire Facias.

But if one be taken at the Suit of the King pro Fine Regis, after the year upon Process continued, he shall be in Execution for the King, but not without Prayer.

But if the Defendant be taken pro Fine Regis in a Suit wherein no Capias lies, nor Capias ad Satisfaciendum will lie for the Party; yet in that Case upon the Prayer of the Party Plaintiff, he shall be in Execution for him, but not without Prayer.

And see Dyer, fol. 306. Where said, That in all Cases generally where the Plaintiff may have a Capias ad satisfaciendum in the Suit, and the Defendant is taken by a Ca­pias pro Fine, or a Capias Utlagatum after Judgment, there the Defendant shall be in Execution presently at the Suit of the Party also, without any Prayer or Motion to the Court: And in Case where he may have a Fieri Facias, and no Capias ad satisfacien­dum, as in Assise, Redisseisin, or the like, and the Party is taken by a Capias pro Fine, and Committed to Prison at the Kings Suit; In all these Cases upon a Prayer, and Mo­ving the Court, the Defendant shall be in Execution for the Party also, but not without Prayer; and in Case where the Plaintiff hath a Judgment, and doth surcease his time, so that now he cannot have Exe­cution by Capias ad satisfaciendum, or Fieri Facias without a Scire Facias: In these Cases, [Page 245] if the Defendant, after this, happen to be taken by a Capias pro Fine for the King, or by a Capias Utlagatum after Judgment, he shall not be in Execution for the Plaintiff without Prayer, or Moving the Court.

In the next place shall be shewn, Where Execution shall be had by Capias, Fieri Facias or Elegit.

And, Where Execu­tion by Capias, Fi. Fa. or Ele­git. first, you ought to know, That upon Judgments by Course of the Common Law, were only Fieri Fac' and Capias, as namely in Trespass or Indictments; where Process of Outlawry, Fieri Fac' or Capias at the Election of the Plaintiff; and where no Process of Outlawry, only Fieri. Facias; until first Remedy was given by the Statute of Westm' 2. cap. 19. which is, If a man reco­ver Debt or Damages, it shall be at his Election to have a Fieri Facias de Terris & Catallis, or the Sheriff shall deliver to him omnia Bona & Catalla (Debitoris) Exceptis Bobus & Affris Carucae, quous (que) Debitum fuit levat' per Rationabil' Precium & Extent', and if he be Ousted, he shall have Assise and Re­disseisin.

And after in the same Statute, Cap. 47. De hijs quae Recordat' sunt like Execution given upon Recognizances; upon which have been divers Cases in the Law of great Learning put since that time, as namely 50 Edw. 3. 4. In Decies tantum the Elegit was Returned Nichil, and afterwards the Defendant was taken by Capias pro Fine, and by the better Opinion could not stay in the Execution for the Party.

[Page 246] And by 5 Edw. 4. 41. 19 H. 6. & 30 Ed. 3. in Bro. 93. After an Elegit awarded and returned Nichil, no Execution by Capias.

And see 13 Eliz. Dyer 299. That after an Elegit the Plaintiff could not have Debt.

But as 21 H. 7. 19. after one Elegit re­turned Nichil, the Plaintiff may have ano­ther.

But by all the Books, if the Writ of Ele­git had not been returned at all, then the Plaintiff might have a New Execution by Fi­eri Facias or Capias, as appears by 17 Ed. 4. 4. where before the return of the Elegit the year did Elapse, and after the Plaintiff had a Scire Facias and a Capias.

And 42 Edw. 3. 11. after divers Writs of Fieri Facias upon Continuance, one was re­turned Nichil, and the Plaintiff had several Elegits in divers Counties.

And by 45 Ed. 3. 19. after a Fieri Facias returned Nichil, a Capias was awarded.

And 10 Ed. 4. 3. after Execution by Fieri Facias of part, the Plaintiff had a Capias for the Rest; and so is 18 Ed. 4. 12.

But by 22 Ass. 43. the Body being in Ex­ecution, no further Execution shall be by Elegit or Fieri Facias.

And by 15 H. 7. 14, & 15. after a Capias one shall not have an Elegit, no more than a Capias after an Elegit.

So that hereupon, and by Fitzh. Nat. Bre­vium it appears, That after a Fieri Facias executed in part, or not executed, the Plain­tiff shall have either Capias or Elegit; but if he betake himself either to Capias or Elegit, [Page 247] and those Writs be returned, he must still keep to the same, and to no other Execution; quod nota.

See more of this in Brook Title Elegit.

See also Dyer 4 & 5. Mariae 162. How the Plaintiff Recovering 40 l. against one that hath Land in divers Counties, may, di­viding his Debt, or intirely, have several Elegits.

But by Hobart 58. There may not be two several sorts of Executions out an once, but one after another.

Yet Idem fo. 2. If one Elegit be sued out, and entred of Record, tho' the Plaintiff get nothing by it, yet he shall never have other Execution till something be found, and no man will Record the Execution till he find somewhat.

Vide Yelvertons Reports, fo. 52. Where said, That if a man be taken upon a wrong Writ of Execution, tho' it be returned Executed, yet because he in Truth never was in Exe­cution, a new Capias may issue out against him.

And Idem 180. Where Goods are taken in Execution in another County, upon a Testatum returned, That the Defendant Nulla habet Bona, &c. in London, where the Acti­on was Tried, but in the County of B. where the Goods were taken, which is false, the Execution shall be avoided, and the Party restored to his Goods again.

[Page 248] But by Moor, Case 428. though the Court grant an Erroneous Execution, yet that will not excuse the Sheriff where there is an Escape.

Yet by Hetley, Rep. 157. Where the She­riff upon a Fieri Facias takes a part of the Defendants Goods in Execution, and deli­vers them to the Plaintiff, and they be ta­ken from him, he shall have Execution de novo.

And by Popham in his Reports, fo. 206. one may be discharged out of Execution by word only, as where one is in Execution at my Suit, and I bid the Sheriff let him go, this is a good discharge.

Vide Dyer, 306. Upon Escape, Sheriff charga­ble in Debt or Case. Where said, That in all Cases, where the Law doth once adjudge a Defendant to be in Execution at the Suit of the Plaintiff, if the Sheriff suffer him to escape, he shall be chargeable to the Plain­tiff for the same in an Action of Debt, or upon the Case:

Yet by Popham 41. if he be taken in a Fresh Pursuit, Fresh Pursuit. tho' in another County, by that he shall be in Execution again.

