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land_n	fee_n	issue_n	tail_n	1,960	5	9.7617	5	true

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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

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

to be known How one shall have Divers Pleas when one of them shall go to the Whole And therefore first see 1 Ed. 4. 29. In an Assize of the Office of Clerk of the Crown brought by two Persons where the Defendant pleaded to one of the Plaintiffs That he was an Alien and to the other Nul tiel Office because the last went to the Whole it was holden to be double And yet 37 H. 6. 30. the Defendant pleaded a Fine to the Whole and did Conclude to the Moiety and so for the other Moiety and good And eodem Anno 38. the Defendant did Justify to the Third Part for one Cause and to the other Two Parts by another Cause And Mich. 13 14 Eliz. Dyer 305. the Defendant in Trespass of Trees may plead as to the Cutting Not Guilty and as to the Taking he may plead a Gift of them And so 33 H. 6. 12. and 48 Ed. 3. 18. in Debt against an Executor the Defendant did Plead to part an Acquittance and to the rest plene Administravit And so is 28 Ed. 3. 91. See more hereof in this especial Title Deux Pleas un va al Tout in Brook where this Difference is holden That if one Person pleads divers Pleas and the one of them goeth to the whole Writ or Action that only shall be received And where several Pleas are pleaded by divers Defendants in any Personal Action and one of them goeth to the Whole that Plea shall be first Tried and the rest of the Defendants shall have Advantage thereof Where also a difference is taken between this kind of Pleading and a Double Plea and touching this any Person may shew the same to the Court as Amicus Curiae and the other none but the Party And see the Book of 9 H. 6. in that Title 4. which takes this difference That if there be two Defendants in a Real Action and they plead severally to the Action and One of their Pleas goeth to the whole as Bastardy and the like the other shall have no Advantage But otherwise if one of them doth Plead to the Writ the same shall be first Tried and the other shall have advantage of it The like in Personal Actions to the Action But if there be but one Defendant either in Real or Personal Actions and he pleads several Pleas to the Writ or Action and one of them goeth to the Whole that which goth to the whole shall only be taken And accordingly seems 37 H. 6. 37. Then shall be shewed Where the Plea is ill without shewing of the Deed or Record First It appears 20 H. 7. 6. That he which is a Stranger to the Patent and Deed and claimeth nothing by the same or by him that hath Right shall not shew the same And some question 1 H. 7. 24. if the Termor of a Common shall And 29 Ass. 21. seems That he that deriveth but a Particular Estate shall not But 14 H. 4. he that deriveth any Interest be it Particular or otherwise by Commandment shall shew And 21 Ed. 4. 50. a Servant that Justifieth a Distress for his Master shall shew the Deed but otherwise of an Incumbent that pleadeth a Grant of Prochein Avoidance to his Patron because he claimeth only the Incumbency and not the Patronage And 9 H. 7. 