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
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
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
Ed. 4. and 24 Ed. 3. Abridged by Brook in the Title of Conditions 61. it seems in that Case to be to the contrary because Executed and therefore not like where an Annuity is granted pro Consilio The like where one holdeth to Inclose taking the ancient Pale or where one granteth to me an Annuity to have a Gorse or a Gutter in my Land because an Easment And by 15 H. 7. 10. If you Covenant to serve me and I to give you Five Pounds for your Service Or you Covenant to Marry my Daughter and I in like manner to give you Twenty Pounds as a Marriage Portion If you serve me not or Marry not my Daughter I may plead the same in Bar. Otherwise if the Covenant on either part had been expresly and not depending upon the others Act. Next shall be shewn In what manner one shall plead in Bar the Performance of a Condition of an Obligation And First Touching the Performance of Covenants in Indentures omitting the variety of Ancient Books it appears 27 H. 8. 1. and 33 H. 8. Brook Covenant 35. That the Defendant ought to plead the Indenture and the special manner particularly how he hath performed every Covenant See also accordingly 10 11 Eliz. Dyer 279. and 28 H. 8 Dyer 26. But as it seems there need not aver quae sunt omnia singula Conventiones c. because referr'd to a Matter in Writing The like of a Record And for that Reason it seems of necessity that he need not to plead prout in eadem Indentura Quaere tamen But if not referr'd to Writing or Record as hath been said before then it shall be otherwise As if I am bound to Enfeoff you of all my Lands in Dale I must shew the Number of Acres and plead also quae sunt omnia c. Yet now at this Day the Course of the Practice is notwithstanding the Covenants are reduc'd into Writing after they are recited in the Plea to insert this Clause Prout per eandem Indenturam plenius apparet And as to Pleading Performance of the Conditions of Obligations they d◠vary according as the several Cases are And First By 28 H. 8. Dyer 30. the Condition was That the Obligee should peaceably enjoy c. And the Defendant pleaded That the Plaintiff did peaceably continue his Possession until such a day at which time the Lord distrained for Rent and a good Plea But 30 H. 8. Ibidem 43. where the Condition was to Warant and save harmless against Lord and King and to have and peaceably Enjoy The Defendant pleaded Quod habuit pacifice gavisus fuit where said by divers that the Plea is ill and but Argumentative that is he hath peaceably Enjoyed the Land Ergo he hath Waranted the Land and saved the Plaintiff harmless For he might be Impleaded in a Praecipe and the other not waranted and yet hold it peaceably or might be distrained for Issues lost c. and therefore ought to have pleaded expresly quod non fuit dampnificatus per Regem nec per aliquem alium or that the Plaintiff was Impleaded and he did warant c. Quaere inde for Baldwin è contra The Condition of an Obligation 2 Eliz. Dyer 184. was to warant defend or save harmless as well the Person of the Obligee as the Premisses against one Culpepper where the Defendant alledged in his Bar a former Lease by reason whereof neque le Obligee nec les Premisses possint nec potuerunt esse dampnificat ' per praedictum Culpeper To which the Defendant Replied the Special Matter in Law without Concluding Et issint dampnificat ' where holden the Defendant's Bar was ill and that he ought to have pleaded Non fuit dampnificatus or the Special Matter and Conclude Issint non dampnificatus and the Plaintiff's Replication for want of a proper Conclusion ill also And 3 Eliz. Ibidem 186. in the like Case the Defendant Pleaded quod Quer ' non dampnificat ' fuit per A. and the Plaintiff in his Replication shewed a Special Damage and Concluded Et issint dampnificat ' and the Defendant by his Rejoynder pleaded Nul tiel Record quod nota Note also That in an Action of Covenant brought 28 H. 8. Dyer 31. One of the Covenants in the Indenture was That the Defendant ought to make and suffer for the Assurance of the Plaintiff all things that should be devised by the Counsel of the Plaintiff if he were required And the Defendant taking Protestation for Plea said that