And by Co. lib. 3. 71. where the Sheriffs of London at the going out of their Office, by Indenture did deliver B. in Execution to the New Sheriffs; and he being in Execution at the Suit of C. and D. did make his Escape. D. only is named, C. sues the Escape, and had Judgment; Old Sheriffs must give no­tice to the New of those in Ex­ecution. and held that B. was not in Ex­ecution of the Old or new Sheriffs, and, that the Old are to give notice to the New Sheriffs of them in Execution, tho' they be upon [Page 249] Record; and the Prisoners are in Custody of the Old Sheriffs, tho' out of Office, till de­livered to New; and if the Old Sheriffs die, the New must take notice of them at their Peril; and the Prisoners are in Custody of the Law, between the death of the Old and the coming in of the New Sheriffs.

But see Co. lib. 4. Blomfields Case, where two were bound jointly and severally by Bond, both sued and condemned, and taken in Execution, the one escaped, the other brought an Audita Querela; and held not to lie.

Vide Rolls Abridgment, 904. Where said, That if A. be taken in Execution on a Ca­pias ad Satisfaciendum at the Suit of B. and escape from the Sheriff, and no return is made of the Writ, nor is the Writ filed, or any Record made of the Award of the Ca­pias; B. may have a Scire Facias against A. and thereupon what Execution he will.

And see More, Case 1177. and Hob. 55, & 56. Foster and Iacksons Case, If the De­fendant die in Execution, this is a discharge of the Execution for ever, as an Escape is: Yet Co. lib. 5. 86. contra.

But by Hob. 59. If two be bound jointly and severally to me, and I sue them jointly, I may have a Capias against them both, and the Death or Escape of the one shall not dis­charge the other: But I may not have a Capias against one, and another kind of Ex­ecution against the other, when I sue them jointly: But when I sue them severally, I may sever them in their several kinds of Ex­ecution; [Page 250] but yet so, as if a very satisfaction be had of one, or against the Sheriff upon the Escape of one, the other may be relie­ved by Audita Querela.

But if a Capias ad Satisfaciendum be had against one of them in this Case, so as there is such an Execution as is a Satisfaction, no other can be had against him, or his Heir or Executor, if he dies, here none may be had against either of the others: For where the Law gives three or four kinds of Execu­tion by way of Choice, and the Plaintiff chooseth a Capias ad satisfaciendum, and the Defendants Body is taken thereupon, it can­not be for part as in a Fieri Facias.

Vide Anderson, Part 1. Case 166. Where the Plaintiff sued a Capias ad Satisfaciendum against one of the County of C. that was brought into Court in Custody of the She­riff, where the Plaintiff was present, and being asked by the Court, whether he would pray, that the Prisoner might be committed to the Fleet, answered, that he would not.

And this he did because the Prisoner was poor, and not able to pay, and had escaped out of the Sheriffs Custody, against whom, he said, he intended to bring his Action; and thereupon the Court discharged him of his Execution, not committing him to the Fleet, nor leaving him in the Custody of the Sheriff, because the Sheriff did not pray it.

[Page 251] Then, Elegit. Its Force. as to the Force of an Elegit.

See Westm. 2. cap. 18. Dyer 206, 335. Co. lib. 7. 49. & lib. 4. 67, 68. Fitzh. Nat. Brev. 48. Plowd. 224. 178. 2 H. 4. 14. Bulstrode part 2. 98, 99. Lane 20. That upon an Ele­git the Sheriff is to make Execution of a moiety or one half of all the Houses, Lands, Meadows, Pastures, Rents, Reversions and Hereditaments, whereof, and wherein the Defendant at the time of the Judgment had, or after had any sole Estate, or Interest, in Fee, Tail, or for Life, into whose hands so­ever the same do afterwards come.

So also, if the Husband and Wife do hold Lands for their two Lives, they are Exten­dable upon this Writ.

But a Right only to Land, an Annuity, Copyhold-land, the Land the Husband holds in Right of his Wife in Fee, or for Life, is not Extendable after her Death, nor liable to Execution.

And all the Goods and Chattels, except only the Beasts of the Plow, which the De­fendant hath, or at time of Execution had, are liable to Execution on this Writ, as on a Fieri Facias: But no Goods and Chattels really, and Bona Fide made away before Execution, are liable to be taken upon this Writ.

Vide Hob. 57. An Elegit may be sued of Lands in Ancient Demesn.

And ibidem, it may be sued after a Capias or Fieri Facias both, and after a Capias re­turned non est inventus.

[Page 252] But by 13 H. 7. 1 Co. lib. 5. 87. 25 H. 7. 15. 33 H. 6. 47. 28 H. 8. 9. 19 H. 6. 4. &. 17 Ed. 4. 4. after an Elegit sued out and re­turned, the Plaintiff may not have a Capias ad Satisfaciendum, or a Fieri Facias; but he must have an Alias Elegit, or an Elegit in another County.

And by Hob. ubi supra, The Plaintiff may have an Alias Elegit, or an Elegit in divers Counties, one after another.

And Idem 58. An Elegit may be had for a Residue after a part is levied by a Fieri Fa­cias; and if upon the Elegit nothing be ta­ken but Goods, which are not enough, the Plaintiff may have a Fieri Facias.

But ibidem Dubitatur, whether if a Lease of Lands for three years be taken, which is not enough, if now the Elegit be Perem­ptory.

Then ought to be known, How a mans Bail, Execution a­gainst Bail or Mainprise. or Mainprise shall be had in Execution or discharged.

For which see, first, 47 Edw. 3. 25. & 26. Mainpernors, what? That Mainpernors are there taken but to observe the day, that is to say, They are such Persons as do take or receive a man into Friendly Custody, that otherwise is, or might be Committed to Prison, upon secu­rity given by them for his forth-coming or appearance, at the day assigned, or return of the Writ, or Process: So that he that is Mainprised, is always said to be at large, and go at his own liberty, not of Ward, af­ter the day is set to Mainprise, until the day [Page 253] of appearance, by reason of Summons, or otherwise.

But it is otherwise, Bail, what? where a man is let to Bail to four or two Persons by a Judge till such a day, for there he is always account­ed by Law to be in their Ward or Custody for the time.

And they may, if they will, keep him in Ward or Prison all the time, or otherwise at their pleasure; so that he that is so Bail­ed, shall not be said by the Law to be at large, or at his own liberty.

