he made Title to the Goods so if he makes Title to the Land by Feoffment But otherwise if he Plead meerly his Freehold And so is 22 H. 6. 24. in Trespass But see 5 H. 7. 28. that in Forcible Entry because the number of Acres is set down in the Declaration as in a Praecipe or in an Assize the Defendant shall not in his Bar give the Land a Name or other Certainty but ought to Plead at his peril But otherwise according to the Ancient Practice in Trespass and Replevin except as before where the Defendant pleaded his Freehold and the Plaintiff did not set forth the Particulars of the Land in his Declaration which he is now of late compelled to by Rule of Court But for the understanding of this and all other Matters relating to Practice more fully and at large see before in the Introduction of this Discourse And further for Certainty in Pleading take these General Observations First see Plowden 32 65 80 81 86 191 229. that which is alledged by way of Conveyance and Inducement to the Substance of the Matter needs not to be so Certainly alledged as that which is the Substance it self as before where a Lease is made to A. and B. for Life the Remainder to C. and if C. die during the Life of A. or B. that it shall go to E. for his Life c. and E. in Pleading shews the death of A.B. and C. but shews no time of their Death And by Plowden 80 121 123 126 128 129. that which a man cannot have Certain knowledge of he is not bound to plead Certainly nor to set forth that precisely that is out of his knowledge or to which he is a Stranger or by Common Intent he cannot see as a Deed that belongs to another Man And by Co. Lib. 9. 108. that shall be said to be Certainly pleaded which may be made Certain by Intendment according to the Maxim Id Certum est quod Certum reddi potest But Co. Lib. 4. 97. and Plowd 395. that is more Certain which is Certain of it self Yet where the Defendant in Pleading makes Title to himself by a Lease Habendum for so many years as I. S. shall name Cum hoc that I. S. did name so many there the Averment makes it Certain enough and good So many times when there is an Incertainty in a Case by the addition of a Reference to a Certainty it may be made good As Perkins Sect. 36. an Estate is granted to I. S. the Remainder to him that shall come first the next Morning to Pauls and one doth come there that is capable this is a good Remainder for it may be made Certain by Averment So Pasch. 39 Eliz. in B. R. Morgan and Iohnson's Case one binds himself by Obligation to pay me all such Sums of Mony as his Brother oweth unto me this by Averment may be made Certain and is good So Plowd 191. if one Grant his Mannors of A. and B. and say not in what Parish or County they are in or make a Lease of all his Lands in the Parish of A. and says not in what County these Grants in Pleading may be made good by Averment So if the King by his Letters Patents grants to one all the Mannors and Advowsons that did belong to the Priory of H. or that were of I. S. who was Attainted These Grants by 32 H. 6. 20. and Co. Lib. 9. 47. may be made good in Pleading by Averment But by Anderson 1 Part 102. an Indictment was upon 8 H. 6. quod intravit in unum Tenementum and held void for the Incertainty And March Rep. Case 168. in Ejectione firmae and Not Guilty pleaded the Jury found them Not Guilty for part and Guilty in tanto ut Ius Mesuagii in Occupatione c. quantum stat super Ripam and the Verdict was held void for Incertainty And so is 40 Ed. 3. 15. and Co. Lib. 9. 74. in Debt brought against Executors who plead plene Administravit and the Jury find they have Assets but say not to what value this is also void for Incertainty And by Plowd 144 and Co. Lib. 10. 40. there must be a precise Affirmation of a thing in Pleading where it relates to Matter of Substance yet if the Pleading hit not the very Words if it contain the Matter by necessary Implication it may be good enough And by Plowd 435. a man is not bound to one Form of Pleading or to the Common Form so he plead the Substance of the Matter And by Hobart 72 78. 124. That need not be said on the one side that will come properly on the other And by Plowd 104. 202. and Co. Lib. 10. 40. If a Plea hath two Intendments the strongest shall be taken against him that pleads it and it shall be taken most for the advantage of his Adversary As in a Release pleaded to an Action of Trespass the time when it was made must be shewed for it might be delivered before or after the Trespass and if not shewed when it shall be taken to be before And Idem Lib. 9. 109 110. where Covin is alledged in the Avoidance of an Act it will be sufficient to shew it Generally for it is secret and can hardly be known and therefore a man shall not be forced in Pleading to shew it exactly or certainly And by Hobart 163. General Issues may be pleaded without any Inducement Lastly By Plowd 84. 63 65. Co. Lib. 9. 109. Dyer 27. Yelv. 103. Hob. 258 297. Truth and Certainty ought to be in Pleading and therefore Falshood Incertainty and Repugnancy ought to be avoided in Pleading And although as hath been said before Surplusage doth seldom hurt the Pleading yet Imperfect Pleading is always dangerous Vide Brook ' s Abridgment Tit. Pleading 94 95 96. 115. Plowd 179. 229. 431. Hob. 23. 208. Dyer 27. and Co. Lib. 7. Butt ' s Case for variety of Matter upon this Subject CHAP. III. Of Replications Rejoynders c. AFter the Defendant has made his Bar or Plea that is to say hath given in his Answer to the Plaintiff's Declaration the next part of Pleading in Course must be the Plaintiff's Replication which is an Answer or Exception to the Defendant's Plea and a Rejoynder is where after the Plaintiff in the Action hath Replied to the Answer of the Defendant the Defendant doth again make Answer to the Plaintiff and if after that the Plaintiff shall Answer again to the Defendant such Pleading is called a Sur-rejoynder As to Replications and Rejoynders the Learning of them is more properly to be seen in every particular Action under their respective Titles of Pleading but touching some Particulars we shall observe First Where the Plaintiff is in some sort bound to Answer the Bar of the Defendant but may notwithstanding Plead at large not answering the Bar which is in a manner altogether in an Assize where a General Bar with Colour is pleaded And by 34 H.
