Selected quad for the lemma: land_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
land_n	custom_n	manor_n	tenant_n	1,516	5	9.9938	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

hold absque Impetitione Vasti and afterwards Implead him for Wast made he may Debar me of this Action by shewing my Grant which is likewise a Rebutter Bro. Abr. Tit. Bar 23 25. Nov. Lib. Intr. verbo Rebutter Co. 1 Inst. 365. a. Vide 6 H. 7. 4. But see hereof more properly in the Title of Pleading CHAP. IV. Of General Issue and Special Evidence NExt in Order we will proceed to Issues And First With those that may be brought under the Division of General Issue and Special Evidence In which we will set down the Evidence proper to the Nature of the Issue and then what Special Plea the Defendant may have and not be forced to the General Issue The word Issue hath divers Applications in our Law but that which concerns our purpose is taken for that Point of Matter depending in Suit whereon the Parties joyn and put their Cause to the Trial of the Jury and is an Effect of a Cause preceding as the Point referr'd to 12 Men is the Effect of Pleading or Process Issue in this signification is either General or Special General Issue is where the Defendant makes a short and peremptory Defence to the Plaintiff's Declaration and is always in the Negative as Non assumpsit to an Action upon the Case Nil debet to an Action of Debt and the like And A Special Issue is that whore Special Matter being alledged by the Defendant for his Defence both Parties joyn thereupon and so it goes either to a Demurrer if it be Quaestio Iuris or to a Trial by the Iury if it be Quaestio Facti Anno 4. H. 8. cap. 3. Nov. Lib. Intration verbo Issue 18 Eliz. cap. 12. But Evidence is taken for any Proof be it Testimony of Men Records or other Authentical Writings of Contracts c. written sealed and delivered And it is called Evidence because thereby the Point in Issue is to be made Evident to the Jury Probationes debent esse Evidentes i. e. Perspicuae faciles Co. 1 Inst. fo 283. And First As to General Issues we shall begin with the Proper Evidence upon the Plea of Non Culpabilis By 19 H. 8. 6. upon Non Culpabilis it is no Evidence to say that the Inclosure was defective because thereby the Trespass is confest So by 9 H. 7. 3. upon Non Culpabilis in Rescous the Defendant shall not give Non Tenure in Evidence And Keilway 59. upon Non Culpabilis in Trespass a Licence may not be given in Evidence to excuse the Trespassor for this must be pleaded By Co. Lib. 10. fo 56. upon the Issue Non Culpabilis in Trover it will be good Evidence to prove the Conversion that the Plaintiff demanded the thing sued for and the Defendant refused or denied to deliver it And by Plowd 14. the Iury may find him Guilty upon this but being Specially found the Court cannot do it And by Hobart 187. an Unreasonable Detainer is good Evidence for this Vide Godbolt's Rep. 234. where in Trespass for taking away Timber and the Boughs of Trees felled the Defendant pleaded as to the Timber Non Culpabilis and to the Boughs made a Special Iustification by Custom of the Mannor that the Lord was to have the Timber and the Tenants the Branches or Boughs for Estovers to be burnt in Terris Tenementis Custumar ' Manerii And because the Defendant did Entitle himself to a House and Land and gave the Custom in Evidence for the Land only it was held it did not maintain the Issue So by Stile 's Rep. 335. it appears that where in an Action upon the Case the Plaintiff declared of a Nusance viz. that in such a Way the Defendant had digged a Hole ratione cujus as he was Travelling in the said Way with his Horse he did fall and hurt himself c. On Non Culpabilis pleaded the Evidence was given that the Plaintiff's Servant was driving his Masters Horse in the Way loaden with Lead and by reason of this Hole he fell c. and it was held no good Evidence to maintain the Issue But by 18 H. 6. 22. where in Parco fracto the Defendant did plead Non Culpabilis and gave in Evidence That the Plaintiff had not a Park by Prescription nor by Grant and it was held good By the Books 11 H. 4. 24. and 19 H. 6. 34. in Trespass the Defendant may give in Evidence That the Plaintiff hath part of the Goods again in Abridgment of Damages And by 3 Ed. 4. Bro. 67. that a Shop is parcel of the House By 14 H. 3. 16 Ed. 4. 1. upon this Plea the Defendant may give in Evidence a Lease but by 25 H. 8. Bro. 82. cannot give in Evidence a Lease at Will no more than a License And so is 12 H. 8. 