For, as before, 47 Ed. 3. in Trespass the Defendant coming in by Capias found Main­pernors, and had a Supersedeas, and at the day appeared, and made an Attorney, and the Mainpernors discharged: But Experience is otherwise at this day, for the Mainper­nors now answer the Execution in default of the Principal.

And 8. H. 4. 21. three Persons brought a Homine Replegiando, and found Mainpernors to prosecute with Effect, where said, That if they fail, the Defendant shall have Ex­ecution against the Mainpernors.

And 2 H. 4. 6. an Inquest did pass against the Defendant, who was demanded, and came not, and his Mainpernors awarded to Prison, quod nota, Quaere tamen inde, for by experience at this day, no Execution can be had against the Mainpernors, unless some Writ of Execution be returned against the Principal, Nichil, or Non est Inventus, and the Bail or Mainprise be discharged up­on the bringing in of the Principal, either [Page 254] hanging the Plea, or after Judgment before Execution; for after Execution is once had against the Bail or Mainpernors, the Princi­pal is discharged; Quaere tamen inde.

And this Bail may be after discharged, as by death of the Principal, Demise of the King, &c.

And as 32 H. 8. Brook Tit. Mainprise, If a Record be removed out of London by a Writ of Priviledge, altho' the same be af­ter Remanded by Procedendo, yet the Main­pernors are discharged.

The like where Judgment is to Replead, and the Plaintiff makes a New Declaration; But if the Priviledge were never allowed, then it is otherwise, as it seems 31 H. 8. Pro­cedendo 13. and Surety in Brook 28.

See likewise 38 H. 6. 4. 12. Where one having cause of Priviledge in the Court of Common Pleas, was Arrested in London, and drawn into Plea in one of the Sheriffs Courts there, and before Judgment he delivered a Supersedeas to the Inferior Court, yet they proceeded to Judgment, and the Party was taken in Execution, and brought by Ha­beas Corpus in the Court of Common Pleas, and the Court awarded, That the Party should be discharged of the Execution.

Vide Co. Rep. lib. 5. fol. 70. If the Princi­pal upon a Special Bail do not pay the Mo­ny, or render his Body, after Judgment, in discharge of his Bail, then (and not before) Execution is to be had against the Bail.

[Page 255] And see Goldesbroughs Rep. fol. 175. Where said, That Execution may not be sued out against the Bail, till a Default be returned against the Principal.

But by Hob. 116. If the Bail be in Execu­tion, and a Writ of Error be brought, the Court may not discharge him.

Vide Touch. Prec. 64. If a Capias be award­ed, and returned non est inventus against the Principal, and the Bail bring him not in, if the Principal die, altho' there be no Scire Facias against the Bail, yet the Bail is chargable; for tho' the Court will excuse the Bail, yet the Bail if they bring in the Principal before the return of the second Scire Facias, this is ex gra [...]ia Curiae, and not of necessity.

And Mich. 14 Iacobi in C. B. The Case was, That Judgment was given against one in the King's Bench, upon which he was in Execution, and had another Judgment a­against him in the Common Pleas; in which Court, the Sureties to save their Bail, brought him to Bar by Habeas Corpus to render his Body; but, before that, he had brought a Writ of Error in the King's Bench to re­verse the Judgment in the Common Pleas; but the Record was not removed: In this Case the Court said, ‘That 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.’

[Page 256] And Waller, Praenotary, said, ‘That the Bail is to render the Principals Body in Execution, so that the Plaintiff may have it in Execution; but here he cannot, in re­gard a Writ of Error is brought, and there­fore the Bail shall be discharged.’

Vide Latch's Rep. fol. 192, 193. One had Judgment in Debt in the Common Pleas against the Defendant, and there, after the year, without any Scire Facias took out a Capias against him, and Arrested him; and upon this he brought Error in the King's Bench, where the Judgment was affirmed; whereupon he was discharged, and the Plaintiff took him again by a Capias ad Sa­tisfaciendum, without any Scire Facias out of the King's Bench; and there this difference was taken, where one is lawfully taken in Execution, and after discharged by Writ of Error, upon which Judgment is affirmed; there a New Capias will not lie against him, but Execution shall go out against the Sure­ties, unless he will render himself; but other­wise, where one was never lawfully in Exe­cution, when the Judgment is reversed, there he may be taken again.

Vide Rolls Abridgment 888. If in Debt a­gainst I. S. two become Bail for him, and the Plaintiff Recover, and the Process con­tinued till Judgment against the Bail, Exe­cution may be against either of the Bail, without naming the other.

[Page 257] And, Idem 896. he may have Execution against one of the Bail at one time, and after have Execution against another of the Bail.

But, Idem 897. if a man have once Execu­tion against the Bail, he may never after have Execution against the Principal: Or, if once against the Principal, never after a­gainst the Bail.

And, Idem ibid. if the King Recover in a Scire facias, on a Recognizance acknow­ledged in Chancery, he can have no Execu­tion against the Body: But a Capias lies on a Judgment in a Scire facias on a Recogni­zance acknowledged by the Bail, in an Action in the Kings-Bench.

But no Capias will lye upon a Judgment in a Scire facias, on a Recognizance acknow­ledged by the Bail in the Common-Pleas; but there an Action of Debt will lye upon the Recognizance.

So, if the Bail, in an Inferiour Court, enter into a Recognizance, That if the Principal pay not the Damages and Costs recovered, or render himself to Prison; Tunc Concedit the Damages and Costs, de terris & catallis suis levari ad opus Querentis, no Capias will lye upon this Recognizance.

So, neither for the Plaintiff in Detinue, to recover Damages against the Garnishee, be­cause (as by 7 H. 6. 45. before-cited) not party to the Writ.

So, if an Inferiour Court be held by Char­ter, and the Bail there Enter into Recogni­zance, no Capias will lye for this.

[Page 258] But by Hobart 284. Abridged by Rolls 898. If the Principal, after Judgment, render his Body in Court in Exonerationem Manucapto­rum, and the Plaintiff doth not take him in Execution, and this is Entred of Record (as it must be) the Plaintiff may after this Take him in Execution by Capias ad satisfacien­dum.

And, Idem 899. if A. Recover against B. in the Kings-Bench, Damages and Costs, and upon this hath Judgment against the Bail, after Scire facias; and after B. and the Bail joyn in a Writ of Error upon the Statute, in the Exchequer-Chamber, and while this is Transacted, the Year and Day is Elapsed; in this Case, the Court of Kings-Bench may grant Execution: For it is a void Writ of Error, and as if none had been brought.

