Selected quad for the lemma: land_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
land_n	acre_n	hold_v	manor_n	1,525	5	9.8459	5	false

Text snippets containing the quad

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

he made Title to the Goods so if he makes Title to the Land by Feoffment But otherwise if he Plead meerly his Freehold And so is 22 H. 6. 24. in Trespass But see 5 H. 7. 28. that in Forcible Entry because the number of Acres is set down in the Declaration as in a Praecipe or in an Assize the Defendant shall not in his Bar give the Land a Name or other Certainty but ought to Plead at his peril But otherwise according to the Ancient Practice in Trespass and Replevin except as before where the Defendant pleaded his Freehold and the Plaintiff did not set forth the Particulars of the Land in his Declaration which he is now of late compelled to by Rule of Court But for the understanding of this and all other Matters relating to Practice more fully and at large see before in the Introduction of this Discourse And further for Certainty in Pleading take these General Observations First see Plowden 32 65 80 81 86 191 229. that which is alledged by way of Conveyance and Inducement to the Substance of the Matter needs not to be so Certainly alledged as that which is the Substance it self as before where a Lease is made to A. and B. for Life the Remainder to C. and if C. die during the Life of A. or B. that it shall go to E. for his Life c. and E. in Pleading shews the death of A.B. and C. but shews no time of their Death And by Plowden 80 121 123 126 128 129. that which a man cannot have Certain knowledge of he is not bound to plead Certainly nor to set forth that precisely that is out of his knowledge or to which he is a Stranger or by Common Intent he cannot see as a Deed that belongs to another Man And by Co. Lib. 9. 108. that shall be said to be Certainly pleaded which may be made Certain by Intendment according to the Maxim Id Certum est quod Certum reddi potest But Co. Lib. 4. 97. and Plowd 395. that is more Certain which is Certain of it self Yet where the Defendant in Pleading makes Title to himself by a Lease Habendum for so many years as I. S. shall name Cum hoc that I. S. did name so many there the Averment makes it Certain enough and good So many times when there is an Incertainty in a Case by the addition of a Reference to a Certainty it may be made good As Perkins Sect. 36. an Estate is granted to I. S. the Remainder to him that shall come first the next Morning to Pauls and one doth come there that is capable this is a good Remainder for it may be made Certain by Averment So Pasch. 39 Eliz. in B. R. Morgan and Iohnson's Case one binds himself by Obligation to pay me all such Sums of Mony as his Brother oweth unto me this by Averment may be made Certain and is good So Plowd 191. if one Grant his Mannors of A. and B. and say not in what Parish or County they are in or make a Lease of all his Lands in the Parish of A. and says not in what County these Grants in Pleading may be made good by Averment So if the King by his Letters Patents grants to one all the Mannors and Advowsons that did belong to the Priory of H. or that were of I. S. who was Attainted These Grants by 32 H. 6. 20. and Co. Lib. 9. 47. may be made good in Pleading by Averment But by Anderson 1 Part 102. an Indictment was upon 8 H. 6. quod intravit in unum Tenementum and held void for the Incertainty And March Rep. Case 168. in Ejectione firmae and Not Guilty pleaded the Jury found them Not Guilty for part and Guilty in tanto ut Ius Mesuagii in Occupatione c. quantum stat super Ripam and the Verdict was held void for Incertainty And so is 40 Ed. 3. 15. and Co. Lib. 9. 74. in Debt brought against Executors who plead plene Administravit and the Jury find they have Assets but say not to what value this is also void for Incertainty And by Plowd 144 and Co. Lib. 10. 40. there must be a precise Affirmation of a thing in Pleading where it relates to Matter of Substance yet if the Pleading hit not the very Words if it contain the Matter by necessary Implication it may be good enough And by Plowd 435. a man is not bound to one Form of Pleading or to the Common Form so he plead the Substance of the Matter And by Hobart 72 78. 