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	plaintiff_n	52	3	10.1899	5	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

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 Interl●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

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 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

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

Judgments in certain Actions in the Kings-Bench there particularly named and not touching the King may be Reformed in the Exchequer-Chamber or in Parliament and if in the Exchequer-Chamber then before the Iustices of the Common-Pleas and the Barons of the Degree of the Coif and the Record to be brought back again into the Kings-Bench And see the Statute of 31 Eliz. cap. 1. of Discontinuance of Writs of Error in the Exchequer and the Kings-Bench That it shall not be needful for all to be present And by the Writs of Error in the Register it appears That sometimes a Stranger to the Judgment may have his Writ of Error as Tenant by Resceit Vouchee He in the Reversion or Remainder and the Tenant both at one time And if the Feme be Resceived upon the Default of the Husband both of them may have Error or False Judgment And if Erroneous Execution be awarded upon a Recognizance the Feoffee may have a Writ of Error as appears 17 Ass. 24. See Dyer 4 H. 8. 1. accordingly and that he in the Reversion by the Common Law might have it when his Title accrued and by the Statute of 9 R. 2. presently But 21 Ed. 4. 27. in Debt against a Sheriff upon an Escape he shall have no advantage of Error in the first Record because he is a Stranger to it And so is 9 Ed. 4. 3. That a Stranger shall not Falsify but in that which disproveth the Cause of Action But 22 Ed. 4. 30. the Vouchee Tenant by Resceit Garnishee in Detinue or Foreign Attachment in London may have these Writs Then shall be considered Whether the Heir or Executor or Successor shall have these Writs And first by Fitzh Nat. Brev. touching the Successor if the Matter touch and lye in Succession then the Successor of the Abbot Parson and the like shall have these Writs But if Judgment in Debt or Damages in an Action Personal be given against a Bishop or a Parson his Executor and not the Successor shall have these Writs And for Debt or Damages recovered the Administrator or Executor and not the Heir shall have these Writs But touching that which the Heir is to have by Discent of that the Heir shall have Error and False Judgment The Heir shall likewise have a Writ of Error to Reverse an Utlary of Felony or Treason against his Father as appears by Fitzh Nat. Brevium and by that Reason the Executor shall have a Writ of Error to Reverse an Utlary in Trespass or Debt against his Testator because of his Right to the Goods And so is 11 H. 4. 65. But where the Writ of Error doth both Entitle the Heir and Executor as where Judgment in an Assize or Entry sur Disseisin c. is given against one who dieth if the Heir do not bring Error or Attaint for the Principal the Executors are remediless for the Damages and Costs recovered And so seems the Book of 9 Ed. 4. 12. 314. But if the Heir Reverse the Judgment he shall not as it seems be restored to the Damages but the Executor by Scire facias upon that Judgment of Reversal Yet if two Jointenants lease Land and Damage the Survivor shall be restored to the one and the other And accordingly 46 Ed. 3. 13. the Feme had an Attaint of a Verdict against her and her Husband although the Goods of the Husband subject to the Damages And so 19 Ed. 4. 6. the Executor shall not have Damages recovered in Detinue of Charters before the Heir have a Scire facias to have the Charters And see 50 Ed. 3. 3. where one in the Remainder in Tail recovered in Wast and before Execution died without Issue and his Executor had Execution And see 11 H. 4. 16. That if one of the Sisters after Abatement die and the Aunt and Niece joyn in Mortdancestor the Damages from the Death of the Aunt Jointenant and before the Damages for the surviving Aunt to be several Where also appeareth That if found for the Baron and Feme Plaintiffs in an Assize and that the Goods of the Husband were taken like Judgment as before shall be given And 14 Ed. 3. Fitzh Execution 15. if three Coparceners recover and one of them die before Execution the Damages survive not except they had once joyned in an Elegit See more hereof before in the Title Execution and in the Abridgments of Brook and Fitzherbert under that Title And by this Reason the Heir to the Land and not the Heir at the Common Law shall have these Writs as the Heir in Tail Special and Borough English and the like For it is not like to a Condition or Waranty as are 9 H. 7. 24. 3 H. 4. 19. and other Books Then we shall see What things one shall be Estopped by or past the Advantage to assign Error For which see Fitzh Nat. Brev. as followeth viz. That if one Utlawed do purchase his Charter of Pardon yet he may have Error to Reverse the Utlary And so is 18 Ed. 3. But against a Disclaimer the Tenant shall have no Writ of Error But as there and 6 Ed. 3. after Non-tenure found against him he may And one Condemned shall not assign Error in the Process Yet he that doth Confess the Action shall have a Writ of Error And it appeareth there also That if in a Writ of Entry sur Disseisin there want these words Quod clamat esse Ius Haereditatem if the Tenant plead he shall not have advantage thereof by Error And so in a Writ of Detinue of Charters of Land and in the Count the Certainty of the Land is not declared yet thereof is a qu●ere And so of the like to this for which see Brook's Abridgment Tit. Error and 25 H. 8. Dyer 5. That the Party having Interest in the Land by Discent or otherwise shall neither have Error or Attaint Some things there be also that one shall not Assign for Error As That the Clerks of their own Heads gave Judgment Or That the Jury gave a Verdict contrary to the Judgment because these are Repugnant to that which the Court do as Judges Neither as there appeareth may many Things be assigned for Error that were for the advantage of him that doth Assign them As That he made an Attorney was Essoined had Aid the View or the like when it ought not or that he had a Day longer than he ought as appeats in Bro. Abridg. Tit. Error See 14 Eliz. Dyer 315. that the Plaintiff shall not Assign That he wanted the Judgment Ideo in misericordia nor the Defendant Quod Capiatur c. And touching Diminution which according to Fitzh Nat. Brev. 25. and Bulstr. 1 Part 43. is where a Record is Certified in part but not all of it so that there is some Diminution in part thereof then the Party concerned in it may have a Writ directed to the Court from whence it came to send the whole 〈◊〉