And, Idem 891. if a Recognizance of Bail be taken by a Judge of the Kings-Bench at Serjeants-Inn in London, upon an Original brought in London, and it be Cer­tified and Inrolled in the Kings-Bench; it seems it may be extended in London or Mid­dlesex.

In the next place we shall Consider, Execution by, or without Scire facias. Where Execution may be had by Scire facias, and where it may be had without.

And, Scire facias, what. first, as to the Writ of Scire facias ought to be known, That Execution must be had within a Year of the Iudgment; other­wise it cannot be taken out, till there be first sued out a Scire facias, which is a Writ Iudicial going out of a Record, and lies, [Page 259] where one hath recovered Debt or Dama­ges in the Kings Court, and he sueth not to have Execution within the Year and Day, he must have his Writ to warn the Party, and if the Party comes not, or if he comes and says nothing in discharge or stay of the Execution, then the Plaintiff shall have a Writ of Fieri facias, to Command the She­riff to levy the Debt or Damages of the Defendant's Goods.

Or, where the Process is a Capias, he may have another Writ of Execution, called a Ca­pias ad satisfaciendum, to Take and Impri­son the Body of the Defendant, till he satisfie the Party, Plaintiff.

And so on a Iudgment to Recover Lands; if the Plaintiff do not sue out Execution within the Year after the Iudgmen [...] ▪ he may not have Execution till he have [...] Summoned the Defendant to shew C [...]use; why Execution should not be had against him.

And if the Defendant cannot be found upon Summons, or cannot, or doth not shew Cause, why Execution should not be made, then a second Iudgment is awarded, That Execution be done upon the first Iudg­ment.

And here (by Co. 1. Inst. 290. and Dyer 148.) this Writ of Scire facias being Entred, the Tenant or Defendant may thereunto plead any Matter accruing after the Judgment, as Release, Outlawry, &c. to prevent the Exe­cution:

[Page 260] But it appears by Old Natura Brev. 163. Dyer 270, 271. Hobart 56, & 57. Cro. 1 Part 185. Bulstr. 2 Part 230. Lane 16. Finch's Ley 477. That if the Plaintiff sue out Exe­cution within the Year, he may Continue the Iudgment after the Year, without Scire facias.

But see Fitzherbert's Natura Brevium, Tit. Scire fac', and Brook's Abridgment 134. by which (as also by divers other Books) it appears, That Execution may be had within the Year against a Party to the Judgment, without a Scire facias; but otherwise, if the Record be removed into another Court.

And with these Authorities doth agree 14 & 15 H. 7. And it appears also there, That the Year shall not be accounted from the Time of the Recognizance, but only from the Time of the Payment.

And, 23 H. 8. ibid. 119. if one Recover in Annuity, a Fieri facias shall go out within the Year, and after Scire fac' infinite, because Executory.

And with this agrees Bro. 28. where said, That if one Recover in a Writ of Annuity, he may have a Fieri facias of the Arrerages incurred within the Year, and a Scire facias after, as oft as the Annuity is behind, and no Writ of Annuity after. And in every Scire fac' in which he Recovers, after the first Judgment, he shall have Execution of the Arrerages within the Year, by Fieri facias.

[Page 261] And 11 H. 4. 34. Bro. 119. after Judgment had in Annuity, the Plaintiff after a Scire fac' may have a Fieri fac', to levy it as it becomes due.

And 21 Ed. 4. 1, & 2. if Rent be granted by Fine, the Party may have a Scire fac' in Infinitum (as before in Annuity, or) as in Co­venant upon Covenant, as one Recovering in Trespass may bring a New Action.

And 22 H. 6. 15. Bro. 54. one Condemned in the Common-Pleas, and in Execution, At­tainted after in an Assize, Remanded also thither, and could not be Committed there, for that Execution also, without Pro­cess.

And see 39 Ed. 3. 15. Bro. 122. One had a Scire fac', to Execute a Judgment in a Prae­cipe quod reddat, and Execution thereupon by Default; and after surmized to the Court, That the Person against whom he had his Writ of Scire fac' and Iudgment, was not Tenant, but one B. against whom he had another Scire fac'; quod nota.

And Note, by the Book of 22 H. 6. 11, & 12. That at the Common Law, until the Statute of Westm. 2. De hiis quae, &c. If one had Recovered in Debt, and taken out no Scire fac' within the year, he was obliged after the year to take out a New Writ of Debt.

And see by the Book of 5 Ed. 4. and Ex­perience, That where a Scire fac' is had upon a Iudgment, there shall be no Execution [Page 262] without a Garnish, ( i. e. giving Notice, or Warning to the Party) or two Nichils re­turned.

Vide 19 Ed. 4. 5. where said, That in all Cases where the Heir, Executor, or Admi­nistrator may sue to have an Execution of any thing recovered by the Ancestor, Te­stator, &c. he must first have a Scire facias against the Party against whom the Judg­ment is had, to warn him to shew Cause, why Execution may not be had for him against the Defendant; and then if he ei­ther make Default, or at his Appearance cannot shew good Cause, why Execution should not be had against him, Execution shall be awarded for the Plaintiff, as it should have been for him under whom he claimed.

Vide Roll's Abridg. 890. If one recover Da­mages of A. whereof part is levied by a Fieri facias, but not all, and A. dies; the Plaintiff may have a Scire fac' against the Heir at his Election.

And, Idem 900. a Scire facias lies upon a Recognizance (if the Conusor be dead) against the Heir in general, or against I. S. Son and Heir of the Conusor, without suing of the Ter-Tenants, for he shall have no Contribution against the Ter-Tenants.

And see Dyer 208. If a Judgment be had against one that hath Land, who dies, and the Land discends to his Heir, after a Scire facias had, he may have Execution of this Land in the Heirs hands, by Elegit against him.

[Page 263] Vide Co. Lib. 5. 88. If a Judgment be had in the Common-Pleas, and removed from thence by Writ of Error into the Kings-Bench, and there confirmed within the year; the Plaintiff may have the same kind of Execution in that Court, as he might have had in the Common-Pleas, without any Scire facias.

But by Hob. 196, 197. where the first Action is laid, there the Execution must be by Scire facias, if it be had.