he was not required To which the Plaintiff Replied That I. S. was of his Counsel who devised a Release which he required the Defendant to Seal but he refused to do the same To which the Defendant Rejoyned Que ne Refusa pas and by all the Court holden a Departure and that the Defendant ought to have Pleaded at first Non requisitus fuit and the Plaintiff in his Replication needed not to have spoken of any Refusal But where the Condition was for the Performance of an Arbitrement of I. S. touching c. so as it be delivered in writing before c. The Defendant Mich. 7 8 Eliz. Dyer 242 243. pleaded by Protestation non fecerunt c. Pro Placito quod praedicti Arbitratores ante c. non deliberaverunt c. Upon which the Plaintiff in his Replication shewed when and where the Arbitrators made the Arbitrement and the several parts thereof and alledged the Breach in one Point Upon which Replication the Defendant did Demur because in his Plea he answered not the delivery of the Arbitrement but by a glance and not directly Note the words of the Condition and the Plea notwithstanding quod Arbitratores non deliberaverunt c. and good It appears by Cro. 2 Part fo 352. in the Case of Staine against Wilde that where there was Debt brought upon an Obligation to perform an Award of all Suits and Demands between the Parties so as it be made of and upon the Premisses ready to be delivered to the Parties before such a day c. and that they made such an Award de super Praemissis scil that the Plaintiff should have and enjoy a Horse in Controversy between them and that the Defendant should pay him 3 l. before Michaelmass towards his Charges and they should Release each to other all Matters whatsoever between that and Michaelmass And the Plaintiff assign'd Breach for Non-payment of the 3 l. And on Demurrer held good for the Plaintiff For tho' it was pleaded That the Arbitrement was made de super Praemissis yet these General words will not help the Plaintiff unless he avers that there were no more Causes between them and then the Release appointed being void there is nothing Ordered for the Defendant's benefit See more of this 7 H. 6. 6. 39 H. 6. 9. 2 R. 3. 18. and 22 H. 6. 22. So in Tyer's Case Trin. 23 Car. 1. in Banco
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
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
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
to be known How one shall have Divers Pleas when one of them shall go to the Whole And therefore first see 1 Ed. 4. 29. In an Assize of the Office of Clerk of the Crown brought by two Persons where the Defendant pleaded to one of the Plaintiffs That he was an Alien and to the other Nul tiel Office because the last went to the Whole it was holden to be double And yet 37 H. 6. 30. the Defendant pleaded a Fine to the Whole and did Conclude to the Moiety and so for the other Moiety and good And eodem Anno 38. the Defendant did Justify to the Third Part for one Cause and to the other Two Parts by another Cause And Mich. 13 14 Eliz. Dyer 305. the Defendant in Trespass of Trees may plead as to the Cutting Not Guilty and as to the Taking he may plead a Gift of them And so 33 H. 6. 12. and 48 Ed. 3. 18. in Debt against an Executor the Defendant did Plead to part an Acquittance and to the rest plene Administravit And so is 28 Ed. 3. 91. See more hereof in this especial Title Deux Pleas un va al Tout in Brook where this Difference is holden That if one Person pleads divers Pleas and the one of them goeth to the whole Writ or Action that only shall be received And where several Pleas are pleaded by divers Defendants in any Personal Action and one of them goeth to the Whole that Plea shall be first Tried and the rest of the Defendants shall have Advantage thereof Where also a difference is taken between this kind of Pleading and a Double Plea and touching this any Person may shew the same to the Court as Amicus Curiae and the other none but the Party And see the Book of 9 H. 6. in that Title 4. which takes this difference That if there be two Defendants in a Real Action and they plead severally to the Action and One of their Pleas goeth to the whole as Bastardy and the like the other shall have no Advantage But otherwise if one of them doth Plead to the Writ the same shall be first Tried and the other shall have advantage of it The like in Personal Actions to the Action But if there be but one Defendant either in Real or Personal Actions and he pleads several Pleas to the Writ or Action and one of them goeth to the Whole that which goth to the whole shall only be taken And accordingly seems 37 H. 6. 