Selected quad for the lemma: life_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
life_n	grant_v	reversion_n	tenant_n	6,527	5	10.6162	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

Lands And so is also 19 H. 7. 14 29. unless in some Special Case there declared as the Defendant doth shew how he administred certain Goods Circa Funeralia ultra quae c. There if the Plaintiff will shew he Administred any other he must shew what they were quod nota Then VVhere if a Place be shewed in Pleading the County shall be intended As 5 Ed. 4. 138. the Defendant in Debt pleaded That the Plaintiff had Received parcel at D. pendente Brevi and no Plea without shewing in what County D. is But otherwise in a Writ where the County is alledged before in the same And 4 H. 7. 8. where it was Surmized that A. had broken the Peace at B. and because not shewed in what County B. was therefore ill But 39 H. 6. 13. in an Annuity by Prescription and Seisin alledged by the Plaintiff at B. not shewing in what County and whether B. was a Town or not and yet holden that it shall be intended in the same County As in a Writ of Praecipe de terris in B. or a Writ of Trespass c. And 36 H. 6. 12. one brought a Writ of Maintenance and declared of a Maintenance in the Common Pleas not shewing where the Bench was and doubted Then in the next place shall be shewn Where when and how a Day or Time certain shall be alledged in Pleading As by 38 H. 6. 3. it seemeth to be sufficient to Plead That the King granted to A. for Life and after by his Letters Patents of such a Dare granted the Reversion to him not shewing the Date of the first or by his Letters Patents reciting how that he had granted for Life before he had granted the Reversion to him Quaere inde For 9 Eliz. Dyer 259. such a Plea in the Case of a Common Person thought ill And 20 Ass. 16. is said That in an Assize in London is used to put in the Plaint the Day and Year of the Assize as in Personal Actions But otherwise in other Assizes no more than in Real or Mixt Actions And so is 7 H. 7. 5. That in Real Actions the Plaintiff shall not need to declare of the Day Plac and Year as in Personal Yet 10 H. 6. 17. the Defendant in Trespass did plead the Gift of the Plaintiff To which the Plaintiff Replied That after that the Defendant gave the same to him again And the Defendant by his Rejoynder did maintain his Bar Absque hoc That he did Re-give those Goods after the first Gift and suffered And see 20 H. 8. Dyer 27. where one pleaded a Defeazance not shewing any Day Vide Librum And 3 H. 6. 31. in Trespass for Taking his Servant the Defendant pleaded That before he was Retained with the Plaintiff he was Retained with him there the Plaintiff shall say in his Replication That such a day he was Retained with him before which Time he was not Retained with the Defendant And 36 H. 6. 44. in an Accompt by an Executor the Defendant did plead That the Testator made the Plaintiff and A. his Executors To which the Plaintiff Replied That afterwards he made the Plaintiff his Sole Executor To which the Defendant in his Rejoynder was forced to shew what Day the Testator made the Plaintiff and the other his Executors Absque hoc That he made the Plaintiff afterwards his Sole Executor quod nota And Note That in Bullock's Case in Dyer 10 Eliz. 281. The Plaintiff in Replevin did plead the Feoffment of the Bishop of Sarum without shewing it to be by Deed or at what Time Then shall be considered How an Act Spiritual shall be Pleaded And therefore first 11 H. 7. 8. Concurrentibus hiis quae de Iure requiruntur is not sufficient in Pleading of an Union but must shew who made the same as the Pope or the Ordinary c. Anno 7 Ed. 4. 32. one Conveyed by a Prior who was afterwards Translated to be an Abbot was forced to shew how he was made Abbot as that the Pope granted to such a Bishop to make him And 5 Ed. 4. 7. one brought Debt against the Provost of the College of T. in Cambridge of a Sale of Goods to his Predecessor who afterwards was amoved and the Defendant Elected and without shewing Coment quod nota And Mich. 12 13 Eliz. Dyer 292. it appeareth in a Quare Impedit that one did declare of a Deprivation and did not shew before whom the same was and holden very sufficient for if it be gainsaid it may come in the Replication for to have a Writ to the Bishop for the same Then touching the Pleading of Matters of Record It is said in 21 Ed. 4. 54. That he that Pleadeth an Utlary in the same Court may begin at the Exigent if he will because good until it be Reversed and that in Debt upon a Recovery he may begin at the Iudgment or at the Original at his pleasure per totam Curiam And see 36 H. 6. 