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
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
own Wrong And Note 35 H. 6. 38. where the Plaintiff in Debt did Count upon a Lease of four Acres for the Rent of three Pounds and the Defendant did plead to the Count that he did Let those four Acres and other Lands and a good Plea But the greater Doubt whether he should in that case take a Travers for in our Books it is obvious That if the Plaintiff in his Declaration mistake the beginning of a term of Years the Land or number of Acres or declare upon a simple Contract when it is Conditional the same is no good Declaration and Advantage thereof may be had as well upon the General Issue as otherwise And in Fogassa's Case in Pl. Com. If the Plaintiff Count generally upon a Lease and the Defendant plead ne Lessa pas non dimisit the Plaintiff shall not give in Evidence a Lease by Deed. And 28 29 H. 8. Dier 32. an Action of Debt was brought upon a Lease of six and twenty Acres the Defendant said that the Plaintiff Let the same and four Acres more Absque hoc that he Let the six and twenty Acres tantum whereupon Issue was taken and the Verdict found the Demise only of one and twenty Acres and thereupon the Question was Whether the Verdict had found for the Plaintiff or for the Defendant And by Fitz. and Englefield it was found for the Plaintiff because Agreed of both sides that six and twenty Acres were Let and the Question was upon the four Acres But Baldwin and Shelley seemed to be of Opinion that the Verdict was ill But Shelley said therein That if the Defendant had pleaded a Plea without a Travers because he had confess'd the Count and more it would have been good Or if the Travers had been Absque hoc quod predictus le Plaintiff dimisit les four Acres more it had been well enough But touching this Matter of Travers of the Quantity Time or Place see more in the Titles Travers Issue and Verdict afterwards in this Book And see 11 H. 6. 5. That if in Debt for Rent it appeareth by the Count that one of the Days is not yet come the Writ shall abate but otherwise in Avowry by all the Court Nota diversitatem And see Fitzherbert's Natura Brevium in his Writ of Debt That where divers Days of payment are contained in a Recognizance upon the first default shall go out a Scire facias but upon a Bill for Debt not until the last Day Notwithstanding it hath been held That in an Action upon the Case upon an Executory Promise the Plaintiff might have his Writ upon the first default and Recover for that loss and so upon every default It appeareth by 7 Ed. 4. 15. and 1 Ed. 4. 4. 39 H. 6. 4. 11 H. 4. 55. and 50 Ed. 3. 4. in Brook Title Brief by the better Opinion That in Debt Resceit of Parcel Hanging the Writ doth abate the whole Writ but that as it seemeth is intended where the Count and Demand is of one entire Contract as a Precipe of a Mannor and Entry into part For it is otherwise as it seemeth where a Precipe is of sundry Acres and the Demandant enter into but one of the Acres But by the same Book 50 Ed. 3. 4. that ought to be pleaded Puis le darein Continuance And by most of the other Books if the Action were upon Specialty then it can neither be pleaded to the Writ or in Bar of the Action without Specialty and if the Defendant conclude his Plea in Bar it goeth but to the Action for part But as it seemeth be the Action either upon Specialty or not if the Defendant plead in Bar the Resceit of parcel either before or hanging the Writ he must plead the same by Deed and it goeth but to that part But if the Plaintiff bringeth an Action of twenty Pounds and declare that he is satisfied of ten Pounds the Writ doth abate of his own shewing for he ought to bring his Action only for that which is behind and declare himself to be satisfied of the rest But if he bring his Action for the Whole and Nil debet or a Release be pleaded to Part that goeth but to the same and so it seemeth by the Plea quod non debet predict as vigints libras nec aliquem denarium inde And in the said Book of 11 H. 4. Debt was brought for Forty Pounds declaring part upon a Lease parcel upon a Contract and part for Work done And to part the Defendant tendred his Law to other part he pleaded ne Lessa pas non dimisit and to the residue he tendred the Mony in Court and the Plaintiff as to the Plea of the Lease took Issue and to that of the Mony tendred he Rejoyn'd that he had received it accordingly and as to the residue he refused the Law and to that and the Point of Receipt the Writ only did abate quod nota Where the Writ and Declaration are General as in Trespass Quare clausum fregit if the Plaintiff so Declare the Defendant as all the Books agree may plead a Special Plea to inforce the Plaintaiff in his Replication to assign the Place more certain But this Plea of the Defendant must be also very certain as 4 5 Ph. Mar. Dyer 161. for the Defendant to say That the Place where is six Acres is no Plea unless he also give it a Name or Boundaries And so is 22 H. 6. 24. that the Defendant shall plead certainly and this for the advantage of the Defendant for if he plead the General Issue the Plaintiff may in any Place in that Town assign the Trespass Or else as is the Book 28 H. 8. Dyer 23. If the Defendant doth say that the Place where is six Acres which is his Freehold and the Plaintiff Reply That it is not his Freehold c. If the Plaintiff have a Close of like quantity it shall be intended the same But the Plaintiffs New Assignment must also be as true and certain to all Intents as is 9 Eliz. Dyer 204. It must be both true in the Name and in the Boundaries and must not be as there una acr ' prat ' sive terr' And as 1 H. 7. 