And 38 H. 6. In Debt by a Servant against his Master for Wages he declared upon a Retainer for Eight years taking for every year Twenty shillings it shall be intended from year to year according to the Statute Next is to be considered what shall vitiate a Count and what shall not And first Note well that it hath been held for a Maxim among the Sages of the Law and Ancient Pleaders that for Surplusage the Count doth not abate Surplusagium non nocet as is 9 H. 6. 25. by Rolfe And so is 46 Ed. 3. 21. Where in a Quod ei deforceat the Demandant did alledge Esplees in himself and likewise in the Donor and yet good Although as it seemeth by the Book of 3 H. 6. 41. if the Count want Esplees the same is ill And so is 9 H. 6. 41. where said That if one in an Attachment upon a Prohibition doth not expresly declare that the Prohibition was deliver'd to the Defendant Ill For there is said to be a Form to be observed And by 4 Ed. 4. 14. and 20 H. 6. 18. a Blank or Space left in a Declaration doth abate the same But by 24 Ed. 3. 35 54. if the Obligation be Anno Domini only in the Date without mentioning the King's Reign the Declaration may be so also and as it seemeth may be otherwise viz. è contra By 11 H. 4. 72. its said That in Debt against the Ordinary or Gaoler you shall not need to declare how they were made Officers because an Action lieth against Officers in possession And Note that where a Condition contained in the Obligation is to the advantage of the Plaintiff there he must declare thereof by 21 Ed. 4. 36. Otherwise if it be to his disadvantage or contained in the Condition of the Obligation and to that intent is 22 Ed. 4. Bro. tit Count 13. where any thing is to be done by the Plaintiff and 33 H. 6. 3. putteth the difference where it is contained in the Obligation and where in the Condition And to that Intent is 9 H. 6. 15 16. But yet 26 H. 8. 1. the Condition was Indorsed to this purpose That if the Obligee deliver to the Obligor a Bull that then the Obligation shall be void otherwise not There the Plaintiff is to Declare upon the Condition but Shelley doubted if he shall be compelled to do the same of necessity And by 3 H. 6. 8. If the Defendant do bind himself by Indenture in Forty Pounds to perform all Covenants contained in the same the Plaintiff shall declare upon the Breach of every Covenant to which the Defendant shall plead Covenants performed generally and then the Plaintiff shall assign one or more Breaches specially whereupon Issue shall be joyned But as before so in Annuity pro Consilio impenso impendendo the Plaintiff in Annuity or in Debt for the Arrearages thereof ought to count that he did or was ready to give Counsel because a Consideration Executory Otherwise of Council Executed as is 3 H. 6. 35. 38 H. 6. 22. 5 Ed. 4. 104. But yet 21 Ed. 4. 49. Brook Count 72. this difference is Ruled there That where an Annuity is so brought by a Special Officer as by a Keeper Bailiff Steward c. there he must declare of the Service but otherwise in a Declaration pro Consilio because more general there the Defendant may assign the Breach or lay the default quod Nota. Also if an Annuity be granted to an Attorney pro Consilio impenso impendendo and a Suit happens to be depending after the Grant made between the Grantor and a Stranger and the Attorney not being requested to give Counsel in that Cause to the Grantor gives Counsel to the Stranger therein Resolved by the Court that this is not against the Intent of the Grant but that the Annuity notwithstanding such Advice given against the Grantor should continue 4 H. 8. 13. Note it is not material when you declare in Annuity to set forth the Title or Estate of the Grantor but only to say that the Grantor did grant the Annuity Co. Entries Annuity 49. And by 15 H. 7. 6. it appeareth that the Plaintiff in Formedon may declare of a Gift without Seisin And so is 34 H. 6. 48. upon Dimisit and also Common Experience And note where there be two Defendants and the one appears and the Plaintiff Counts against him in Trespass in the Simulcum that he with the other such aday did the Trespass and when the other came he counted against him in like Form as is 46 E. 3. 25. But against the latter the Plaintiff varied in the Day And 44 Ed. 3. 41. Br. 583. a Man may have Detinue of Charters and of Chattels joyntly because there one thing is the ground of the Action viz. the Detainer And 41 Ed. 3. Damage 75. and 1 H. 5. 