Selected quad for the lemma: land_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
land_n	estate_n	life_n	tenant_n	4,234	5	10.2032	5	true

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

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

4 5. Mariae 162. How the Plaintiff Recovering 40 l. against one that hath Land in divers Counties may dividing his Debt or intirely have several Elegits But by Hobart 58. There may not be two several sorts of Executions out an once but one after another Yet Idem fo 2. If one Elegit be sued out and entred of Record tho' the Plaintiff get nothing by it yet he shall never have other Execution till something be found and no man will Record the Execution till he find somewhat Vide Yelvertons Reports fo 52. Where said That if a man be taken upon a wrong Writ of Execution tho' it be returned Executed yet because he in Truth never was in Execution a new Capias may issue out against him And Idem 180. Where Goods are taken in Execution in another County upon a Testatum returned That the Defendant Nulla habet Bona c. in London where the Action was Tried but in the County of B. where the Goods were taken which is false the Execution shall be avoided and the Party restored to his Goods again But by Moor Case 428. though the Court grant an Erroneous Execution yet that will not excuse the Sheriff where there is an Escape Yet by Hetley Rep. 157. Where the Sheriff upon a Fieri Facias takes a part of the Defendants Goods in Execution and delivers them to the Plaintiff and they be taken from him he shall have Execution de novo And by Popham in his Reports fo 206. one may be discharged out of Execution by word only as where one is in Execution at my Suit and I bid the Sheriff let him go this is a good discharge Vide Dyer 306. Where said That in all Cases where the Law doth once adjudge a Defendant to be in Execution at the Suit of the Plaintiff if the Sheriff suffer him to escape he shall be chargeable to the Plaintiff for the same in an Action of Debt or upon the Case Yet by Popham 41. if he be taken in a Fresh Pursuit tho' in another County by that he shall be in Execution again And by Co. lib. 3. 71. where the Sheriffs of London at the going out of their Office by Indenture did deliver B. in Execution to the New Sheriffs and he being in Execution at the Suit of C. and D. did make his Escape D. only is named C. sues the Escape and had Judgment and held that B. was not in Execution of the Old or new Sheriffs and that the Old are to give notice to the New Sheriffs of them in Execution tho' they be upon Record and the Prisoners are in Custody of the Old Sheriffs tho' out of Office till delivered to New and if the Old Sheriffs die the New must take notice of them at their Peril and the Prisoners are in Custody of the Law between the death of the Old and the coming in of the New Sheriffs But see Co. lib. 4. Blomfields Case where two were bound jointly and severally by Bond both sued and condemned and taken in Execution the one escaped the other brought an Audita Querela and held not to lie Vide Rolls Abridgment 904. Where said That if A. be taken in Execution on a Capias ad Satisfaciendum at the Suit of B. and escape from the Sheriff and no return is made of the Writ nor is the Writ filed or any Record made of the Award of the Capias B. may have a Scire Facias against A. and thereupon what Execution he will And see More Case 1177. and Hob. 55 56. Foster and Iacksons Case If the Defendant die in Execution this is a discharge of the Execution for ever as an Escape is Yet Co. lib. 5. 86. contra But by Hob. 59. If two be bound jointly and severally to me and I sue them jointly I may have a Capias against them both and the Death or Escape of the one shall not discharge the other But I may not have a Capias against one and another kind of Execution against the other when I sue them jointly But when I sue them severally I may sever them in their several kinds of Execution but yet so as if a very satisfaction be had of one or against the Sheriff upon the Escape of one the other may be relieved by Audita Querela But if a Capias ad Satisfaciendum be had against one of them in this Case so as there is such an Execution as is a Satisfaction no other can be had against him or his Heir or Executor if he dies here none may be had against either of the others For where the Law gives three or four kinds of Execution by way of Choice and the Plaintiff chooseth a Capias ad satisfaciendum and the Defendants