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 Yet Annâ— 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 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. 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 it s 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 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 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 And per Cur. If it was not good at the Common Law yet now câ—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 Vide Hobâ— 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
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
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
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 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 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 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 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 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
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 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 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 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 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. 't is 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 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 't is 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 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 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 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 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 Interlâ—quendi vel petit visum Salvis sibi omnibus Advantagiis c. And by 8 H. 6. 18. 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. 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 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 are those to the Person which according to Littleton are six in number 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 farther than before is mentioned they are divers as Variance from the Writ wanting Form or 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 they be of two sorts viz. the one Apparent in the Writ of which the Defendant may at all times take
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 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 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 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 't is 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. and other Books That if a Bar be good to Common Intent it sufficeth 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
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 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 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 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 By the Books 11 H. 4. 24. and 19 H. 6. 34. in Trespass the Defendant may give in Evidence 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 The next upon the Issue of Nihil debet By the Book of 28 H. 8. Dyer 29. the Defendant may give in Evidence 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 And 21 Ed. 4. 20. If the Plaintiff in 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.
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
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
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 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 What Matters are not Remedied or Helped by any or either of the Statutes of 32 H. 8. and 18 El. before-mentioned 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 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 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 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 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. after Verdict given in any Court of Record the Judgment thereupon shall not be stayed or reversed for any Variance in Form only
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 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 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 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 Then 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 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 't was 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 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 in the whole or where a Repleader and a Scire facias de novo 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 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 it s 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 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 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. 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
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 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 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 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 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 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 it s there said that 't is 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 See more hereof afterwards in the Title Error Next 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 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 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 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 Then 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 Venditionâ— Exponas to compel him to sell the same 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 Then 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. 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. where upon a Return of a Writ of Execution upon a Statute Merchant Returned Nichil
