Selected quad for the lemma: death_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
death_n	abate_v	abatement_n	die_v	36	3	6.4948	4	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A43221	Maxims and rules of pleading, in actions real, personal and mixt, popular and penal describing the nature of declarations, pleas, replications, rejoynders, and all other parts of pleading, shewing their validity and defects, and in what cases they are amendable by the court, or remediable by the statute-law, or otherwise : likewise, which of the parties in his plea shall first offer the issue, and where special matter may be given in evidence upon the general issue : of demurrers upon evidence, of verdicts, general and special, and of bills of exceptions to the same, of judgments, executions, writs of error and false judgment, and of appeals, indictments, and informations and the pleadings relating thereunto / published from the manuscript of Sir Robert Heath ... ; with additions of new matter to every title, from all the reports since his time.	Heath, Robert, Sir, 1575-1649.	1694 (1694)	Wing H1340; ESTC R21584	172,855	372

where Vernon in his Avowry did Claim by discent as Heir to the Lord Powis Gray in his Replication to that Avowry did shew That the Lord Powis did Will it to him Absque hoc quod terr' discend ' The like as it seems if Gray had Conveyed as Heir in a nearer Degree And so is 19 H. 8. 60. there Vouched But otherwise as it seems if he had Claimed by Survivorship or in Coparcenary And 11 H. 7. 9. the Defendant in Trespass as Servant to another Justified the putting in his Master's Cattle To which the Plaintiff Replied That he put in his own Cattle and good without Traverse on his part for it may be he put in his own and his Masters also And see 22 Ed. 4. 39. that the Writ and the Count is but a Supposal and therefore the Defendant pleading a Matter in Fait shall take no Traverse but the same shall first begin on the Plaintiff's part As if the Defendant doth plead Iointenancy or the Defendant in Dower doth plead That the Husband of the Plaintiff had nothing but in Jointenancy with B. Or where Bastardy is pleaded or the like And so is 2 Ed. 4. 28 29. where in Ravishment de Gard the Defendant did alledge Iointenancy in the Ancestor and others And so where one doth plead the like either in Abatement of the Writ or Avowry See 21 Ed. 4. 36. the Defendant in Debt did plead That the Plaintiff was Born in Scotland Iudicium de Brevi and the Plaintiff Replied That he was Born in England without Traverse and that for the Mischief of the Trial. As is 6 H. 7. 5. where said also That if one plead a Feoffment the other may say That it was upon Condition without Traverse Vide cel Liver and see 5 H. 7. 11 12. where it doth stand upon a Matter in Law as against a Priest to alledge Unity of Possession and the like there no Traverse And see 7 Ass. 10. a Plaint in an Assize of 4 Acres of Meadow the Defendant did demand Judgment of the Plaint because it was Pasture quod nota And see 14 H. 6. 17. in Ravishment de Gard of which side the Traverse shall be and where any Confessing or Avoiding is there no Traverse And so Note in what Cases there shall not be any Traverse as namely where the Defendant doth but plead in Abatement of the Writ Count or Avowry or doth as before in most Cases plead in Bar because the Writ and Count is but a Supposal where one in his Plea doth Answer the other and more or for the Mischief of the Trial or because of a Matter in Law c. Next is to be known Where the Dying seised or the Discent is Traversable For which see the said Book 19 H. 8. mentioned in the last Division where it is said That the dying seised and not the discent is Traversable And as that Book so seems Brook in Traverse 6. and yet in the last Division in Vernon's Case and others the discent Traversable And 22 H. 7. 31. the Defendant in Trespass made Title by Discent and the Plaintiff in his Replication by the same Person did so too with a Traverse Absque hoc quod Tenementa discend ' al Defendant Then When the Dying seised or the Abatement shall be Traversed By 18 Ed. 4. 1. 26. the Defendant in Trespass did plead That A. was seised and did Enfeoff him To which the Plaintiff Replied That long time before A. was seised his Father was seised and died seised after whose death A. did Abate and Enfeoffed the Defendant and the Plaintiff Entred c. And by all the Court the Defendant may maintain his Bar and Traverse the Dying seised or the Abatement at his pleasure because it is the Plaintiff's Title and if any part of his Title be false the other shall have the advantage thereof The like 5 Ed. 4. 