Body is taken thereupon it cannot be for part as in a Fieri Facias Vide Anderson Part 1. Case 166. Where the Plaintiff sued a Capias ad Satisfaciendum against one of the County of C. that was brought into Court in Custody of the Sheriff where the Plaintiff was present and being asked by the Court whether he would pray that the Prisoner might be committed to the Fleet answered that he would not And this he did because the Prisoner was poor and not able to pay and had escaped out of the Sheriffs Custody against whom he said he intended to bring his Action and thereupon the Court discharged him of his Execution not committing him to the Fleet nor leaving him in the Custody of the Sheriff because the Sheriff did not pray it Then as to the Force of an Elegit See Westm. 2. cap. 18. Dyer 206 335. Co. lib. 7. 49. lib. 4. 67 68. Fitzh Nat. Brev. 48. Plowd 224. 178. 2 H. 4. 14. Bulstrode part 2. 98 99. Lane 20. That upon an Elegit the Sheriff is to make Execution of a moiety or one half of all the Houses Lands Meadows Pastures Rents Reversions and Hereditaments whereof and wherein the Defendant at the time of the Judgment had or after had any sole Estate or Interest in Fee Tail or for Life into whose hands soever the same do afterwards come So also if the Husband and Wife do hold Lands for their two Lives they are Extendable upon this Writ But a Right only to Land an Annuity Copyhold-land the Land the Husband holds in Right of his Wife in Fee or for Life is not Extendable after her Death nor liable to Execution And all the Goods and Chattels except only the Beasts of the Plow which the Defendant hath or at time of Execution had are liable to Execution on this Writ as on a Fieri Facias But no Goods and Chattels really and Bona Fide made away before Execution are liable to be taken upon this Writ Vide Hob. 57. An Elegit may be sued of Lands in Ancient Demesn And ibidem it may be sued after a Capias or Fieri Facias both and after a Capias returned non est inventus But

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

Warrant to his Servant or for Suspicion of Felony or the like And as 5 H. 7. 9. where the Defendant doth Justify by Custom of Faldage Or 9 Ed. 4. 22. where the Defendant in Trespass Justified for Wreck and in many other Cases where the Defendant doth Justify by Matter in Fait the same General Replicati●● De son Tort demesn hath been admitted Next of the Plea of Que Estate which signifies verbatim Which Estate or the Same Estate and is a Plea whereby a man Entitling another to Land c. saith That the Same Estate himself had he had from him As in a Quare Impedit the Plaintiff alledgeth That such Four Persons were seised of Lands whereunto the Advowson in question was appendant in Fee and Presented to the Church and that afterwards the Church became void Que Estate that is Which Estate of the said Four Persons he hath now during the Vacation by virtue whereof he Presented c. Vide Bro. 175. Tit. Que Estate Co. 1 Inst. 121. And see also 2 H. 6. 10. where holden That the Plaintiff in his Declaration or Title shall not Convey to himself by a Que Estate Otherwise in a Replevin after Avowry for after Avowry the Defendant is become Actor And so is 3 H. 6. 28. and accordingly are divers Books in Brook in this Title Que Estate And Mich. 1 2 Mar. Dyer 172. And yet as appears in the same Title 2 H. 4. 13. and other Cases there that where the Defendant by his Bar doth admit the Plaintiff Tenant to the Land there the Plaintiff in his Replication Conveying to himself Title to the same may do it by a Que Estate And by the Book 3 H. 6. 11. 22 H. 6. 34. and divers other Books in this Title in Brook The Avowant may in his Avowry Convey to the Plaintiff an Estate in the Tenancy by a Que Estate because he is a Stranger to his Title which seemeth Reason And it appears by the same Book in Dyer fo 172. That a Term cannot be Conveyed in Pleading be the Party Actor or otherwise by a Que Estate And to that Intent is 7 Ed. 3. Brook in this Title 31. be the same a Term or Estate for Life or in Tail And yet there 38 Ass. 4. the Defendant in an Assize did Convey from T. by Statute by a Que Estate And see 5 H. 7. 39. 40 Ass. 28. 15 Ed. 4. 16. and 2 H. 4. 20. of Tenant in Tail especially if the Party be to aver his Life And see in this Title Bro. 12 Ed. 3. That the Tenant may Rebut by reason of a Waranty by a Que Estate but not be Vouched And see 22 H. 6. 13. and 26 Ass. 8. But 10 Ass. 5. to the contrary And see also the Books 11 H. 4. 81. 37 H. 6. 