Vide Godbolt 76. where W. had Judgment in Debt, in the Common-Pleas, against F. and after the Year, without Scire facias, took out a Capias against him, and Arrested him; whereupon he brought Error upon the Judg­ment in the Kings-Bench, where the Judg­ment was affirmed, and F. was discharged. W. took him again by an Alias Ca. sa. with­out any Scire fac' out of the Kings-Bench, and upon that the Sheriff returned a Cepi. It was Moved, Vide Tit. Err [...]r▪ Division 1. He might be discharged, for that having been once in Execution in the Common-Pleas, and set at liberty, by Sureties, in the Kings-Bench, upon a Writ of Error, he ought not to be taken again: But deny'd by the Court. For there said, That one being in Execution, and discharged by Privilege, may be in Execution again.

But 16 H. 7. 2. and 21 Ed. 4. 67. as also 8 H. 7. 10, & 12. contra.

Vide Cro. 1 Part 334. where Judgment was had in Debt by Husband and Wife, for the Debt of the Wife, as Administratrix of her former Husband, and after Judgment and before Execution the Wife died; the [Page 264] Husband brought a Scire facias, and Scire feci being Returned, had Judgment by Nichil dicit; and held, the Scire fac' ought not to have been brought by the Husband; but being done, the Judgment thereupon, though Erroneous, must stand, till Reversed by Error.

Next, Matter and Pleas that stay Execution. we shall consider, What Plea or Mat­ter will stay Execution.

For which see first 10 H. 6. 6. That in Debt, or Scire fac' upon a Iudgment, or Re­disseisin, no Plea that the Defendant hath Error hanging of the first Judgment.

And so is 37 H. 6. 16. in a Scire facias in the Common-Pleas after the Record removed, until it be Reversed: For its there said, that 'tis but Tenorem Recordi removed, and that if nothing be done in the Kings-Bench upon Error, or the Judgment be affirmed, then at the Election of the Plaintiff in the first Judgment, he may have Execution in the Common-Pleas; quaere tamen.

But 19 H. 6. 7, & 8. if the Record be not removed, or the Party be not delay'd, the Court useth to grant Execution, notwith­standing Error.

And so 7 H. 6. 42. if the Plaintiff in Er­ror do not sue out a Supersedeas, Execution shall be granted, notwithstanding his Writ of Error be allowed.

But 4 H. 6. 31. no Debt, or Scire fac', after the Record be removed by Error, unless for a Nomine poenae in the Annuity.

[Page 265] See more hereof afterwards, in the Title Error.

Next, Pleas in Bar of Execution. What other Pleas one shall have in Bar of Execution.

See Brook 6. in Abridging the Case of 20 H. 6. a good Plea, That formerly the Sheriff by another Writ levied the Mony, or took the Body in Execution, although the Writ was not Returned.

And so 21 H. 6. 5. where also 37 H. 8. and 19 Ed. 3. are Vouched somewhat differ­ing.

The like 44 Ed. 3. 18 in a Scire fac' upon Arrerages of Annuity; although there, Payment, or Riens arrere, be no Plea.

Vide Dyer 344. If a Judgment be against an Heir by Nichil dicit, in an Action against him on the Deed of his Ancestor, on a Scire fac', he cannot plead Riens per Discent at the time of the Writ brought; but Execution shall be against him of his own Lands by Elegit.

And see Godbolt 79. where Judgment was given on an Obligation of 400 l. and a Scire fac' was sued on the same Judgment for 300 l. and the Party did not acknow­ledge, that he had received the other 100 l. and held, That the Scire fac' should not Abate, and that he should have Execu­tion.

But by More, Case 693. in a Scire fac' on a Recognizance, Joyntenancy will Abate the Writ.

[Page 266] Vide Noy 143. where A. recovered against B. in Debt, and afterwards brought a Scire fac', To which B. pleaded, That A. was Outlawed, and held a good Plea, if he be Outlawed after the Plea in Bar pleaded in the Action of Debt.

But otherwise it is if he be Outlawed before; for then B. might have pleaded that in Bar of the first Action.

And it was said there, That the Mony being in Court, if the King's Counsel pray to have it for the King, they must shew the Outlawry sub pede Sigilli, and he must con­fess himself the Party Outlawed.

And see Godbolt 96. where Debt was upon a Recovery in a Scire fac' in London, on a Recognizance taken in the Chamber of London; and it was not shewed, That it was a Court of Record, and that they had been used to take Recognizances: And Ex­ception was taken to it, and Cases put, That though a judgment were void, yet Execu­tion might be by Scire fac', and the party might not plead that in a Writ of Er­ror.

And this difference was taken, where Exe­cution was sued on such a Judgment, and Debt brought upon it; and held, tho' Debt might not be brought on such a Judgment, yet, That upon a voidable Judgment a man should recover, and might take out Execu­tion, and that it should stand good until the Judgment were Reversed.

[Page 267] And see Mo. Case 672. where said, That in a Scire fac' to have Execution, it is a good Plea to say, That the Plaintiff hath assigned the Damages to the King, tho' the King hath not levied them; so that the Sheriff hath levied them by Fieri fac', tho' he hath not Returned the Writ.

By Co. Lib. 8. fo. 12. if one pleads a Plea to a Scire facias, unto which the Plaintiff demurs, the Defendant may joyn in De­murrer, and plead over part of a Statute ad Informandum Curiam.

By 1 Cro. 65, 66. The Plaintiff shall not, after Issue, find a Fault in his own Pleadings, and take advantage thereof: As in a Scire fac' against an Administrator, durante Minori Aetate Executoris; the Defendant pleads, Plene Administravit specially: The Plaintiff Replies, Quod Devastavit, but doth not say Quis Devastavit; but the Issue was, Quod praedictus A. B. (the Administrator) non De­vastavit; and it was found for the Defen­dant: Upon which it was moved in Arrest of Judgment by the Plaintiff, and alledged for Cause, That it is not said in the Repli­cation, who Devastavit, and so might be the Executor under Age; sed, non allocatur, for the Plaintiff shall not take advantage of a Fault in his own Replication after Issue.

And with this agrees 1 Cro. 135. where said, That the Plaintiff, after Verdict shall take no advantage of his own ill Declara­tion.

[Page 268] Vide 1 Cro. 39. Co. Lib. 5. 39. b. Lib. 7. 4, 6. Lib. 8. 59.

Vide Mo. Case 11. fo. 78. where an Exe­cutor pleads to a Scire facias upon a Judg­ment against him, Plene administravit jour del Brief purchase, and ill, for he might have paid Specialties before.

The like, if he had pleaded Nulla bona temps del mort le Testator, ou unque puis; but the Plaintiff lost the advantage he might have made of that ill Plea, by taking Issue.

Where there be several Defendants, they must joyn in Dilatories, tho' they may sever in Pleas to the first Action.