124. That need not be said on the one side that will come properly on the other And by Plowd 104. 202. and Co. Lib. 10. 40. If a Plea hath two Intendments the strongest shall be taken against him that pleads it and it shall be taken most for the advantage of his Adversary As in a Release pleaded to an Action of Trespass the time when it was made must be shewed for it might be delivered before or after the Trespass and if not shewed when it shall be taken to be before And Idem Lib. 9. 109 110. where Covin is alledged in the Avoidance of an Act it will be sufficient to shew it Generally for it is secret and can hardly be known and therefore a man shall not be forced in Pleading to shew it exactly or certainly And by Hobart 163. General Issues may be pleaded without any Inducement Lastly By Plowd 84. 63 65. Co. Lib. 9. 109. Dyer 27. Yelv. 103. Hob. 258 297. Truth and Certainty ought to be in Pleading and therefore Falshood Incertainty and Repugnancy ought to be avoided in Pleading And although as hath been said before Surplusage doth seldom hurt the Pleading yet Imperfect Pleading is always dangerous Vide Brook ' s Abridgment Tit. Pleading 94 95 96. 115. Plowd 179. 229. 431. Hob. 23. 208. Dyer 27. and Co. Lib. 7. Butt ' s Case for variety of Matter upon this Subject CHAP. III. Of Replications Rejoynders c. AFter the Defendant has made his Bar or Plea that is to say hath given in his Answer to the Plaintiff's Declaration the next part of Pleading in Course must be the Plaintiff's Replication which is an Answer or Exception to the Defendant's Plea and a Rejoynder is where after the Plaintiff in the Action hath Replied to the Answer of the Defendant the Defendant doth again make Answer to the Plaintiff and if after that the Plaintiff shall Answer again to the Defendant such Pleading is called a Sur-rejoynder As to Replications and Rejoynders the Learning of them is more properly to be seen in every particular Action under their respective Titles of Pleading but touching some Particulars we shall observe First Where the Plaintiff is in some sort bound to Answer the Bar of the Defendant but may notwithstanding Plead at large not answering the Bar which is in a manner altogether in an Assize where a General Bar with Colour is pleaded And by 34 H.

any Continuance from Trinity Term to Lent Assizes which was much insisted upon yet the Court gave Judgment for the Plaintiff So Brownlow's Rep. Part 1. fo 81. a Bill was Exhibited against one of the Clerks of the Court of Kings-Bench for Mony due upon Bond and Issue being joyn'd the Cause was Tried and found for the Plaintiff And to stay Judgment it was Objected That the Bill not being filed was not helped by the Statute of Ieofails nor within the same To which Opinion the Court seemed to Incline but gave leave to the Plaintiff to File a Bill that so the Matter might be put to Arbitration So Hob. 181. a Bill was Exhibited in Debt against an Attorney of the Common Pleas upon which a Verdict was had for the Plaintiff and to stay Judgment it was Objected That the Original Bill was not Filed with the Custos Brevium as it ought to be But because the Tenor of the Bill was Entred of Record in haec verba it seem'd to be in the Nature of the want of an Original after Verdict and so help'd by the Statute of Ieofails To which Opinion the Court did incline but would Advise of it because it had been otherwise Adjudged in that Court before But then we shall Enquire What Matters are not Remedied or Helped by any or either of the Statutes of 32 H. 8. and 18 El. before-mentioned For which see first Goldesbrough's Rep. fo 49. where the Plaintiff brought his Action against the Defendant for an Assault and Battery and the Defendant was Condemned therein by Nichil dicit and a Writ of Enquiry of Damages issued out and then the Plaintiff's Attorney died and another Attorney without Warant prayed the Second Judgment and had Execution thereupon Cur ' If the Attorney dies after Judgment a New Attorney may pray Execution without Warant but here the Attorney died before the Second Judgment and therefore he that comes after ought to have a Warant of Attorney Prothon If one of the Parties dies