11. and 21 H. 6. 2. and other Books the Plaintiff must say also in his Declaration alia quam c. And then as in 14 H. 4. 24. the Defendant shall not plead that the Place where is all one c. but shall have advantage thereof best by the General Issue if the Pleas aforesaid be entred and so is 1 Ed. 5. 4. Yet in the said Book 21 H. 6. 2. the Defendant did Rejoyn that the Place was all one c. and known by one Name But as 27 H. 8. 22. where the Defendant in his Bar said The Place where was an Acre and three Roods the Plaintiff might have assigned the Trespass in the three Roods without the Acre and the Bar as to the
not good to every Special Intent As where one Sues as Executor and the Defendant saith That the Testator made the Plaintiff and one I. S. Executors and do not say after this That he did not make the Plaintiff Executor yet this may be sufficient So in Trespass where the Defendant pleads that the Place is his Freehold this is good yet the Plaintiff may have a particular Estate So upon an Obligation to perform Covenants the Defendant alledgeth two Covenants and saith he hath Performed them and doth not say There are no more Covenants in the Deed to be by him performed yet this is good for it shall be Intended that there are no more for him to perform But Ibidem No substantial part of a Bar may be omitted As where one is bound to do a thing between such and such a time and the Defendant saith That he did it or did it before the Day this is not sufficient but he must shew that he did it such a Day within those times So if one saith He was Lord of a Mannor and entred for an Alienation in Mortmain and do not shew that he did it within the Year for this shall not be Intended unless it be shewed Yet per Plowden puis 28. If one plead a Feoffment in Bar it shall be allowed as good albeit it might be by an Infant or per Duress c. unless it be shewed on the other side And if the Lessor Covenants with the Lessee that if he be ousted within the Term that he shall have as much other Land he must shew that he was Ousted on such a day in certain within the term So to plead in Bar that I. S. died seised and R. S. Entred as Son and Heir to him this is good tho' he say not that he was his Heir for that shall be Intended and the best shall be taken for the Defendant So Ibidem in an Assize if the Tenant plead in Bar a Discent to the Plaintiff and two others and that he hath the Estate of one of them it is good and yet he might have it by Disseisin but it shall be taken in the best Sense that he had it lawfully So per eandem in Colthirst's Case where the Ancestor is Tenant pur auter vie and the Heir pleads that he Entred as Heir to him and says not that he Entred first after his death for Occupanti conceditur And Ibidem if a Lease be made to A. and B. for Life the Remainder to C. and if C. shall dye during the Life of A. or B. then that it shall remain to E. for Life si ipse vellet esse Residens c. and E. being Defendant pleads his Entry after the Death of A. and B. and C. and doth not say when they died nor when he entred yet held to be good in a Plea in Bar. For per eundem 32 33. if it be a Condition it shall be Intended that the Defendant did Enter as soon as his Title accrued and if the Case be otherwise in truth than by Common Intendment it is taken to be the Plaintiff must set it forth in his Pleading As in a Formedon in Discender if the Tenant pleads in Bar a Release of the Demandant without Waranty it is good and yet the Release might be made by the Demandant in the Life of his Father and then it is no Bar to the Issue But it seems by Brook in his Title of Pleading 155. that in a Declaration or Replication this way of Pleading is not good For tho' a Bar may be good to Common Intent yet a Declaration and consequently a Replication or other Pleadings of the Plaintiff ought to be good to every Intent But by Co. Lib. 3. 52. If one declare upon an Escape in London and the Defendant doth Justify by the Taking again of the Prisoner in another County and answereth not the Escape in London this will not be good for every part of the Charge must be answered And Lastly It appears by Hobart 127 128. that a Plea that hath some Matter of Law in it tho' it seems to amount but to the General Issue is always allowed Note There be some Pleas in Bar upon which the Plaintiff shall have Present Iudgment As 16 H. 7. 19. where in Covenant to Perform Divine Service The Defendant pleaded that the Chappel was decayed So in Curia Claudenda if the Defendant plead Sufficient Inclosure or in Warantia Chartae Nient Implede or in a Writ of Mesne Nient Disir ' in some Default or upon the Plea of Riens Arrere in Annuity or upon Ne surcharga pas in Admeasurement of Pasture or Ne disturba pas in a Quare Impedit c. In other Cases the Plaintiff upon the Defendants Plea shall be barred for the present and yet afterwards have the Effect of his Suit by Scire Facias or the like Process upon that Iudgment or by New Action As appears in 19 H. 6. 