4. one may have an Action of Debt where part of the Mony is due upon Bond and other part by Contract because there Debt is the only Cause of Action So by 19 Ric. 2. Case 52. In things of the like Nature one Declaration may contain divers several Wrongs and therefore in an Action upon the Case the Plaintiff declared against the Defendants First For hindring him to hold his Leet Secondly For disturbing his Servants and Tenants in gathering his Tithe Thirdly For threatning so that the People c. durst not come to a certain Chappel to do their Devotion and present their Offerings And Fourthly For the taking away his Servants and Chattels And see 22 H. 7. Bro. 87. The Plaintiff did Count de novo against the Defendant and the Priee in Aid after Aid prier And 5 H. 5. 13. He shall also Count against Tenant by Resceit mutatis mutandis The like seemeth should be against the Vouchee Yet by 8 H. 6. 16. the Plaintiff shall not Count de novo against the Garnishee And 14 H. 6. 3. one shall not Count against him that cometh in upon the Grand Cape until he hath saved his Default And Note touching the declaring of the Time and Place first by 9 H. 6. 115 16. That in Wast and such like Mixt Actions as also in Actions Real one shall not Count of the Day Year and Place otherwise in Personal Actions And to the same Intent is 7 H. 7. 5. And therefore 35 H. 6. 50. a Parson brought an Action of Debt for the Arrerages of an Annuity granted unto him until he should be promoted to a Benefice and Declared that he took a Wife which determined the Annuity yet because he did not shew the Place where he took her to Wife the Count was ill And so is 35 H. 6. In an Action of Debt brought by an Administrator for not shewing in what Place the Administration was committed unto him But it is otherwise of an Executor for he is not bound to shew where he was made Executor because he may be Executor of his
Tender and a Refusal by the Plaintiff and the Plaintiff took the Refusal by Protestation and Traversed the Tender as he ought because no Refusal without a Tender See Dyer 28 H. 8. 31. In Debt upon an Obligation the Condition whereof was to make an Assurance of Lands upon Request as by the Counsel of the Plaintiff should be devised And the Defendant pleaded by Protestation That the Plaintiff's Counsel made no Devise and for Plea That he was not Required To which the Plaintiff Replied That his Counsel devised a Release which he Requested the Defendant to Seal and he Refused And the Defendant would have Traversed the Refusal and could not but ought to maintain his first Plea that is the Request and the Plaintiff should not have mentioned a Refusal but have Concluded the Issue upon the Request the Defendant offering a Negative Plea before And so 36 H. 6. 15. the Defendant in Debt did plead an Award to pay 10 l. at such a Place which he was ready at the time to do and the Plaintiff came not to receive the same There the Plaintiff may say That he was there ready without Traverse because the Defendant had Tendred a Negative Plea before Then Of the Issue Negative Pregnant which is a Negative that implies or contains in it self an Affirmative As where an Action Information or such like is brought against one and he pleadeth in Bar to the Action Or otherwise a Negative Plea which is not so direct an Answer to the Action but that it includeth also an Affirmative As if a man be Impleaded to have done a Thing on such a Day or in such a Place denies that he did it Modo forma declarata which implies nevertheless that in some sort he did it Or if a Writ of Entry in Casu proviso be brought by him in the Reversion upon an Alienation of Tenant for Life supposing that he hath Aliened in Fee which is a Forfeiture of his Estate and the Tenant to the Writ saith That he hath not Aliened in Fee this is a Negative wherein is included an Affirmative For tho' it be true that he hath not aliened in Fee yet it may be he hath made an Estate-Tail which also is a Forfeiture and then the Entry of him in the Reversion is Lawful Vide 33 H. 8. Br. Issue 81. Where upon an Information for buying Cloaths at B. contra formam Statut ' Ne achata al B. contra formam Statut ' ill but ought to be Ne achata pas Modo forma c. Yet 16 Ed. 4. 5. One pleads a Release puis le darein Continuance Nient son fait puis le darein Continuance a good Issue And 12 Ed. 4. 4. One did plead a Feoffment by Deed and the other Replied Que ne Enfeoffa pas modo forma and good without answering to the Deed. As in a Formedon to Count of a Special Gift the other-ought to say Ne dona pas modo forma Where it s said by Littleton That if the Plaintiff proveth not the Feoffment by Deed he faileth Now Modo forma are Words of Art in Pleading namely in the Answer of the Defendant whereby he denies the Thing laid to his Charge Modo forma prout the Plaintiff hath Declared against him As the Civilians in like case say Negat allegata prout allegantur esse vera And it is to be Observed that upon Issues these Words Modo forma are not always of Substance as appears by Littleton in his Chapter of Releases where the Disseisee