13. one brought a Quare Impedit and Counted that A. was seised and did Grant proximam Advocationem to B. and after did grant to C. who granted the same to him and the Question was Whether he should shew the Deed made to B. And 42 Ass. 2. one shall plead a Will without shewing because it appertains not to him And 22 Ass. 52. the Under-Escheator shall shew the Patent But 28 H. 8. Dyer 29. not And 39 Ed. 3. 37. the Grantee of Prochein Avoidance was not enforced to shew a Composition which declared to be his Grantor's Title because he had not his whole Estate But 22 H. 6. 42. the Servant shall but otherwise of the Servant of a Collector that Distrained for a Tax because an Act of Parliament the Principal Matter of his Title And 7 H. 6. 1. he that prays to be Received by reason of a Remainder or a Woman that demandeth Dower of Rent shall not shew the Deed because it doth not belong to them And upon this Reason see the Books 38 Ed. 3. 37. 14 H. 4. 30. 11 H. 4. 83. and divers other Books That where the Deed doth appertain to him there he shall not be forced to shew the same And so 35 H. 6. 31 32 where his Authority is determined and the Patent doth appertain to another as to another Officer and the like And this Learning is approved of in Plowden in the Case of Second Deliverance brought by Throgmorton against Tracy where one pleaded a Lease by a Corporation to begin after another was determined where holden That the first Lease need not be shewed for Three Reasons First Because it did not belong to him Secondly Because that Estate was determined And Thirdly Because the Defendant's Estate was Executed And further touching the Learning in this Point see Dyer first 28 H. 8. fol. 29. left doubtful whether a Particular Grantee shall shew the Main Grant And Ibid. 30 H. 8. 54. rather that he shall and therefore learn what the Law in that Case is And some Books take a difference where one deriveth himself an Interest to the Whole in Part of the thing there he shall shew but if but to part of the Estate then not Next Where the Estate is Executed there need not the Deed for the most part to be shewed And first 15 Ed. 4. 16. If one Convey to a Possession Executed in himself by the Grantee of a Reversion and Attornment there he need not shew the Deed. Otherwise to a Rent or to Land in Remainder by Grant of a Corporation But the Issue in Tail of a Rent Executed shall have a Formedon in the Discender And by 11 H. 4. 39. and 14 H. 4. 31. if a Remainder be once Executed the Issue in Tail may have a Formedon as of a Gift in Possession But in a Formedon in Remainder the Deed must be shewed And so is 18 H. 8. 4. and 34 Ed. 3. Yet 10 Eliz. Dyer 277. in a Formedon in Remainder upon a Gift to Uses in Tail holden that he need not shew the Deed for two Causes One because the Estate may be made without Deed and the other because it appertained to the Feoffor And therefore 1 2 Mar. Dyer 174. a Stranger to a Deed shall plead a Grant without saying that it was by Deed. And by Dyer 28 H. 8. 29. Tenants in Common making Partition to Present by Turns when it is once Executed the Deed thereof need not after to be shewed quod nota The like Law as it seems of Executors and Administrators touching the shewing of the Will where the difference is that being Defendant or bringing