which divers Grants and Renders were made and in the third Render all the Mannors Lands and Tenements were rendred to A. and B. and the Heirs of the Body of A. and in the fourth Render part of the Premisses were rendred to B. in Tail the Remainder to the Right Heirs of A. It was Resolved that the same was not Error First That the fourth Render as to that was contained in the third Render should be in the quality of a Charter which needs not such a precise Form as a Judgment Secondly That the Conusor should not assign that for Error because he gets an Estate by it and no man shall reverse any thing for Error unless he can shew that the Error is to his advantage So More Case 202. If an Infant levy a Fine and take an Estate by Render he may not have Error for this And see Mich. 31 Eliz. in B. R. Leon. Rep 1 Part 317. Pigot and Harrington's Case where Baron and Feme were Tenants for Life the Remainder in Fee to an Infant and they three levied a Fine and the Infant only brought Error to Reverse it It was Objected that they all Three ought to joyn in the Writ according to 29 Ed. 3. 14. But per Cur ' the Writ is well brought for the Error is not Assigned in the Record but without it in the person of the Infant and that is the Cause of Action for him and for no other and the Fine was reversed as to the Infant only Vide Cro's Iacobi 330. Point's Case and Bulstrode's 1 Part 206. Batts and Ienning's Case where Inspection of an Infant in Error to Reverse a Fine upon the day of Adjornment of the Term held good by all the Judges of England And see Mo. Case 701. That a Writ of Covenant Retornable before the Date is Error CHAP. XIV Of Appeals Indictments and Informations APPEAL according to Co. on Littleton Lib. 2. cap. 11. comes from the Latin word Appello to Call quia Appellans vocat Reum in Iudicium and is used in our Law for the private Accusation of a Murderer by a Person who had Interest in the Party murdered It is as much as Accusatio with the Civilians for as in their Law Cognizance of Criminal Causes is taken either upon Inquisition Denunciation or Accusation so it is in ours upon Indictment or Appeal Indictment comprehending both Inquisition and Denunciation Accusation or Appeal being a lawful Declaration of another man's Crime of Felony at least for tho' there be an Appeal of Mayhem yet that according to Bracton is but in a manner an Action of Trespass before a Competent Iudge by one who sets his Name to the Declaration and undertakes to prove it upon the Penalty that may ensue of the contrary Appeal by others is defined to be The violent pursuing of a Subject unto Death and is the most nice kind of Suit that is commenced at the Common Law for every small matter will quash the same if it be not freshly pursued and shall in divers respects be taken strictly in favorem vitae And Note That the Process in every Appeal is to bear Date the same day of the Retorn and if not it will be a Discontinuance of the Process Note also That the Omission of any word which is material in the Writ of Appeal will abate the same And it is to be Observed That the Process in an Appeal doth vary from all other Proceedings at the Common Law