enters upon the Heir of the Disseisor who brings his Writ of Right Or where as before one in a Writ of Casu Proviso doth Count upon an Alienation in Fee and the other doth say Ne Aliena modo forma and found that he Aliened for Life Or where the Defendant in Trespass doth plead That the Plaintiff doth hold of him by Fealty and Ten shillings Rent and so demandeth Judgment of the Writ Vi armis and the Plaintiff Replieth Que il ne teigne modo forma And if the Verdict find that he holdeth only by Fealty yet good And so in Trespass of Battery If the Jury upon the General Issue find the Defendant Guilty at any other day and place before the Plaintiff supposeth his Trespass But see more of Issues afterwards in the Titles Traverse Pleading c. The next in Order is touching Traverse in Pleading which signifies in Pleading to deny some Point Matter or Thing alledged on the other side the formal Words of which are in our French Sans ceo in Latin Absque hoc and in English Without that And first to begin with the Time It is plain as hath been already said that if the Defendant in Trespass pleads Non Culpabilis he shall have no advantage of the Time but the Jury may find him Guilty at another day be the Trespass Transitory or Local And by Littleton in his Chapter of Releases so 13. In Trespass of Battery and the General Issue pleaded the Jury may find the Defendant Guilty at another day and place And so is also 19 H. 6. 47. and 39 Ed. 3. all in the Title of Traverse But in Case of Trespass and other Actions if the Plaintiff in his Declaration lay a time before his Cause of Action the Defendant in all Cases upon the General Issue shall have advantage thereof But on the contrary if once he have Cause of Action it so still continueth until he have discharged the same and therefore he may lay it after the day The like as it seems upon the Issue of Non dimisit for as before Littleton in the Chapter Releases the Words Modo forma in an Issue be not always of Substance Quaere tamen if not as if in the Number of years And as divers Books be In many Cases where the Defendant doth Iustify he may Traverse the Time before and in some Cases the Time after and in other some the Time before and after And therefore where the Defendant in Trespass of Lands or Goods maketh himself Title by a Feoffment Gift or otherwise which still is in force such a day after he shall only Traverse the Time before the Trespass supposed And so is 15 Ed. 4. 23. 22 H. 6. 29. and other Books in the Title of Traverse And where by a Lease or other Title made and determined before the Day of the Trespass there he must Traverse the Time after and before his Lease But whether the Plaintiff may there Traverse that Iustification hath been a Question because in so doing he Departeth from his Declaration And the better Opinion of the same Book of 15 Ed. 4. 23. is That the Plaintiff may But 22 Ass. 36. the Defendant in Trespass of Battery did plead a Release and Traversed the Time and the Plantiff Replied the Release was obtained by Duress and by the better Opinion no Plea for the Reason aforesaid And 2 R. 3.
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
Judgment might be pleaded in Bar. And 3 H. 4. 18. in that Case the Iudgment is recited to be Quod Quer ' nichil Capiat per Breve Et quod Def. Eat sine die quod nota In the next place What Day Iudgment shall be given For which see 9 Ass. 11. That it shall not be given until the Fourth Day and if a Writ of Attaint bears Date before the said Fourth Day it shall abate Then Where Iudgment shall be given For which see 21 H. 7. 35. where its said That if an Office Traversed in the Chancery be sent into the Common-Pleas to be Tried the Judgment shall be given there because the one Court and the other is coram Rege And 6 Ass 4. 16. That if an Assize upon a Foreign Release pleaded be Adjourned to be Tried in Banco and found for the Plaintiff if he will Release his Damage he may have Judgment there Otherwise it shall be Remanded to Inquire of Damages Then shall be shewn What be Causes to stay Iudgment As 11 H. 4. 10. and 19 H. 6. 10. If the Court think the Damages given to be too great as the Cases were there in Trespass and Replevin the Court may stay Iudgment until the Plaintiff have Released part of the Damages And so 11 H. 4. 17. where after Verdict it did appear by Examination that one of the Parties had delivered an Escrowl to the Jurors And so 11 H. 4. 71. If it appear by Matter of Record That the Land is in the King's Hands And 39 Ed. 3. 35. The Court upon Discretion did stay Iudgment because it was supposed the Action to be brought by Covin Then Where Iudgment shall be Final It appears 26 H. 8. 