37. Then shall be shewed Where the Plea is ill without shewing of the Deed or Record First It appears 20 H. 7. 6. That he which is a Stranger to the Patent and Deed and claimeth nothing by the same or by him that hath Right shall not shew the same And some question 1 H. 7. 24. if the Termor of a Common shall And 29 Ass. 21. seems That he that deriveth but a Particular Estate shall not But 14 H. 4. he that deriveth any Interest be it Particular or otherwise by Commandment shall shew And 21 Ed. 4. 50. a Servant that Justifieth a Distress for his Master shall shew the Deed but otherwise of an Incumbent that pleadeth a Grant of Prochein Avoidance to his Patron because he claimeth only the Incumbency and not the Patronage And 9 H. 7. 13. one brought a Quare Impedit and Counted that A. was seised and did Grant proximam Advocationem to B. and after did grant to C. who granted the same to him and the Question was Whether he should shew the Deed made to B. And 42 Ass. 2. one shall plead a Will without shewing because it appertains not to him And 22 Ass. 52. the Under-Escheator shall shew the Patent But 28 H. 8. Dyer 29. not And 39 Ed. 3. 37. the Grantee of Prochein Avoidance was not enforced to shew a Composition which declared to be his Grantor's Title because he had not his whole Estate But 22 H. 6. 42. the Servant shall but otherwise of the Servant of a Collector that Distrained for a Tax because an Act of Parliament the Principal Matter of his Title And 7 H. 6. 1. he that prays to be Received by reason of a Remainder or a Woman that demandeth Dower of Rent shall not shew the Deed because it doth not belong to them And upon this Reason see the Books 38 Ed. 3. 37. 14 H. 4. 30. 11 H. 4. 83. and divers other Books That where the Deed doth appertain to him there he shall not be forced to shew the same And so 35 H. 6. 31 32 where his Authority is determined and the Patent doth appertain to another as to another Officer and the like And this Learning is approved of in Plowden in the Case of Second Deliverance brought by Throgmorton against Tracy where one pleaded a Lease by a Corporation to begin after another was determined where holden That the first Lease need not be shewed for Three Reasons First Because it did not belong to him Secondly Because that Estate was determined And Thirdly Because the Defendant's Estate was Executed And further touching the Learning in this Point see Dyer first 28 H. 8. fol. 29. left doubtful whether a Particular Grantee shall shew the Main Grant And Ibid. 30 H. 8. 54. rather that he shall and therefore learn what the Law in that Case is And some Books take a difference where one deriveth himself an Interest to the Whole in Part of the thing there he shall shew but if but to part of the Estate then not Next Where the Estate is Executed there need not the Deed for the most part to be shewed And first 15 Ed. 4. 16. If one Convey to a Possession Executed in himself by the Grantee of a Reversion and Attornment there he need not shew the Deed. Otherwise to a Rent or to Land in Remainder by Grant of a Corporation But the Issue in Tail of a Rent Executed shall have a Formedon in the Discender And by 11 H. 4. 39. and 14 H. 4. 31. if a Remainder be once Executed the Issue in Tail may have a Formedon as of a Gift in Possession But in a Formedon in Remainder the Deed must be shewed And so is 18 H. 8. 4. and 34 Ed. 3. Yet 10 Eliz. Dyer 277. in a Formedon in Remainder upon a Gift to Uses in Tail holden that he need not shew the Deed for two Causes One because the Estate may be made without Deed and the other because it appertained to the Feoffor And therefore 1 2 Mar. Dyer 174. a Stranger to a Deed shall plead a Grant without saying that it was by Deed. And by Dyer 28 H. 8. 29. Tenants in Common making Partition to Present by Turns when it is once Executed the Deed thereof need not after to be shewed quod nota The like Law as it seems of Executors and Administrators touching the shewing of the Will where the difference is that being Defendant or bringing