5. That in Debt upon a Recognizance omitting the Condition good Adjudged upon the Plea of Nul tiel Record where 't was said by Danvers That if part of a Record make for one and part against him he may in Pleading or in his Delaration take the one omitting the other But Ashton and Prisot were to the contrary viz. That the party in Pleading a Recovery is to begin at the Original and not to omit so much as any Continuance Summons or Severance And 37 H. 6. 14. by Prisot If one plead a Retorn of a Writ he shall plead That I. S. Vic' did Retorn the same before Iohn Prisot and other his Companions Justices c. But in pleading the Purchase of a Writ he must not say Que tiel Iour il purchase un Brief mes que il purchase un Brief portart Teste tiel Iour retornable devant les Iustices del Common Bank and not as in the Case of a Retorn of the Sheriff devant Prisot ses Compagnions c. quod Nota. For which see more in Brook and Fitzherbert in their Abridgments in the Titles of Record and Failer de ceo And for pleading of a Record see Yelverton 39. Cro. 2 Part 817. Preston versus Preston Style ' s Rep. 22. Case 1. Co. 1 Inst. 225 453. Co. Lib. 10. 92. Lib. 5. 52 218 260. But see Plowden's Com. in Dyve and Maningham's Case where in Debt brought by Dyve upon an Obligation the Defendant shewed That one was in Execution upon a Statute and for his Delivery was this Obligation made to the Plaintiff as Sheriff where holden that this Record of Execution not being the Force of the Defendant's Bar but the Conveyance thereof need not be pleaded Specially from the beginning So in an Action of Disceit against an Attorney or where one doth Avow by reason of an Execution upon a Statute as is 34 H. 6. But as it appears 22 Ed. 4. 8. to

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

Replication Quod non habetur tale Recordum per quod liquet c. Et hoc paratus est verificare per Recordum illud is contrarient and naught Where it is said also That if a Plea want an Averment or have not a sufficient Averment the same is not good quod nota And it appears by 37 H. 6. 14. that in a Forcible Entry the Defendant pleaded Excommengement in the Plaintiff without any Averment because no Answer is to be made to that Plea But it appears in the Books of Entries That where a Plea is either pleaded to the Jurisdiction or to the Person by Matter en fait as Profession or Villenage there be always Averments whichs seem to be of Necessity by the last recited Book because to these Answers may be made quod nota And Note that by the Book of 37 H. 6. 23. If one have a Plea to the Whole he may plead the same to a Part Where it is said by Moyle That a Release or Iustification or any Matter in the Affirmative pleaded without an Averment of the Plea or pleaded in the Negative as Nil debet and the like without the Conclusion Et de hoc ponit se super Patriam and yet 1 3 Mar. 124. the General Issue was pleaded without that Conclusion and good or to plead a Bar in an Assize without taking the Tenancy upon him where divers are named in the Writ the same is Ill. There needs no General Averment in a Plea or Particular Averment in a Declaration of that which will come in more properly on the other side Hob. Rep. 78. 124. And by the same Reports 88. 106. there will need no Averment in a Declaration where it appears there are Reciprocal Remedies But by the same Book 251. where the Administrator durante minori aetate is Plaintiff in a Suit there the Nonage of the Executor must be Averred Secus where he is Defendant Yet by Sheppard's Abridgment Tit. Averment fo 230. the Executor of a Grantee of a Rent or Reversion expectant upon an Estate for Life may not Avow his Distress without an Averment that the Arrerages incurred after the Death of the Tenant for Life Adjudged And so by Hobart fo 141 142. he that pleads a Dispensation to hold in Commendam confirmed by the Kings Charter must aver the Performance of the Condition contained in it So by Perkins cap. 147. If the Defeasance of a Recognizance be dated before if in this Case any use be to be made of it it must be Averred to be delivered at or after the time of the Recognizance entred into By Coke's Rep. lib. 8. Case of the. City of London and lib. 9. 54. Averment needs not be of what is apparent as the Constitution made in London concerning the Sale of of Wares and Merchandizes appearing to be agreeable to and waranted by their Charter the same needs not be Averred to be so and if the Son bring an Assize of Mortdancestor he needs not to Aver that it is within the time of Limitation for that it appears to be so And by the same Author Lib. 7. 40. although any other Consideration than what is a Deed may not be Averred yet where there is an Express Consideration in it self in the Case as where a Use of Land is limited to a Wife this implies a sufficient Consideration in it self and therefore needs no Averment By Hobart 32. an Averment may be upon a Will but by Co. lib. 5. 