137. in a Writ of Entry in the Nature of Assize See 5 Ed. 4. 85. in the like Case of an Intrusion where it seems the Special Matter of the Title and not of the Intrusion is Traversable And so seems to be 3 H. 7. 7. in the former Case of the Abatement because the discent not answered which doth Entitle the Plaintiff where his Ancestor died seised of such an Estate as doth Toll an Entry And 39 H. 6. 26 27. an Abatement is Material and Traversable where he that alledgeth the same maketh Title by him that died seised otherwise not And 38 H. 6. 22. in the like Case as before in a Writ of Entry the Defendant did Traverse the Abatement and not the Gift in Tail Then is to be observed Where the Dying seised the Conveyance or the Disseisin alledged shall be Traversable For which see first Andrews his Case Mich. 21 22 Eliz. Dyer 365. the Plaintiff in an Ejectione firmae did declare upon a Lease made by my Lord Cromwell against which the Defendant being Andrews his Farmer did plead Quod diu antequam le Plaintiff ou son Lessee aliquid habuit in Praemissis one Iohn Blount was ●eised who Enfeoffed Andrews his Father who died seised and that Andrews let it to the Defendant upon whom Blount Re-entred and did him oust and Disseised Andrews and did Enfeoff my Lord Cromwell To which the Plaintiff taking the Parts of the Defendant's Plea by Protestation did maintain Blount's Feoffment to my Lord Cromwell Absque hoc that Blount Disseised Andrews And it was long Debated Whether in this Case he ought to Answer the Discent or the Feoffment to Andrews and the rather because both the Plaintiff and Defendant Claim by one Person And Lastly notwithstanding the Books of 21 H. 6. 12. and 30 H. 6. 2. and 5 Ed. 4. and 4 5 H. 7. which Cases were in Trespass and Assize for that this Case was in Ejectione firmae which contained Title in the Declaration which Title ought to be answered by the Defendant and no Bar with a Colour good and for that the Disseisin is also a Substantial part of the Bar it was holden to be in the Plaintiff's Election either to Traverse the same or the Discent or Feoffment at his pleasure And according to the same was Vouched 5 Ed. 4. 5. in a Formedon and 9 H. 6. where taken for a Rule That a Disseism alledged either in Bar or Replication is always Traversable And 15 Ed. 4. 22. taketh difference where the Disseisin is alledged in Fait and where only by way of Supposal as in a Declaration in a Writ of Entry and the like And 5 Ed. 4. 4. in this Title in Bro. 218. the Disseisin Traversable And 30 H. 6. 7. Bro. in this Title 360. is That in Trespass the Disseisin and not the Discent is Traversable but otherwise in an Assize And divers other Cases there be hereof but the Case of my Lord Dyer may now serve Then we shall shew Where the Seisin alledged in Fee is to

not good to every Special Intent As where one Sues as Executor and the Defendant saith That the Testator made the Plaintiff and one I. S. Executors and do not say after this That he did not make the Plaintiff Executor yet this may be sufficient So in Trespass where the Defendant pleads that the Place is his Freehold this is good yet the Plaintiff may have a particular Estate So upon an Obligation to perform Covenants the Defendant alledgeth two Covenants and saith he hath Performed them and doth not say There are no more Covenants in the Deed to be by him performed yet this is good for it shall be Intended that there are no more for him to perform But Ibidem No substantial part of a Bar may be omitted As where one is bound to do a thing between such and such a time and the Defendant saith That he did it or did it before the Day this is not sufficient but he must shew that he did it such a Day within those times So if one saith He was Lord of a Mannor and entred for an Alienation in Mortmain and do not shew that he did it within the Year for this shall not be Intended unless it be shewed Yet per Plowden puis 28. If one plead a Feoffment in Bar it shall be allowed as good albeit it might be by an Infant or per Duress c. unless it be shewed on the other side And if the Lessor Covenants with the Lessee that if he be ousted within the Term that he shall have as much other Land he must shew that he was