8. That before the Mise is joyned in a Writ of Right or where the Tenant in that Action Voucheth no Iudgment shall be final against the Vouchee Yet see 44 Ed. 3. Bro. Iudgment 45. A Feme Covert was Received and did Joyn the Mise and Judgment final given against her yet thereof and of an Infant left doubtful 9 Ed. 4. 16. See Fitzh Nat. Brevium in his Writ of Right Then Where the Plaintiff may have Iudgment for part and Relinquish for the rest For which see first 16 H. 7. 17. where the Plaintiff in Debt did Count part upon a Lease of Land in London and part of other Land As to the first they were at Issue in London and to the rest at Issue also to be Tried in a Foreign County and the first Issue found for the Plaintiff ad dampnum xx d. and Costs xx s. and the Plaintiff did Relinquish the other Issue and prayed Iudgment for that and had it And in the like Case 32 H. 6. 4. the Plaintiff demanded Judgment of that Debt found and Damages and Relinquished his Costs until the other Verdict found And so seems 3 H. 6. 37. and 42 Ed. 3. 25. In Debt part upon an Obligation and part upon a Contract As to the Obligation the Defendant did Confess and to the other the Plaintiff was Nonsuit and yet had Judgment for the other And 50 Ed. 3. 11. in Trespass against Two if the one of them be Attainted before the other appears the Plaintiff shall not have Judgment against him before the other appear and Plead also except he will Release against the other And so 45 Ed. 3. 3. Where one of the Defendants in Trespass doth make default And 36 H. 6. 13. the Defendant in Debt as to Parcel pleaded tout Temps prist and to the rest Nil debet where it s said That the Plaintiff may have Judgment of the Parcel confest Maintenant and of the Damages for the Court may Tax the same but Cesset Executio quousque because of the Costs But 22 H. 6. 48. if in Debt the Defendant plead to the Issue for Part and a Nil dicit to the Residue as to the same the Plaintiff shall have Judgment presently but as to the Damages he shall stay until the other Issue be Tried although it be in Cases where Damages ought to be severed But see 5 Ed. 4. 108. where in Trespass against Baron and Feme the Baron did plead Non Culpabilis and the Feme a Foreign Plea whereupon Issue was taken that was a Ieofail the Plaintiff cannot relinquish the same and Pray Iudgment against the Husband because the Damages are not to be severed but the Husband shall have advantage or disadvantage of the Verdict of his Wife if the Issue were good So if Two other persons in Trespass plead severally and the one of the Verdicts a Ieofail because of the Entirety of the Damages Otherwise if the Defendants were severed in the Process Pleading or Demurrer And in Trespass against Two who plead Non Culp ' the Plaintiff cannot sever his Judgment but his Execution and he must have Judgment before the Release And 5 Ed. 4. 124. it appears That if divers Pleas be pleaded and one of them goeth to the Whole the Plaintiff may Release that for doubt of the Sequel And see 15 Ed. 4. 25 26. That if in Trespass against Three one maketh default and the other pleadeth a Plea that goeth to the Whole the Plaintiff may pray his Judgment against him that made Default and Relinquish against the other Then Of Two Iudgments in one Action As 36 H. 6. 2 3. by Prisot in Ravishment of a Ward the Judgment shall be of Damages with the Body and if the Sheriff Return That the Heir is married the Plaintiff shall have a Scire facias for the greater Damages and upon that he shall have another Iudgment and Execucion The like by him in Detinue and also in Debt against Executors where in the one Case if the Sheriff Return That they are lost and in the other a Devastavit the Plaintiff shall have a New Scire facias and have Judgment de bonis propriis Quaere For according to Littleton the first Judgment shall be Conditional viz. De recover les biens cu Gard c. Et si c. And so is 22 H. 6. 41. in Detinue according to Littleton And Where the Plaintiff shall have Iudgment but Execution shall cease See 24 Ed. 3. 61. in Dower of Rent granted to Cease during the Nonage of the Heir Also in Perkins and there likewise where Dower is brought and a Term in being before the Marriage And see 15 Ed. 4. 11. 3. or 4 Ed. 3. 42. in Trespass against Three they all plead Non Culp ' as to part and quoad resid ' plead a Gift of the Goods and Issue thereupon and at the Nisi prius two make Default and a third pleads a Concord puis darrein Continuance and prayed the Issue might be Tried against the two by Default for that no Continuance can be made of it they being absent and if not Tried now 't will be Discontinued Objected That goes but to Part and there is now a Plea which goes to the