68. an Averment will not lye of any thing that is against or besides that which is against or besides that which is expressed in a Will nor of any thing that cannot be gathered to be the Mind of him that made the Will by the Words thereof nor of any thing that doth not cohere with the Will especially if the Devise be of Lands As where one Devises to A. and the Heirs of his Body the Remainder to B. and the Heirs Males of his Body on Condition that he or they or any of them shall not alien c. In this Case no Averment may be taken by Witnesses that it was the Intent of the Devisor to include A. within the Condition by the words He or They c. So neither may an Averment be taken that the Intent was to give it to any other besides the Devisee But by Hobart 50. an Arbitrement in Writing may not be supplied by an Averment And by Bulstrode first Part fo 220. and Popham fo 201. it appears that if Tenant for three Lives make a Lease to another the Lessee in an Action brought by him needs not to aver the Lives under which he claimeth Nor by Goldesborough fo 97. needs he that sueth an Administrator upon the Assumpsit of the Deceased aver he had Assets after Debts and Legacies paid So by Hobart 297 and Coke on Littleton 373. it appears that if a Tenant disclaim upon an Avowry in Replevin he shall have Judgment tho' it be false For no Averment will lye against a violent Presumption though it be false By the Book of 34. H. 6. 42. and of 9 Ed 4. 4. an Averment may be had against any part of the Rolls or Records of County-Courts Hundred Courts Courts-Baron or other Courts belonging to Lords of Mannors But by Dyer 348. 177. no Averment will lye against such a Retorn as is definitive to the Trial of the thing Retorned as the Retorn of a Sheriff upon his Writs the Retorn of the Mayor Aldermen and Sheriffs of London upon a Writ of Habeas Corpus sent to them and the like But if it be such as is not Definitive as upon a Rescous or the like there an Averment and a Trial upon it may lye So if it be such a Retorn as may endanger a mans Life or Inheritance Also by the Statute of 1 Ed. 3. cap. 3. and Goldesbrough 129 130. and Croke 2 Part fo 13. an Averment will lye against the Bayliffs of Franchises so that the Lords thereof be not prejudiced thereby The same Law of Certificates For by Co. Lib. 7. 14. Lib. 9. 31. and Bro. Abr. 332. no Averment will lye upon such a Certificate as is a Definitive Trial in Law of the thing Certified as the Certificate of a Bishop touching Bastardy Excommunication Marriage c. But by Co. Lib. 7. 14. Lib. 8. 121. and Leon. 1 Part Case 285. an Averment may lye and shall be received against a Certificate which is only to give Information and in the Nature of a Trial and may also lye against a Certificate upon a Commission out of any Court and may likewise be received against the Certificate of Commissioners that affirm a man to be a Bankrupt But by Bro. 332. If a Bishop Certify that such a Parson doth not pay his Tenths Iuxta formam Statuti no Averment shall be received against it And in More Case 295. an Averment will not lye against a Justice of the Kings Bench or Common Pleas and the Custos

Tender and a Refusal by the Plaintiff and the Plaintiff took the Refusal by Protestation and Traversed the Tender as he ought because no Refusal without a Tender See Dyer 28 H. 8. 31. In Debt upon an Obligation the Condition whereof was to make an Assurance of Lands upon Request as by the Counsel of the Plaintiff should be devised And the Defendant pleaded by Protestation That the Plaintiff's Counsel made no Devise and for Plea That he was not Required To which the Plaintiff Replied That his Counsel devised a Release which he Requested the Defendant to Seal and he Refused And the Defendant would have Traversed the Refusal and could not but ought to maintain his first Plea that is the Request and the Plaintiff should not have mentioned a Refusal but have Concluded the Issue upon the Request the Defendant offering a Negative Plea before And so 36 H. 6. 