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life_n	die_v	fee_n	remainder_n	4,966	5	10.9332	5	false

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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

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

Law or not and must be given to the Plaintiff and not to another that enfeoffeth the Plaintiff And therefore 2 19 H. 6. Br. 1 c. it is a good Colour to say That the Plaintiff Claiming as Executor when he was not c. And for the Defendant to give the Plaintiff Colour by the Bailment of A. who afterwards gave to the Defendant is a good Colour by 6 H. 7. 7. But 28 H. 6. 4. to give the Plaintiff Colour only by a Bailment Ill notwithstanding to give him Colour by the Gift of the Defendant as Bailor by 7 H. 6. 31. is good And so is 21 H. 6. 36. and 35 H. 6. 54. to say That the Plaintiff pretending his Father to die seised when he did not did Enter no Colour because the Defendant himself destroyeth the same But 9 H. 4. Bro. 9. that the Plaintiff supposing his Father to die seised in Fee when but for Life is a good Colour It is a good Colour in Trespass by a Parson to say That he Claimeth by the Bishop and not by the Predecessor of the Parson as is 8 H. 6. 9. But 19 H. 6. 20. that the Plaintiff Claiming as Parson when he never was Inducted no Colour Otherwise if Parson 21 H. 6. 30. But to say That the Plaintiff Claimed as Heir when he was a Bastard a good Colour and so is that Year fol. 21. Or to say That the Plaintiff pretending Title to a Reversion without Attornment a good Colour And 19 H. 6. 46. 16. to give Colour by a Coparcener or Iointenant is Good And 21 H 6. 43. Doubted whether a good Colour to say that the Plaintiff claimeth by the Son and Heir of him by whom the Defendant doth pretend Title And 24 Ed. 3. 50. to give Colour as Heir of the part of the Father c Good By 2 Ass. 7. it is a good Colour to say That the Plaintiff Claimed to Enter as Lord by Escheat c. But otherwise as it appeareth by the same Book to give the Plaintiff Colour meerly by Abatement is no Colour But by 12 H. 7. 25. it is a good Colour to say That the Plaintiff Sowed the Corn and he did Reap and Cut the same And 18 Ed. 4 10. a good Colour by a Lease at Will And 22 Ed. 4. 23. it is a good Colour in Trespass for Tithes to say That the Plaintiff claimeth as Parson and the Defendant as Vicar And by 40 Ed. 3. 23. it is a good Colour to plead That the Plaintiff Claiming by Confirmation made to her Husband and her self or by the Confirmation of an Infant or Tenant in Tail or Claiming Dower did Enter although a Woman having Right cannot enter into her Dower Yet all these are good Colours Other Cases there be of Colours but by those above-cited the Reason of the others may well appear The next Point touching Matter of Form in the Defendant's Plea is the Conclusion of his Plea and when his Plea shall be to the Writ or otherwise By 8 H. 6. 18 19. in London or other Places where they have Special Grant not to be Impleaded elsewhere there they Conclude Iudgment de brevi and shall not Conclude to the Iurisdiction And 38 H. 6. 19. where the Defendant's Plea doth prove that the Plaintiff may have another Writ in the same Court there he shall Conclude to the Writ and not to the Jurisdiction But by Prisot 37 H. 6. 24. if the Plea be in Bar and the Conclusion to the Writ it shall be taken in Bar and so is 34 H. 6. 1 2. But of the contrary side is 37 H. 6. 48. in Forcible Entry If the Defendant Pleads to the Writ and Concludes to the Action he shall be Condemned because by his Conclusion he hath admitted the Writ to be good The like Law if he Plead to the Jurisdiction and Conclude to the Writ And by 26 H. 8. Brook Brief 409. If the Plea be to the Action of the Writ he may so Conclude to the Writ And as it appears in the Titles of Estoppel and Waranty If a man Plead in Bar an Estoppel Waranty or the like he shall Conclude upon the same and not to the Action although it were in a Writ of Right as in Fitzherbert's Natura brevium in the Writ of Right Patent appeareth But it appears to be otherwise at this day by all the Books of Entries For the Tenant or Defendant after his Defence immediately doth not only defend the Action by these words Et dicit quod praedictus A. the Plaintiff Actionem suam praedictam inde versus eum the Defendant habere non debet but also in the End of his Plea immediately after his Averment useth again the same words with an Et caetera c. And so is the Practice at this day Next in order we shall Treat of Averments their Natures and Signification and in what Cases they are to be made use of in Pleading and where not The word Averment is diversly used in our Law by some it is taken to be where a man pleadeth a Plea in Abatement of the Writ or Bar of the Action which he saith he is ready to prove as the Court shall award Others say it is an Offer of the Defendant to make good or justifie an Exception pleaded in Abatement or Bar of the Plaintiff's Action and signifies also the Act as well as the Offer of Justifying the Exception Averment likewise is either General or Particular A General Averment which is the Conclusion of every Plea to the Writ or in Bar of Replications or other Pleadings containing Matter Affirmative ought to be Averred with an hoc paratus est verificare c. Particular Averment is where the Life of Tenant for Life or Tenant in Tail or the Age of an Executor or the sense or meaning of Words in an Action of the Case for Slander are Averred in these words Cum hoc quod idem J. S. verificare vult quod c. And touching the General Averment used in the Conclusion of the Defendants Plea by the words Et hoc paratus est verificare c. that ought to be to all Pleas in Bar and to the Writ But by 3 Mar. Bro. Averments 81. need not to be to an Avowry because an Avowry is in the Nature of a Count or Declaration yet in the Books of Entries it is sometimes used in Avowries and most commonly in all Pleas of Replication but not in Rejoynders neither seems it to be hurtful if used where needless for then but Surplusage and Surplusagium non nocet But upon the General Issue or a Plea in the Negative or a Plea apparent in the Writ ought to be no Averment and 27 H. 8. 14. Adjudged that upon a Challenge to the Array there needs no Averment And it appears by 2 H. 7. 2. that in a

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

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.

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