Ousted on such a day in certain within the term So to plead in Bar that I. S. died seised and R. S. Entred as Son and Heir to him this is good tho' he say not that he was his Heir for that shall be Intended and the best shall be taken for the Defendant So Ibidem in an Assize if the Tenant plead in Bar a Discent to the Plaintiff and two others and that he hath the Estate of one of them it is good and yet he might have it by Disseisin but it shall be taken in the best Sense that he had it lawfully So per eandem in Colthirst's Case where the Ancestor is Tenant pur auter vie and the Heir pleads that he Entred as Heir to him and says not that he Entred first after his death for Occupanti conceditur And Ibidem if a Lease be made to A. and B. for Life the Remainder to C. and if C. shall dye during the Life of A. or B. then that it shall remain to E. for Life si ipse vellet esse Residens c. and E. being Defendant pleads his Entry after the Death of A. and B. and C. and doth not say when they died nor when he entred yet held to be good in a Plea in Bar. For per eundem 32 33. if it be a Condition it shall be Intended that the Defendant did Enter as soon as his Title accrued and if the Case be otherwise in truth than by Common Intendment it is taken to be the Plaintiff must set it forth in his Pleading As in a Formedon in Discender if the Tenant pleads in Bar a Release of the Demandant without Waranty it is good and yet the Release might be made by the Demandant in the Life of his Father and then it is no Bar to the Issue But it seems by Brook in his Title of Pleading 155. that in a Declaration or Replication this way of Pleading is not good For tho' a Bar may be good to Common Intent yet a Declaration and consequently a Replication or other Pleadings of the Plaintiff ought to be good to every Intent But by Co. Lib. 3. 52. If one declare upon an Escape in London and the Defendant doth Justify by the Taking again of the Prisoner in another County and answereth not the Escape in London this will not be good for every part of the Charge must be answered And Lastly It appears by Hobart 127 128. that a Plea that hath some Matter of Law in it tho' it seems to amount but to the General Issue is always allowed Note There be some Pleas in Bar upon which the Plaintiff shall have Present Iudgment As 16 H. 7. 19. where in Covenant to Perform Divine Service The Defendant pleaded that the Chappel was decayed So in Curia Claudenda if the Defendant plead Sufficient Inclosure or in Warantia Chartae Nient Implede or in a Writ of Mesne Nient Disir ' in some Default or upon the Plea of Riens Arrere in Annuity or upon Ne surcharga pas in Admeasurement of Pasture or Ne disturba pas in a Quare Impedit c. In other Cases the Plaintiff upon the Defendants Plea shall be barred for the present and yet afterwards have the Effect of his Suit by Scire Facias or the like Process upon that Iudgment or by New Action As appears in 19 H. 6. 27. in Debt against an Executor who pleads Plene Administravit which is found for him and so the Plaintiff is Barred pro tempore viz. until Assets come afterwards to the Defendant's Hands and then the Plaintiff may have a New Action So in Debt against an Heir who pleads Riens per Discent or in a Formedon pleads the Waranty of his Ancestor with Assets and after the Assets are Recovered against him he shall have a New Formedon and if he Alien the Assets his Heir shall have a New Formedon But as 21 H. 7. 10. where in Formedon Cui in vita Mortdancestor and the like such a Plea is pleaded either against the Issue in Tail or the Heir of Tenant by the Courtesy c. and no Assets found and after Assets discend the Defendant in the first Action shall have Scire facias for the Assets if the first Action be a Formedon otherwise as it seems for the first Land Quaere And see 11 H. 4. and 4 H. 6. Bro. Tit. Scire fac ' 74 130. in the last of which it is doubted when Executors plead Fully Administred and it is found for them and afterwards Assets discend whether the Plaintiff be not driven to a New Action or may have a Scire facias thereupon scil upon the first Judgment Which seems not by the Books 40 Ed. 3 43 Ed. 3. abridged by Brook in Tit. Scire facias 17 29. where a difference is taken when the Plaintiff is Barred and when he doth Recover In the next place shall be shewn How an Accord or Arbitrement is a good Bar. And for this see first 4 H. 7. 16. That in Debt upon a Contract Lease or Arrerages of Account before the Plaintiff himself Arbitrement is a good Plea although the Demand be certain otherwise of Arrerages of Account before Auditors because it seems to be Matter of Record and the Defendant cannot Wage his Law Qu. then in Debt upon a Lease for years And 13 Ed. 4. 5. is That an Award is