15. the Defendant in Debt did plead an Award to pay 10 l. at such a Place which he was ready at the time to do and the Plaintiff came not to receive the same There the Plaintiff may say That he was there ready without Traverse because the Defendant had Tendred a Negative Plea before Then Of the Issue Negative Pregnant which is a Negative that implies or contains in it self an Affirmative As where an Action Information or such like is brought against one and he pleadeth in Bar to the Action Or otherwise a Negative Plea which is not so direct an Answer to the Action but that it includeth also an Affirmative As if a man be Impleaded to have done a Thing on such a Day or in such a Place denies that he did it Modo forma declarata which implies nevertheless that in some sort he did it Or if a Writ of Entry in Casu proviso be brought by him in the Reversion upon an Alienation of Tenant for Life supposing that he hath Aliened in Fee which is a Forfeiture of his Estate and the Tenant to the Writ saith That he hath not Aliened in Fee this is a Negative wherein is included an Affirmative For tho' it be true that he hath not aliened in Fee yet it may be he hath made an Estate-Tail which also is a Forfeiture and then the Entry of him in the Reversion is Lawful Vide 33 H. 8. Br. Issue 81. Where upon an Information for buying Cloaths at B. contra formam Statut ' Ne achata al B. contra formam Statut ' ill but ought to be Ne achata pas Modo forma c. Yet 16 Ed. 4. 5. One pleads a Release puis le darein Continuance Nient son fait puis le darein Continuance a good Issue And 12 Ed. 4. 4. One did plead a Feoffment by Deed and the other Replied Que ne Enfeoffa pas modo forma and good without answering to the Deed. As in a Formedon to Count of a Special Gift the other-ought to say Ne dona pas modo forma Where it s said by Littleton That if the Plaintiff proveth not the Feoffment by Deed he faileth Now Modo forma are Words of Art in Pleading namely in the Answer of the Defendant whereby he denies the Thing laid to his Charge Modo forma prout the Plaintiff hath Declared against him As the Civilians in like case say Negat allegata prout allegantur esse vera And it is to be Observed that upon Issues these Words Modo forma are not always of Substance as appears by Littleton in his Chapter of Releases where the Disseisee enters upon the Heir of the Disseisor who brings his Writ of Right Or where as before one in a Writ of Casu Proviso doth Count upon an Alienation in Fee and the other doth say Ne Aliena modo forma and found that he Aliened for Life Or where the Defendant in Trespass doth plead That the Plaintiff doth hold of him by Fealty and Ten shillings Rent and so demandeth Judgment of the Writ Vi armis and the Plaintiff Replieth Que il ne teigne modo forma And if the Verdict find that he holdeth only by Fealty yet good And so in Trespass of Battery If the Jury upon the General Issue find the Defendant Guilty at any other day and place before the Plaintiff supposeth his Trespass But see more of Issues afterwards in the Titles Traverse Pleading c. The next in Order is touching Traverse in Pleading which signifies in Pleading to deny some Point Matter or Thing alledged on the other side the formal Words of which are in our French Sans ceo in Latin Absque hoc and in English Without that And first to begin with the Time It is plain as hath been already said that if the Defendant in Trespass pleads Non Culpabilis he shall have no advantage of the Time but the Jury may find him Guilty at another day be the Trespass Transitory or Local And by Littleton in his Chapter of Releases so 13. In Trespass of Battery and the General Issue pleaded the Jury may find the Defendant Guilty at another day and place And so is also 19 H. 6. 47. and 39 Ed. 3. all in the Title of Traverse But in Case of Trespass and other Actions if the Plaintiff in his Declaration lay a time before his Cause of Action the Defendant in all Cases upon the General Issue shall have advantage thereof But on the contrary if once he have Cause of Action it so still continueth until he have discharged the same and therefore he may lay it after the day The like as it seems upon the Issue of Non dimisit for as before Littleton in the Chapter Releases the Words Modo forma in an Issue be not always of Substance Quaere tamen if not as if in the Number of years And as divers Books be In many Cases where the Defendant doth Iustify he may Traverse the Time before and in some Cases the Time after and in other some the Time before and after And therefore where the Defendant in Trespass of Lands or Goods maketh himself Title by a Feoffment Gift or otherwise which still is in force such a day after he shall only Traverse the Time before the Trespass supposed And so is 15 Ed. 4. 23. 22 H. 6. 29. and other Books in the Title of Traverse And where by a Lease or other Title made and determined before the Day of the Trespass there he must Traverse the Time after and before his Lease But whether the Plaintiff may there Traverse that Iustification hath been a Question because in so doing he Departeth from his Declaration And the better Opinion of the same Book of 15 Ed. 4. 23. is That the Plaintiff may But 22 Ass. 36. the Defendant in Trespass of Battery did plead a Release and Traversed the Time and the Plantiff Replied the Release was obtained by Duress and by the better Opinion no Plea for the Reason aforesaid And 2 R. 3.

