137. Tit. Averment where the Plaintiff moved to stay Judgment in Ejectment because the Life of the Party during whose Life the Defendant hath a Lease was not Averred according to 10 Ed. 4. 18. which by 21 Iac. 1. cap. 13. is to be Inquired of by the Sheriff or other Officer as the Court shall think fit And by Foster the like Rule was made before the Statute in the Lady Morleys Case after Verdict as here But see Mich. 21 Car. 2. Lee versus Edwards in Modern Reports fo 14. where an Action upon the Case was brought upon two Promises And the First was That in Consideration the Plaintiff would bestow his Labour and Pains about the Defendant's Daughter and would Cure her the Defendant did Promise to pay so much and would also pay for the Medicaments Secondly In Consideration the Plaintiff had Cured the Defendants Daughter the Defendant did Promise to pay so much And to stay Judgment it was Objected by Raymond That the Plaintiff did not Aver in his Declaration That he had Cured the Defendants Daughter the Consideration of the first Promise being Future and both Promises found and entire Damages given But Twisden said It is well enough for now it lies upon the whole Record whether he hath Cured her or not but if it had rested upon the first Promise only it had been ill And in the second Promise there is an Averment of the Cure so that now after Verdict it is helped and the want of an Averment is helped by a Verdict in many Cases Vide Hil. 22 23 Car. 2. Rotulo 233. in B. R. Hoskins versus Robins in Sander's Reports Part 2. fo 32. where said That the Insufficiency of Pleading a License is helped by the Statute of Ieofails after Verdict And see Mich. 24 Car. 2. in B. R. Holman against Dodde Keb. Vol. 3. Tit. Amendment Pl. 15. where the Plaintiff in Debt upon an Obligation to perform Covenants in an Indenture assigns Breach for Non-payment of Rent at Michaelmass according to the Lease but then or 40 Days after by the Bond. To which the Defendant did Rejoyn That he paid the same at Michaelmass Et de hoc ponit se super Patriam Et praedictus the Plaintiff similiter After Verdict it was Moved by Staples to stay Judgment for that the Issue is Mis-joyned and tho' it were quod praedictus Robertus who was the Defendant for Rowlandus the Lessee and the Directions to the Clerk were right yet being no Issue there was no Verdict and so not Aided by the Statutes of 16 17 Car. 2. cap. 8. And here it s no Issue That the Defendant did Perform Et de hoc ponit c. Et praedictus the Plaintiff similiter For as in 1 Cro. 317. Pl. 380. it s an Issue by the Rejoynder That Robert did not pay c. therefore not Aided by the Statute according to 2 Cro. 579. Pl. 9. in Aldridge's Case But the Rent being Reserved only at Michaelmass by the Lease tho' the Bond be at Michaelmass or 40 days after is well enough Vide Pasch. 26. Car. 2. in C. B. Naylor versus Sharpley al' Coronator ' Com' Palatin ' Lanc ' in Modern Reports 188 189. where one brings Debt against the Sheriff of that County and Sues him to the Outlawry and directs a Capias to the Chancellor who makes a Precept to the Coroners of the same County being Six to take his Body and have him before the Justices of the Common Pleas at Westminster at such a day And one of the Coroners being in sight of the Defendant and having Opportunity enough to Arrest him doth it not but they all Return Non est inventus tho' he might have been Taken every day Whereupon the Plaintiff brings his Action in Middlesex against all the Coroners and has a Verdict for 100 l. And to stay Judgment Serjeant Baldwyn Objected That the Action ought to have been brought in Lancaster He agreed to the Cases put in Bulwer's Case in Co. Lib. 7. where the Cause of Action ariseth equally in two Counties but here all that the Coroners do subsists and determines in the County Palatine of Lancaster for they make a Return to the Chancellor of the County Palatine only who makes a Return to the Court. He insisted upon Hussey and Gibb's Case in Dyer 38. and further said That this Action is grounded upon two Wrongs one The not Arresting him when he was in sight and the other For the Returning Non est inventus when he might have easily been taken Now for the Wrong of one of them they are all charged and entire Damages given He Allow'd That two Sheriffs make but one Officer but said That every Coroner is responsible for himself only and not for his Companion Serjeant Turner and Pemberton contra That the Action was well brought in Middlesex because the Plaintiff's Damage arose there by not having the Body here at the Day They cited Bulwer's Case and Dyer 159. b. and Agreed That the Chancellor of the County Palatine Returns to the Court the same Answer that the Coroners Return to him so that their False Return is the Cause of the Prejudice