Prisoner again And as to its being said That the Party being Arrested by the Sheriff of Devon at Topsham the Defendant rescued him at Exeter the Court agreed the Escape to be the same all over England but that it ought to have been shewed how the Party came into Exeter For this cannot be intended nor being the Substance of the Matter is it Aided by the Statute of 16 17 Car. 2. cap. 8. And Idem Vol. eodem Pl. 26. Frain Uxor Administratrix of Smalman versus Painter where in an Action of Debt for Rent the Plaintiffs did declare That the Intestate out of his Term made an Under-Lease to the Defendant yielding and paying c. and that the Intestate died such a Day and Administration was committed to the Plaintiff's Wife To which the Defendant did plead That the Intestate Assigned to K. to commence after his Death Absque hoc That he died possessed of such a Term prout And upon this Traverse Issue was joyned and Verdict for the Plaintiff And to stay Judgment Sanders Objected 1 That the Action was in the Debet and Detinet which cannot be by Administrators as Plaintiffs 2 That the Rent is reserved Half-yearly and there is a Year and Quarters Rent found due which is impossible Iones pro Quer ' The Right is Tried and so the Declaring in the Debet and Detinet when it ought to have been in the Detinet only is Aided by the Statute of 16 17 Car. 2. cap. 8. of Ieofails as in the Case of Cumber against Walton 3 The Exposition of the Year and Quarter is well enough the Time being one of the Terms upon which it was reserved Cur ' If it did not appear the Plaintiff were Administrator as it doth the Debet were of the Substance and Aided by the Statute which the Court agreed and the Second Exception was mistaken otherwise it had been ill And Idem Vol. eodem Pl. 51. Tit. Slander Croft against Winter where an Action upon the Case was brought for words spoken in London of a Minister viz. He is a Thievish Rogue and stole a Plate out of Wadham-College in Oxon. And the Plaintiff having a Verdict in London to stay Judgment Sanders moved for the Defendant That here was a Mis-Trial which ought to have been at Oxford as in Ford and Brook's Case Cro. Part 3. 261. Iones contra on the Statute of 16 17 Car. 2. cap. 8. this being Tried by a Jury in the proper Place and the Justification should have been in London the Felony being Transitory and not Local as Robbery c. And the Court Agreed this was a Ieofail Twisden The Felony is Local whether it come in by way of Justification or Declaration and as in the Case of Throbwalke the Justification makes the Matter to arise there as where a Constable on an Action laid here in London doth Justify in Essex there the Trial must be in Essex Keeling Chief Justice and the Court Agreed to it in the Case of a Constable But in Case of a Sheriff or Bailiff it s Aided by the Statute especially the words being confest to be spoken in London And Judgment was Affirmed CHAP. VIII Of Intendment IN the next place we shall give an Account more amply than before What Construction the Law doth make of the Intention of the Parties as to Contracts and other Matters And for this first see Cro. 1 Part 141. Paynter versus Paynter Trin. 6 Car. 1. in B. R. where in an Action upon the Case sur Assumpsit the Plaintiff declared That the Defendant Promised if the Plaintiff ad ejus Instanciam would Marry his Daughter he would pay unto him 20 l. and give to him 20 French Crowns towards a Wedding-Dinner And the Plaintiff saith in Fact That he Married the Defendants Daughter and required him to pay the 20 l. which he had not paid Upon Non Assumpsit it being found for the Plaintiff it was Moved That the Declaration was not good for the Promise is but Conditional viz. If the Plaintiff ad Instanciam Defendentis would Marry the Defendants Daughter and so he hath not Averred the Performance of the Condition But the Whole Court conceived upon this Agreement To Marry the Daughter ad Instanciam and he Marrying her it shall be Intended ad Instanciam without Averment And see Cro. 1 Part 163. Mich. 7 Car. 1. in B. R. Taverner and Skingles Case where the Plaintiff