the Plaintiff did surmize That the Lands did lye in the Cinque Ports and had a Writ of Execution to the Constable of the Ports And see 1 Ed. 4. 10. for Lands in Durham And by 22 Ass. 12. Execution shall be in Court Baron but by Distress as in a Return Irreplegiable Yet 38 Ed. 3. 3. seemeth otherwise And so seemeth 7 H. 4. Abridged by Bro. Pl. 26. And see 18 Ed. 4. 4. and Co. 5 Part 93. That if the Sheriff do make Execution upon a Fieri facias or otherwise at the Suit of a Common Person and break open his House Door or Chest Trespass doth lye against him for Breaking of his House Door or Chest although the Execution will be good fieri non debet factum valet Yet by 18 Ed. 2. Abridged by Fitzherbert Tit. Execution 152. The Sheriff may break Door or Chest to do Execution for otherwise th Plaintiff shall lose the Effect of his Suit And 11 H. 4. 7 9. if the Sheriff enter into a Franchise and do Execution the same is good according to the Rule above and yet he is a Trespassor to the Lord of the the Franchise who may have an Action of Trespass upon the Case against him for Infringing his Liberty But if a Bailiff of a Franchise do any such Execution without his Franchise that will be void And by 40 Ed. 3. 21 22. The Sheriff in Execution of Dower of Rent cannot drive the Beasts from the Ground although he may deliver Execution by the Beasts a Clod or Bough But upon a Capias Utlagatum or a Capias for Felony the Officer may break open the Doors Otherwise as it seemeth not although the Execution be a Non omittas propter aliquam Libertatem But the Sheriff or his Under-Officer may as it seemeth upon any Capias Enter into any mans Ground or House open to Arrest any man that he seeth Enter and if his Prisoner Escape may follow and break open Doors to take him Quaere inde And see Bro. Abridgment Tit. Faux Imprisonment And by Justice Iones and Berkley 12 Car. 1. in B. R. If the Sheriff have a Fieri facias or Capias ad satisfaciendum against a man and before Execution he pay him the Mony he may not do Execution afterwards for if he do Trespass or False Imprisonment will lye against him for it And see Co. 4 Part 91. Iinmayn's Case where it appeared That there were two Joint-Tenants of a House one of which acknowledged a Statute and died possessed of divers Goods therein and the Sheriff came to Extend the Goods and he and the Jury offered to Enter the House to Extend the same but the Defendant intending to disturb the Execution shut the Door so as the Sheriff could not Enter to do his Office In which Case these Points were Resolved First That if a Recovery be in a Real Action or in an Ejectione firmae the Sheriff upon an Habere facias Seisinam or Possessionem may break the House to do Execution because after the Judgment it is not the House of the Defendant Secondly In all Cases where the King is Party after the Sheriff hath signified the Cause of his coming if no Door be open he may Break-open the House to do Execution but if he may Enter it without Breaking of it or upon a Request if in such Case he Break the House he is a Trespassor Thirdly In all Cases of a Common Person If the Door be open the Sheriff may Enter the House of a Subject to do Execution against Body or Goods Fourthly That it is not lawful for the Sheriff upon Request and Denial in Case of a Common Person to Break the House of a Subject to Execute any Process And the Sheriff cannot Break the House by virtue of a Fieri facias but he shall be a Trespassor But if he doth so and doth Execution the Execution done by him is good And see for this Co. 11 Part 82. Bowle's Case and see 18 Eliz. 44. by all the Justices Then ought to be known How one in Execution shall be delivered without Payment And therefore by 16 H. 7. 2. If the Party be in Execution and the Record be removed by Error and he find Mainprise to Prosecute with Effect and to satisfie c. although the Judgment be affirmed he shall never be in Execution by his Body upon the same unless he will render his Body to save his Sureties voluntarily And so is 21 Ed. 4. 67. if the Plaintiff be once in Execution And so is 8 H. 7. 10. But by the said two Books last cited If no Execution be awarded before the Writ of Error then Execution in the King-Bench may be awarded And so is 6 Ed. 4. 19. If a Judgment in a Mean Court be reversed by a Writ of False Iudgment or Error in the Common-Pleas And so is 12 H. 4. 24. if he that Removed the Record do nothing See accordingly 39 H. 6. 3 4. and after in the Title Error Then is to be Observed That in some Cases an Escape is a Discharge of Execution for ever As namely If the Prisoner in Execution go at large by Consent of the Plaintiff or of the Gaoler But as 13 H. 7. 1. is If he Break Prison of himself and afterwards the Gaoler take him again because of his own Wrong whereof he shall have no advantage he shall remain for the first Execution unless the Plaintiff by bringing an Action of Debt against the Gaoler do refuse that Advantage against the Prisoner And so seemeth Stamford Yet 14 H. 7. 