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land_n	grant_v	tail_n	tenant_n	2,673	5	10.5438	5	true

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

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

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.

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

any Continuance from Trinity Term to Lent Assizes which was much insisted upon yet the Court gave Judgment for the Plaintiff So Brownlow's Rep. Part 1. fo 81. a Bill was Exhibited against one of the Clerks of the Court of Kings-Bench for Mony due upon Bond and Issue being joyn'd the Cause was Tried and found for the Plaintiff And to stay Judgment it was Objected That the Bill not being filed was not helped by the Statute of Ieofails nor within the same To which Opinion the Court seemed to Incline but gave leave to the Plaintiff to File a Bill that so the Matter might be put to Arbitration So Hob. 181. a Bill was Exhibited in Debt against an Attorney of the Common Pleas upon which a Verdict was had for the Plaintiff and to stay Judgment it was Objected That the Original Bill was not Filed with the Custos Brevium as it ought to be But because the Tenor of the Bill was Entred of Record in haec verba it seem'd to be in the Nature of the want of an Original after Verdict and so help'd by the Statute of Ieofails To which Opinion the Court did incline but would Advise of it because it had been otherwise Adjudged in that Court before But then we shall Enquire What Matters are not Remedied or Helped by any or either of the Statutes of 32 H. 8. and 18 El. before-mentioned For which see first Goldesbrough's Rep. fo 49. where the Plaintiff brought his Action against the Defendant for an Assault and Battery and the Defendant was Condemned therein by Nichil dicit and a Writ of Enquiry of Damages issued out and then the Plaintiff's Attorney died and another Attorney without Warant prayed the Second Judgment and had Execution thereupon Cur ' If the Attorney dies after Judgment a New Attorney may pray Execution without Warant but here the Attorney died before the Second Judgment and therefore he that comes after ought to have a Warant of Attorney Prothon If one of the Parties dies after Judgment the Writ shall abate And per Cur ' This is not within the Statute of Ieofails for a Verdict is that which is put in Issue by the Joyning of the Parties So Hob. 112 113. The Plaintiff declared in Trespass for an Assault and Battery made upon him by the Defendant who pleaded Iustification and Conveyed an Estate to himself by Copy of Court-Roll in a certain Piece of Ground Parcel of the Mannor of D. whereof I. S. was seised in Fee and because the Plaintiff came upon it he laid his Hands molliter upon him And the Plaintiff in his Replication also Convey'd to himself an Estate by Copy of Court-Roll to another Piece of Ground within the said Mannor and lays a Prescription in the said I. S. Lord of the Mannor to have a Way over the Defendant's Piece of Ground Upon which they were at Issue and Verdict for the Plaintiff And per Melieur Opinion this was no Issue at all nor Thing nor possibly Issuable and therefore the Verdict must also be void and so not holpen by the Statute of Ieofails For a Verdict cannot make that good which the Court sees cannot be in Law so that this is in the Office of the Court to judge So Cro. Part 2. 526. In Trespass brought in the Kings-Bench for Taking and Carrying away three Loads of Wheat set out for Tithes contra Pacem Domini Regis the words Vi Armis were omitted Per Cur ' the Bill shall abate for it is the Essential part of the Declaration and that which induceth the Court to set a Fine for the King and it is not help'd by the Statute of Ieofails And so Adjudged Hill 13 Iac. in the Case between Welsted and Taylor where Judgment was Reversed because Vi Armis was omitted Vide Hoh 127. In Debt upon the Statute of 21 H. 8. the Writ was Praecipe A. quod reddat Nobis B. qui tam pro Nobis quam pro seipso sequitur Centum decem Libras quas Nobis praefat ' B. debet And the Count was for Taking to Farm six Acres of Land and holding the same for six Months Per quod Actio accrevit for 60 l. And for further Taking to Farm other Lands and holding the same for five Months Per quod Actio accrevit for 50 l. To which the Defendant pleaded Quod ipse non debet praefat ' B. qui tam c. praedict as Centum decem Libras neque aliquem inde Denarium in forma qua c. whereupon Issue was Joyned and the Jury found That the Defendant did owe 30 l. and for the Residue Quod non debet And to stay Judgment it was Objected 1 That the Verdict expresses not for which Farm nor which of the Months the 30 l. was due sed non allocatur for the Demand and Issue were for 110 l. in several tho' it would have been more formal to have distinguished them 2 The Defendant hath not Answered the Writ and Declaration for the Plea ought to have been as the Demand is Quod ipse non debet dicto Domino Regi praefat ' B. qui tam c. And this was allowed because Penal Laws are Excepted out of the Statute of Ieofails And see Hob. 101. where Judgment was Reversed because there were no Pledges to Prosecute Entred for the Plaintiff and so not within the Statute of Ieofails because a Penal Law excepted out of the same But see Trin. 30 Eliz. in Com. B. Goldesbrough 90. where a Writ of Right was brought against Baron Feme of two parts of Forty Acres of Land in S. who pleaded That I. S. was seised and devised to his Wife one of the Tenants for Life the Remainder to B. in Fee who was his Heir who died and they prayed in Aid of B. who joyned in Aid with them and then they came and pleaded to the Grand Assize and the first Day of the Term the Assize appeared and sixteen of them were Sworn whereof four were Knights the rest Esquires and Gentlemen and the Title was as befor in Trinity Term Anno 28. for B. was Tenant in that other Action for the Third part Per Cur ' This is not aided by the Statute for here is no Certainty in the Grant yet if the Thing granted had had a certain Name given to it as Black-Acre or the like then tho' the Parish had been mistaken it would have been good enough See more of these two Statutes of 32 H. 8. and 18 Eliz. after in the Title Error In the next place We shall take a view of the two last Statutes concerning Ieofails viz. 21 Jac. 1. cap. 13 16. and 17 Car. 2. cap. 8. and enquire what Mis-pleadings are aided by the same and what are not By the Statute of 21 Iac. 1. cap. 13. after Verdict given in any Court of Record the Judgment thereupon shall not be stayed or reversed for any Variance in Form only

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