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

11. the Defendant in Trespass of Assault and Battery Justified at another day of the Plaintiff's own Assault Absque hoc that he was Guilty antea vel postea and the Plaintiff Replied De injuria sua propria and ill for the Reasons aforesaid quod nota And 43 Ed. 3. 11. the Plaintiff in a Replevin did Declare the Taking the 1st of May and the Defendant did Avow in the same Place at another Day for Damage fesant To which the Plaintiff Replied That it was his Common And the Rule of the Book is for that the Taking shall be intended the Day in the Avowry the Plaintiff's Replication is a Departure And to that Intent is 33 H. 6. 14. where the Defendant in a Quare Impedit did Claim nothing but as Ordinary Judgment if without a Special Disturbance To which the Plaintiff Replied That such a Day Year and Place he did Present c. To which the Defendant did Rejoyn That at the same day the Church was Litigious sans ceo que il Refusa apres cel Iour To which the Plaintiff alledged a Tender after and a Refusal and by the Whole Court holden a Departure quod nota So that by these later Books it appears if the same be Law that the Day in most Cases may be made Material upon the Defendant's Plea and Traverse which in some Cases shall be only to the Time before As namely when the Defendant pleading a Feoffment and the like which being intended to continue proveth that he cannot be Guilty after And sometimes the Time after as when in Trespass he pleadeth a Lease determined made in another Kings Reign Or else the Time before and after as appears in Brook in the Title of Traverse But where his Plea enableth him but to one Special Time and Justifieth at another Day within his Special Time as De son Assault demesn or a License for a Time or a Special Maintenance or for Common for a Time or the like There the Defendant is to Traverse the Time before and after for the most part as appears in the said Title of Traverse 5 Ed. 4. 5. 10 Ed. 4. 2. 20 H. 6. 5 23. 31 H. 6. 37. and other Books there But as 2 Ed. 4. 24 25. If the Defendant Justify for a Time in a former King's Reign then he shall Traverse the Time after only because upon that Writ he cannot be Guilty before And 27 Ass. 12. He that Justifieth in Maintenance as one of the Indictors needs not Traverse the Time before or after and He that Justifieth as a Commissioner the Time before Then shall be shewn Where the Place and County are by the Defendant in his Answer to be Traversed For which see partly before in the Title of General Issue That in Trespass Local if the Defendant Justify in another Place in the same County he may chuse so to do and Traverse the Place or plead the General Issue at his Pleasure but if in that Case his Justification be in another County by the better Opinion he shall be forced to the General Issue and so seems 9 H. 6. 62. in this Title of Traverse and the Jury bound to find the same upon Pain of Attaint It appears also in the same Title that although the Matter in the Declaration be Transitory yet if the Defendant's Justification goeth only to another County or other Place there the County or Place is Traversable and he cannot plead the General Issue For which see 27 H. 6. 1. 43 Ed. 3. 29. 7 H. 6. 35. 9 H. 6. 50 71. 21 H. 6. 8 9. and divers other Books in the same Title of Traverse in Brook where it appears That if the Special Justification be in any other County the County is Traversed otherwise the Place if the Justification be in the said County And by many of these Books it appears That if the Defendant doth Justify by reason of a Special Bailment in another County or of the Plaintiff's own Assent he is to Traverse the County but if he Justify for the like Matter in the said County he is to take no Traverse quod nota And so is 21 Ed. 4. 29. by all the Court That if the Defendant in Debt upon a Contract of a Horse alledge the same to be in another County upon Condition and Traverse the former County tamen quaere because in that Action and Detinue the Defendant may Wage his Law And 22 Ed. 4. 39. the Defendant in Trespass for Taking away his Goods did Justifie by Commandment Conditional viz. to Take them only in another County and Traversed the County where the Plaintiff laid his Action and good And so is 34 H. 8. Bro. Traverse 36. 8. In an Action of Disceit for Making of False Cloaths in Bartholomew-Fair contra formam Statut ' the Defendant said That he made them bien duement at D. in another County and Traversed the Making of them in Bartholomew-Fair and good And always in a Replevin the Place of the Taking is Traversable for which see 16 H. 7. 7. where the Plaintiff declared of a Taking in A. in the County of Oxon in a Place called P. and the Defendant said That the Taking was in P. in the Town of O. sans ceo que il prist in A. and holden That the Defendant at his pleasure may either Traverse the Town or the Place quod nota Next shall be shewn Where the Plea is good without Traverse and where the Traverse doth make the Plea ill And therefore first see 28 H. 8. Dyer 29. where the Defendant in Debt upon a Contract shewed That the Contract was Conditional without Traverse and good and the Traverse was on the other part And Ibid. eodem Anno 33. one did declare upon a Lease of 24 Acres and the Defendant pleaded That he Let the same and 4 Acres more and good and ought to take no Traverse because Confest and more Yet 35 H. 6. 38. and 32 H. 6. 3. Bro. Tit. Traverse seem to the contrary and their Pleas to the Count. And 3 Eliz. Dyer 202. in Account by Edward Clere Administrator of Sir Iohn Clere against Barty and the Dutchess of Suffolk his Wife who pleaded that Sir Iohn Clere made Walter Herend his Executor without Traverse and Demurr'd to in Law See Mich. 10 11 Eliz. 280. in a Replevin between Wootton and Sir Anthony Cook in Dyer where Cook did Avow as in his Freehold To which Wootton did Reply That the Land did discend to him and Cook in Coparcenary without Traverse But it is there said That if one Avow that A. was seised in Fee and granted to him a Rent-Charge and the Plaintiff Replies That A. was seised in Tail at the time of the Grant and died he ought to Traverse Absque hoc quod fuit seisitus in feodo And see the Case of Vernon Mich. 21 22 Eliz. Dyer 366. Rul'd according to a like Precedent 12 H. 8. Rotulo 639. That

