137. Tit. Averment where the Plaintiff moved to stay Judgment in Ejectment because the Life of the Party during whose Life the Defendant hath a Lease was not Averred according to 10 Ed. 4. 18. 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. 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 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 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 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 it s no Issue That the Defendant did Perform Et de hoc ponit c. Et praedictus the Plaintiff similiter For as in 1 Cro. 317. Pl. 380. it s 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 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 accrâ—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 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 for the Escape yet he may take the
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 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 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 without Seisin And so is 34 H. 6. 48. upon Dimisit and also Common Experience And note where there be two Defendants and the one appears and the Plaintiff Counts against him in Trespass in 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 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 And Note 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
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 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 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 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 it s said by Littleton That if the Plaintiff proveth not the Feoffment by Deed he faileth Now 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 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 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 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 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 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 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.
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 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 False and hath this End to draw the Trial of the Cause from the Jury to the 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 First Colours may be given in Actions of Trespass as is said above of Cattle of Goods or in Land or 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 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 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. and in no other Writs or Actions as I can find Nor in these neither 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 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 And as it seems by the same Book and 18 Ed. 4. 3. that he that Justifies 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 But by the same Book and 12 H. 6. 18. He that pleadeth a Discent shall give Colour because it bindeth only the Possession and not the Right And by 15 H. 7. 10. and 21 H. 7. 23 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 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 are Sufficient Colours and in what manner they are to be pleaded And 50 E. 3. 18. where there were Lord Mesn 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 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 and not by any mean in the Conveyance And therefore 38 H. 6. 5. the Defendant pleaded that A. was seised to whom B. Released and gave Colour by B. and ill Neither may Colour be given 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 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 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 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 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 or Possession doubtful to the Lay-People whether the same be good in
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 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 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 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. it s 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 But of this Plea of Tout temps prist 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 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 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 And so 16 Ed. 4. 4. where the Defendant in Trespass doth Justifie for Disms 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
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 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 it s said That in Pleading an Indenture he shall not need to say Prout per Indenturam praedictam plenius liquet or 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 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 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 and Exception taken for that Cause 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. 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 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 Then shall be shewn 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 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 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 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 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 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 ought to be known And First Touching the Cause of Repleaders which is for that the Pleading hath been ill and vicious Or the Issue misjoyned and then it s 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 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 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 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. 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 Re-plead in the Bench and not be Remanded to Replead in the Country quod nota Then 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 it s 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 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 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 Mis-joyning of Issues want of Warrant of Attorney for the Party against whom c. or other default of the Parties their Counsellors c. The Second 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 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