1. in Wast where said that in Wast he cannot upon Nul Wast fait pleaded give in Evidence That he Cut the Timber for Reparations nor upon Non Culpabilis to give in Evidence se defendendo or a License but a Gift he may But in Wast he may give in Evidence that the Premisses were ruinous at the time or burned by Enemies or the like But Title in an Estranger upon such a Plea as is the said Book of 25 H. 8. Bro. 81. and to Justifie by his Commandment is no Evidence but ought to plead the said Answer as the License of the Plaintiff himself as it seems or one pretendeth Common c. But if the Defendant pretend an Interest from a Stranger in the Land it self although but an Estate at Will yet he may plead Non Culpabilis The next upon the Issue of Nihil debet By the Book of 28 H. 8. Dyer 29. the Defendant may give in Evidence that the Contract was Conditional or may plead the same as appears there without Traverse The like as it seems upon Non Assumpsit in Action upon the Case And 27 H. 8. 21. in Debt upon the Statute of 21 H. 8. of Farms upon the General Issue viz. Non habuit c. he may give in Evidence the taking for Provision of his House according to the Proviso of that Statute And in 20 H. 6. 24. in Debt upon an Account the Defendant may plead Nul tiel Accompt or Nil debet and give in Evidence that there is no Account between the Parties And so is 9 H. 7. 3. in Rescous the Defendant shall not give in Evidence Non-tenure and yet may upon Nil debet give Ne Lessa pas in Evidence But there and 22 H. 6. 33. upon the Plea of Non detinet the Defendant shall not give in Evidence a Mortgage Nor by 16 H. 7. 15. may he upon that Issue give in Evidence that he had the thing of the Plaintiff as a Pledge for Mony not yet paid But quaere if he may give in Evidence an Agreement after the Bailment that doth alter the Property And 21 Ed. 4. 20. If the Plaintiff in his

6. 46. not in Entry in nature of an Assize nor other Action And so is 21 H. 6. 18. and also 34 H. 6. 22 48. in Trespass and all other Actions except Assize where although the Bar be at large yet the Plaintiff ought either to Traverse it or to Confess and Avoid the same Where it appeareth that a Plea at large is where the Plaintiff in his Replication medleth not with the Defendant's Bar As to say That a Stranger was seised and did Enfeoff him or That his Father was seised and died seised and so he was seised until c. not shewing expresly the Discent to be after the Defendant's Title And 38 Ed. 3. 10. the Defendant in Trespass did plead his Freehold and the Plaintiff Replied Que il prist ses arbres prist and could not but was forced to make Title And 1 2 Mariae Dyer 171. the Defendant in a Replevin avowed that B. was seised and let to him for years to which the Plaintiff Replied that antequam B. aliquid habuit A. was seised and let to C. whose Estate the Plaintiff had and doubted whether it were not a meer Title as before at large because he doth no way encounter with the Avowry nor Confess and Avoid the same but only with the word Antequam Where also a Case is Vouched in 41 Ed. 3. how the Defendant in Trespass did plead his Freehold to which the Plaintiff Replied Que long temps devant le Defendant riens avoit en le Franktenement J. S. fuist seisie Et Lesse a luy pur ans and so was he possest until c. and holden a good Plea But 3 4 Mariae Dyer 134. where the Defendant in Trespass doth plead his Freehold the Plaintiff is to Traverse the same or to Convey a Title to himself and alledge a Disseisin and Regress and the Trespass mean quod nota vide accordant 34. H. 6. 32. And by 42 Ed. 3. 2. the Defendant in Trespass for taking a Ship pleaded the Gift of the Plaintiff and the Plaintiff would have Replied that he took his Ship prist and ill and after would have added to that his Plea Absque hoc that the Ship was the Plaintiffs tempore doni and ill also and lastly would have pleaded that tempore doni the Ship was to Alice at Stile and was not suffered wherefore he added to his Plea that after the Gift Alice gave the same unto him and so he took his Ship and that holden a good Plea And the Defendant Rejoyned That it was the Ship of the Plaintiff at the time of the Gift And 49 Ed. 3. 19. the Defendant in Trespass did Prescribe in Common to which the Plaintiff Replied that the Place was his Several Absque hoc that the Defendant had Common there But where the Plaintiff in an Assize shall be forced to Answer the Bar without making Title at Large Vide Bro. Abridgm Tit. Assize viz. to every Special Bar. And what shall be good Replications and Titles further than hath been before-mentioned see the Abridgments of Fitz. and Bro. Tit. Replications and Titles where the same more plainly appears As if against an Act of Parliament Recovery or Matter of Record the Title must be set forth Specially and de puisne temps and so 10 Ass. 23. of a Waranty But against a Matter en fait the Plaintiff maywell say That after his Father was seised and died seised without shewing coment And as it appears by 47 Ed. 3. 