for there shall be no Amendment of a Writ of Appeal nor is the Discontinuance of it helped by any Statute Then Where an Appeal of Murder will not lie for the Heir For which see Mich. 33 H. 8. Dyer 50. The Statute of 31 H. 8. made it Treason for a Woman to Poison her Husband A Woman Poisoned her Husband Afterwards the Statute of 32 H. 8. Of General Pardon pardoned the Offence the Heir brought an Appeal of Murder And it was the Opinion of all the Justices that now an Appeal of Murder did lye for the Heir for that now Murder was turned into Treason and the greater Offence shall extinguish the lesser And see Co. Lib. 6. fo 13. in the Case of Pardons acc and 7 Eliz. Dyer 235. where Petty Treason is pardoned by a General Pardon there one who killed his Master was Indicted of Murder and holden the Indictment did not lye against him but being found Guilty was Reprieved And see Mich. 33 H. 8. Dyer 51. and 33 Eliz Co. Lib. 4. 45. where an Appeal of Murder was brought against W. to Answer to A. B. alias dict' A. B. Fratri haered ' of the Person murthered but because the Plaintiff in the Appeal was named Brother and Heir in the Alias dictus which is no part of the Name the Appeal did Abate and the Defendant discharged by the Court. And see 5 Ed. 6. Dyer 69. where there were three Brothers and the Middle Brother is killed and the Eldest Brother dies within the Year without bringing any Appeal and the Question was If the Younger Brother might maintain an Appeal It was not Resolved but left a Quaere See 11 Ed. 4. 11. Stamf. 59. 20 H. 6. 43. by Fortescue that he shall not but 16 H. 7. 15. contra Then How Appeals shall be brought by Infants First See Pasch. 17 Ed. 4. Pl. 4. and More Case 646. where an Appeal was brought by an Infant and the Defendant prayed to be dismissed because the Plaintiff was an Infant Per Cur ' If the Defendant be guilty he shall stay in Ward till the Infant comes of Age. But by 27 H. 8. 1. b. the Plaintiff now shall appear by Guardian By Co. 2 Inst. 5. If an Infant bring an Appeal of the Death of his Ancestor the Parol shall not demur for want of Battail but the Infant shall be outed of it as if the Appellor were Old or Maimed But Mirror of Iustices 127. contra the Parol shall demur And see 2 Ed. 4. 19. b. and 20. a. acc and 11 H. 4. 93. a. And Pasch. 27 H. 8. 25. an Infant brought an Appeal of Murder in the time of H. 8. and prayed that the Parol might demur and Resolved it should not By 35 H. 6. 10. If an Infant be found guilty of Felony 't is in the discretion of the Court to give Judgment or not as they find the Infant hath Discretion or Malicious Intent By Owen 59 63. and Popham 115. in an Appeal of Murder after Pleading to the Writ the Defendant must Plead over to the Felony else it is a Confession of it for there his Life is in question And see 3 Cro. 223 224. where in an Appeal of the Death of an Husband the Defendant pleads Ne unques accouple c. and quoad c. Not Guilty The Plaintiff Replies fueront accouple but pleads nothing to the rest yet it seems the Plea is not Discontinued because the first Plea is not Triable at Common Law so answers

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