Judgment might be pleaded in Bar. 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 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 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 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 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 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 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 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 it s 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 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 Then 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 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 Continuance can be made of it they being absent and if not Tried now 't will be Discontinued Objected That goes but to Part and there is now a Plea which goes to the
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. for Lands in Durham And by 22 Ass. 12. Execution shall be in Court Baron but by Distress as in a Return Irreplegiable Yet 38 Ed. 3. 3. seemeth otherwise And so seemeth 7 H. 4. Abridged by Bro. Pl. 26. And see 18 Ed. 4. 4. 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. 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 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 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 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 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 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 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 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
which divers Grants and Renders were made and in the third Render all the Mannors Lands and Tenements were rendred to A. and B. and the Heirs of the Body of A. and in the fourth Render part of the Premisses were rendred to B. in Tail the Remainder to the Right Heirs of A. It was Resolved that the same was not Error First That the fourth Render as to that was contained in the third Render should be in the quality of a Charter which needs not such a precise Form as a Judgment Secondly That the Conusor should not assign that for Error because he gets an Estate by it and no man shall reverse any thing for Error unless he can shew that the Error is to his advantage So More Case 202. If an Infant levy a Fine and take an Estate by Render he may not have Error for this And see Mich. 31 Eliz. in B. R. Leon. Rep 1 Part 317. Pigot and Harrington's Case where Baron and Feme were Tenants for Life the Remainder in Fee to an Infant and they three levied a Fine and the Infant only brought Error to Reverse it It was Objected that they all Three ought to joyn in the Writ according to 29 Ed. 3. 14. But per Cur ' the Writ is well brought for the Error is not Assigned in the Record but without it in the person of the Infant and that is the Cause of Action for him and for no other and the Fine was reversed as to the Infant only Vide Cro's Iacobi 330. Point's Case and Bulstrode's 1 Part 206. Batts and Ienning's Case where Inspection of an Infant in Error to Reverse a Fine upon the day of Adjornment of the Term held good by all the Judges of England And see Mo. Case 701. That a Writ of Covenant Retornable before the Date is Error CHAP. XIV Of Appeals Indictments and Informations APPEAL according to Co. on Littleton Lib. 2. cap. 11. comes from the Latin word Appello to Call quia Appellans vocat Reum in Iudicium and is used in our Law for the private Accusation of a Murderer by a Person who had Interest in the Party murdered It is as much as Accusatio with the Civilians for as in their Law Cognizance of Criminal Causes is taken either upon Inquisition Denunciation or Accusation so it is in ours upon Indictment or Appeal Indictment comprehending both Inquisition and Denunciation Accusation or Appeal being a lawful Declaration of another man's Crime of Felony at least for tho' there be an Appeal of Mayhem yet that according to Bracton is but in a manner an Action of Trespass before a Competent Iudge by one who sets his Name to the Declaration and undertakes to prove it upon the Penalty that may ensue of the contrary Appeal by others is defined to be The violent pursuing of a Subject unto Death and is the most nice kind of Suit that is commenced at the Common Law for every small matter will quash the same if it be not freshly pursued and shall in divers respects be taken strictly in favorem vitae And Note That the Process in every Appeal is to bear Date the same day of the Retorn and if not it will be a Discontinuance of the Process Note also That the Omission of any word which is material in the Writ of Appeal will abate the same And it is to be Observed That the Process in an Appeal doth vary from all other Proceedings at the Common Law for there shall be no Amendment of a Writ of Appeal nor is the Discontinuance of it helped by any Statute Then Where an Appeal of Murder will not lie for the Heir For which see Mich. 33 H. 8. Dyer 50. The Statute of 31 H. 8. made it Treason for a Woman to Poison her Husband A Woman Poisoned her Husband Afterwards the Statute of 32 H. 8. Of General Pardon pardoned the Offence the Heir brought an Appeal of Murder And it was the Opinion of all the Justices that now an Appeal of Murder did lye for the Heir for that now Murder was turned into Treason and the greater Offence shall extinguish the lesser And see Co. Lib. 6. fo 13. in the Case of Pardons acc and 7 Eliz. Dyer 235. where Petty Treason is pardoned by a General Pardon there one who killed his Master was Indicted of Murder and holden the Indictment did not lye against him but being found Guilty was Reprieved And see Mich. 33 H. 8. Dyer 51. and 33 Eliz Co. Lib. 4. 45. where an Appeal of Murder was brought against W. to Answer to A. B. alias dict' A. B. Fratri haered ' of the Person murthered but because the Plaintiff in the Appeal was named Brother and Heir in the Alias dictus which is no part of the Name the Appeal did Abate and the Defendant discharged by the Court. And see 5 Ed. 6. Dyer 69. where there were three Brothers and the Middle Brother is killed and the Eldest Brother dies within the Year without bringing any Appeal and the Question was If the Younger Brother might maintain an Appeal It was not Resolved but left a Quaere See 11 Ed. 4. 11. Stamf. 59. 20 H. 6. 43. by Fortescue that he shall not but 16 H. 7. 15. contra Then How Appeals shall be brought by Infants First See Pasch. 17 Ed. 4. Pl. 4. and More Case 646. where an Appeal was brought by an Infant and the Defendant prayed to be dismissed because the Plaintiff was an Infant Per Cur ' If the Defendant be guilty he shall stay in Ward till the Infant comes of Age. But by 27 H. 8. 1. b. the Plaintiff now shall appear by Guardian By Co. 2 Inst. 5. If an Infant bring an Appeal of the Death of his Ancestor the Parol shall not demur for want of Battail but the Infant shall be outed of it as if the Appellor were Old or Maimed But Mirror of Iustices 127. contra the Parol shall demur And see 2 Ed. 4. 19. b. and 20. a. acc and 11 H. 4. 93. a. And Pasch. 27 H. 8. 25. an Infant brought an Appeal of Murder in the time of H. 8. and prayed that the Parol might demur and Resolved it should not By 35 H. 6. 10. If an Infant be found guilty of Felony 't is in the discretion of the Court to give Judgment or not as they find the Infant hath Discretion or Malicious Intent By Owen 59 63. and Popham 115. in an Appeal of Murder after Pleading to the Writ the Defendant must Plead over to the Felony else it is a Confession of it for there his Life is in question And see 3 Cro. 223 224. where in an Appeal of the Death of an Husband the Defendant pleads Ne unques accouple c. and quoad c. Not Guilty The Plaintiff Replies fueront accouple but pleads nothing to the rest yet it seems the Plea is not Discontinued because the first Plea is not Triable at Common Law so answers