32. and 1 Ed. 6. in this Title 4. That a Que Estate is not to be alledged in any of the Mean Conveyances but to the Tenant himself without shewing Coment notwithstanding the same hath been suffered And it appeareth also that in Pleading a Que Estate the Party by whom such Estate is Conveyed must be shewed in Pleading to have a Good Estate as by Recovery Feoffment or Release or the like and not sufficient to say That A. was seised whose Estate the Defendant hath And so is 7 Ed. 4. 26. and 9 H. 7. 14. Vide 21 Ed. 4. 21. That Tenant in Dower coming in by Law Conveyed her Estate by a Que Estate And so 6 Ed. 4. 12. although he came to the Land by Disseisin And so seems 31 H. 8. Bro. 48. if he Recover the same but against that is the Book of 39 H. 6. And it appears also That a Thing that lieth in Grant cannot be made Title to by Que Estate although by way of Bar. And so 11 H. 4. 89. of an Hundred And so 24 Ed. 3. 22. and 31 Ass. and 12 H. 7. 16 18. of a Rent or Common except it be incident to some thing that may pass without Deed unless he shew a Deed to maintain his Prescription And although in many Cases it be sufficient Title yet as it seems 6 Ed. 4. 12. is never Traversable but where both Parties Claim by one Person And yet see 19 H. 6. 56. and 11 H. 4. 81. where the Que Estate Traversed although the Party that did take the Traverse did not Claim by the same Person And see in that Title 6 Ed. 4. 12. and 18 Ed. 4. 29. That where the Defendant doth give to the Plaintiff Title by a Que Estate there the same is Traversable by the Plaintiff Next in Order we shall say something of Double Pleas. A Double Plea is that wherein the Defendant alledgeth for himself Two several Matters in Bar of the Plaintiff's Action whereof either is sufficient to Effect his Desire which shall not be admitted for a Plea As if a man alledge Several Matters the one nothing depending upon the other the Plea is accounted Double and not admittable but if they be mutually depending each upon the other then it shall be accounted single And touching Double Pleas see thereof the said Title in Brook's Abridgment as namely where one Answer will make an End of all as Ne dona pas and the like there no Doubleness or if the Defendant plead divers Matters and rely upon One of them or do shew in his Pleading divers Matters of Inducement or of Suspicion or doth alledge Two Presentments in a Quare Impedit the one in the Guardian or Particular Tenant and the other in the Party himself And 40 Ed. 3. 11. divers Matters alledged to oust the Conusance 11 H. 6. 10. to prove a Maintenance the Party may shew divers Matters And Ibid. 11. That Appendancy and Prescription is double But 13 H. 8. è contra And by divers Books a Lease and Release double And where one bindeth himself in 10 l. in the Indenture to perform divers Covenants the Plaintiff can declare but upon the Breach of one if he demand the 10 l. Otherwise if he bring an Action upon the Covenants as appears by 11 Ed. 4. 10. And by 9 H. 7. 23. One pleads that he was seised until by the other disseised against whom he did Recover and not Double because the one is Conveyance to the other And by 5 H. 7. 36. where one cannot come to the one Plea without the other there no Doubleness as Seisin and Feoffment and the like And 4 H. 7. 17. and 1 H. 7. 14. And by 5 H. 7. 1. Non dederunt arbitrium in scriptis Double And by 21 H. 7. 10. a Collateral Waranty and Assets Double and the like Whereof see more at large in this Title of Double Plea in Brook and Fitzherbert and in Partridge and Strange's Case in Plowden's Com. and in that Case in Dyer That Barganizasset and Concessisset not double because words of one signification And accordingly also 35 H. 6. Then ought

an Action of his own Possession he shall not be compelled to shew the Will or Letters of Administration And so is 21 H. 6. 23. 10 Ed. 4. 1. 16 Ed. 4. 1. and divers other Books although the Plea be but to the Writ as that he is Administrator But 42 Ed. 3. 4. 3 Ed. 3. 31. and 7 H. 6. 41. In Trespass de bonis asportat ' in vita Testatoris he must shew the Will And so is 6 E. 4. 1. and 16 Ed. 4. 8. But by 19 H. 6. he need not shew it in another Term. And this difference of Plaintiff and Defendant is confirmed in Plowden's Com. in Graysbrook and Fox's Case Next we shall shew How the Vouchee shall be forced to shew a Deed. And therefore First by 22 Ass. 88. he that Voucheth as Assignee shall not only shew the first Deed but the Deeds of Assignment also and to that intent is 3 H. 6. and other Books in this Title in Bro. 5. But he may Rebut by the first Deed. Quaere tamen For 3 H. 7. 