after Judgment the Writ shall abate And per Cur ' This is not within the Statute of Ieofails for a Verdict is that which is put in Issue by the Joyning of the Parties So Hob. 112 113. The Plaintiff declared in Trespass for an Assault and Battery made upon him by the Defendant who pleaded Iustification and Conveyed an Estate to himself by Copy of Court-Roll in a certain Piece of Ground Parcel of the Mannor of D. whereof I. S. was seised in Fee and because the Plaintiff came upon it he laid his Hands molliter upon him And the Plaintiff in his Replication also Convey'd to himself an Estate by Copy of Court-Roll to another Piece of Ground within the said Mannor and lays a Prescription in the said I. S. Lord of the Mannor to have a Way over the Defendant's Piece of Ground Upon which they were at Issue and Verdict for the Plaintiff And per Melieur Opinion this was no Issue at all nor Thing nor possibly Issuable and therefore the Verdict must also be void and so not holpen by the Statute of Ieofails For a Verdict cannot make that good which the Court sees cannot be in Law so that this is in the Office of the Court to judge So Cro. Part 2. 526. In Trespass brought in the Kings-Bench for Taking and Carrying away three Loads of Wheat set out for Tithes contra Pacem Domini Regis the words Vi Armis were omitted Per Cur ' the Bill shall abate for it is the Essential part of the Declaration and that which induceth the Court to set a Fine for the King and it is not help'd by the Statute of Ieofails And so Adjudged Hill 13 Iac. in the Case between Welsted and Taylor where Judgment was Reversed because Vi Armis was omitted Vide Hoh 127. In Debt upon the Statute of 21 H. 8. the Writ was Praecipe A. quod reddat Nobis B. qui tam pro Nobis quam pro seipso sequitur Centum decem Libras quas Nobis praefat ' B. debet And the Count was for Taking to Farm six Acres of Land and holding the same for six Months Per quod Actio accrevit for 60 l. And for further Taking to Farm other Lands and holding the same for five Months Per quod Actio accrevit for 50 l. To which the Defendant pleaded Quod ipse non debet praefat ' B. qui tam c. praedict as Centum decem Libras neque aliquem inde Denarium in forma qua c. whereupon Issue was Joyned and the Jury found That the Defendant did owe 30 l. and for the Residue Quod non debet And to stay Judgment it was Objected 1 That the Verdict expresses not for which Farm nor which of the Months the 30 l. was due sed non allocatur for the Demand and Issue were for 110 l. in several tho' it would have been more formal to have distinguished them 2 The Defendant hath not Answered the Writ and Declaration for the Plea ought to have been as the Demand is Quod ipse non debet dicto Domino Regi praefat ' B. qui tam c. And this was allowed because Penal Laws are Excepted out of the Statute of Ieofails And see Hob. 101. where Judgment was Reversed because there were no Pledges to Prosecute Entred for the Plaintiff and so not within the Statute of Ieofails because a Penal Law excepted out of the same But see Trin. 30 Eliz. in Com. B. Goldesbrough 90. where a Writ of Right was brought against Baron Feme of two parts of Forty Acres of Land in S. who pleaded That I. S. was seised and devised to his Wife one of the Tenants for Life the Remainder to B. in Fee who was his Heir who died and they prayed in Aid of B. who joyned in Aid with them and then they came and pleaded to the Grand Assize and the first Day of the Term the Assize appeared and sixteen of them were Sworn whereof four were Knights the rest Esquires and Gentlemen and the Title was as befor in Trinity Term Anno 28. for B. was Tenant in that other Action for the Third part Per Cur ' This is not aided by the Statute for here is no Certainty in the Grant yet if the Thing granted had had a certain Name given to it as Black-Acre or the like then tho' the Parish had been mistaken it would have been good enough See more of these two Statutes of 32 H. 8. and 18 Eliz. after in the Title Error In the next place We shall take a view of the two last Statutes concerning Ieofails viz. 21 Jac. 1. cap. 13 16. and 17 Car. 2. cap. 8. and enquire what Mis-pleadings are aided by the same and what are not By the Statute of 21 Iac. 1. cap. 13. after Verdict given in any Court of Record the Judgment thereupon shall not be stayed or reversed for any Variance in Form only