13. If the Title be before the Fine or Recovery it may be general And 18 Ed. 4. 10. the Defendant in Trespass pleaded a Gift in Tail by the King and the Plaintiff Replied Ne dona pas and good And 9 Ed. 4. 46. where the Defendant giveth to the Plaintiff a Title and in his Plea destroyeth the same That Matter the Plaintiff may Maintain or Traverse without other or further Title And so is 40 Ed. 3. 5. and 3 Ed. 4. 18. where holden that where the Defendant in Trespass made Title by a Gift in Tail of a Stranger the Plaintiff Replied That he was seised until the Defendant did the Trespass and Traversed the Gift in Tail and good although his Title was but of his own Possession Next shall be shewn In what Cases there is no occasion either for Replication or Rejoynder And therefore First It appears by 2 Ric. 3. 9. that where Error is alledged in that which the Course of the Court doth approve and allow of there needs no Answer to the same And by Littleton 12 Ed. 4. 13. where one doth Counterplead the Possession upon a Voucher or plead Quod partes ad finem nihil habuerunt mes A. c. he shall add also Et hoc petit quod c. And so is 22 H. 6. Bro. Replic 21. But 7 H. 6. 20. to the contrary in the Plea of Partes ad Finem But 31 H. 6. 21. as also 22 H. 6. and in all other Cases where the Plea is in the Negative as Non Culp ' Ne dona pas Ne unque seisie que Dower Nul Tort Nil debet c. Otherwise upon Pleas in the Affirmative But this Matter is more proper to be Treated of in the Title of Issues But by 2 H. 4. 4. where the Defendant in Debt did plead that the Plaintiff had nothing tempore dimissionis And 11 H. 4. 79. where said that an Issue shall be always upon an Affirmative and Negative except in Special Cases Vide Dyer 2 Eliz. 182. the Tenant in a Formedon by Fish to parcel did plead one Fine and so to the other parcel another Fine To which the Plaintiff Replied Quod seperal ' Fines minime proclam ' fuerunt and good although there said that it would have been better to have made several Replications Then it is to be observed where not only Rejoynders but also Surrejoynders ought to be As 5 Ed. 4. 108. where in Debt upon an Obligation with Condition for performing an Arbitrement if the Defendant pleads Quod Arbitratores non fecerunt c. And the Plaintiff doth say Prist que cy that is ill for he ought to shew the Award and alledge the Breach and the Defendant must thereto plead That they made no such Award to which the Plaintiff must say Prist que cy and the Defendant Rejoyn Que prist que non And so you may see Count Bar Replication Rejoynder Surrejoynder and Rebutter to Surrejoynder in Pleading A Rebutter is where a man grants Land to the use of himself and the Issue of his Body to another in Fee with Waranty and the Donee Leaseth out the Land to a Third person for years the Heir of the Donor impleads the Tenant alledging the Land was in Tail to him the Donee comes in and by virtue of the Waranty made by the Donor Repels the Heir because tho' the Land was Entailed to him yet he is Heir to the Warantor likewise So if I grant to the Tenant to

was no such Mis-continuance of Process as is helped by the Statute of 32 H. 8. So if the Trial be in a wrong County Quaera tamen inde for Mich. 2 3 Eliz. Dyer 188. and Mich. 21 22 Eliz. ibid. 367. seem contrary although Process awarded to the Coroners without Cause and although as the first of the said two Books is the Trial was not between the Parties to the Writ but between the Tenant and the Vouchee Yet Ann● 32 Eliz. it was said to be Ruled That if one pleadeth an Award in Trespass without Satisfaction and Issue and Verdict taken upon the same yet not helped by that Statute quaere inde And Mich. 33 Eliz. in the Case between Upton and Walsh no Venire facias being put upon the File Ruled to be aided by the Statute although it could not be found See a Report 1 2 Mariae where the Declaration doth not warant the Writ As in Debt where it doth appear that the Day is not yet come or in Trespass that the same is committed after the Date of the Writ or a Declaration be in the Debet and Detinet by an Executor The same and the like although Issue and Verdict thereupon are not helped by the Statute of 32 H. 8. Note by what hath been said it appears That the said Statute of 32 H. 8. being touching Mis-pleading and the Matters therein contained in any of the King's Courts of Record that the same helpeth not in that Case in any other Court of Record For as it seems in Stradling's Case in Plowden's Commentaries If a Statute give an Action in any of the King's Courts of Record the same will not extend to Oxford although the Style be Cur ' Domini Regis or to the Exchequer or