13 14. seems that he need not shew the Deeds of Assignment upon Voucher And see 48 Ed. 3. 5. That the Tenant in Dower vouching the Heir of full Age yet ought to shew a Deed quod nota But yet see 50 Ed. 3. 25. That in the same Case or in any other as it seems he that doth Vouch one unless he do pray also that the Parol may demur for Nonage shall not need to shew any Deed to the Demandant For which see more at large in Brook and Fitzherbert's Abridgments in the Title Voucher And 10 H. 7. 21. he that Voucheth as Assignee of the Reversion to save the Tail shall shew But Keble è contra and Vouched divers Books And then How an Action may be upon Record without shewing It appears 9 Ed. 4. 5 H. 7. and 32 H. 6. in Brook hoc Titulo 158 159. Be the Action in the same Court or another the Party that brings the Action shall not be enforced to shew the same But if the Record be in the same Court unremoved by Error or otherwise the Defendant may demand Oyer of of the same and shall have it but if otherwise he is bound to take Conusance thereof and to plead Nul tiel Record and thereupon the Record it self shall be sent down by Mittimus And so is 39 H. 6. 4. But by that Book it sufficeth if the Tenor of the Record be Certified And 7 H. 6. 18. one brought Debt in the Common Pleas upon Damages recovered in Trespass at York in a Court of Piepowder containing the Tenour of the said Record in his Count and how it came into the Chancery and thither by Mittimus and yet the Defendant did plead Nul tiel Record quod nota But touching this Point further How the Record shall be Certified and where the Tenour of the Record will serve or not see Dyer 8 Eliz. 250. 6 Eliz. 227. 3 Eliz. 187 188. and otherwise there Then it appears That although one have not the Deed yet if it appear of Record in the same Court pleaded by another at that time he shall have advantage of it As 40 Ass. 34. In an Assize against two the one having a Waranty to Bar the Plaintiff pleaded the same for his part and although he would not suffer his Companion to help himself by the same yet the other took advantage thereof As by Littleton in his Chapter of Estates upon Condition 90 91. If a Deed be once pleaded the other may shew That in the same there is a Condition c. And 24 Ed. 3. 73. the Defendant pleaded a Release which the Plaintiff did deny and after was Nonsuit And in another Action brought in the same Court the Defendant did plead the same again without shewing as a Deed gainsaid remaining in the Court. And by 21 Ed. 4. 48 49. If a man plead Letters Patents remaining of Record in the said Court he shall not shew them and so said to be the use of the Exchequer And 1 Eliz. in Dyer 17. a Lease of a Bishop Inrolled in the Chancery pleaded without shewing and it seems ill by that Book CHAP. VI. Of Pleading in General THen touching Pleading in General more than before hath been discoursed of in the several Divisions And First Where one in Pleading shall shew how he was seised And therefore in some Cases One may Convey to himself an Estate without shewing how he that gave it was seised And by 34 H. 6. 48. in the Writ or Count may be said quod quidam J. S. dimisit That such an one Let without shewing that he was seised Otherwise by way of Bar or Title And so 9 H. 4. 5. 21 H. 7. 26. and 10 H. 6. in a Formedon may say Dedit And next Where one shall say he was seised In Dominico suo c. For which see first Littleton where the Thing lieth in Demean as Land or Rent c. Or where otherwise as Advowsons And 30 H. 6. 7. one of a Way did say In Dominico suo ut de feodo de jure And 21 Ed. 4. 80. of a Copyhold in Dominico suo c. secundum Consuetud ' And see 7 H. 6. Dyer 83. of Tithes one shall say in Dominico suo ut de feodo because palbable c. And see in Wortley's Ejectione firmae in Plowden That of a Reversion dependant upon an Estate for Years In Dominico suo is the proper Pleading but the Plea of De Feodo admitted Then next Where in Pleading shall be said In Iure Uxoris c. See first 27 H. 8. 21. where Lands are given to the Baron and Feme and the Heirs of the Body of the Feme the Plea shall be Quod fuerunt seisit ' simul haered ' de Corpore le Feme And 12 H. 7. 14. the Defendant in Trespass did plead That He and his Wife were seised in their Demean as of Fee and said not In jure Uxoris or Conjunctim and yet good because if he have Title to any part it is not material in what manner And so in Wortley's Case in Plowden of a Term in Right of his Wife Next VVhere more and one Interessed See 37 H. 6. 