Warrant to his Servant or for Suspicion of Felony or the like And as 5 H. 7. 9. where the Defendant doth Justify by Custom of Faldage Or 9 Ed. 4. 22. where the Defendant in Trespass Justified for Wreck and in many other Cases where the Defendant doth Justify by Matter in Fait the same General Replicati●● De son Tort demesn hath been admitted Next of the Plea of Que Estate which signifies verbatim Which Estate or the Same Estate and is a Plea whereby a man Entitling another to Land c. saith That the Same Estate himself had he had from him As in a Quare Impedit the Plaintiff alledgeth That such Four Persons were seised of Lands whereunto the Advowson in question was appendant in Fee and Presented to the Church and that afterwards the Church became void Que Estate that is Which Estate of the said Four Persons he hath now during the Vacation by virtue whereof he Presented c. Vide Bro. 175. Tit. Que Estate Co. 1 Inst. 121. And see also 2 H. 6. 10. where holden That the Plaintiff in his Declaration or Title shall not Convey to himself by a Que Estate Otherwise in a Replevin after Avowry for after Avowry the Defendant is become Actor And so is 3 H. 6. 28. and accordingly are divers Books in Brook in this Title Que Estate And Mich. 1 2 Mar. Dyer 172. And yet as appears in the same Title 2 H. 4. 13. and other Cases there that where the Defendant by his Bar doth admit the Plaintiff Tenant to the Land there the Plaintiff in his Replication Conveying to himself Title to the same may do it by a Que Estate And by the Book 3 H. 6. 11. 22 H. 6. 34. and divers other Books in this Title in Brook The Avowant may in his Avowry Convey to the Plaintiff an Estate in the Tenancy by a Que Estate because he is a Stranger to his Title which seemeth Reason And it appears by the same Book in Dyer fo 172. That a Term cannot be Conveyed in Pleading be the Party Actor or otherwise by a Que Estate And to that Intent is 7 Ed. 3. Brook in this Title 31. be the same a Term or Estate for Life or in Tail And yet there 38 Ass. 4. the Defendant in an Assize did Convey from T. by Statute by a Que Estate And see 5 H. 7. 39. 40 Ass. 28. 15 Ed. 4. 16. and 2 H. 4. 20. of Tenant in Tail especially if the Party be to aver his Life And see in this Title Bro. 12 Ed. 3. That the Tenant may Rebut by reason of a Waranty by a Que Estate but not be Vouched And see 22 H. 6. 13. and 26 Ass. 8. But 10 Ass. 5. to the contrary And see also the Books 11 H. 4. 81. 37 H. 6. 32. and 1 Ed. 6. in this Title 4. That a Que Estate is not to be alledged in any of the Mean Conveyances but to the Tenant himself without shewing Coment notwithstanding the same hath been suffered And it appeareth also that in Pleading a Que Estate the Party by whom such Estate is Conveyed must be shewed in Pleading to have a Good Estate as by Recovery Feoffment or Release or the like and not sufficient to say That A. was seised whose Estate the Defendant hath And so is 7 Ed. 4. 26. and 9 H. 7. 14. Vide 21 Ed. 4. 21. That Tenant in Dower coming in by Law Conveyed her Estate by a Que Estate And so 6 Ed. 4. 12. although he came to the Land by Disseisin And so seems 31 H. 8. Bro. 48. if he Recover the same but against that is the Book of 39 H. 6. And it appears also That a Thing that lieth in Grant cannot be made Title to by Que Estate although by way of Bar. And so 11 H. 4. 89. of an Hundred And so 24 Ed. 3. 22. and 31 Ass. and 12 H. 7. 16 18. of a Rent or Common except it be incident to some thing that may pass without Deed unless he shew a Deed to maintain his Prescription And although in many Cases it be sufficient Title yet as it seems 6 Ed. 4. 12. is never Traversable but where both Parties Claim by one Person And yet see 19 H. 6. 56. and 11 H. 4. 81. where the Que Estate Traversed although the Party that did take the Traverse did not Claim by the same Person And see in that Title 6 Ed. 4. 12. and 18 Ed. 4. 29. That where the Defendant doth give to the Plaintiff Title by a Que Estate there the same is Traversable by the Plaintiff Next in Order we shall say something of Double Pleas. A Double Plea is that wherein the Defendant alledgeth for himself Two several Matters in Bar of the Plaintiff's Action whereof either is sufficient to Effect his Desire which shall not be admitted for a Plea As if a man alledge Several Matters the one nothing depending upon the other the Plea is accounted Double and not admittable but if they be mutually depending each upon the other then it shall be accounted single And touching Double Pleas see thereof the said Title in Brook's Abridgment as namely where one Answer will make an End of all as Ne dona pas and the like there no Doubleness or if the Defendant plead divers Matters and rely upon One of them or do shew in his Pleading divers Matters of Inducement or of Suspicion or doth alledge Two Presentments in a Quare Impedit the one in the Guardian or Particular Tenant and the other in the Party himself And 40 Ed. 3. 