how pleaded Per Nomen how pleaded Continetur Praedict ' Nota benâ— Of the word Ut in Pleading Where a General Plea shall be pleaded for avoiding of Mischief Of Pleading an Entry c. Negative Pregnant Licet an Express Affirmamative Express Seisin or Possession to be alledged not implied Nota bene Of the words Virtute Cujus or Per quod c. Quorum praetextu A Deed how to be pleaded Of the Pleas Non est factum or Riens passa Where an ill Plea is made good by Reference to another Of Pleading Prout per Indenturam or Scriptum plenius liquet apparet Quae sunt omnia c. Quae est eadem dimissio Quod est idem Vastum Et non alia neque diversa Surplusage Pleading Devant son temps or Mispleading Un Plea fait auter bon Ieofail Estoppel Repleader It s Cause Ieofail what Ieofail At what Plea the Parties shall begin to Replead In what Place At what time Statutes aiding Ieofails or Mis-pleadings 32 H. 8. cap. 30. 18 Eliz. cap. 14 Of Matterâ— Remediable by the Statutes of Ieosails * Excepted in Stradling's Case before pag. 179. Matters not Remedied by the Statute Stat. 21 Iac. concerning Ieofails Stat. 16 17 Car. 2. concering Ieofails Averment de vie Averment de Cure License Mis-pleaded Issue Mis-joyned Mis-Trial Ieofail Stat. VVestm 2. cap. 31. Damages where to be found Entire and where Several Verdict ayd bon Pleading Verdict contral ' Matter de Record Of Special Verdicts Of what things the Jury may take Cognizance Of Matters in a Foreign County How the Iury may find a Matter of Record Spiritual Matter how to be found by the Jury Where the Jury find a Special Matter and Conclude contrary Verdict varying from Issue where good and where ill Where the Jury find more than is in the Issue Verdict for the Plaintiff yet he is Barred Where the Jury give divers Verdicts Verdict must be by 12 except by Writ of Inquiry Verdict de bene Esse Where the Verdict shall be void in part or a Ieofail Misdemeanour of the Jury where it makes a Verdict ill Forms of Judgmentâ— What Day Judgment shall be given Where i. e. in what Court Judgment shall be given Causes to stay Iudgment Judgment final Where the Plaintiff may have Judgment for part and relinquish the rest Two Judgments in one Action Where Judgment shall be with Cesset Executio Execution what Against whom Execution by Capias will lye In what Cases Execution may be had by Capias Execution by Capias pro Fine Escape Capiâ—s Utlagatum Where Execution by Capias Fi. Fa. or Elegit Upon Escape Sheriff chargable in Debt or Case Fresh Pursuit Old Sheriffs must give notice to the New of those in Execution Elegit It s Force Execution against Bail or Mainprise Mainpernors what Bail what Execution by or without Scire facias Scire facias what Vide Tit. Errâ—r Division 1. Matter and Pleas that stay Execution Pleas in Bar of Execution Venditioni Exponas Clericus Beneficiatus Where the Defendant may be Committed by the Court without Process Of Executions in the Ports or Franchises In Durham In Court Baron Of the Sheriffs Breaking open a Door or Chest to do Execution Franchise Discharge by Error and Mainprize Execution in B. R. after Error Discharge by Escape Discharge by Privilege of Parliament Going at large by Baston i e. Keeper or Tipstaff Discharge by Act of the Court Law or Plaintiff Attaint of Felony By assent of the Court and Parties Sheriff Fined for Disobeying a Supersedeas Error what Writ of Error what Scire facias Form of assigning Error Discontinuance Nonsuit By Attorney Record not Transcript removed Original Fine In a Franchise In the same Court Durham Ireland Palatine Wales Callice Chester London Supersedeas Hustings In Assize Chancery Inferiour Courts of Record Error in Chancery reformed in C. B. Cinque-Ports Shipway Attaint of a Judgment in Romney-Marsh False Judgment Real Action Personal Action Fresh-force Error in the Exchequer Forma brevis de Errore Error in C B. Error in B R. By a Stranger to the Judgment Heir Executor or Successor Damageâ— What Heir shall have these Writs Of Esâ—oppels in assigning Error Entry sur Disseisin What shall not be Assigned for Error Diminution what Supersedeas Error in Parliament Of Amendments of Erroneous Proceedings Errors not amendâ—â—le Of Error in Fines and Common Recoveries Infant Appeal what Where the Heir shall not have an Appeal of Murder Appeals brought by Infants Of pleading to Appeals Indictment what What shall Quash an Indictment what not Nusances Vi armis Contra pacem Incertainty A Rule to distinguish where an Indictment and where an Action of the Case doth lye Information what
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 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 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 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 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 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 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 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 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 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 And the Matters aforesaid as it seems are no Cause to Demur
upon the 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 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 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 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 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 And Ibid. 11 H. 4. 19. Issue shall be always Joyned upon a Negative 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 the Plaintiff shall Reply in the Affirmative and Conclude the Issue And Ibid. 7 H. 6. 43. It appears 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 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 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. And it appears 18 Eliz. Dyer 353. 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 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 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 and Refusal in Pleading Tender 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