that accrâ—es to the Plaintiff in this Action the Ground whereof is the Return of Non est inventus which is the Act of them all That one of them saw him and might have Arrested him and that the Defendant was daily to be found c. are but mentioned as Arguments to prove the False Return And they Conceiv'd That an Action would no more lye against one Coroner than against one Sheriff in London or any other Place where there are two Then as to the first Objection taken by Baldwyn they said That admitting the Action to be laid in another County than where it ought yet after Verdict it is Aided by the Statute of 16 17 Car. 2. if the Venire come from any place of the County where the Action is laid It is not said in any place of the County where the Cause of Action ariseth Now this Action is laid in Middlesex and so the Trial by a Middlesex Jury is good let the Cause of Action arise where it will Cur ' That Statute doth not help your Case for it is to be intended when the Action is laid in the proper County where it ought to be laid which the words Proper County implies But they inclined to give Judgment for the Plaintiff upon the Reasons given by Turner and Pemberton And see Keble Vol. 2. Pl. 8. Tit. Escape Hepping against Huneyard where in an Action on the Case for Rescuing of one taken in Execution after Verdict Stroud moved to stay Judgment on Hetley 34. That no Action upon the Case will lye against the Sheriff or by him Sed non allocatur for the Sheriff may be a Beggar and therefore though the Plaintiff may have an Action upon the Case against him for the Escape yet he may take the
Prisoner again And as to its being said That the Party being Arrested by the Sheriff of Devon at Topsham the Defendant rescued him at Exeter the Court agreed the Escape to be the same all over England but that it ought to have been shewed how the Party came into Exeter For this cannot be intended nor being the Substance of the Matter is it Aided by the Statute of 16 17 Car. 2. cap. 8. And Idem Vol. eodem Pl. 26. Frain Uxor Administratrix of Smalman versus Painter where in an Action of Debt for Rent the Plaintiffs did declare That the Intestate out of his Term made an Under-Lease to the Defendant yielding and paying c. and that the Intestate died such a Day and Administration was committed to the Plaintiff's Wife To which the Defendant did plead That the Intestate Assigned to K. to commence after his Death Absque hoc That he died possessed of such a Term prout And upon this Traverse Issue was joyned and Verdict for the Plaintiff And to stay Judgment Sanders Objected 1 That the Action was in the Debet and Detinet which cannot be by Administrators as Plaintiffs 2 That the Rent is reserved Half-yearly and there is a Year and Quarters Rent found due which is impossible Iones pro Quer ' The Right is Tried and so the Declaring in the Debet and Detinet when it ought to have been in the Detinet only is Aided by the Statute of 16 17 Car. 2. cap. 8. of Ieofails as in the Case of Cumber against Walton 3 The Exposition of the Year and Quarter is well enough the Time being one of the Terms upon which it was reserved Cur ' If it did not appear the Plaintiff were Administrator as it doth the Debet were of the Substance and Aided by the Statute which the Court agreed and the Second Exception was mistaken otherwise it had been ill And Idem Vol. eodem Pl. 51. Tit. Slander Croft against Winter where an Action upon the Case was brought for words spoken in London of a Minister viz. He is a Thievish Rogue and stole a Plate out of Wadham-College in Oxon. And the Plaintiff having a Verdict in London to stay Judgment Sanders moved for the Defendant That here was a Mis-Trial which ought to have been at Oxford as in Ford and Brook's Case Cro. Part 3. 261. Iones contra on the Statute of 16 17 Car. 2. cap. 8. this being Tried by a Jury in the proper Place and the Justification should have been in London the Felony being Transitory and not Local as Robbery c. And the Court Agreed this was a Ieofail Twisden The Felony is Local whether it come in by way of Justification or Declaration and as in the Case of Throbwalke the Justification makes the Matter to arise there as where a Constable on an Action laid here in London doth Justify in Essex there the Trial must be in Essex Keeling Chief Justice and the Court Agreed to it in the Case of a Constable But in Case of a Sheriff or Bailiff it s Aided by the Statute especially the words being confest to be spoken in London And Judgment was Affirmed CHAP. VIII Of Intendment IN the next place we shall give an Account more amply than before What Construction the Law doth make of the Intention of the Parties as to Contracts and other Matters And for this first see Cro. 1 Part 141. Paynter versus Paynter Trin. 6 