As Pasch. 26 H. 8. Pl. 7. where a Scire facias was brought against Two, for Damages recovered in Assize by Three; one of the Defendants pleaded, That one of the Plain­tiffs suggested by the Writ, to be dead, was alive at the time the Scire facias was brought; and the other Defendant pleaded, That another of the Plaintiffs supposed by the Writ to be alive, is dead; and ill: For they ought to Joyn in their Pleas to the Scire facias, because they are Dilatories; tho' there said, they might have severed in their Pleas at first to the Writ or Action.

But Mich. 7 H. 7. Pl. 8. Mich. 10 H. 7. Pl. 6. and Mich, 12 H. 7. Pl. 3. one Imparls, and the other demands the View in a Praecipe quod reddat: Quaere tamen de hoc.

[Page 269] Then, Venditioni Exponas. of the Venditioni Exponas.

If the Sheriff Return—Quod cepit bona ad Valenciam, Et quod non invenit Emptores, the same Writ of Venditioni Exponas is to be awarded out.

Touching which see 34 H. 6. 36. where the Sheriff did Return, That the Goods were not taken by him, but by his Prede­cessor, Et ideo venditioni exponere non potuit; and thereupon a Distringas nuper Vic' was awarded: See the Form thereof in Brook 11.

And see Cro. 1 Part 567, 568. where the Sheriff took Goods on a Fieri facias, and before Sale the Record was removed by Error, and a Supersedeas awarded; and yet upon Cepit bona return'd by the Sheriff, a Venditioni Exponas was awarded.

And by Yelverton 6. If one recover Debt on an Obligation, and delivers a Fieri facias to the Sheriff, to levy the same, and the Defendant brings a Writ of Error upon the Judgment, and hath a Supersedeas upon it to the Sheriff; here so much Goods as the She­riff took by virtue of the Fieri facias, before the Supersedeas came to him, shall be liable to satisfie the Plaintiff, and a Venditioni Ex­ponas shall go out upon it: But after the Supersedeas comes to the Sheriff, he must not proceed upon it.

And by Dyer 363. If the Sheriff Return upon a Fieri facias—Quod cepit bona, & non invenit Emptores, or delay to deliver the Goods, the Plaintiff shall have a Vendition [...] Exponas to compel him to sell the same [Page 270] and bring in the Mony: But if he Return, That the Goods were taken by his Prede­cessor, the Plaintiff may have a Distringas nuper Vic', to Command the former Sheriff to sell the Goods, and bring in the Mo­ny.

But by Co. Lib. 3. 12. after the Sheriff hath Returned on a Fieri facias,—Non invenit Emptores, the Plaintiff cannot have a Capias ad satisfaciendum, or an Elegit.

Vide Co. Lib 5. 90. If the Sheriff levy Mony on Execution, and give it to the Plaintiff, tho' he Return not the Writ, yet the Exe­cution is good: And the Sheriff ought to use his utmost Endeavour to levy the Mony on a Fieri fac' upon the Defendant's Goods and Chattels, and for that purpose to En­quire after them; and it behoves the Plain­tiff to Enquire also, and search diligently if he can find any; and upon finding them; to give Notice to the Sheriff, who ex Officio is to take and sell them, if he can; other­wise he must be Impowered by a Venditioni Exponas; by virtue whereof he may sell them, and give the Plaintiff his Mo­ny.

But by Yelverton 44. If the Sheriff do seize the Defendant's Goods on a Fieri fac', the Property is not altered; yet the Sheriff may not sell them without a Venditioni Ex­ponas, where he hath made no Return of his Writ, and is out of his Office.

[Page 271] Then, Clericus Bene­ficiatus. Touching Execution against a Clerk.

If the Sheriff Return, Clericus est Benefici­atus upon a Fieri fac', then shall be awarded a Writ to the Bishop, to Sequester his Spiri­tual Promotion. See thereof 13 H. 4. A­bridged by Brook, Pl. 38.

But that seems upon the Return of Nulla habet bona, &c. See hereof more in Brook, Process 2.

And see 21 Ed. 3. 7. Bro. 44. Where the De­fendant may be Committed by the Court, without Process. That if the Party Condemned be present in Court at any time within the Year and the Day, and deny not, but that he is the same Party, the Court, at the Request of the Plaintiff may Commit him in Execution: Otherwise, after the Year and the Day; quod nota.

And so 21 Ed. 4. 13. if the Defendant be present in Court at the Judgment.

See also accordingly, Dyer 2 & 3 Eliz. 182, 183. and 14 Eliz. 306.

And see more hereof in Bro. Tit. Office de Court.

And see 21 Ed. 3. 29. Of Executions in the Ports or Franchises. where, upon a Re­turn of a Writ of Execution upon a Statute Merchant Returned Nichil, the Plaintiff did surmize, That the Lands did lye in the Cinque Ports, and had a Writ of Execution to the Constable of the Ports.

And see 1 Ed. 4. 10. In Durham. for Lands in Dur­ham.

And by 22 Ass. 12. In Court Ba­ron. Execution shall be in Court Baron, but by Distress; as in a Return Irreplegiable.

Yet 38 Ed. 3. 3. seemeth otherwise.

[Page 272] And so seemeth 7 H. 4. Abridged by Bro. Pl. 26.

And see 18 Ed. 4. 4. Of the Sheriffs Breaking open a Door, or Chest, to do Execution. and Co. 5 Part 93. That if the Sheriff do make Execution upon a Fieri facias, or otherwise, at the Suit of a Common Person, and break open his House, Door, or Chest, Trespass doth lye against him, for Breaking of his House, Door, or Chest, although the Execution will be good; fieri non debet factum valet.

Yet by 18 Ed. 2. Abridged by Fitzherbert, Tit. Execution 152. The Sheriff may break Door or Chest to do Execution; for other­wise th Plaintiff shall lose the Effect of his Suit.

And 11 H. 4. 7, & 9. Franchise. if the Sheriff enter into a Franchise, and do Execution, the same is good according to the Rule above; and yet he is a Trespassor to the Lord of the the Franchise, who may have an Action of Trespass upon the Case against him, for In­fringing his Liberty. But if a Bailiff of a Franchise do any such Execution without his Franchise, that will be void.

And by 40 Ed. 3. 21, & 22. The Sheriff in Execution of Dower of Rent cannot drive the Beasts from the Ground, although he may deliver Execution by the Beasts, a Clod, or Bough.

But upon a Capias Utlagatum, or a Capias for Felony, the Officer may break open the Doors.

