Selected quad for the lemma: land_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
land_n	grant_v	heir_n	tenement_n	1,541	5	10.3837	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A43221	Maxims and rules of pleading, in actions real, personal and mixt, popular and penal describing the nature of declarations, pleas, replications, rejoynders, and all other parts of pleading, shewing their validity and defects, and in what cases they are amendable by the court, or remediable by the statute-law, or otherwise : likewise, which of the parties in his plea shall first offer the issue, and where special matter may be given in evidence upon the general issue : of demurrers upon evidence, of verdicts, general and special, and of bills of exceptions to the same, of judgments, executions, writs of error and false judgment, and of appeals, indictments, and informations and the pleadings relating thereunto / published from the manuscript of Sir Robert Heath ... ; with additions of new matter to every title, from all the reports since his time.	Heath, Robert, Sir, 1575-1649.	1694 (1694)	Wing H1340; ESTC R21584	172,855	372

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

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 against his Heir or Executor if he die For where the Law gives several kinds of Execution by way of Choice and he Chuseth a Capias ad satisfaciendum and the Body is taken it cannot be for part as in a Fieri facias But see the Statute of 21 Iac. 1. cap. 24. how the Law is thereby changed in this Point For it is Enacted by that Act That he or they at whose Suit any Person is charged in Execution for Debt or Damages recovered their Executors or Administrators may after the Death of the Person so charged in Execution lawfully sue forth New Execution against the Lands and Tenements Goods and Chattels of the Person so Deceased in like manner as if the Person Deceased had never been in Execution And see Roll's Abridgment 903. That if one Recover in Debt against I. S. and then Outlaw him on the Judgment and afterwards I. S. is taken within the Year by Capias Utlagatum at the Suit of the King and dies in Prison before any Prayer made by the Plaintiff That he might be in Execution at his Suit This is no Satisfaction therefore the Executor or Administrator of him that is dead may be charged for the Debt notwithstanding he was in Execution by being taken upon the Capias Utlagatum But by Anderson 1 Part Case 273. if one that hath an Execution of Land Release one Acre of the Execution all is Extinct by the Release of the Execution in one Acre And by Hobart 60. If the Party in Execution Escape of his own wrong the Plaintiff can have no other Execution of him or of his Executors But if he take one in Execution where there are several Debtors by one Obligation there he may take another after the Escape of that one or he may have Satisfaction from the Sheriff upon the Escape at his Choice And by Co. 5 Part 86. and 6 Part 13. and 8 Part 152. and Dyer 152. If the Defendant pay the Mony he is discharged But if the Plaintiff makes any Release or other such like Act to the Defendant being in Execution amounting to a Discharge this will not be a Discharge Ipso facto but by this means he may have a Discharge And yet if the Plaintiff himself shall deliver the Prisoner out of Execution he is thereby Ipso facto discharged of the Execution for ever So if the Plaintiff doth acknowledge Satisfaction upon Record So by 13 H. 7. 1. Plowd Com. 36. and 33 H. 6. 