Chancery And yet if a Statute provides Remedy for a thing by an Action that lay before as it appears in Bro. Tit. Conusance and doth not limit by Express Terms where the Suit shall lye there it will lye in any of the said Courts In which if the Law be so then touching Mis-pleading and Mis-joyning of Issues in other Courts the same is as it was at the Common Law before the Statute of 32 H. 8. See Trin. 29 Eliz. Goldsborough's Reports 48. where in Case sur Assumpsit the Defendant pleaded Non Assumpsit and found for the Plaintiff and Moved There 's no Place laid in the Declaration where the Promise was made and it s there said That when an Issue is Mis-tryed it is not helped by the Statute and here no place is alledged whereupon the Trial may be had But per Cur. the Statute shall be taken liberally so that if the Verdict be once given it shall be a great Cause that shall hinder the Judgment for when it is Tried and Found for the Plaintiff he ought to have Judgment And Trin. 10 Iac. 1. Godbolt 194. In an Action brought in the Common Pleas after Verdict moved to stay Judgment that the Venire facias did vary from the Roll in the Plaintiff's Name for that the Roll was Peter and the Venire Iohn and the Postea agreed with the Roll his true Name Where holden That if no Venire goes forth the same is aided by the Statute of Ieofails and it is in Effect here as if there were no Venire fac or Hab. Corpora yet if the Sheriff do Return a Jury the same is helped by the Statute of Ieofails And Pasch. 12 Iac. Brownl 2 Part 167. Upon a Motion to stay Iudgment it was Objected That the words Et habeas ibi Nomina Iur ' were omitted in the Venire fac ' but Venire fac ' Duodecim c. were in the Writ and good per totam Curiam for that the first words are supplied by the last and the Omission helped by the Statute of Ieofails after Verdict And see Mich. 21 Iac. Cro. 2 Part 672. In Case for Words brought in Chancery by a Clerk there a Venire was awarded Retornable in B. R. in this Form viz. Venire facias duodecim quorum quilibet habet 4 l. terrarum aut minus c. Moved to stay Judgment that the Venire was ill and not helped by the Statute of 27 Eliz. cap. 6. for that extends only to Writs of Venire fac in the Kings-Bench Common-Pleas Exchequer Iustices of Assize and no other Courts and the Chancery is omitted and therefore the Venire not waranted by the Statute But per Cur. This Clause inserted in the Writ although not waranted by the Statute yet is not prejudicial to any but makes the better Trial. And by the Common Law the Judges may direct a Venire to be Quorum quilibet habeat tantum de Terris and Precedents were shewed out of Chancery where the Venire was as in this Case And per Cur. If it was not good at the Common Law yet now c●early made good by 32 H. 8. Wherefore Adjudged pro Quer. So Trin. 9 Car. 1. Cro. 1 Part 215 228. In a Scire facias in Chancery against C. upon a Recognizance of 200 l. The Defendant was Returned Dead whereupon a Second Scire facias issued against the Heir of C. and the Tenants of the Lands of C. tempore Recognitionis upon which the Sheriff Returned T. terr-Terr-Tenant of such Lands omitted to Return any thing concerning the Heir Whereupon the Defendant pleaded That he had nothing in the Lands at the time of the Recognizance nor ever after It was found for the Plaintiff that C. was seised and moved in Arrest of Judgment because nothing was Returned against the Heir viz. That there was not any Heir or the Heir had nothing And it is a Non-Return of the Sheriff and not a Mis-Return and is not helped by the Statute of Ieofails But per Cur ' Though the Return had been better if it had been found who was Heir and that he was Warned or that there was not any Heir in the said County yet it was well enough and the Mis-Return or Insufficient-Return of the Sheriff quoad the Heir not being named in the Retnrn is but a Dis-continuance helped by the Statute of Ieofails Vide Hob● 326. Where the Plaintiff Declared in Debt upon a Demise for Rent To which the Defendant pleaded That before the Rent became due the Plaintiff did Enter upon him not saying He did Expel or Hold him out so that Issue was only Quod Quer ' non Intravit and found for the Defendant and Judgment given for him For tho' the Plea was Insufficient yet the Verdict did fully answer the Issue And see Hob. 76. Banks versus Parker In Trespass for taking a Kettle at W. The Defendant Justified by reason of the Custom of the Mannor of T. And the Plaintiff took Issue de Injuria sua propria absque tali Causa and the Venire was awarded de Visn ' de W. Manerio de T. upon the Roll and a Verdict for the Plaintiff And tho' the Plaintiff should not have Traversed

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