Otherwise (as it seemeth) not, although the Execution be a Non omittas propter ali­quam Libertatem.

[Page 273] But the Sheriff, or his Under-Officer, may (as it seemeth) upon any Capias, Enter into any mans Ground, or House open, to Arrest any man that he seeth Enter; and if his Prisoner Escape, may follow and break open Doors to take him. Quaere inde.

And see Bro. Abridgment, Tit. Faux Imprison­ment.

And by Justice Iones and Berkley, 12 Car. 1. in B. R. If the Sheriff have a Fieri facias, or Capias ad satisfaciendum against a man, and before Execution he pay him the Mony, he may not do Execution afterwards; for if he do, Trespass, or False Imprisonment will lye against him for it.

And see Co. 4 Part 91. Iinmayn's Case, where it appeared, That there were two Joint-Tenants of a House, one of which acknowledged a Statute, and died possessed of divers Goods therein; and the Sheriff came to Extend the Goods, and he and the Jury offered to Enter the House, to Extend the same; but the Defendant, intending to disturb the Execution, shut the Door, so as the Sheriff could not Enter to do his Office.

In which Case, these Points were Re­solved;

First, That if a Recovery be in a Real Action, or in an Ejectione firmae, the Sheriff upon an Habere facias Seisinam, or Possessio­nem, may break the House to do Execution; because after the Judgment, it is not the House of the Defendant.

[Page 274] Secondly, In all Cases where the King is Party, after the Sheriff hath signified the Cause of his coming, if no Door be open, he may Break-open the House to do Execution; but if he may Enter it without Breaking of it, or upon a Request, if in such Case he Break the House, he is a Trespassor.

Thirdly, In all Cases of a Common Person, If the Door be open, the Sheriff may Enter the House of a Subject, to do Execution against Body or Goods.

Fourthly, That it is not lawful for the Sheriff, upon Request and Denial, in Case of a Common Person, to Break the House of a Subject, to Execute any Process: And the Sheriff cannot Break the House by virtue of a Fieri facias, but he shall be a Trespassor: But if he doth so, and doth Execution, the Execution done by him is good.

And see for this Co. 11 Part 82. Bowle's Case; and see 18 Eliz. 44. by all the Ju­stices.

Then ought to be known, Discharge by Error, and Mainprize. How one in Exe­cution shall be delivered without Payment.

And therefore, by 16 H. 7. 2. If the Party be in Execution, and the Record be removed by Error, and he find Mainprise to Prose­cute with Effect, and to satisfie, &c. although the Judgment be affirmed, he shall never be in Execution by his Body upon the same, unless he will render his Body, to save his Sureties voluntarily.

[Page 275] And so is 21 Ed. 4. 67. if the Plaintiff be once in Execution.

And so is 8 H. 7. 10.

But by the said two Books last cited, Execution in B. R. after Er­ror. If no Execution be awarded before the Writ of Error, then Execution in the King-Bench may be awarded.

And so is 6 Ed. 4. 19. If a Judgment in a Mean Court be reversed by a Writ of False Iudgment, or Error in the Common-Pleas.

And so is 12 H. 4. 24. if he that Removed the Record do nothing.

See accordingly 39 H. 6. 3 & 4. and after, in the Title Error.

Then is to be Observed, Discharge by Escape. That in some Cases an Escape is a Discharge of Execution for ever: As namely, If the Prisoner in Execution go at large, by Consent of the Plaintiff, or of the Gaoler.

But as 13 H. 7. 1. is, If he Break Prison of himself, and afterwards the Gaoler take him again, because of his own Wrong, whereof he shall have no advantage, he shall remain for the first Execution, unless the Plaintiff, by bringing an Action of Debt against the Gaoler, do refuse that Advantage against the Prisoner.

And so seemeth Stamford.

Yet 14 H. 7. 1. although the Gaoler may take him, yet the Plaintiff shall have no Advantage thereof.

But by 11 H. 4. 12. the Plaintiff may also have Debt against the Party.

[Page 276] And by 41 Ass. 15. after an Escape of the Prisoner and Death of the Keeper of the Prison, the Plaintiff prayed a New Capias against the Defendant, and it was granted.

Quaere, If not to be in Execution again, because no Remedy else for the Plaintiff.

And 33 H. 6. 47. If the Party in Execu­tion die, the Debt is discharged.

So, against him, if he Escape.

See Mo. Case 1177, and Hobart 55, 56. Foster and Iackson's Case; where said, That if the Defendant die in Execution, it is a Discharge of the Execution for ever, as an Escape is.

Yet see Co. 5 Part 86. contra.

But by Hob. 59. If two be Bound joyntly and severally to one, who sues them joyntly, he may have a Capias against them both, and the Death or Escape of the one, shall not discharge the other.

But he may not have a Capias against one, and another kind of Execution against the other, when he sues them joyntly; but if he sues them severally, he may sever them in their several kinds of Execution; but yet so, as if once a very Satisfaction be had of one, or against the Sheriff upon the E­scape of one, the other may be relieved by Audita Querela.

But if a Capias ad satisfaciendum be had against one of them in this Case, so as there is such an Execution as is a Satisfaction, no other can be had against him, or against his Heir or Executor, if he die: For where the Law gives several kinds of Execution, [Page 277] by way of Choice, and he Chuseth a Capias ad satisfaciendum, and the Body is taken, it cannot be for part, as in a Fieri facias.

But see the Statute of 21 Iac. 1. cap. 24. how the Law is thereby changed in this Point. For it is Enacted by that Act, That he, or they, at whose Suit any Person is charged in Execution, for Debt or Damages recovered; their Executors or Administrators may, after the Death of the Person so charged in Execu­tion, lawfully sue forth New Execution against the Lands and Tenements, Goods and Chattels of the Person so Deceased, in like manner, as if the Person Deceased had never been in Execu­tion.

And see Roll's Abridgment 903. That if one Recover in Debt against I. S. and then Outlaw him on the Judgment; and after­wards I. S. is taken within the Year by Ca­pias Utlagatum, at the Suit of the King, and dies in Prison before any Prayer made by the Plaintiff, That he might be in Execution at his Suit: This is no Satisfaction; therefore the Executor or Administrator of him that is dead, may be charged for the Debt, not­withstanding he was in Execution by being taken upon the Capias Utlagatum.

But by Anderson 1 Part, Case 273. if one that hath an Execution of Land, Release one Acre of the Execution, all is Extinct by the Release of the Execution in one Acre.