1. although the Gaoler may take him yet the Plaintiff shall have no Advantage thereof But by 11 H. 4. 12. the Plaintiff may also have Debt against the Party And by 41 Ass. 15. after an Escape of the Prisoner and Death of the Keeper of the Prison the Plaintiff prayed a New Capias against the Defendant and it was granted Quaere If not to be in Execution again because no Remedy else for the Plaintiff And 33 H. 6. 47. If the Party in Execution die the Debt is discharged So against him if he Escape See Mo. Case 1177 and Hobart 55 56. Foster and Iackson's Case where said That if the Defendant die in Execution it is a Discharge of the Execution for ever as an Escape is Yet see Co. 5 Part 86. contra But by Hob. 59. If two be Bound joyntly and severally to one who sues them joyntly he may have a Capias against them both and the Death or Escape of the one shall not discharge the other But he may not have a Capias against one and another kind of Execution against the other when he sues them joyntly but if he sues them severally he may sever them in their several kinds of Execution but yet so as if once a very Satisfaction be had of one or against the Sheriff upon the Escape of one the other may be relieved by Audita
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
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
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
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
it cannot be so Intended of the Court. And a New Trial was Awarded And see Co. Lib. 5. 120. Long 's Case where in an Indictment of Murder Error was alledged because the Indictment was said to be taken before W. S. Coronatore Dominae Reginae infra Libertatem dictae Dominae Reginae Villae suae de Cossam praedict ' per Visum Corporis and it was not alledged to what Places the Liberty did Extend nor what part or any part of the Town of Cossam was within the Liberty So as it doth not appear that the Coroner had Jurisdiction and it was said That Indictments which do concern Life and which are the King's Counts ought to have a plain and precise Certainty to which the Party may answer and shall not be taken by Argument But Resolved by the Court that the Indictment was good enough For if an Indictment be Certain to a general Intent the same is good enough And in this Case the Indictment is certain enough to a general Intendment because Cossam is within the Liberty of Cossam and that the Town it self shall be Intended to be out of the Liberty of the Town is a strain'd Construction which the Law will never allow of And see Co. Lib. 4. 65. Fulwood's Case Mich. 33 Eliz. where A. being seised of a House in London acknowledges a Statute to the Chamberlain of London for Orphanage-Mony according to the Custom and afterwards acknowledges another Recognizance before the Recorder and Mayor to B. who sued Execution thereupon and had a Liberate but it was not Returned and the Sheriffs upon that delivered the House in Execution to B. The Successor of the Chamberlain sued Execution upon his Recognizance by Elegit to the Serjeant at Mace Amongst other Matters in this Case it was Objected That here was no Recognizance in the nature of a Statute found for the Jurors have found Quod A. veniebat coram Recordatore Civitatis London T. O. Majore Stapulae Et recognovit se debere B. 200 l. and doth not say Secundum formam Statuti c. nor Per scriptum suum Obligatorium Whereas the Statute of 32 H. 8. provides that it shall be by Bill Obligatory sealed with three Seals But it doth not appear by the Verdict that it was according to the Statute and although that Verdict being the words of Lay-men shall be taken according to their meaning and there needs not so precise Form in them as in Pleading yet the Substance of the Matter ought to appear either by Express words or by words Equivalent so as there ought to be a convenient Certainty the which if it be false the Party for such Falsity may have an Attaint But it was Resolved that the Verdict was good for inasmuch as they have found a Recognizance before the Mayor and Recorder c. It shall be in a Verdict of Lay-men Intended according to the Statute for otherwise they cannot take any Record and also the sequel of the Verdict doth imply That there was a Recognizance in the Nature of a Statute otherwise no Execution could be sued thereupon CHAP. IX Of Bills of Exception THen touching Bills of Exception This as it seems by 27 H. 8. in Tatam's Action upon the Case is when one of the Parties for the Insufficiency of the Evidence on the other side as he conceives it doth offer to Demur upon the same and the Court thinking it to be