27. in Debt against an Executor who pleads Plene Administravit which is found for him and so the Plaintiff is Barred pro tempore viz. until Assets come afterwards to the Defendant's Hands and then the Plaintiff may have a New Action So in Debt against an Heir who pleads Riens per Discent or in a Formedon pleads the Waranty of his Ancestor with Assets and after the Assets are Recovered against him he shall have a New Formedon and if he Alien the Assets his Heir shall have a New Formedon But as 21 H. 7. 10. where in Formedon Cui in vita Mortdancestor and the like such a Plea is pleaded either against the Issue in Tail or the Heir of Tenant by the Courtesy c. and no Assets found and after Assets discend the Defendant in the first Action shall have Scire facias for the Assets if the first Action be a Formedon otherwise as it seems for the first Land Quaere And see 11 H. 4. and 4 H. 6. Bro. Tit. Scire fac ' 74 130. in the last of which it is doubted when Executors plead Fully Administred and it is found for them and afterwards Assets discend whether the Plaintiff be not driven to a New Action or may have a Scire facias thereupon scil upon the first Judgment Which seems not by the Books 40 Ed. 3 43 Ed. 3. abridged by Brook in Tit. Scire facias 17 29. where a difference is taken when the Plaintiff is Barred and when he doth Recover In the next place shall be shewn How an Accord or Arbitrement is a good Bar. And for this see first 4 H. 7. 16. That in Debt upon a Contract Lease or Arrerages of Account before the Plaintiff himself Arbitrement is a good Plea although the Demand be certain otherwise of Arrerages of Account before Auditors because it seems to be Matter of Record and the Defendant cannot Wage his Law Qu. then in Debt upon a Lease for years And 13 Ed. 4. 5. is That an Award is
no Plea in Attaint or other Matter of Record but if the Matter of Record be mixt with a Matter en fait then it is a good Plea But in Wast as is 11 H. 7. 13. Accord or Arbitrement no Plea because the Action Mixt nor in any Real Action but in Forger of Faits and other Actions upon Statutes Accord or Arbitrement is a good Plea But 5 Ed. 4. 7. this difference is taken that Accord pleaded is not good without a Satisfaction executed before the Action brought and that it must be Executed in the whole and not in part as is 6 H. 7. 10. But an Arbitrement is without Execution a good Plea because an Action lieth thereupon And therefore 19 H. 6. 29. the Defendant did plead That in Satisfaction he gave the Plaintiff a Pottle of Wine and did not plead the same by way of Accord soy prist But see thereof more especially for the Pleadings in the Books of Entries And in some Actions especially Actions Real the Waranty of the Ancestor of the Plaintiff shall be a good Bar but then the Conclusion of the Plea must be considered which appears by the Books of Entries to be Si encounter le Garanty son Auncestor qui Heir c. But as it appears by 14 H. 4. and H. 7. 12. and other Books in the Title Garanty in Brook's Abridgment the same by the better Opinion is no Plea in Trespass until the Freehold come in debate Yet 21 Ed. 4. 18. Ibidem 63. the Defendant in Trespass did plead That I. S. was seised in Fee to whom the Ancestor of the Plaintiff did Release with Waranty whose Estate the Defendant had and Concluded ut supra and there is no Question made whether that Plea might be in Trespass but whether he that made himself no Title shall plead the same Notwithstanding 20 H. 6. 20. in Trespass upon the Statute of Rich. the Feoffment of the Ancestor of the Plaintiff with Waranty holden no Bar But there it is said That if the Defendant plead his Free-hold the Plaintiff may have the Plea aforesaid and Conclude Iudgment si encounter le fait son Ancestor c. And 20 H. 7. holden no Plea that the Plaintiff did Confirm to the Defendant Lessee for years with Waranty nor that in Assize by Tenant by Statute the Waranty Collateral of his Ancestor a good Bar because but a Chattel demanded yet there holden that a Ward may be granted with Waranty and the Voucher may be in a Writ of Ward And see 5 H. 7. 18. and other Books in the Title of Waranty and 22 H. 7. That a Sale of a Chattel without Esplees of Waranty bindeth not the Seller to Warant and that Waranty also must be made at the time of the Sale and not after and no advantage thereof to be taken by way of Bar but by way of Action quod nota In the next place we shall consider where the Plea of Auterfoits bar shall be a good Bar and where not And therefore for that first see 12 Ed. 4. and Bro. Action sur le Case 92 110. that Ley gager in Detinue is a good Bar in an Action on the Case for the same Goods And by Bryan 2 R. 3. 14 19. in Account upon Goods delivered it is a good Plea to say That in Detinue before brought by the Plaintiff the Defendant did Wage his Law And so seems 15 Ed. 3. Fitz. Assize 96. that in an Assize a Retraxit by the Plaintiff in another Assize is a good Bar Otherwise of a Nonsuit by Experience for until the Statute of Second Deliverance one might have one Nonsuit after another in Replevin ad infinitum quod nota But if the Plaintiff be once barred by Judgment in the same or in one of the like Nature or in an Action of a higher Nature he shall be also Barred in another meaner Action But as it appears in 14 Assize 6. the Using of a Writ of Entry is no Bar in a Formedon nor in an Assize to plead That the Plaintiff had of this Land brought a Formedon but the same is a good Plea to the Writ And so is 4 Ed. 3. Bro. Bar. 61. But as it seemeth to Plead a Recovery of the Land in question against the Plaintiff or one whose Estate he hath in the same or higher Nature of Action it is a good Bar by many Books And 18 Ed. 4. 