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
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
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
two become Bail for him and the Plaintiff Recover and the Process continued till Judgment against the Bail Execution may be against either of the Bail without naming the other And Idem 896. he may have Execution against one of the Bail at one time and after have Execution against another of the Bail But Idem 897. if a man have once Execution against the Bail he may never after have Execution against the Principal Or if once against the Principal never after against the Bail And Idem ibid. if the King Recover in a Scire facias on a Recognizance acknowledged in Chancery he can have no Execution against the Body But a Capias lies on a Judgment in a Scire facias on a Recognizance acknowledged by the Bail in an Action in the Kings-Bench But no Capias will lye upon a Judgment in a Scire facias on a Recognizance acknowledged by the Bail in the Common-Pleas but there an Action of Debt will lye upon the Recognizance So if the Bail in an Inferiour Court enter into a Recognizance That if the Principal pay not the Damages and Costs recovered or render himself to Prison Tunc Concedit the Damages and Costs de terris catallis suis levari ad opus Querentis no Capias will lye upon this Recognizance So neither for the Plaintiff in Detinue to recover Damages against the Garnishee because as by 7 H. 6. 45. before-cited not party to the Writ So if an Inferiour Court be held by Charter and the Bail there Enter into Recognizance no Capias will lye for this But by Hobart 284. Abridged by Rolls 898. If the Principal after Judgment render his Body in Court in Exonerationem Manucaptorum and the Plaintiff doth not take him in Execution and this is Entred of Record as it must be the Plaintiff may after this Take him in Execution by Capias ad satisfaciendum And Idem 899. if A. Recover against B. in the Kings-Bench Damages and Costs and upon this hath Judgment against the Bail after Scire facias and after B. and the Bail joyn in a Writ of Error upon the Statute in the Exchequer-Chamber and while this is Transacted the Year and Day is Elapsed in this Case the Court of Kings-Bench may grant Execution For it is a void Writ of Error and as if none had been brought And Idem 891. if a Recognizance of Bail be taken by a Judge of the Kings-Bench at Serjeants-Inn in London upon an Original brought in London and it be Certified and Inrolled in the Kings-Bench it seems it may be extended in London or Middlesex In the next place we shall Consider Where Execution may be had by Scire facias and where it may be had without And first as to the Writ of Scire facias ought to be known That Execution must be had within a Year of the Iudgment otherwise it cannot be taken out till there be first sued out a Scire facias which is a Writ Iudicial going out of a Record and lies where one hath recovered Debt or Damages in the Kings Court and he sueth not to have Execution within the Year and Day he must have his Writ to warn the Party and if the Party comes not or if he comes and says nothing in discharge or stay of the Execution then the Plaintiff shall have a Writ of Fieri facias to Command the Sheriff to levy the Debt or Damages of the Defendant's Goods Or where the Process is a Capias he may have another Writ of Execution called a Capias ad satisfaciendum to Take and Imprison the Body of the Defendant till he satisfie the Party Plaintiff And so on a Iudgment to Recover Lands if the Plaintiff do not sue out Execution within the Year after the Iudgmenâ— he may not have Execution till he have 〈◊〉 Summoned the Defendant to shew Câ—use why Execution should not be had against him And if the Defendant cannot be found upon Summons or cannot or doth not shew Cause why Execution should not be made then a second Iudgment is awarded That Execution be done upon the first Iudgment And here by Co. 1. Inst. 290. and Dyer 148. this Writ of Scire facias being Entred the Tenant or Defendant may thereunto plead any Matter accruing after the Judgment as Release Outlawry c. to prevent the Execution But it appears by Old Natura Brev. 163. Dyer 270 271. Hobart 56 57. Cro. 1 Part 185. Bulstr. 