good or the other Party Refusing the same do not Agree to it then the Court ought upon Request to Seal to the Party so refusing this Exception in a Bill which upon a Writ of Error as appears by Fitzh Nat. Brevium may be assigned for Error whereupon by the Statute a Writ if need be is to be Awarded to those Justices to acknowledge or deny their Deed but as it seems by the said Book of 27 H. 8. need not de Rigore Iuris be allowed in Arrest of Iudgment And it appears by Fitz. Natura Brevium and 11 H. 4. That this Bill must be Sealed before Iudgment and not after For the Formal Drawing up of Bills of Exception see one to the Evidence upon the Trial at the Assizes in an Action of Trespass Assault and False Imprisonment brought by Verdon against Decele Heyward and others in the King 's Bench Hill 33 34 Car. 2. in Brownl Latine Redivivus Tit. Bills des Exceptions and ibid. Mich. 32 Car. 2. where a Writ of Error was brought in the King 's Bench at Westminster upon a Bill of Exception to Evidence upon a Trial at the Bar of the Common-Pleas Court in Ireland upon an Ejectione firmae with some others there under the same Title CHAP. X. Of Verdicts A Verdict is the Answer of a Iury made upon any Cause committed by the Court to their Trial Which is twofold Special or General A Special Verdict is when they say at large That they find such and such Matters to be done by the Tenant or Defendant so declaring the Course of the Fact as in their Opinions it is proved and as to the Law upon the Fact they pray the Advice of the Court thereupon And this Special Verdict if it contain any ample Declaration of the Cause from the beginning to the end is also called a Verdict at large Whereof see divers Examples in Stamford's Pleas of the Crown Lib. 3. cap. 9. A General Verdict is that which the Jury find in General Terms upon a General Issue As in an Action of Disseisin the Defendant pleads No Wrong No Disseisin then the Issue is General whether the Fact be a Wrong or not which being put to the Jury they weighing the Evidence do either bring in their Verdict for the Plaintiff That it is a Wrong and Disseisin or for the Defendant That it is No Wrong No Disseisin Vid. Co. 1 Inst. fo 228. a. and New Book of Entries Tit. Verdict First As to a Verdict it must be sufficient in Matter and Form be the same Special or General as if the Jury do not Assess Costs and Damages where the same ought to be found and the like And therefore 21 Ed. 4. 11. where a Tender of Homage was found to be made and not shewed in what County the same was ill Quaere thereof for it appeared in the Pleading c. Next where the Damages are to be found entire or several Touching which see a good Case in 1 Ed. 5. 5. where the Plaintiff did Count in Detinue of Damages touching every part in several and the Jury found for the Plaintiff to the Damage of Twenty Pounds entirely if the Things could not be had where by the Better Opinion the Damages ought to be found several as the Declaration was See the same Case more at large in Bro. Tit. Count and so is 3 H. 6. 43. And by 9 H. 6. 66. in Wast the Iury ought to sever the Damages for every several Tree and every several Parcel but in a Writ to Enquire of
by 13 H. 7. 1 Co. lib. 5. 87. 25 H. 7. 15. 33 H. 6. 47. 28 H. 8. 9. 19 H. 6. 4. 17 Ed. 4. 4. after an Elegit sued out and returned the Plaintiff may not have a Capias ad Satisfaciendum or a Fieri Facias but he must have an Alias Elegit or an Elegit in another County And by Hob. ubi supra The Plaintiff may have an Alias Elegit or an Elegit in divers Counties one after another And Idem 58. An Elegit may be had for a Residue after a part is levied by a Fieri Facias and if upon the Elegit nothing be taken but Goods which are not enough the Plaintiff may have a Fieri Facias But ibidem Dubitatur whether if a Lease of Lands for three years be taken which is not enough if now the Elegit be Peremptory Then ought to be known How a mans Bail or Mainprise shall be had in Execution or discharged For which see first 47 Edw. 3. 25. 26. That Mainpernors are there taken but to observe the day that is to say They are such Persons as do take or receive a man into Friendly Custody that otherwise is or might be Committed to Prison upon security given by them for his forth-coming or appearance at the day assigned or return of the Writ or Process So that he that is Mainprised is always said to be at large and go at his own liberty not of Ward after the day is set to Mainprise until the day of appearance by reason of Summons or otherwise But it is otherwise where a man is let to Bail to four or two Persons by a Judge till such a day for there he is always accounted by Law to be in their Ward or Custody for the time And they may if they will keep him in Ward or Prison all the time or otherwise at their pleasure so that he that is so Bailed shall not be said by the Law to be at large or at his own liberty For as before 47 Ed. 3. in Trespass the Defendant coming in by Capias found Mainpernors and had a Supersedeas and at the day appeared and made an Attorney and the Mainpernors discharged But Experience is otherwise at this day for the Mainpernors now answer the Execution in default of the Principal And 8. H. 4. 