24. where Lands are given to Two and the Heirs of One of them the Pleading shall be Quod fuer ' seisit ' viz. the one In Dominico suo ut de feodo and the other In Dominico suo ut de lib'o Tenemento And then of the Plea In Iure Coronae 34 H. 6. 34. In a Quare Impedit the Plaintiff made Title for that King Henry the Fourth was seised c. and did not say In Iure Coronae and good for there is said to be no other Form And see 7 Ed. 6. Dyer 83. accordingly touching Religious Lands where the said Book of 34 H. 6. is Vouched and shewed to be the better Pleading And so is 1 2 Mar. Dyer

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

Frank and not Villein and offer the Issue p. 98 The Defendant pleaded That the Place where c. was the Freehold of J. S. c. and the Plaintiff Replied That it was his Freehold he must say also and not the Freehold of J. S. or he must Traverse Absque hoc That it is the Freehold of J. S. c. ibid. That he who taketh the Traverse by Absque hoc ought not properly to Conclude the Issue but the other Party beginning his Plea with Ut prius dicit c. may p. 99 That he who pleads Partes ad Finem nichil habent or doth Counterplead the Possession or pleads Ne unques seisie que Dower Ne Dona pas Nul Tort Non Culpabilis and the like because these Pleas be in the Negative he shall Conclude with the Issue Et de hoc ponit se super Patriam ibid. But in the Plea of Partes ad Finem c. the Party pleading the same may have his Election to Conclude the Issue or not ibid. So where the Defendant pleads in the Negative he may Traverse and not Conclude with the Issue but with Unde Iudicium si Actio because a Perfect Issue may be joyned thereupon ibid. Where Issue shall be taken upon Affirmatives only without Negatives ibid. Of Tender and Refusal in Pleading p. 100 Of the Issue Negative pregnant p. 101 Of the words Modo Forma in Pleading p. 102 Of Traverse in Pleading p. 103 Time where and how Traversable p. 104 Rule concerning Departure in Pleading p. 105 Place and County where Traversable p. 107 Where the Plea is good without Traverse and where the Taverse shall make the Plea ill p. 109 Where the Dying seised or Discent is Traversable p. 112 When the Discent or Abatement shall be Traversed p. 113 Where the Dying seised the Conveyance or the Disseisin alledged shall be Traversable p. 114 That a Disseisin alledged either in Bar or Replication is always Traversable p. 115 Difference where the Disseisin is alledged in Fait and where only by way of Supposal ibid. Disseisin Traversable ibid. In Trespass the Disseisin not the Discent Traversable otherwise in Assize ibid. Where Seisin alledged in Fee shall be Traversed ibid. Where a Traverse holden a Ieofail p. 116 117 Of the Traverse Aliquo alio modo p. 118 Which of the Conveyances alledged to be Traversed p. 119 That the most material Matter alledged by the Defendant is always Traversable ibid. But where by way of Replication many Conveyances are pleaded the Defendant may Traverse which of them he pleaseth ibid. Where the Plaintiff against a General Bar makes Title by Feoffment and Discent whereby he is Remitted there the Defendant cannot Traverse the Feoffment but the Discent as the most Material part of the Title p. 120 Where the Defendant is to Traverse the Disseisin as most Material ibid. Tho' the Defendant Convey by Mean Degrees from the Plaintiff himself yet if he plead false in any Point the Plaintiff by like Pleading may Traverse him ibid. 121 Where the Commandment is Traversable as where the Defendant pleads the Freehold is to I. S. and that he did the Trespass by his Commandment and the Plaintiff makes Title from a Stranger and Traverses the Commandment of I. S. and good ibid. But made a Quaere if where the Defendant Justifies by the Commandment of the Owner the Commandment is Traversable ibid. But in all Cases where the the other Conveys from the same Person the Commandment is Traversable p. 122 The like of Qui Estate if both Parties claim from one Person ibid. Where several Traverses shall be taken in one Plea ibid. Where there are Three Traverses to one Replication ibid. Where two Traverses to one Plea p. 123 Where a Traverse may be upon a Traverse p. 123 Where the Defendant may Traverse without making Title ibid. Of the Plea of Tout Temps prist Uncore prist or Semper paratus and Tender ibid. Where Tender shall be made in Court where not