own Wrong And Note 35 H. 6. 38. where the Plaintiff in Debt did Count upon a Lease of four Acres for the Rent of three Pounds and the Defendant did plead to the Count that he did Let those four Acres and other Lands and a good Plea But the greater Doubt whether he should in that case take a Travers for in our Books it is obvious That if the Plaintiff in his Declaration mistake the beginning of a term of Years the Land or number of Acres or declare upon a simple Contract when it is Conditional the same is no good Declaration and Advantage thereof may be had as well upon the General Issue as otherwise And in Fogassa's Case in Pl. Com. If the Plaintiff Count generally upon a Lease and the Defendant plead ne Lessa pas non dimisit the Plaintiff shall not give in Evidence a Lease by Deed. And 28 29 H. 8. Dier 32. an Action of Debt was brought upon a Lease of six and twenty Acres the Defendant said that the Plaintiff Let the same and four Acres more Absque hoc that he Let the six and twenty Acres tantum whereupon Issue was taken and the Verdict found the Demise only of one and twenty Acres and thereupon the Question was Whether the Verdict had found for the Plaintiff or for the Defendant And by Fitz. and Englefield it was found for the Plaintiff because Agreed of both sides that six and twenty Acres were Let and the Question was upon the four Acres But Baldwin and Shelley seemed to be of Opinion that the Verdict was ill But Shelley said therein That if the Defendant had pleaded a Plea without a Travers because he had confess'd the Count and more it would have been good Or if the Travers had been Absque hoc quod predictus le Plaintiff dimisit les four Acres more it had been well enough But touching this Matter of Travers of the Quantity Time or Place see more in the Titles Travers Issue and Verdict afterwards in this Book And see 11 H. 6. 5. That if in Debt for Rent it appeareth by the Count that one of the Days is not yet come the Writ shall abate but otherwise in Avowry by all the Court Nota diversitatem And see Fitzherbert's Natura Brevium in his Writ of Debt That where divers Days of payment are contained in a Recognizance upon the first default shall go out a Scire facias but upon a Bill for Debt not until the last Day Notwithstanding it hath been held That in an Action upon the Case upon an Executory Promise the Plaintiff might have his Writ upon the first default and Recover for that loss and so upon every default It appeareth by 7 Ed. 4. 15. and 1 Ed. 4. 4. 39 H. 6. 4. 11 H. 4. 55. and 50 Ed. 3. 4. in Brook Title Brief by the better Opinion That in Debt Resceit of Parcel Hanging the Writ doth abate the whole Writ but that as it seemeth is intended where the Count and Demand is of one entire Contract as a Precipe of a Mannor and Entry into part For it is otherwise as it seemeth where a Precipe is of sundry Acres and the Demandant enter into but one of the Acres But by the same Book 50 Ed. 3. 4. that ought to be pleaded Puis le darein Continuance And by most of the other Books if the Action were upon Specialty then it can neither be pleaded to the Writ or in Bar of the Action without Specialty and if the Defendant conclude his Plea in Bar it goeth but to the Action for part But as it seemeth be the Action either upon Specialty or not if the Defendant plead in Bar the Resceit of parcel either before or hanging the Writ he must plead the same by Deed and it goeth but to that part But if the Plaintiff bringeth an Action of twenty Pounds and declare that he is satisfied of ten Pounds the Writ doth abate of his own shewing for he ought to bring his Action only for that which is behind and declare himself to be satisfied of the rest But if he bring his Action for the Whole and Nil debet or a Release be pleaded to Part that goeth but to the same and so it seemeth by the Plea quod non debet predict as vigints libras nec aliquem denarium inde And in the said Book of 11 H. 4. Debt was brought for Forty Pounds declaring part upon a Lease parcel upon a Contract and part for Work done And to part the Defendant tendred his Law to