11. divers Matters alledged to oust the Conusance 11 H. 6. 10. to prove a Maintenance the Party may shew divers Matters And Ibid. 11. That Appendancy and Prescription is double But 13 H. 8. è contra And by divers Books a Lease and Release double And where one bindeth himself in 10 l. in the Indenture to perform divers Covenants the Plaintiff can declare but upon the Breach of one if he demand the 10 l. Otherwise if he bring an Action upon the Covenants as appears by 11 Ed. 4. 10. And by 9 H. 7. 23. One pleads that he was seised until by the other disseised against whom he did Recover and not Double because the one is Conveyance to the other And by 5 H. 7. 36. where one cannot come to the one Plea without the other there no Doubleness as Seisin and Feoffment and the like And 4 H. 7. 17. and 1 H. 7. 14. And by 5 H. 7. 1. Non dederunt arbitrium in scriptis Double And by 21 H. 7. 10. a Collateral Waranty and Assets Double and the like Whereof see more at large in this Title of Double Plea in Brook and Fitzherbert and in Partridge and Strange's Case in Plowden's Com. and in that Case in Dyer That Barganizasset and Concessisset not double because words of one signification And accordingly also 35 H. 6. Then ought

of the Plaintiffs Servants in one County by reason whereof he lost their Service in another County although it be so declared And by 9 H. 6. 62. in Trespass of Battery or Taking of Goods the Iury may find him Guilty in another Town in the same County Otherwise of Trespass Local But by 2 Ed. 3. 11. cannot Expresly find a Tender of Homage in another County And it appeareth 7 H. 6. Fitzh Abridgment Tit. Assize 359. that the Iury may Specially find a Condition annexed to a Feoffment according to Littleton But otherwise to a Release but may not find a Waranty because that cannot be without Deed. And in a Writ of Right the Iury may find a Release of Right but not a Collateral Waranty And so is 33 Ass. 11. touching a Feoffment upon Condition And so 28 Ass. 17. and 17 Ass. 20. of a Confirmation that doth Enlarge an Estate otherwise not But not a Release 16 Ass. 15. and 43 Ass. 41. A Feoffment given in Evidence the Iury in respect of the Livery are bound to find but may not take Conusance of a Release And by 21 Ass. 28. the Jury did find a Feoffment upon Condition not given in Evidence Then How the Jury may find a Matter of Record See first 3 H. 7. and 2. H. 4. That if a Iury find an Utlary or a Writ of Non Molestando or another Matter of Record the same is void Yet 28 Ass. 17. a Verdict found a Recovery c. And 26 Ass. 5. Verdict found a Fine not pleaded or given in Evidence sub pede sigilli whereof is a Mirum made in the Case by the Reporter And so the like the same Year Placito 3. upon a Recovery found by Verdict And 26 Ass. 2. The Verdict in an Assize found an Attainder and the Court there took it ill But touching this Learning see Newse's and Scholastica's Assize in Plowden's Commentaries where 't is said That a Note of a Fine or a Recovery without the Record it self Sub pede sigilli or the Number-Roll may be given in Evidence if the Jury will so accept of it Otherwise of Pleading the same And so holden without doubt upon the same Book 26 Ass. and other Books That the Iury may and in some Cases ought to find a Matter of Record which seems when given in Evidence Sub pede sigilli See more hereof in the Chap. of General Issue and Special Evidence antea Then How the Iury shall find a Spiritual Matter First see 21 H. 3. 9. where a Verdict in an Assize found That the Father of the Tenant had taken the Order of a Deacon and after Married the Defendants Mother c. And 8 Ass. 5. it was holden That the Jury in an Assize may find the Plaintiff or Defendant to be a Bastard but if it were Pleaded it shall be Tried by a Certificate from the Bishop And 29 Ass. 2. A Verdict in an Assize found a Divorce for that it is not a Matter of Record but a Matter in Fait quod nota Then it appears in Amy Townsends Case in Plowden's Commentaries That if the Jury or an Office find a Special Matter and Conclude contrary the Court shall not in their Judgment respect the Conclusion but the Special Matter found quod nota And so is 28 Ass. 17. But as appears 16 Ass. 15. if they find a Special Matter and Conclude according to the Law the Special Matter is waived And see 18 Eliz. Dyer 153. The Jury found Quod non Concessit prout Def. c. when it should be the Plaintiff and Assigned in Error Then In what Cases the Verdict varying from the Issue shall be good and where ill and for whom the same doth find For which see before in this Chapter of Verdicts in the Division of Special Verdict and in the Chapter of Issues where they find Part or another Day and the like And see the Titles Count or Declaration and Traverse as also the Cases ensuing viz. 36 H. 6. 