28. Bro. Ioynder in Action 70. that in Trespass upon the Statute of 5 Ric. 2. by three Persons a Recovery of a Third part of a Moiety against one of them and Execution thereupon a good Bar. But as it seems in 21 H. 6. 55. no Plea in Detinue of Goods to say that before in Detinue and Garnishment against him the Defendant he did Recover the Goods And 19 H. 6. 239. in an Annuity by Prescription against a Parson who Prayed in Aid and Traversed the Prescription and found against the Parson and afterwards in a Scire facias he would have had the same Plea again but could not although all the first Jury were dead because it was his Default But see Brook Bar 12. 20 H. 6 and 43 Ed. 3. in Debt where said That if the Defendant plead a former Recovery by the Plaintiff in Plea Real or Personal without Execution it is no Bar because he that Recovered may at his pleasure bring a New Writ And so is 9 Ed. 4. 50. in Trespass as likewise 4 H. 7. 7. where Three are bound joyntly and severally but Execution is had only against one of them yet this shall be a good Bar for the other two The next Thing observable in Pleading is to know Where the Plea of the Defendants or one of them shall go to part or to the whole For which see first 9 H. 6. 46. That if in a Praecipe against Two One doth plead in Bar for his Part and the other doth plead a Plea that goeth to the Whole as Bastardy c. yet it shall not bar the Plaintiff against the other But it is otherwise in a Personal Action for there the Plea to the Whole shall be first Tried and if found against the Plaintiff shall serve for both the Defendants And by 31 H. 6. 23. If one pleadeth a Plea in Bar in an Assize that goeth to the Whole he may at his pleasure Conclude it but to the Moiety Where it is said by Prisot That if one Pleads a good Matter in Bar and Concludes to the Writ it shall be taken in Bar. In the next place we shall Treat of Certainty in Pleading And first Where the Defendant in his Bar shall be forced to set down the Certainty of the Land or give a Name to the same For which see 5 H. 7. 28. in Trespass of Goods the Defendant did plead that the Place was his Freehold and that he took the Goods there Damage fesant the Defendant was forced to set down the Land in certain because
Declaration mistake the Contract either in the Sum or in the Thing sold Nil debet will be a good Plea But 34 H. 8. Bro. 89. in Debt upon an Escape if the Defendant plead Nul Escape he cannot give in Evidence No Arrest Then upon the Issue Ne Lessa or Ne Enfeoffa pas holden in Fogassa's Case That upon the Issue Ne Lessa pas the Plaintiff shall not give in Evidence a Lease by Deed but may a Lease Conditional as on an Agreement Conditional And so is 14 H. 8. 17. the Parties being in Issue upon a Grant Evidence was given of a Grant so he obtained the Will of his Lessor And 12 Ed. 4. 4. upon a Feoffment pleaded by Deed Evidence cannot be given without or by other Deed. And 50 Ed. 3. 6. if a Demise to the Baron and Feme be pleaded a Fine sur Release to them is no Evidence to prove the same And 18 Ed. 4. 29. if one plead Ne Enfeoffa pas he may give in Evidence that the Parties were Jointenants But 15 Ed. 3. Bro. 95. the Issue Ne dona pas may be Maintained by a Devise And as the Books are upon a Feoffment a Lease and Release are good Evidence And by 1 2 Mariae Dyer 116. upon Non dimisit modo forma one shall have advantage of the Date and Number of years Next what Evidence shall be given upon the Pleas of Non est factum riens passa c. First It is doubted 1 2 Mariae Dyer 112. that whether upon the Plea Non est factum the Defendant may give in Evidence that the Plaintiff afterwards pull'd off the Seal But 15 Ed. 4. 18. upon Non est factum generally he may give in Evidence Nient Lettered c. And so 14 H. 8. 28. upon Delivery as an Escrow But 5 H. 7. 3 8. upon Riens passa Non est factum it seems cannot be given in Evidence tamen quaere And Note That in Actions of Maintenance or other Actions upon the Statutes in some Cases the General and in others the Special Issue shall be taken For which see their proper Issues in the Nature of every Action And therefore First in Maintenance it appears by 28 H. 6. 6. that if the Defendant in Evidence shew a Special Maintenance as sworn in a Iure Patronatus and the like that will not stand with the General Issue But 22 H. 6. 35. upon the General Issue he gave in Evidence That at the Request of the Party he gave him Counsel to sue out a Supersedeas and good because no Maintenance but in that Case ought of necessity to plead the General Issue And if the Defendant in Maintenance be charged with a Special Point of Maintenance he must Answer to the same and the General Issue then shall be no Plea for him And what be the Proper Issues in Actions upon the Statutes see that Title in Brook's Abridgment as in Forcible Entry Non ingressus est contra formam Statuti But 3 Ed. 4. 1. doubted whether he may not plead Non Culpabilis in Trespass upon 5 Ric. 2. and 1 Ed. 5. 