2 Part 230. Lane 16. Finch's Ley 477. That if the Plaintiff sue out Execution within the Year he may Continue the Iudgment after the Year without Scire facias But see Fitzherbert's Natura Brevium Tit. Scire fac ' and Brook's Abridgment 134. by which as also by divers other Books it appears That Execution may be had within the Year against a Party to the Judgment without a Scire facias but otherwise if the Record be removed into another Court And with these Authorities doth agree 14 15 H. 7. And it appears also there That the Year shall not be accounted from the Time of the Recognizance but only from the Time of the Payment And 23 H. 8. ibid. 119. if one Recover in Annuity a Fieri facias shall go out within the Year and after Scire fac ' infinite because Executory And with this agrees Bro. 28. where said That if one Recover in a Writ of Annuity he may have a Fieri facias of the Arrerages incurred within the Year and a Scire facias after as oft as the Annuity is behind and no Writ of Annuity after And in every Scire fac ' in which he Recovers after the first Judgment he shall have Execution of the Arrerages within the Year by Fieri facias And 11 H. 4. 34. Bro. 119. after Judgment had in Annuity the Plaintiff after a Scire fac ' may have a Fieri fac ' to levy it as it becomes due And 21 Ed. 4. 1 2. if Rent be granted by Fine the Party may have a Scire fac ' in Infinitum as before in Annuity or as in Covenant upon Covenant as one Recovering in Trespass may bring a New Action And 22 H. 6. 15. Bro. 54. one Condemned in the Common-Pleas and in Execution Attainted after in an Assize Remanded also thither and could not be Committed there for that Execution also without Process And see 39 Ed. 3. 15. Bro. 122. One had a Scire fac ' to Execute a Judgment in a Praecipe quod reddat and Execution thereupon by Default and after surmized to the Court That the Person against whom he had his Writ of Scire fac ' and Iudgment was not Tenant but one B. against whom he had another Scire fac ' quod nota And Note by the Book of 22 H. 6. 11 12. That at the Common Law until the Statute of Westm. 2. De hiis quae c. If one had Recovered in Debt and taken out no Scire fac ' within the year
he was obliged after the year to take out a New Writ of Debt And see by the Book of 5 Ed. 4. and Experience That where a Scire fac ' is had upon a Iudgment there shall be no Execution 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
himself Title by the same may do it by a Que Estate ibid. So the Avowant may in his Avowry Convey to the Plaintiff an Estate in the Tenancy by a Que Estate because he is a Stranger to his Title ibid. That a Term cannot be Conveyed in Pleading be the Party Actor or otherwise by a Que Estate be the same a Term or Estate for Life or in Tail p. 132 Yet the Defendant in an Assize did Convey from one by a Statute by a Que Estate ibid. And so of Tenant in Tail especially if the Party be to Aver his Life ibid. That the Tenant may Rebut by reason of a Waranty by a Que Estate but not be Vouched ibid. That a Que Estate is not to be alledged in any of the Mean Conveyances but to the Tenant himself without shewing how notwithstanding the same hath been suffered p. 132 That in Pleading a Que Estate the Party by whom such Estate is Conveyed must be shewed in Pleading to have a good Estate as by Recovery Feoffment Release or the like and not sufficient to say That A. was seised whose Estate the Defendant hath ibid. Tenant in Dower coming in by Law may Convey by a Que Estate p. 133 So he that comes to the Land by Disseisin So he that he recovers the same ibid. That a thing that lieth in Grant cannot be made Title to by a Que Estate although by way of Bar. ibid. As of an Hundred Rent or Common Except it be incident to some thing that may pass without Deed unless he shew a Deed to Maintain his Prescription ibid. Que Estate not Traversable but in Particular Cases ibid. Of a Double Plea and what it is p. 134 Where one Answer will make an end of all as Ne dona pas or the like there no Doubleness or if the Defendant plead divers Matters and rely upon one of them or do shew in his Pleading divers Matters of Inducement or of Suspicion or alledges two Presentments in a Quare Impedit the one in the Guardian or Particular Tenant and the other in the Party himself there no Duplicity ibid. But divers Matters may be