p. 125 Uncore prist in what other Case to be pleaded p. 126 Of Estoppel or Counterplea to Tout Temps prist p. 128 Of the Plea De son Tort demesn or Injuria sua propria That upon many Justifications the Plaintiff is to Answer Specially to the Matter and not to Traverse generally De Injuria sua propria absque tali Causa p. 128 As where the Defendant Justifies in Trespass by the Commandment License or Delivery of the Plaintiff ibid. Or where the Defendant Justifies in False Imprisonment by reason of a Robbery and that the Common Fame went upon the Plaintiff ibid. Or where the Defendant Justifies by Matter in Law and to see if Wast were done and to Enter a Tavern to drink p. 130 Where the Defendant Justifies in Trespass the seizing of the Plaintiff by his Masters Commandment for that the Plaintiffs Ancestor held of his Master by Knights Service there the Commandment is to be Traversed by the Plaintiff ibid. And so it is in the Case of an Apprentice p. 130 And so where the Plaintiff pleaded a Grant ibid. But where the Defendant Justifies in Replevin by Reason of a Recovery in a Court-Baron or if the Defendant Justify by the Kings Patent there De Injuria sua propria general by the Plaintiff to such Justification no Plea because Matter of Record ibid. The like where the Defendant Justifies in Trespass to make Replevin by a Warant of the Sheriff or comes in Aid of the Servant that hath a Warant to Arrest the Plaintiff or where the Defendant in Replevin makes Cognizance as Bailiff to A. or where the Defendant Justifies in Trespass for taking away of Tithes sever'd from the Nine parts p. 129 130 In Trespass the Defendant Justify'd by reason of a Way and the Plaintiff Reply'd De Injuria sua propria Absque hoc That the Defendant and his Ancestors had used to have such a Way c. p. 130 That the Issue of De Injuria sua propria absque tali Causa shall be sufficient where the Defendant makes no Title to himself but as Servant or comes in Aid of the Sheriff or the like and in all Cases of the Assault of the Plaintiff or where the Sheriff makes a Warant to his Servant or for Suspicion of Felony or the like And where the Defendant Justifies by Custom of Faldage or in Trespass for Wreck and in many other Cases where he Justifies by Matter in Fait there the General Replication De Injuria sua propria hath been admitted p. 130 Of the Plea Que Estate Qui Estate or Quel Estate that is Which or The same Estate what p. 131 That the Plaintiff in his Declaration or Title shall not Convey to himself by a Que Estate p. 131 But in a Replevin after Avowry he may for then the Defendant is become Plaintiff or Actor ibid. So where the Defendant by his Bar doth admit the Plaintiff Tenant to the Land there the Plaintiff in his Replication Conveying to

himself Title by the same may do it by a Que Estate ibid. So the Avowant may in his Avowry Convey to the Plaintiff an Estate in the Tenancy by a Que Estate because he is a Stranger to his Title ibid. That a Term cannot be Conveyed in Pleading be the Party Actor or otherwise by a Que Estate be the same a Term or Estate for Life or in Tail p. 132 Yet the Defendant in an Assize did Convey from one by a Statute by a Que Estate ibid. And so of Tenant in Tail especially if the Party be to Aver his Life ibid. That the Tenant may Rebut by reason of a Waranty by a Que Estate but not be Vouched ibid. That a Que Estate is not to be alledged in any of the Mean Conveyances but to the Tenant himself without shewing how notwithstanding the same hath been suffered p. 132 That in Pleading a Que Estate the Party by whom such Estate is Conveyed must be shewed in Pleading to have a good Estate as by Recovery Feoffment Release or the like and not sufficient to say That A. was seised whose Estate the Defendant hath ibid. Tenant in Dower coming in by Law may Convey by a Que Estate p. 133 So he that comes to the Land by Disseisin So he that he recovers the same ibid. That a thing that lieth in Grant cannot be made Title to by a Que Estate although by way of Bar. ibid. As of an Hundred Rent or Common Except it be incident to some thing that may pass without Deed unless he shew a Deed to Maintain his Prescription ibid. Que Estate not Traversable but in Particular Cases ibid. Of a Double Plea and what it is p. 134 Where one Answer will make an end of all as Ne dona pas or the like there no Doubleness or if the Defendant plead divers Matters and rely upon one of them or do shew in his Pleading divers Matters of Inducement or of