4. In that Case the Plea of Non Culpabilis admitted upon the Statute of 21 H. 8. of Farms as before-cited Non habuit nec c. And upon the Statute of Livery Que ne dona pas les Robes and not Non Culpabilis quod nota and the like And it appears in Dyer 3 4 Mariae 145. that in Debt upon a Pain given by Statute Nil debet per Patriam is a good Plea But there and in 50 Ed. 3. doubted in Debt upon an Escape against a Gaoler And 18 Eliz. 346. in an Information upon the Statute of Usury Non Culpabilis a good Plea Next of the Plea of Hors de son Fee Upon which it seems 27 H. 8. 20. that the Avowant giving in Evidence Seisin of Rent without a Fealty not sufficient And 10 Ed. 4. 10. if one plead Hors de son Fee the other shall not shew a Tenure Et issint deins son Fee but Deins son Fee prist c. Then of the Issue Ne unques Executor or Pleinment Administer where 't is holden 9 H. 7. 14. that upon either of these Pleas if the Plaintiff doth Reply Assets or that he did Administer he need not shew what Assets or what thing he did Administer special And 9 Ed. 4. 40. upon the Plea of Ne unques Executor the Defendant may give in Evidence that he is Administrator or that the Goods were given him in another County which the Jury are bound to find The like of Assets in any other County given in Evidence And 3 H. 6. 3. where the Issue upon Assets in mains del Executor it is good Evidence for the Plaintiff to say that he sold the Land by the Appointment of the Testator c. And where the Issue is upon Prescription by 34 H. 6. 36. if the Plaintiff give in Evidence a Deed within time of Mind the Defendant may Demur upon the Evidence Otherwise by 12 H. 4. 24. if the Deed be time out of Mind For such a Deed although it were the Kings Patent cannot be pleaded And 4 5 Mariae Dyer 164. if one Prescribe for Common Appurtenant to two several Houses for twenty Beasts and give in Evidence that he hath Ten to either House the Issue fails So if he fail of his Proof in the same Nature his Plea is it is ill As 1 2 Eliz. Dyer 192. Issue was taken upon the Custom of a Mannor relating to a Copyhold Estate whether the Widow ought to hold for Life and the Evidence proved only during her Widowhood and ill quod nota So by Co. 1 Inst. 283. if in Debt upon an Obligation the Defendant plead Non est factum and give in Evidence the Bond is Joynt and not Several this is ill and will be no good Evidence but if pleaded Specially would have barred Or if in an Assise Nul tort is pleaded and a Release after the Disseisin is given in Evidence So by Keilway 55. where the Issue in Trespass for Assault and Battery is Not Guilty and the Defendant gives in Evidence son Assault demesne The Evidence in none of these Cases will be good But by Co. Lib. 5. 119. Lib. 11. 27. if in Debt on an Obligation the Defendant plead Non est factum and upon Trial gives in Evidence That the Seal of the Bond was broken off and put on again or That any part of it was Raz'd it will be a good Proof to bar the Plaintiff And Idem 1 Inst. 283. if the Point in Issue be upon a Transitory Trespass done at a day or place certain and the Proof given is That it was done at another day before or at another place this is good enough But otherwise it is where the Proof is that it was done at a time after the Day laid in the Declaration So by Plowd 8. if
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
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
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
is not Secondly 'T is Dans unum vulnus for unam plagam but that was Ruled well enough Thirdly The length breadth and depth of the Wound was not shewed but because it was shewed that he was shot through with a Pistol that was certain enough for they are but set forth to shew the Mortality Fourthly 'T was said Dans unum vulnus totaliter penetrans c. and thereto Objected That it was not the Wound but the Total did penetrate but that was Ruled to be 〈◊〉 enough for the Wound went through Fifthly There wanted the word Percussit for it was dans unum vulnus without the word Percussit and for that tho' it was shooting with a Pistol the Indictment was quashed as Insufficient And see Cro. 1 Part 334. an Indictment against Two for striking in a Church where the Grand Jury found Billa vera as to or 〈◊〉 Ignoramus for the other and Exceptions taken to it First Because the Bill is laid joyntly quod fecerunt sed non allocatur for that is but false Latin which of it self shall not quash an Indictment Secondly The Bill is contra formam Statuti and yet it doth not appear by the Indictment that the striking was with a Weapon and that lies not within the first Clause of the Statute and the second Clause gives only Excommunication to the Offender ipso facto and contra formam Statut ' cannot stand in an Indictment of Battery at Common Law So Leon. Rep. 2 Part 183 184. an Indictment was upon the Statute of 5 Ed. 6. 