Declared in Debt upon an Obligation with Condition to Perform the Award of I. S. and I. D. so that they made it before the 10th Day of October next under their Hands and Seals And if they do not Agree then to stand to the Umpirage of I. N. so that he made it in Writing under his Hand and Seal before the 28th of October following The Defendant pleaded That I. S. and I. D. did make no Award before the 10th day of October The Plaintiff Replied It is true They did not but I. N. did make the Umpirage and Award before the 28th day of October inter alia the Defendant was to pay 30 l. unto the Plaintiff upon such a day at such a place And for Non-payment c. It was Moved That the Submission was void and incertain for it is That if they do not Agree and it doth not appear to what they should agree sed non allocatur for the words If they do not Agree have the Intendment If they do not Agree to make their Award under their Hands and Seals before such a day For otherwise it is quasi a Non-Agreement within the Condition 2 It was Objected That the Award was void because the Money was appointed to be paid at the House of one W. S. a Stranger sed non allocatur for the Appointment of the Payment of the Money at a Strangers House especially as here being a Common Inn cannot be unreasonable nor an unlawful Act for by Intendment the Plaintiff shall procure such Kindness that the Mony may be paid there so the Award was Adjudged good prima facie and the Plaintiff had Judgment And see Style 's Rep. 465. Wood and Gunston's Case Mich. 1655. in B. R. where in an Action upon the Case for Scandalous words spoken of the Plaintiff viz. for calling him Traytor the Issue was tried at the Bar and the Jury found for the Plaintiff and gave him 1500 l. Damages And upon Supposition that the Damages were Excessive the Defendant moved for a New Trial. It was said That after a Verdict Partiality of the Jury ought not to be Objected or questioned and therefore no New Trial. Glyn Chief Justice It is in the Discretion of the Court to grant a New Trial but that must be a Judicial and not an Arbitrary Discretion and the Court may take notice of the Miscarriages of Juries and grant New Trials upon them For a Jury may sometimes by Indirect Dealing be moved to side with one Party and not to be Indifferent between both Parties but

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

not the Plea over See 1 Cro. 247. Southby and Price's Case An Appeal of Murder was brought in A. being the next County to B. where the Murder was done the Writ shall abate For by 26 H. 8. cap. 6. Indictments may be in Counties next adjoyning but not Appeals By Yelverton 204. Bradley and Bank's Case and 2 Cro. 283. Discontinuance of Process in an Appeal is not aided by Appearance afterwards And by Yelverton ibid. Conviction with Clergy is a good Bar in Appeal And Idem 205. Non Culpabilis ad Murdrum Feloniam praedict ' is a good Bar in an Appeal of Manslaughter See Dyer 348 349. where A. Appeals one as Accessary to B. C. of D. in the County of E. who pleads Nulla talis persona in rerum natura as B. C. die impetrationis brevis nec unquam postea 'T is good tho' there be one named B. C. in another County And so it is if he were dead the Day of the Writ brought But 26 H. 6. 8. A. brings an Appeal and the Defendant pleads Nulla talis persona in rerum Natura die impetrationis brevis It seems not to be a good Plea for he should have pleaded Quod Quer ' obiit ante diem impetrationis brevis or Nulla talis persona unquam fuit in rerum Natura By Keilway 106 107. the Court will not suffer the Defendant to plead Variance between the Appeal and the Indictment and to Conclude to the Felony Vide eundem ibid. What Pleas are Peremptory in Appeals By Co. Lib. 3. fo 30. If a Stroke be struck in one County and the Party die in another County an Appeal of Murther may be brought in either of the Counties although nothing be done in that County where he died towards his Death By Co. Lib. 4. fo 47. one Appeal of Murder must be brought against all the Parties Principals and Accessories and not several Appeals and the Declaration must be against them all for the Wife brought an Appeal of Murder of her Husband against divers and afterwards brought another Appeal against others Resolved by the whole Court That all the said Appeals but the first should abate That she ought to have one Appeal against them all That she cannot have two Appeals of Death