alledged to oust the Conusance or prove a Maintenance p. 134 Yet Appendancy and Prescription and a Lease and Release will make a Plea double ibid. Where one binds himself in 10 l. in the Indenture to Perform divers Covenants the Plaintiff can declare but upon the Breach of one of them if he demand the 10 l. but otherwise if he brings an Action upon the Covenants p. 135 Where one pleads That he was seised until by the other Disseised against whom he did Recover not double because the one part of the Plea is a Conveyance to the other ibid. So where one cannot come to the one Plea without the other there no Doubleness as Seisin Feoffment c. ibid. Non dederunt Arbitrium in scriptis held by some to be double ibid. So a Collateral Waranty and Assets double ibid. But Barganizasset and Concessit not double but words of one signification ibid. How one shall have divers Pleas when one of them shall go to the Whole ibid. As where an Assize of the Office of Clerk of the Crown was brought by two Persons and the Defendant pleaded to one of the Plaintiffs That he was an Alien and to the other Nul tiel Office here because the Last part went to the Whole the Plea was holden to be double ibid. Yet the Defendant pleaded a Fine to the Whole and did Conclude to the Moiety and so for the other Moiety and good ibid. So the Defendant did Justify to the Third Part for one Cause and to the other two Parts by another Cause p. 136 So the Defendant in Trespass of Trees may plead as to the Cutting Non Culp ' and as to the Taking he may plead a Gift of them ibid. So in Debt against an Executor the Defendant pleaded an Acquittance to part and plene Administravit to the rest ibid. If a Person pleads divers Pleas and one of them goes to the whole Writ or Action that only shall be received ibid. Which of the Pleas shall be first Tried ibid. 137 Where the Plea is ill without shewing the Deed or Record ibid. Where the Estate is Executed there needs not the Deed for the most part to be shewed p. 140 How the Vouchee shall be forced to shew a Deed p. 141 How an Action may be upon Record without shewing p. 142 Tho' one have not the Deed yet if it appear of Record in the same Court pleaded by another at that time he shall have advantage of it p. 143 CHAP. VI. p. 145 Of Pleading in General WHere one in Pleading shall shew how he was seised ibid. Where one may Convey to himself an Estate without shewing how he that gave it was seised ibid. In a Writ or Count may be said Quod quidam J. S. dimisit without shewing how he was seised but otherwise by way of Bar or Title ibid. Where one shall say He was seised in Dominico suo c. ibid. Where in Pleading shall be said in Iure Uxoris p. 146 Where Lands are given to Two and the Heirs of one of them the Pleading shall be Quod fuer ' seisit ' viz. the one In Dominico suo ut de feodo and the other In Dominico suo ut de libero Tenemento ibid. Of the Plea In Iure Coronae ibid. Of the Plea In Iure Domus p. 147 Whether it be sufficient to alledge a Seisin in any without shewing of what Estate ib. How he that hath but an Estate for Life or an Estate Tail or an Use shall plead the same without shewing the beginning thereof p. 148 Where in Pleading for Certainty to every Intent it must be shewed that the Estate did Continue at the time p. 149 Which of the Parties shall set forth the Place where c. in Pleading p. 150 Bona Notabilia in divers Dioceses how to be pleaded p. 152 Where the County shall be taken by Intendment ibid. Where the Day or Years shall be certainly alledged in Pleading p. 153 Acts Spiritual how to be pleaded p. 155 Of Pleading Matters of Record as Utlary Recovery in Debt Recognizance Retorn of a Writ c. p. 155 156 How the words Inter alia are to be used in Pleading p. 157 Acts of Parliament how to be Pleaded ibid. Per Nomen how pleaded p. 160 Of the word Continetur in Pleading p. 162 Of Pleading by or without the word Praedict ' ibid. Of the word Ut in Pleading p. 163 Where a General Plea shall be pleaded for avoiding Mischief ibid. Of Pleading an Entry c. p. 164 Of the Plea Negative Pregnant ibid. That the word Licet is an Express Affirmative p. 165 Where an Express Seisin or Possession must be alledged ibid. Of the words Virtute cujus Per quod Quorum praetextu c. ibid. A Deed how to be pleaded p. 166 Of the Pleas Non est factum