21. three Persons brought a Homine Replegiando and found Mainpernors to prosecute with Effect where said That if they fail the Defendant shall have Execution against the Mainpernors And 2 H. 4. 6. an Inquest did pass against the Defendant who was demanded and came not and his Mainpernors awarded to Prison quod nota Quaere tamen inde for by experience at this day no Execution can be had against the Mainpernors unless some Writ of Execution be returned against the Principal Nichil or Non est Inventus and the Bail or Mainprise be discharged upon the bringing in of the Principal either hanging the Plea or after Judgment before Execution for after Execution is once had against the Bail or Mainpernors the Principal is discharged Quaere tamen inde And this Bail may be after discharged as by death of the Principal Demise of the King c. And as 32 H. 8. Brook Tit. Mainprise If a Record be removed out of London by a Writ of Priviledge altho' the same be after Remanded by Procedendo yet the Mainpernors are discharged The like where Judgment is to Replead and the Plaintiff makes a New Declaration But if the Priviledge were never allowed then it is otherwise as it seems 31 H. 8. Procedendo 13. and Surety in Brook 28. See likewise 38 H. 6. 4. 12. Where one having cause of Priviledge in the Court of Common Pleas was Arrested in London and drawn into Plea in one of the Sheriffs Courts there and before Judgment he delivered a Supersedeas to the Inferior Court yet they proceeded to Judgment and the Party was taken in Execution and brought by Habeas Corpus in the Court of Common Pleas and the Court awarded That the Party should be discharged of the Execution Vide Co. Rep. lib. 5. fol. 70. If the Principal upon a Special Bail do not pay the Mony or render his Body after Judgment in discharge of his Bail then and not before Execution is to be had against the Bail And see Goldesbroughs Rep. fol. 175. Where said That Execution may not be sued out against the Bail till a Default be returned against the Principal But by Hob. 116. If the Bail be in Execution and a Writ of Error be brought the Court may not discharge him Vide Touch. Prec 64. If a Capias be awarded and returned non est inventus against the Principal and the Bail bring him not in if the Principal die altho' there be no Scire Facias against the Bail yet the Bail is chargable for tho' the Court will excuse the Bail yet the Bail if they bring in the Principal before the return of the second Scire Facias this is ex graâ—ia Curiae and not of necessity And Mich. 14 Iacobi in C. B. The Case was That Judgment was given against one in the King's Bench upon which he was in Execution and had another Judgment a-against him in the Common Pleas in which Court the Sureties to save their Bail brought him to Bar by Habeas Corpus to render his Body but before that he had brought a Writ of Error in the King's Bench to reverse the Judgment in the Common Pleas but the Record was not removed In this Case the Court said That when a Man comes in to save his Bail he shall not be Committed if the Party do not pray it but when Error is brought before that he be in Execution it is a Supersedeas so that they cannot Commit him at the Prayer of the Party And Waller Praenotary said That the Bail is to render the Principals Body in Execution so that the Plaintiff may have it in Execution but here he cannot in regard a Writ of Error is brought and therefore the Bail shall be discharged Vide Latch's Rep. fol. 192 193. One had Judgment in Debt in the Common Pleas against the Defendant and there after the year without any Scire Facias took out a Capias against him and Arrested him and upon this he brought Error in the King's Bench where the Judgment was affirmed whereupon he was discharged and the Plaintiff took him again by a Capias ad Satisfaciendum without any Scire Facias out of the King's Bench and there this difference was taken where one is lawfully taken in Execution and after discharged by Writ of Error upon which Judgment is affirmed there a New Capias will not lie against him but Execution shall go out against the Sureties unless he will render himself but otherwise where one was never lawfully in Execution when the Judgment is reversed there he may be taken again Vide Rolls Abridgment 888. If in Debt against I. S.