other part he pleaded ne Lessa pas non dimisit and to the residue he tendred the Mony in Court and the Plaintiff as to the Plea of the Lease took Issue and to that of the Mony tendred he Rejoyn'd that he had received it accordingly and as to the residue he refused the Law and to that and the Point of Receipt the Writ only did abate quod nota Where the Writ and Declaration are General as in Trespass Quare clausum fregit if the Plaintiff so Declare the Defendant as all the Books agree may plead a Special Plea to inforce the Plaintaiff in his Replication to assign the Place more certain But this Plea of the Defendant must be also very certain as 4 5 Ph. Mar. Dyer 161. for the Defendant to say That the Place where is six Acres is no Plea unless he also give it a Name or Boundaries And so is 22 H. 6. 24. that the Defendant shall plead certainly and this for the advantage of the Defendant for if he plead the General Issue the Plaintiff may in any Place in that Town assign the Trespass Or else as is the Book 28 H. 8. Dyer 23. If the Defendant doth say that the Place where is six Acres which is his Freehold and the Plaintiff Reply That it is not his Freehold c. If the Plaintiff have a Close of like quantity it shall be intended the same But the Plaintiffs New Assignment must also be as true and certain to all Intents as is 9 Eliz. Dyer 204. It must be both true in the Name and in the Boundaries and must not be as there una acr ' prat ' sive terr' And as 1 H. 7. 11. and 21 H. 6. 2. and other Books the Plaintiff must say also in his Declaration alia quam c. And then as in 14 H. 4. 24. the Defendant shall not plead that the Place where is all one c. but shall have advantage thereof best by the General Issue if the Pleas aforesaid be entred and so is 1 Ed. 5. 4. Yet in the said Book 21 H. 6. 2. the Defendant did Rejoyn that the Place was all one c. and known by one Name But as 27 H. 8. 22. where the Defendant in his Bar said The Place where was an Acre and three Roods the Plaintiff might have assigned the Trespass in the three Roods without the Acre and the Bar as to the

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

Issue viz. Et de hoc ponit se meaning the Defendant super Patriam Et praedictus Willielmus the Defendant again for Iohannes the Plaintiff similiter Per Cur ' these are but Misprisions of the Clerk and not Errors and shall be amended being like to the Mistake in 10 H. 7. 23. and 11 H. 7. 2. where Defendens was written for Querens and Iohannes for Rogerus and amended by the Advice of all the Justices And by Coke Chief Justice Misprisions were amendable the same Term at the Common Law because during the Term the Record is said to be in pectore Iudicis and not esteemed to be on the Roll so absolutely but that they may amend the same at their Discretions But the Justices of the Common-Pleas after a Writ of Error cannot at all amend the Roll where a Judgment was given the same Term and is mistaken in the Entry because the Roll is not a Record of that Term. And by 5 Ed. 3. this was so at the Common Law until the Statute of 14 Ed. 3 gave power to amend Misprisions in another Term. But 46 Ed. 3. the Case was that Defendens was mistaken for Querens but could not be amended because an Old Roll and the Statute gives Power only to amend New Rolls of the same Term they are Entred By the Statute of 26 H. 8. the Justices of the Common-Pleas have Power to amend a Plea-Roll in Misprision only but not Omissions Misprisions are Vicia Scriptoris Faults of the Clerk as the Declaration varying from the Writ or the Roll from the Original or the Mean or Judicial Process these by 19 H. 6. shall be amended if it be only in default of the Clerk But if in a Plea that be Omitted which should be Averred this shall not be amended because it ought to have been part of the Plea and cannot be said to be any Default of the Clerk but a meer Omission which makes the Plea imperfect So Mich. 5 6 Mar. Dyer 164. a Record came out of Ancient Demesn in Banco by Writ of False Iudgment and the Writ was Sub sigillo suo sigillis quatuor legalium hominum ejusdem Curiae which according to Fitzh Nat. Brev. fo 18. b. ought to have been per quatuor legales homines c. upon which the Court doubted if