2. In the Case of Nul tiel Record pleaded and a Recognizance upon Condition certified And 16 Ass. 19. it 's holden That upon the Issue Ne enfeoffa pas the Verdict may find a Conditional Feoffment And 30 Ed. 3. 5. the Defendant in Account did plead Pleinment Accompt devant A. B. and the Verdict found That he did Account before B. tantum and a good Verdict for the Defendant quod nota And 21 Ed. 4. 10. in Entry upon the Statute of Ric. 2. the Verdict upon the General Issue found him guilty of Entry only into two parts of the same and good accordingly And 10 H. 6. 13. in Debt against the Heir who pleaded Riens per Discent to which the Plaintiff Replied Assets in Dale and the Verdict found Assets in S and a good Verdict for the Place is not material And 1 Ass. 14. if one of the Defendants in an Assize be acquitted yet the Plaintiff shall have Judgment against the other and yet they Pleaded Joyntly to the Plaint Non Disseisiverunt See 2 Ed. 3. 49. Brook Tit. Verdict 20. If Executors plead Plene administraverunt and it be found That they did fully Administer to Ten shillings the Verdict doth pass against them and shall answer the whole Action Quaere inde And 7 H. 6. 33. the Issue was upon the Feoffment of A. and B. and the Verdict found That A. did only Enfeoff and by the Better Opinion found against him that doth plead the same Quaere inde And 40 Ed. 3. 35. If in Debt against Two who plead Non est factum it be found to be the Deed of one of them and not of the other yet the Plaintiff shall Recover And see 28 29 H. 8. Dyer 32. where one Declared in Debt upon a Lease of Twenty Acres To which the Defendant pleaded That the Plaintiff Lett the same Twenty Acres and Four Acres over sans ceo que il demise les 20 Acres tantum whereupon they were at Issue and the Verdict found the Demise only of 21 Acres and great Doubt was for whom the Verdict was found or whether for neither of them and so a Ieofail And see Dyer 1 2 Mar. 115. in Debt upon an Obligation the Breach of the Condition was assign'd in Cutting down Twenty Oaks and Issue thereupon viz. Quod non succidit praedict as viginti Quercus nec earum aliquam And the Jury found that he Cut Twelve and the Plaintiff had Judgment And see 22 Eliz. Dyer 367. in an Information of Usury the Defendant did plead Quod non habuit aut acceptavit praedictas Octoginta libr as pro lacro c. and the Jury found Quod acceptavit quadraginta libras Et pro Resid ' Non Culpabilis which was there among other things assigned for Error and nothing else taken notice of And see 47 Ed. 3. 19. One did pray to be Resceived in Default of the Tenant for Life and the Demandant said That the Tenant had Riens

himself Title by the same may do it by a Que Estate ibid. So the Avowant may in his Avowry Convey to the Plaintiff an Estate in the Tenancy by a Que Estate because he is a Stranger to his Title ibid. That a Term cannot be Conveyed in Pleading be the Party Actor or otherwise by a Que Estate be the same a Term or Estate for Life or in Tail p. 132 Yet the Defendant in an Assize did Convey from one by a Statute by a Que Estate ibid. And so of Tenant in Tail especially if the Party be to Aver his Life ibid. That the Tenant may Rebut by reason of a Waranty by a Que Estate but not be Vouched ibid. That a Que Estate is not to be alledged in any of the Mean Conveyances but to the Tenant himself without shewing how notwithstanding the same hath been suffered p. 132 That in Pleading a Que Estate the Party by whom such Estate is Conveyed must be shewed in Pleading to have a good Estate as by Recovery Feoffment Release or the like and not sufficient to say That A. was seised whose Estate the Defendant hath ibid. Tenant in Dower coming in by Law may Convey by a Que Estate p. 133 So he that comes to the Land by Disseisin So he that he recovers the same ibid. That a thing that lieth in Grant cannot be made Title to by a Que Estate although by way of Bar. ibid. As of an Hundred Rent or Common Except it be incident to some thing that may pass without Deed unless he shew a Deed to Maintain his Prescription ibid. Que Estate not Traversable but in Particular Cases ibid. Of a Double Plea and what it is p. 134 Where one Answer will make an end of all as Ne dona pas or