And by Hobart 60. If the Party in Exe­cution Escape of his own wrong, the Plain­tiff can have no other Execution of him or of his Executors. But if he take one in [Page 278] Execution, where there are several Debtors by one Obligation, there he may take ano­ther after the Escape of that one; or he may have Satisfaction from the Sheriff upon the Escape, at his Choice.

And by Co. 5 Part 86. and 6 Part 13. and 8 Part 152. and Dyer 152. If the Defendant pay the Mony, he is discharged: But if the Plaintiff makes any Release, or other such like Act, to the Defendant, being in Execu­tion, amounting to a Discharge; this will not be a Discharge Ipso facto, but by this means he may have a Discharge. And yet, if the Plaintiff himself shall deliver the Prisoner out of Execution, he is thereby Ipso facto, discharged of the Execution for ever.

So, if the Plaintiff doth acknowledge Sa­tisfaction upon Record.

So, by 13 H. 7. 1. Plowd. Com. 36. and 33 H. 6. 47. If one taken in Execution upon a Ca­pias ad satisfaciendum doth Escape, and the Plaintiff bring his Action against the She­riff, or hath a Cepi Returned on the Writ, and it be Filed; by this the Defendant is discharged against the Plaintiff for ever. But if no Cepi be Returned, nor Action brought against the Sheriff, the Law will Adjudge the Party to be out of Execution.

But by Co. 5 Part 86. If Two be in Execu­tion for one Debt, on a Bond made by Two, and the Sheriff suffers one of them to Escape, this will not discharge the other, till the Plaintiff hath Recovered his Debt of the Sheriff.

[Page 279] But by Co. 8 Part 143. and 38 H. 6. 4. If one be in Execution upon a Capias ad satis­faciendum, and the Court adjudge the Judg­ment or Execution Erroneous, and so null it; by this the Defendant is discharged of that Execution.

Yet by Fitz. Nat. Brev. 146. If Two be in Execution for one Debt, and one of them dies under Execution, that will not discharge the other.

But 38 H. 8. Dyer 6. Discharge by Privilege of Parliament. One in Execution be­ing a Burgess of the Parliament, and dis­charged by a Writ of Privilege; doubted, whether discharged for ever.

But by the Statute of 1 Iac. 1. cap. 13. it appears, That if a Prisoner be delivered out of Execution by Privilege of Parliament, it is no discharge; but after the Privilege is gone, he may be taken again.

So, Pasch. 30 H. 8. Dyer 62. Trewynyard's Case, where Trewynyard, being a Burgess of Parliament, was taken upon an Exigent, after a Capïas he brought a Writ of Privi­lege of Parliament, and the Sheriff let him at Liberty:

In this Case it was Resolved,

First, That the Privilege was Grantable, notwithstanding the Execution; because the King and Realm have an Interest in the Body of every Burgess of Parliament, and the Common-Weal shall be preferred before the Interest of any private Person.

[Page 280] Secondly, That, after the Parliament ended, he might be taken in Execution again: For that the Plaintiff shall not be prejudiced in his Execution by the Act of the Law, which doth Wrong to no man.

See 3 Ed. 6. Dyer 66 & 67. Going at large by Baston, i e. Keeper, or Tip­staff. where the She­riffs of London, in Debt upon an Escape, by going at large by Baston in London, did plead, That their Predecessors let him at large, and good.

And Note, by Dyer 4 & 5 Mar. 162. 10 Eliz. 275. and 12 & 13 Eliz. 206. If the Prisoner have the King's Protection to go at large by Baston, it is an Escape; and the Warden of the Fleet may be Charged upon an Escape.

And see the same Book of Dyer 10 Eliz. where Debt was brought against the Mar­shal of the Kings-Bench, or his Deputy.

And see Plowden's Commentaries, in Platt's Action of Debt against the Sheriffs of Lon­don; where it seemeth, That by the Cu­stom of the City of London, one in Execu­tion in Ludgate, may go by Baston within London; but otherwise in Southwark.

But Note, the same Book of Dyer, in 3 Ed. 6. That the Sheriffs of London were there Charged, for suffering one in Execution in Ludgate, to go at large in London by Baston; quod nota.

[Page 281] Then, Discharge by Act of the Court, Law, or Plaintiff. Where the Act of the Court, of the Law, or of the Plaintiff, doth discharge the Party of the Execution.

As namely 24 Ed. 3. 44. If one recover the Land and Body in a Writ of Ward, and Release the Body, the Land is thereby dis­charged.

But otherwise of a Grant.

The like seemeth 40 Ass. although the Land be Extended and Granted over.

The lik in Pop [...]'s Case, in Plowden's Com­mentaries, If the Cognizor, after Execution, Enfeoff the Cognizee of part; but it is otherwise before Execution; for there the Lands be in the Hands of the Cognizor, and his Body is Charged.

See 6 Ed. 4. 4. Attaint of Fe­lony. and 24 Ed. 3. 45, 46. That if one in Execution be Outlawed, or Condem­ned for Felony, and afterwards have his Pardon; yet touching his Body, the same shall still remain in Execution.

Notwithstanding, by the same Book of 6 Ed. 4. if he take himself to his Clergy, he shall be out of Execution: And so seemeth the Book 7 Eliz. 248.; but ibid. 261. è contra.

See hereof Bro. Abr. 272.

And see 10 Eliz. 275. By assent of the Court, and Parties. That one in Exe­cution, by Agreement of the Parties and the Chief Justice, went at large for a time, and came afterwards to Prison, and no Dis­charge.

But by 4 Mar. Dyer 162. and 12 Eliz. 296. and other Books, The License of the Queen, or of the Barons of the Exchequer, by Baston, or any of the Chief Justices License, is no [Page 282] sufficient Warrant for the Gaoler to suffer the Prisoner to go at large.

Then, Sheriff Fined for Disobeying a Supersedeas. Where the Sheriff shall be Fined for a Contempt in doing Execution, after a Super­sedeas delivered to him.

For which see Hill. 11 Iac. in B. R. Thomas and Owen's Case, Bulstr. 2. Part 194; where, af­ter a Judgment in Ejectione firmae, and Habere fac' possessionem, a Writ of Error was brought, and a Supersedeas granted, directed to the Sheriff, to stay Execution; and this Writ of Error and Supersedeas were shewed to the Sheriff, who contrary thereto did Execute the Writ of Habere fac' possessionem. It was holden by the Court to be a great Con­tempt; and a Writ of Restitution was A­warded.