it might be amended but seemed to be of Opinion That the Plaintiff might have a New Writ to the Justices of the Common-Pleas to Authorize them to proceed to discuss the Errors in the Record which lay before them So 2 Mar. Dyer 105. a Common Recovery was suffered to Bar the Issue in Tail and the Warrant of Attorney was That Alicia po lo. suo for Elizabetha also the Writ of Error was de loquela quae fuit in Cur ' nostra coram Iustic ' nostris per breve nostrum It was a Quaere if it were amendable but Resolved in Blackmores Case Co. Lib. 8. fo 152. quod vide nota And see Brownl Rep. 2 Part fo 300. where a Writ of Error was brought by Frances Fulgham against Sergeant Harris in this manner Praecipe c. quod c. Franciscae Fulgham Viduae contrary to the Form of the Register which is quae fuit Uxor and not Widow and the subsequent words were rationabilem dotem Tenementorum quae fuerunt Francisci Fulgham quondam viri sui Per Cur ' this is Error for tho' it varies not in substance yet because it is contrary to the Form of the Register it shall not be amended So Cro's Iacobi 21 Merrel's Case in a Writ of Error of a Judgment in the Common-Pleas in Ejectment it was assigned for Error That the Plaintiff declared that I. S. 25 Martii Anno sexto Iacobi had demised to him for Seven years by virtue whereof he Entred and was thereof possessed until the Defendant postea scilicet Anno sexto did oust him After Imparlance the Plaintiff made a Second Declaration wherein he supposed the Ejectment to be done 26 Maii Anno supradicto and of this Ejectment the Writ was brought it was found against the Defendant and Judgment for the Plaintiff and whether it was Erroneous because no day was mentioned in the first Declaration was the Question Agreed That the first Declaration is the Principal and if any Matter of Substance be omitted in it it cannot be helped or amended by the second for that is but a meer Recital and therefore if the first be not good the Trial is Erroneous But per Cur ' the first Declaration was good for the Demise is laid to be 25 Martii sexto Iacobi which is the first Day of the year and the postea scilicet 6 Iacobi that the Defendant Ejected him is certain enough for the Year when the Ejectment was made and the Day of the Ejectment are not material being before the Action brought Then Of Errors in Fines upon Writs of Covenant and Common Recoveries upon Writs of Entry in the Post. For which see first Brownl Rep. 2 Part fo 300. where upon a Fine the first Proclamation was made in Trinity Term 5 Iac. the second in Michaelmass Term 5 Iacobi the third in Hillary Term 6 Iacobi when it should have been Hill 5 Iacobi and the fourth and fifth Proclamations were in Easter Term 6 Iacobi Per Cur ' This is palpable Error for the fourth Proclamation was not entred at all and the fifth was entred as of Hillary Term 6 Iacobi when it should have been of Hillary Term 5 Iacobi and so cannot be amended because it was of another Term. And see Cro's Iac. 77. Earl of Bedford's Case where in a Writ of Error to Reverse a Fine it was assigned for Error that the Writ was Praecipe c. quod teneat c. Conventionem c. de octo Mesuagiis duobus Toftis decem Gardinis and it was Certified de octo Mesuagiis decem Gardinis c. and Adjudged no Error But see Cro's Caroli fo 300. Done and Smithy's Case where a Writ of Error was brought to Reverse a Fine levied by Baron and Feme and others and the Writ of Covenant wat directed to the Coroners with this Clause fiat Executio brevis praedict ' per Coronatores ita quod Vic' se non intromitteret because the Sheriff was one of the Cognizees and this was Objected for Error because as there said if the Sheriff had been sole party to the Fine yet the Writ ought to have been directed to him because but a Summons for the Sheriff may summon himself But Resolved to be Error because a Doubt in Law if the Sheriff as Plaintiff may Execute a Writ upon himself and therefore the general Course is to direct the Writ to the Coroners to avoid such Doubt And see Co. Lib. 5. fo 38. Tey's Case where A. and B. his Wife levied a Fine of divers Mannors Lands and Tenements to I. S. and I. D. in several Towns in the County of E. in

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