the like there no Doubleness or if the Defendant plead divers Matters and rely upon one of them or do shew in his Pleading divers Matters of Inducement or of Suspicion or alledges two Presentments in a Quare Impedit the one in the Guardian or Particular Tenant and the other in the Party himself there no Duplicity ibid. But divers Matters may be alledged to oust the Conusance or prove a Maintenance p. 134 Yet Appendancy and Prescription and a Lease and Release will make a Plea double ibid. Where one binds himself in 10 l. in the Indenture to Perform divers Covenants the Plaintiff can declare but upon the Breach of one of them if he demand the 10 l. but otherwise if he brings an Action upon the Covenants p. 135 Where one pleads That he was seised until by the other Disseised against whom he did Recover not double because the one part of the Plea is a Conveyance to the other ibid. So where one cannot come to the one Plea without the other there no Doubleness as Seisin Feoffment c. ibid. Non dederunt Arbitrium in scriptis held by some to be double ibid. So a Collateral Waranty and Assets double ibid. But Barganizasset and Concessit not double but words of one signification ibid. How one shall have divers Pleas when one of them shall go to the Whole ibid. As where an Assize of the Office of Clerk of the Crown was brought by two Persons and the Defendant pleaded to one of the Plaintiffs That he was an Alien and to the other Nul tiel Office here because the Last part went to the Whole the Plea was holden to be double ibid. Yet the Defendant pleaded a Fine to the Whole and did Conclude to the Moiety and so for the other Moiety and good ibid. So the Defendant did Justify to the Third Part for one Cause and to the other two Parts by another Cause p. 136 So the Defendant in Trespass of Trees may plead as to the Cutting Non Culp ' and as to the Taking he may plead a Gift of them ibid. So in Debt against an Executor the Defendant pleaded an Acquittance to part and plene Administravit to the rest ibid. If a Person pleads divers Pleas and one of them goes to the whole Writ or Action that only shall be received ibid. Which of the Pleas shall be first Tried ibid. 137 Where the Plea is ill without shewing the Deed or Record ibid. Where the Estate is Executed there needs not the Deed for the most part to be shewed p. 140 How the Vouchee shall be forced to shew a Deed p. 141 How an Action may be upon Record without shewing p. 142 Tho' one have not the Deed yet if it appear of Record in the same Court pleaded by another at that time he shall have advantage of it p. 143 CHAP. VI. p. 145 Of Pleading in General WHere one in Pleading shall shew how he was seised ibid. Where one may Convey to himself an Estate without shewing how he that gave it was seised ibid. In a Writ or Count may be said Quod quidam J. S. dimisit without shewing how he was seised but otherwise by way of Bar or Title ibid. Where one shall say He was seised in Dominico suo c. ibid. Where in Pleading shall be said in Iure Uxoris p. 146 Where Lands are given to Two and the Heirs of one of them the Pleading shall be Quod fuer ' seisit ' viz. the one In Dominico suo ut de feodo and the other In Dominico suo ut de libero Tenemento ibid. Of the Plea In Iure Coronae ibid. Of the Plea In Iure Domus p. 147 Whether it be sufficient to alledge a Seisin in any without shewing of what Estate ib. How he that hath but an Estate for Life or an Estate Tail or an Use shall plead the same without shewing the beginning thereof p. 148 Where in Pleading for Certainty to every Intent it must be shewed that the Estate did Continue at the time p. 149 Which of the Parties shall set forth the Place where c. in Pleading p. 150 Bona Notabilia in divers Dioceses how to be pleaded p. 152 Where the County shall be taken by Intendment ibid. Where the Day or Years shall be certainly alledged in Pleading p. 153 Acts Spiritual how to be pleaded p. 155 Of Pleading Matters of Record as Utlary Recovery in Debt Recognizance Retorn of a Writ c. p. 155 156 How the words Inter alia are to be used in Pleading p. 157 Acts of Parliament how to be Pleaded ibid. Per Nomen how pleaded p. 160 Of the word Continetur in Pleading p. 162 Of Pleading by or without the word Praedict ' ibid. Of the word Ut in Pleading p. 163 Where a General Plea shall be pleaded for avoiding Mischief ibid. Of Pleading an Entry c. p. 164 Of the Plea Negative Pregnant ibid. That the word Licet is an Express Affirmative p. 165 Where an Express Seisin or Possession must be alledged ibid. Of the words Virtute cujus Per quod Quorum praetextu c. ibid. A Deed how to be pleaded p. 166 Of the Pleas Non est factum