or Riens passa ibid. Where an ill Plea is made good by Reference to another p. 167 Of Pleading Prout per Indenturam or Scriptum plenius liquet apparet p. 168 Of the words Quae sunt omnia singula c. in Pleading ibid. Of the words Quae est eadem Dimissio in Pleading ibid. Of the words Quod est idem Vastum in Pleading ibid. Of the words Et non alia neque diversa in Pleading p. 169 Of Pleading out of Time or Mispleading ibid. Where an ill Plea may be made good by Admittance ibid. Where the Defendant may waive his Pleading and betake himself to the General Issue p. 171 CHAP. VII p. 174 Of Repleaders or Ieofails CAuse of Repleaders ibid. Ieofail what ibid. At what Plea the Parties shall begin to Replead ibid. In what Place ibid. At what Tiâ—e p. 176 Statutes aiding Ieofails or Mis-pleadings viz. 32. H. 8. cap. 30. 18 Eliz. cap. 14. 21 Iac. 1. cap. 13. and 16 17 Car. 2. cap. 2. ibid. Observations upon the two first Statutes p. 177 Cases upon the said two Statutes p. 178 Of Matters Remediable by the Statutes of Ieofails p. 180 Of Matters not Remedied by the Statute of Ieofails p 189 Of the Statutes of 21 Iacobi and 16 17 Car. 2. concerning Ieofails p. 193 194 Observations upon the two last Statutes p. 197 What Defects in Pleading or otherwise are aided by the said Statutes ibid. CHAP. VIII p. 207 Of Intendment WHat Construction the Law doth make of the Intention of the Parties as to Contracts and other Matters ibid. CHAP. IX p. 212 Of Bills of Exception BIll of Exception what it is ibid. Need not de Rigore Iuris be allowed in Arrest of Iudgment ibid. Must be Sealed before and not after Judgment p. 213 CHAP. X. p. 214 Of Verdicts VErdict what ibid. Must be sufficient in Matter and Form p. 215 Damages where to be found entire where several ibid. Where a Verdict shall make ill Pleading good p. 216 Where the Verdict is contrary to other Matter of Record p. 217 Of Special Verdicts 218 Of what things the Jury may take Cognizance p. 220 How the Jury may find a Matter of Record p. 221 Spiritual Matters how to be found by the Jury 222 Where the Jury find a Specil Matter and Conclude contrary p. 223 Verdict varying from the Issue where good where ill ibid. Where the Jury find more than is in the Issue p. 226 Where tho' the Verdict be found for the Plaintiff yet he shall be Barred p. 227 Where the Jury gives divers Verdicts p. 228 Verdict must be by Twelve except by Writ of Inquiry ibid. Verdict de bene Esse ibid. Where the Verdict shall be void in part or a Ieofail ibid. Misdemeanor of the Jury where it shall make a Verdict ill p. 229 CHAP. XI p. 231 Of Iudgments OF the Forms of Judgments ibid. What Day Judgment shall be given p. 232 Where or in what Court Judgment shall be given ibid. Causes to stay Judgment ibid. Where Judgment shall be final p. 233 Where the Plaintiff may have Judgment for part and Relinquish the rest ibid. Of two Judgments in one Action p. 236 Where Judgment shall be with Cesset Executio ibid. CHAP. XII p. 238 Of Executions EXecution what ibid. Of the Method of obtaining Executions p. 239 Execution for Debt fourfold ibid. Against whom Execution by Capias will lye ibid. In what Cases Execution may be had by Capias p. 240 Of Executions by Capias pro Fine p. 241 Of Executions by Capias Utlagatum p. 243 Where Execution shall be had by Capias Fieri facias or Elegit p. 245 Upon Escape the Sheriff chargable in Action of Debt or upon the Case p. 248 Of Fresh Pursuit ibid. Old Sheriffs must give Notice to the New of those in Execution ibid. Where two bound joyntly and severally and in Execution and one Escapes and he brings Audita Querela and held not to lie p. 249 Whether the Defendant dying in Execution be a Discharge for ever as an Escape is ib. Elegit its force p. 251 Of what an Elegit may be sued ibid. Of Execution against Bail or Mainprise 252 Mainpernors what ibid. Bail what p. 253 Of the Writ of Scire facias what it is and where Execution may be had by Scire fac ' or without p. 258 What Plea or Matter will stay Execution 264 What other Pleas one shall have in Bar of Execution p. 265 Of the Writ Venditioni exponas where it is to be awarded and the power of the same 269 270 Of Execution against a Clerk upon the Retorn of Clericus est Beneficiatus p. 271 Where the Defendant may be Committed in Execution by the Court without Process ib. Of Executions in the Cinque-Ports Counties-Palatine or other Franchises ib. 272 Of the Sheriffs Breaking open a Door or Chest to do Execution ib. 273 274 How one in Execution shall be delivered without Payment p. 274 That the Party in Execution may be discharged by Error and Mainprise ibid. Where an Escape shall be a Discharge of the Execution for ever and where not 275 276 Death of the Defendant in Execution no discharge of the Debt p. 277 Discharge by Priviledge of Parliament 279 Of going at large by Baston Keeper or Tipstaff p. 280 Where the Act of the Court the Law or the Plaintiff doth discharge the Party of the Execution p. 281 Where the Sheriff shall be Fined for Disobeying a Supersedeas p. 282 CHAP. XIII p. 283 Of Error and False Iudgment ERror what ibid. Writ of Error what p. 284 Of a Writ of Error where it lies and the Statutes that concern the same p. 285 How one shall proceed to reform Erroneous Proceedings against him p. 286 Whether the Heir or Executor or Successor shall have these Writs of Error and False Iudgment p. 294 What Heir shall have these Writs p. 296 Of Estoppels in Assigning Error ibid. What shall not be Assigned for Error p. 297 Diminution what ibid. Of Error in Parliament p. 299 Of Amendments of Erroneous Proceedings ib. Of Error in Fines and Common Recoveries p. 306 CHAP. XIV p. 309 Of Appeals Indictments and Informations APpeal what ibid. Where the Heir shall not have an Appeal of Murder p. 310 How Appeals shall be brought by Infants 311 Of Pleading to Appeals p. 312 Of Indictments and the Pleadings thereupon and what will maintain or quash the same p. 317 Indictment what ibid. What shall quash an Indictment what not p. 320 Of Indictments of Nusances p. 325 Of the words Vi armis in an Indictment 327 Of the words Contra pacem in an Indictment ibid. Indictments quashed for Incertainty p. 328 Rule to distinguish where an Indictment and where an Action of the Case doth lye ibid. Information what p. 329 Of the Duty of an Informer ibid. Information must be laid in the proper County where the Fact was done p. 330 If the Informer dies or will not Prosecute the
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