Suspicion or alledges two Presentments in a Quare Impedit the one in the Guardian or Particular Tenant and the other in the Party himself there no Duplicity ibid. But divers Matters may be alledged to oust the Conusance or prove a Maintenance p. 134 Yet Appendancy and Prescription and a Lease and Release will make a Plea double ibid. Where one binds himself in 10 l. in the Indenture to Perform divers Covenants the Plaintiff can declare but upon the Breach of one of them if he demand the 10 l. but otherwise if he brings an Action upon the Covenants p. 135 Where one pleads That he was seised until by the other Disseised against whom he did Recover not double because the one part of the Plea is a Conveyance to the other ibid. So where one cannot come to the one Plea without the other there no Doubleness as Seisin Feoffment c. ibid. Non dederunt Arbitrium in scriptis held by some to be double ibid. So a Collateral Waranty and Assets double ibid. But Barganizasset and Concessit not double but words of one signification ibid. How one shall have divers Pleas when one of them shall go to the Whole ibid. As where an Assize of the Office of Clerk of the Crown was brought by two Persons and the Defendant pleaded to one of the Plaintiffs That he was an Alien and to the other Nul tiel Office here because the Last part went to the Whole the Plea was holden to be double ibid. Yet the Defendant pleaded a Fine to the Whole and did Conclude to the Moiety and so for the other Moiety and good ibid. So the Defendant did Justify to the Third Part for one Cause and to the other two Parts by another Cause p. 136 So the Defendant in Trespass of Trees may plead as to the Cutting Non Culp ' and as to the Taking he may plead a Gift of them ibid. So in Debt against an Executor the Defendant pleaded an Acquittance to part and plene Administravit to the rest ibid. If a Person pleads divers Pleas and one of them goes to the whole Writ or Action that only shall be received ibid. Which of the Pleas shall be first Tried ibid. 137 Where the Plea is ill without shewing the Deed or Record ibid. Where the Estate is Executed there needs not the Deed for the most part to be shewed p. 140 How the Vouchee shall be forced to shew a Deed p. 141 How an Action may be upon Record without shewing p. 142 Tho' one have not the Deed yet if it appear of Record in the same Court pleaded by another at that time he shall have advantage of it p. 143 CHAP. VI. p. 145 Of Pleading in General WHere one in Pleading shall shew how he was seised ibid. Where one may Convey to himself an Estate without shewing how he that gave it was seised ibid. In a Writ or Count may be said Quod quidam J. S. dimisit without shewing how he was seised but otherwise by way of Bar or Title ibid. Where one shall say He was seised in Dominico suo c. ibid. Where in Pleading shall be said in Iure Uxoris p. 146 Where Lands are given to Two and the Heirs of one of them the Pleading shall be Quod fuer ' seisit ' viz. the one In Dominico suo ut de feodo and the other In Dominico suo ut de libero Tenemento ibid. Of the Plea In Iure Coronae ibid. Of the Plea In Iure Domus p. 147 Whether it be sufficient to alledge a Seisin in any without shewing of what Estate ib. How he that hath but an Estate for Life or an Estate Tail or an Use shall plead the same without shewing the beginning thereof p. 148 Where in Pleading for Certainty to every Intent it must be shewed that the Estate did Continue at the time p. 149 Which of the Parties shall set forth the Place where c. in Pleading p. 150 Bona Notabilia in divers Dioceses how to be pleaded p. 152 Where the County shall be taken by Intendment ibid. Where the Day or Years shall be certainly alledged in Pleading p. 153 Acts Spiritual how to be pleaded p. 155 Of Pleading Matters of Record as Utlary Recovery in Debt Recognizance Retorn of a Writ c. p. 155 156 How the words Inter alia are to be used in Pleading p. 157 Acts of Parliament how to be Pleaded ibid. Per Nomen how pleaded p. 160 Of the word Continetur in Pleading p. 162 Of Pleading by or without the word Praedict ' ibid. Of the word Ut in Pleading p. 163 Where a General Plea shall be pleaded for avoiding Mischief ibid. Of Pleading an Entry c. p. 164 Of the Plea Negative Pregnant ibid. That the word Licet is an Express Affirmative p. 165 Where an Express Seisin or Possession must be alledged ibid. Of the words Virtute cujus Per quod Quorum praetextu c. ibid. A Deed how to be pleaded p. 166 Of the Pleas Non est factum