47. If one taken in Execution upon a Capias ad satisfaciendum doth Escape and the Plaintiff bring his Action against the Sheriff or hath a Cepi Returned on the Writ and it be Filed by this the Defendant is discharged against the Plaintiff for ever But if no Cepi be Returned nor Action brought against the Sheriff the Law will Adjudge the Party to be out of Execution But by Co. 5 Part 86. If Two be in Execution for one Debt on a Bond made by Two and the Sheriff suffers one of them to Escape this will not discharge the other till the Plaintiff hath Recovered his Debt of the Sheriff But by Co. 8 Part 143. and 38 H. 6. 4. If one be in Execution upon a Capias ad satisfaciendum and the Court adjudge the Judgment or Execution Erroneous and so null it by this the Defendant is discharged of that Execution Yet by Fitz. Nat. Brev. 146. If Two be in Execution for one Debt and one of them dies under Execution that will not discharge the other But 38 H. 8. Dyer 6. One in Execution being a Burgess of the Parliament and discharged by a Writ of Privilege doubted whether discharged for ever But by the Statute of 1 Iac. 1. cap. 13. it appears That if a Prisoner be delivered out of Execution by Privilege of Parliament it is no discharge but after the Privilege is gone he may be taken again So Pasch. 30 H. 8. Dyer 62. Trewynyard's Case where Trewynyard being a Burgess of Parliament was taken upon an Exigent after a Capïas he brought a Writ of Privilege of Parliament and the Sheriff let him at Liberty In this Case it was Resolved First That the Privilege was Grantable notwithstanding the Execution because the King and Realm have an Interest in the Body of every Burgess of Parliament and the Common-Weal shall be preferred before the Interest of any private Person Secondly That after the Parliament ended he might be taken in Execution again For that the Plaintiff shall not be prejudiced in his Execution by the Act of the Law which doth Wrong to no man See 3 Ed. 6. Dyer 66 67. where the Sheriffs of London in Debt upon an Escape by going at large by Baston in London did plead That their Predecessors let him at large and good And Note by Dyer 4 5 Mar. 162. 10 Eliz. 275. and 12 13 Eliz. 206. If the Prisoner have the King's Protection to go at large by Baston it is an Escape and the Warden of the Fleet may be Charged upon an Escape And see the same Book of Dyer 10 Eliz. where Debt was brought against the Marshal of the Kings-Bench or his Deputy And see Plowden's Commentaries in Platt's Action of Debt against the Sheriffs of London where it seemeth That by the Custom of the City of London one in Execution in Ludgate may go by Baston within London but otherwise in Southwark But Note the same Book of Dyer in 3 Ed. 6. That the Sheriffs of London were there Charged for suffering one in Execution in Ludgate to go at large in London by Baston quod nota Then Where the Act of the Court of the Law or of the Plaintiff doth discharge the Party of the Execution As namely 24 Ed. 3. 44. If one recover the Land and Body in a Writ of Ward and Release the Body the Land is thereby discharged But otherwise of a Grant The like seemeth 40 Ass. although the Land be Extended and Granted over The lik in Pop●'s Case in Plowden's Commentaries If the Cognizor after Execution Enfeoff the Cognizee of part but it is otherwise before Execution for there the Lands be in the Hands of the Cognizor and his Body is Charged See 6 Ed. 4. 4. and 24 Ed. 3. 45 46. That if one in Execution be Outlawed or Condemned for Felony and afterwards have his Pardon yet touching his Body the same shall still remain in Execution Notwithstanding by the same Book of 6 Ed. 4. if he take himself to his Clergy he shall be out of Execution And so seemeth the Book 7 Eliz. 248. but ibid. 261. è contra See hereof Bro. Abr. 272. And see 10 Eliz. 275. That one in Execution by Agreement of the Parties and the Chief Justice went at large for a