4. for Drawing in the Church upon one A. B. without saying That he did it with an Intent to Stab him and for that Cause holden to be ill and moreover for that it Concluded contra formam Statut ' it did not appear to be like to an Indictment at Common Law See Cro. 697. acc And see Noy's Rep. 171 172 173. an Indictment for striking one in the Church-yard quashed upon two Exceptions First Because it is laid quod extraxit Gladium percussit instead of Extraxit Gladium ad percutiend ' according to the words of the Statute which are If any person maliciously Strike in the Church-yard or Draw any Weapon there with an Intent to Strike c. Secondly Because the word 〈◊〉 was omitted in the Indictment which is a Material Error because expresly named in the Statute Then For Indictments of Nusances take these Rules See Cro. 3 Part 63. where an Indictment against one for making a Nusance in the Horse-way was quashed because it was not said the Kings-way or the High-way And Note by 22 Ass. an Indictment doth not lye for a Nusance done to a partilar Place for it must be â—aid to be done to all the King's Liege-People So Idem ibid. 148. an Indictment for stopping an High-way was said to be ad Nocumentum diversorum Ligeâ—runs Domini Regis c. and quashed because too particular for that thereby only is intended a Nusance to some not all the King's Subjects So Leon. 2 Part 183 184. an Indictment was for not Repairing a Bridge where said Ita quod Ligei Domini Regis ibidem transire non possunt ad Nocumentum eorum and for that Exception was taken to it because not said ad Commune Nocumentum for when the King's Subjects are named in an Indictment it ought to be expressed to be a Common Nusance So Mich. 16 Car. 2. in B. R. Rex versus Morris an Indictment for keeping a Glass-House ad magnum Nocumentum Subditorum Domini Regis was quashed because not said ad Commune Nocumentum and Serjeant Maynard doubted if this Offence were Indictable And see Cro. 3 Part 90. Leon. 1 Part 117. and 27 Ass. 6. one was Indicted at the Assizes Quare vi armis he inclosed Land wherein others had Common and Ruled That an Indictment lies not in this Case because it is no Publick but a Private Nusance and the vi armis ill for one cannot forceably inclose his own Land Lastly it was Objected That the Indictment did not lye here because Justices of Gaol-Delivery have no power to take an Indictment of Nusance And see Bendl. Rep. 152. an Indictment was Exhibited against one for Erecting a Wear in the River W. which Concludes ad Nocumentum omnium Inhabitantium in Comitatu H. and Resolved by the whole Court tho' not said to be ad Commune Nocumentum or Nocumentum omnium Ligeorum or Subditorum yet General enough because a Nusance to the whole County of H. And see Cro. Car. 274 275. an Indictment against one Quare vi armis he burnt his own House Iones and Berkly were of Opinion That it did not lye Vi armis because the House was in the parties own possession But Croke was of the contrary Opinion and said That if a Servant runs away with his Masters Goods committed to his charge the Indictment against him shall be Vi armis And Note That an Indictment upon the Statute of Hen. 6. of Forcible Entry Quod pacifice intravit ipsum expulit extratenuit was Adjudged to be ill for want of the words Vi armis manu forti So Cro. Iacobi 20. an Indictment upon the Statute of H. 6. not shewing how the Entry was Pacifice or Falso was holden ill by two Judges And Mich. 13 Car. 2. in B. R. an Indictment upon the same Statute saying Pasifice ingressus for Pacifice and having no Manu forti in the whole Indictment was for that Reason quashed and the Clerk of the Peace fined for it So Cro. Caroli 422. an Indictment for Erecting an House upon the High-way and streightning it ill for want of the words contra Pacem Mich. 16 Car. 2. in B. R. an Indictment was against one for Seducing a Man into an ill House and cheating him of his Mony By 29 Ass. 45. an Indictment against one as Communis Latro or Common Forestaller Champertor Conspirator c. without charging the Party with some particular Fact is not good But by 30 Ass. 37. an Indictment of Common Confederacy is And by 38 Ass. 11 12. an Indictment for taking Charters of Land quashed for not setting forth what the Charters were But Pasch. 18 Car. 2. in B. R. and Roll's Abridg. 2 Part 79. an Indictment against one for being Communis Oppressor was Ruled good upon Exception but the Court was of Opinion that Communis Forstallator is not good See Mo. Case 302. touching the words Communis Fur Latro c. Pasch. 16 Car. 2. in B. R. Resolved That an Indictment lies for the Breach of a Private Statute where no particular Penalty is provided if the Statute concern a multitude of Persons so as an Action of the Case will not lye But if it concerns a Particular Person or Interest an Action of the Case lies and not an Indictment An Information is a kind of Declaration as well at the Suit of the King as the
against him in Trespass that he Simulcum the other such a day did the Trespass and against the latter the Plaintiff varied in the Day ib. 7 Of several Counts in one Declaration p. 7 Where the Plaintiff shall Count de Novo and where not ibid. Rules to be observed in declaring of the Day Year and Place p. 8 The disadvantage of Mistaking the Time Years or number of Acres in a Lease ibid. Of several days of Payment and where Execution upon the first default where not p. 10 Reasons for Pleading the Common-Bar and giving a New Assignment by Replication Where the Writ and Declaration are general as in Trespass c. p. 11 12 That Declarations in Trespass have ab antiquo been certain as they are at this day by Rule of Court in the Common Pleas p. 13 Rules for declaring in Replevin and Trespass p. 14 15 16 17 CHAP. II. p. 18 Of Bars or Pleas to Declarations A Bar or Plea ibid. 19 What Pleas shall Conclude the Defendant by his Appearance Continuance c. p. 19 Of Pleas to the Jurisdiction of the Court p. 20 Of Foreign Pleas ibid. Of