plead a Recovery of Twenty Acres Inter alia ill but ought to plead That he did Recover Forty Acres whereof these Twenty Acres were parcel Nor shall he plead That I. S. was seised of Twenty Acres Inter alia and did Enfeoff him Inter alia but ought to plead as before Yet said there it might be permitted in pleading a Feoffment And the same Case of Dyve and Maningham taketh this difference between the Pleading of an Act of Parliament and a Recovery quod nota Where holden also That the Defendant in that Action could not take advantage of the Statute of 23 H. 6. being but Particular although it be touching all Sheriff's in General without Pleading but containing divers Things may well be pleaded Inter alia or so much as doth avail him And in Fulmerstons and Steward's Case there either of the Parties may take advantage by Pleading of so much of the Statute of 31 H. 8. of Monasteries But in the Case of Debt there brought by Partridge against Strange and Croke upon the Statute of 32 H. 8. of Buying of Titles holden by all the Justices except Mountague That the same being General need not Specially to be recited as to pray to be Received and to Demur Generally upon a Vouchee out of the Lieu. But by all the Iustices there the Misrecital maketh the Declaration ill For in Pleading many times a thing not Material is made Effectual And there in Debt by Stradling against Morgan a Receiver upon the Statute of 7 Ed. 6. for Taking great Fees there set down by Statute Exception was taken for not reciting the Statute of 34 H. 8. that set down the Fees And in Williams and Barkley's Case in Coke's Reports although one did but plead part of that Act which did Enable the Queen to Take yet sufficient where said That every one hath Interest in the King therefore the same is a General Act. See the like Learning in Dyer as 28 H. 8. 27. where a Condition of a Lease made to a Parson was That he should not Grant the Estate over if he will have advantage of the Statute of 21 H. 8. which Enacteth That such shall be granted their Terms over it must be Specially pleaded because Particular as a Private Custom And this Statute is but General in Particularity as a Statute that Pardoneth all that were of the Party of Richard the Third of the Statute De Medietate Linguae or if a Statute were made That Tenants for Life shall not be punished in Wast and the like And as it hath been taken of late in all Cases of Pardons by Act of Parliament if any Persons be Excepted for the same thing And Ibid. 7 Ed. 6. 83. by the Better Opinion in an Assize of Tithes given by the Statute of 31 H. 8. the Plaintiff in his Plaint need not to mention the same Statute as well in respect the said Statute is General as that it is to give Jurisdiction to the Common Law as a General Pardon by Parliament and Resembled it to the Case of 14 H. 4. were Conusance granted and after a New Action is given by Parliament the Grant shall not extend to the same But otherwise where the Action was before and other Things granted to be within the same Where said also That in Pleading a Feoffment by Cestuy que Use according to the Statute of Ric. 3. need not to mention the Statute or in Pleading a Feoffment to use at this day to say That it was Executed Vigore c. of the Statute of 27 H. 8. Or in Pleading a Devise to Recite the Statute of Wills quod nota Then How one shall Plead by a Per Nomen And First 30 Ed. 3. Fitz. Tit. Feoffments 18. One pleaded a Grant to I. S. A. sa Feme Per Nomen I. S. Uxoris ejus And 1 H. 7. 28. the Tenant in Assize did plead a Feoffment de praedicta terra per Nomen omnium Terrarum quae sibi discendebant de parte Patris and took no Averment because of the word Praedict ' And so 33 H. 8. Bro. Tit. Pleading 143. in a Praecipe de Manerio de B. the Tenant pleaded a Recovery de praedicto Manerio Per Nomen c. So if I. S. pleads a Feoffment made to him Per Nomen I. N. Where holden also That he may plead the Feoffment Generally of the same thing without a Per Nomen and the Variance in the Deed not Material But there said to be better to Plead it with a Per Nomen Touching which see more in Dyers and Plowden's Reports as namely 7 Ed. 6. Dyer 83. where in Serjeant's Case the Plaint being of a Portion of Tithes issuing out of 300 Acres in N. did make his Title in the same Plaint That Hen. 8. dedit concessit praedictam Portionem inter alia Per Nomen totius Portionis c. provenien ' de Terris Dominicalibus Archiepiscopi Eborum jacen ' in N. nuper Monasterii dudum spectan ' adtunc vel nuper in Tenura A. and did not Aver in facto That the Lands put in View were the Demean Lands of the Archbishop in the Tenure of A. and yet as there seemeth good but not for the Reason aforesaid but in respect there was other Certainty enough As 26 Ass. of a Grant of 20 Carucat ' Ligni in Bosco de D. quas habuit de dono Patris that Deed De dono Patris needs not to be shewn or averr'd because of other Certainty enough And so 2 Ed. 4. where one doth Release all his Right in White-Acre quem habuit per discensum c. Where said also That if one of the Recitals be false yet the Patent good enough because Certain in some part and then in Averring that which was false might be hurtful and that the Counsel should then deserve their Fees ill Where said also That if false in all yet the Patent good and aided by the Statutes of 34 35 H. 8. of Confirmations c. but there not stood upon but if the Patent had been of the Land which the King had by the Attainder of I. S. or in a Release in a Common Person 's Case of all such Lands as discended c. there although pleaded by a Praedict ' yet an Averment ought to be The like Learning where sufficient Certainty is in the Patent as 3 4 Mariae in Wast between Wyburn and Dorril The like in Wortley's Ejectione firmae in Plowden where the Grant was of all that his Farm in the Occupation of A. needs no Averment of the Occupation But in Throgmorton and Tracy's Case his Per Nomen must not be direct contrary or repugnant Then Of the word Continetur in Pleading First Holden 28 H. 6. 3. that to plead Quod patet by the Obligation That A. and B. was bound Joyntly ill but ought to say In facto that they were bound But 21 H. 6. 51. good Pleading of a Condition of an

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

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