but ought to joyn all in one Writ That if one brings an Appeal of Death against divers and all but one makes Default yet the Plaintiff must declare against them all But by Keilway 83. In Murder an Appeal shall be first brought against the Principal and after that another against the Abettor So per eundem ibid. an Appeal of Robbery shall be first brought against the Principal and then against the Accessory An Accessory shall be discharged where the Principal before Judgment obtains his Pardon as appears by Co. Lib. 4. fo 43. where the Brother and Heir brought an Appeal of Murder against A. B. as Principal and C. D. as Accessory of the Death of his his Brother The Principal pleaded Not Guilty but was found Guilty of Manslaughter and had his Clergy It was Resolved in this Case 1. That the Accessory was discharged because he could not be guilty before the Fact in case of Manslaughter 2. Although the Principal was Convicted yet forasmuch as he had his Clergy before Judgment the Accessory shall be discharged So where the Principal upon his Arraignment confesseth the Felony and before Judgment obtains his Pardon the Accessory is thereby discharged Vide Cro. Car. 382 383. where an Appeal was brought against two one for Petty-Treason the other for Felony The Defendants pleaded Not Guilty the same Term in which the Appeal was Arraigned and therefore there was no other Declaration filed But if they had pleaded a Plea which was adjorned to another Term or had not pleaded that Term then it ought to have been filed And it was then agreed by the Court That the Plaintiff might take out one or several Writs of Venire facias for doubt of Challenge And see Co. Lib. 4. fo 45. That Auterfoits Indicted of Manslaughter and thereof Convicted and Clergy allowed was a good Bar in Appeal of Murder But contra if the Indictment be insufficient And see 6 Ed. 6. Dyer 88. where an Appeal is brought by a Woman of the Death of her Husband To which the Defendant pleaded Not Guilty and afterwards the Plaintiff took another Husband and it was Adjudged that the Appeal was determined by her Intermarriage See 3 H. 7. 5. where in an Appeal of Death one Challenged above 35 and had Judgment of Pein fort dure that is was Prest to Death So 21 Ed. 3. 18. Bro. Tit. Corone Pl. 43. fo 181. where one against whom an Appeal of Robbery was brought did stand Mute out of Malice and it was found by the Jury that he could Speak whereupon he was presently Condemned to be Hanged and the Appellor had his Goods But if it had been by Indictment at the King's Suit he should have had Judgment of Pein fort dure Lastly by Co. 3 Inst. 212 If the Defendant in an Appeal be Vanquished or Slain the Judgment is the same that is Suspendere per Collum And thus much shall suffice of Appeals In the next place We shall say something of Indictments and the Pleadings thereupon and what will Maintain or Quash the same An Indictment is an Accusation drawn and ingrossed in Form of Law in the nature of a Bill or Declaration against one for some Offence Criminal or Penal and presented to the Grand Jury to be Inquired of who in case they Find the same do write Billa vera upon it but otherwise do Indorse the word Ignoramus thereupon An Indictment is always at the Suit of the King so that he who Prefers it is no way tied to the Proof of it upon any Penalty except there appear Conspiracy It ought to be drawn with the greatest Exactness Curiosity and Certainty and the Day Year and Place must be sure not to be omitted Indictments are called Pleas of the Crown and are exhibited for Treason Felony Misprisions of Treason High Misdemeanors against the Common-Weal and all other Crimes which touch the Life or Mutilation of a Man and these cannot be Prosecuted in the Name of any one but the King because he only can Pardon them as Offences committed against his Crown and Dignity By Co. 3 Inst. 106 107. If any of the Grand Jury discover what persons are Indicted of Felony or Treason they are guilty of high Misdemeanour and shall be Fined and Imprisoned for thereby the parties Indicted may Escape Vide Co. 3 Inst. 230. and 4 Rep. Sier's Case where said That it is not necessary for the Coroner to set down the Day precisely in his Inquisition of Felony or Murder for if it be alledged to be a day before or after the Fact done the Jury ought to find the party Guilty and also find the Day when it was done and the Attainder shall relate to the Day found