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

Ed. 4. and 24 Ed. 3. Abridged by Brook in the Title of Conditions 61. it seems in that Case to be to the contrary because Executed and therefore not like where an Annuity is granted pro Consilio The like where one holdeth to Inclose taking the ancient Pale or where one granteth to me an Annuity to have a Gorse or a Gutter in my Land because an Easment And by 15 H. 7. 10. If you Covenant to serve me and I to give you Five Pounds for your Service Or you Covenant to Marry my Daughter and I in like manner to give you Twenty Pounds as a Marriage Portion If you serve me not or Marry not my Daughter I may plead the same in Bar. Otherwise if the Covenant on either part had been expresly and not depending upon the others Act. Next shall be shewn In what manner one shall plead in Bar the Performance of a Condition of an Obligation And First Touching the Performance of Covenants in Indentures omitting the variety of Ancient Books it appears 27 H. 8. 1. and 33 H. 8. Brook Covenant 35. That the Defendant ought to plead the Indenture and the special manner particularly how he hath performed every Covenant See also accordingly 10 11 Eliz. Dyer 279. and 28 H. 8 Dyer 26. But as it seems there need not aver quae sunt omnia singula Conventiones c. because referr'd to a Matter in Writing The like of a Record And for that Reason it seems of necessity that he need not to plead prout in eadem Indentura Quaere tamen But if not referr'd to Writing or Record as hath been said before then it shall be otherwise As if I am bound to Enfeoff you of all my Lands in Dale I must shew the Number of Acres and plead also quae sunt omnia c. Yet now at this Day the Course of the Practice is notwithstanding the Covenants are reduc'd into Writing after they are recited in the Plea to insert this Clause Prout per eandem Indenturam plenius apparet And as to Pleading Performance of the Conditions of Obligations they d● vary according as the several Cases are And First By 28 H. 8. Dyer 30. the Condition was That the Obligee should peaceably enjoy c. And the Defendant pleaded That the Plaintiff did peaceably continue his Possession until such a day at which time the Lord distrained for Rent and a good Plea But 30 H. 8. Ibidem 43. where the Condition was to Warant and save harmless against Lord and King and to have and peaceably Enjoy The Defendant pleaded Quod habuit pacifice gavisus fuit where said by divers that the Plea is ill and but Argumentative that is he hath peaceably Enjoyed the Land Ergo he hath Waranted the Land and saved the Plaintiff harmless For he might be Impleaded in a Praecipe and the other not waranted and yet hold it peaceably or might be distrained for Issues lost c. and therefore ought to have pleaded expresly quod non fuit dampnificatus per Regem nec per aliquem alium or that the Plaintiff was Impleaded and he did warant c. Quaere inde for Baldwin è contra The Condition of an Obligation 2 Eliz. Dyer 184. was to warant defend or save harmless as well the Person of the Obligee as the Premisses against one Culpepper where the Defendant alledged in his Bar a former Lease by reason whereof neque le Obligee nec les Premisses possint nec potuerunt esse dampnificat ' per praedictum Culpeper To which the Defendant Replied the Special Matter in Law without Concluding Et issint dampnificat ' where holden the Defendant's Bar was ill and that he ought to have pleaded Non fuit dampnificatus or the Special Matter and Conclude Issint non dampnificatus and the Plaintiff's Replication for want of a proper Conclusion ill also And 3 Eliz. Ibidem 186. in the like Case the Defendant Pleaded quod Quer ' non dampnificat ' fuit per A. and the Plaintiff in his Replication shewed a Special Damage and Concluded Et issint dampnificat ' and the Defendant by his Rejoynder pleaded Nul tiel Record quod nota Note also That in an Action of Covenant brought 28 H. 8. Dyer 31. One of the Covenants in the Indenture was That the Defendant ought to make and suffer for the Assurance of the Plaintiff all things that should be devised by the Counsel of the Plaintiff if he were required And the Defendant taking Protestation for Plea said that he was not required To which the Plaintiff Replied That I. S. was of his Counsel who devised a Release which he required the Defendant to Seal but he refused to do the same To which the Defendant Rejoyned Que ne Refusa pas and by all the Court holden a Departure and that the Defendant ought to have Pleaded at first Non requisitus fuit and the Plaintiff in his Replication needed not to have spoken of any Refusal But where the Condition was for the Performance of an Arbitrement of I. S. touching c. so as it be delivered in writing before c. The Defendant Mich. 7 8 Eliz. Dyer 242 243. pleaded by Protestation non fecerunt c. Pro Placito quod praedicti Arbitratores ante c. non deliberaverunt c. Upon which the Plaintiff in his Replication shewed when and where the Arbitrators made the Arbitrement and the several parts thereof and alledged the Breach in one Point Upon which Replication the Defendant did Demur because in his Plea he answered not the delivery of the Arbitrement but by a glance and not directly Note the words of the Condition and the Plea notwithstanding quod Arbitratores non deliberaverunt c. and good It appears by Cro. 2 Part fo 352. in the Case of Staine against Wilde that where there was Debt brought upon an Obligation to perform an Award of all Suits and Demands between the Parties so as it be made of and upon the Premisses ready to be delivered to the Parties before such a day c. and that they made such an Award de super Praemissis scil that the Plaintiff should have and enjoy a Horse in Controversy between them and that the Defendant should pay him 3 l. before Michaelmass towards his Charges and they should Release each to other all Matters whatsoever between that and Michaelmass And the Plaintiff assign'd Breach for Non-payment of the 3 l. And on Demurrer held good for the Plaintiff For tho' it was pleaded That the Arbitrement was made de super Praemissis yet these General words will not help the Plaintiff unless he avers that there were no more Causes between them and then the Release appointed being void there is nothing Ordered for the Defendant's benefit See more of this 7 H. 6. 6. 39 H. 6. 9. 2 R. 3. 18. and 22 H. 6. 22. So in Tyer's Case Trin. 23 Car. 1. in Banco

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.

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