the Order of Pleading p. 21 Of Pleas to the Person ibid. Of Pleas to the Count ibid. Of Pleas to the Writ p. 22 Of Pleas to the Action of the Writ ibid. Of the Form of the Defendant's Pleading p. 23 Where the Defendant shall make Defence and where not ibid. Of the Defendants making but Half Defence ibid. Of the ordinary Full Defence p. 24 Misnosmer how pleaded 25 Of Protestations ibid. Of Colours in Pleading what is properly signified by the same and in what Actions they shall be given p. 26 27 28 What be sufficient Colours and in what manner they are to be pleaded p. 29 Colour ought to be by a Title or Possession doubtful to the Lay-People whether the same be good in Law or not and must be given to the Plaintiff and not to another that Enfeoffeth the Plaintiff p. 31 How the Defendant shall conclude his Plea p. 33 Of Averments in Pleading p. 34 Averment defined ibid. When the Defendant shall aver his Plea p 35 Of Pleas in Bar p. 43 Of Bars to avoid Circuit of Action p. 44 How to plead the performance of the Condition of an Obligation p. 46 Of Conditions to save harmless p. 47 Of Conditions to perform Awards p. 48 49 Of the difference in pleading an Arbitrement and a Concord p. 52 Of Conditions for Appearance ibid. Of Conditions not to disturb the Plaintiff in his Possession p. 53 To Account ibid. Of Bars to Common Intent ibid. No substantial part of a Bar to be omitted p. 55 Upon what Plea the Plaintiff shall have present Judgment p. 57 Of Pleading Accord or Arbitrement p. 59 Where Waranty is a good Bar p. 60 Where Auterfoits Barre shall be a good Bar where not p. 61 Of Pleading a Recovery of Land in question against the Plaintiff or one whose Estate he hath in the same or higher Nature of Action p. 62 A former Recovery by the Plaintiff pleaded no Bar without Execution p. 63 Where the Plea shall go to Part or to the Whole ibid. Of Certainty in Pleading p. 64 CHAP. III. p. 69 Of Replications Rejoynders c. REplication Rejoynder Surrejoynder what ibid. Where the Plaintiff is in a manner bound to answer the Defendants Plea yet if he will may plead at large without answering the same ibid. Plea at Large what 70 In what Cases there is no occasion either for Replication or Rejoynder p. 72 Where one Replication shall go to several Bars p. 73 Rebutter what p. 74 CHAP. IV. p. 75 Of General Issue and Special Evidence ISSUE what ibid. Evidence what p. 76 Of the proper Evidence upon the Plea of Non Culpabilis ibid. Of Evidence for Abridgment of Damages p. 78 What Evidence may be given upon the Issue of Nil debet p. 79 Where the Defendant pleads Nul Escape he cannot give in Evidence No Arrest p. 80 Of the Evidence to be given upon the Issues Ne Enfeoffa pas or Non Feoffavit Ne Lessa pas or non dimisit or where the Parties are at Issue upon a Grant or Feoffment pleaded by Deed or where a Demise to Baron and Feme is pleaded as also upon the Issue Ne Dona pas or Non Dedit ibid. What Evidence shall be given upon the Pleas Non est factum Riens passa c. p. 81 In Actions of Maintenance or other Actions upon the Statute in some Cases the General and in others the Special Issue shall be taken p. 81 Of the Plea Hors de son Fee and what Evidence shall be sufficient to be given thereupon p. 82 Of Evidence upon the Issues Ne unques Executor or Pleinment Administer p. 83 Where the Issue is upon Prescription if the Plaintiff give in Evidence a Deed Within time of Mind the Defendant may Demur upon the Evidence but otherwise if Time out of Mind ibid. Of giving Evidence upon a Prescription for Common appurtenant ibid. Of Evidence given upon a Custom p. 84 Where the Defendant may Traverse any part of the Plaintiffs Conveyance of his Action and not be forced to the General Issue p. 85 Where the Defendant shall be forced to the General Issue or may Traverse the Place laid by the Plaintiff in the Declaration p. 87 In what Cases the Defendant may plead Specially and not be forced to the General Issue p. 88 Where the Evidence doth stand or agree with the Issue and where not p. 91 What is sufficient Evidence that the Jury shall be obliged to take Cognizance of p. 92 What Deeds and Writings are sufficient Evidence such as the Jury are to take notice of or shall be delivered unto them p. 94 CHAP. V. p. 97 Of Special Issues and the manner of joyning them WHich of the Parties in their Pleas shall first offer the Issue ibid. That he who pleadeth the first Negative shall Conclude the Issue ibid. That Issue shall be always joyned upon a Negative after an Affirmative alledged before or è contra p. 98 That if the Defendant do plead in the Negative to the Writ the Plaintiff shall Reply in the Affirmative and Conclude the Issue ibid. That if the Plaintiff Declares in the Negative as That the Defendant did sue him in the Name of N. without his assent it sufficeth the Defendant to say That he sued him by the Consent of N. and offer Issue thereupon ibid. Where the Defendant did plead to the Writ That he was abiding at D. no Plea without saying also and not at B. as the Plaintiff did name him because the Issue shall always be upon a Negative ibid. So one of the Defendants in Trespass pleaded That one of his Companions was dead the day of the Writ purchas'd no Plea for the Plaintiff to Reply That he was alive at D. but must also say and not dead As to say by way of Replication in the like Case Mulier and not Bastard or