Car. 1. in B. R. where in an Action upon the Case sur Assumpsit the Plaintiff declared That the Defendant Promised if the Plaintiff ad ejus Instanciam would Marry his Daughter he would pay unto him 20 l. and give to him 20 French Crowns towards a Wedding-Dinner And the Plaintiff saith in Fact That he Married the Defendants Daughter and required him to pay the 20 l. which he had not paid Upon Non Assumpsit it being found for the Plaintiff it was Moved That the Declaration was not good for the Promise is but Conditional viz. If the Plaintiff ad Instanciam Defendentis would Marry the Defendants Daughter and so he hath not Averred the Performance of the Condition But the Whole Court conceived upon this Agreement To Marry the Daughter ad Instanciam and he Marrying her it shall be Intended ad Instanciam without Averment And see Cro. 1 Part 163. Mich. 7 Car. 1. in B. R. Taverner and Skingles Case where the Plaintiff Declared in Debt upon an Obligation with Condition to Perform the Award of I. S. and I. D. so that they made it before the 10th Day of October next under their Hands and Seals And if they do not Agree then to stand to the Umpirage of I. N. so that he made it in Writing under his Hand and Seal before the 28th of October following The Defendant pleaded That I. S. and I. D. did make no Award before the 10th day of October The Plaintiff Replied It is true They did not but I. N. did make the Umpirage and Award before the 28th day of October inter alia the Defendant was to pay 30 l. unto the Plaintiff upon such a day at such a place And for Non-payment c. It was Moved That the Submission was void and incertain for it is That if they do not Agree and it doth not appear to what they should agree sed non allocatur for the words If they do not Agree have the Intendment If they do not Agree to make their Award under their Hands and Seals before such a day For otherwise it is quasi a Non-Agreement within the Condition 2 It was Objected That the Award was void because the Money was appointed to be paid at the House of one W. S. a Stranger sed non allocatur for the Appointment of the Payment of the Money at a Strangers House especially as here being a Common Inn cannot be unreasonable nor an unlawful Act for by Intendment the Plaintiff shall procure such Kindness that the Mony may be paid there so the Award was Adjudged good prima facie and the Plaintiff had Judgment And see Style 's Rep. 465. Wood and Gunston's Case Mich. 1655. in B. R. where in an Action upon the Case for Scandalous words spoken of the Plaintiff viz. for calling him Traytor the Issue was tried at the Bar and the Jury found for the Plaintiff and gave him 1500 l. Damages And upon Supposition that the Damages were Excessive the Defendant moved for a New Trial. It was said That after a Verdict Partiality of the Jury ought not to be Objected or questioned and therefore no New Trial. Glyn Chief Justice It is in the Discretion of the Court to grant a New Trial but that must be a Judicial and not an Arbitrary Discretion and the Court may take notice of the Miscarriages of Juries and grant New Trials upon them For a Jury may sometimes by Indirect Dealing be moved to side with one Party and not to be Indifferent between both Parties but
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
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.
Obligation Quod patet ni dorso c. or Quod patet ni dorso that part paid but with a Quaere inde And 1 2 Mar. Dyer 118. to plead Quod Indentura Testatur quod dimisit ill As 21 Ed. 4. 44. Quod patet per Recordum c. and in Browing and Beaston's Case it was holden ill to plead the Condition of a Lease by way of Continetur in the Indenture although the said Indenture is Confest in Pleading Otherwise if Entred de verbo in verbum As 9 H. 6. to plead the Grant of a Rent cum Clausula districtionis Then Touching the Pleading by or without the word Praedict ' And therefore first see 21 H. 7. 30. where one pleaded a Release apud Villam Westm ' and after in the same Pleading naming Villam Westm ' did not say Praedict ' and yet the Justices held That it should be taken by Intendment to be in the same County Yet 5 Ed. 6. Dyer 7. the Plea Quod quidam I. S. shall not be intended the same Person named before but another And in the Case of Throgmorton and Tracy in Plowden on a Writ of Second Deliverance one pleaded a Lease made apud Dale Praedict ' when not before mentioned and good Notwithstanding in News and Scholastica's Case in the Reports upon an Assize the Writ having this word Praedict ' more than necessary Iudgment was therefore stayed quod nota Then as to this Word Ut in Pleading It is said 5 H. 7. 2. That in Pleading a Discent one shall say That it did discend to him ut filio c. or as in a Iustification Quod ipse ut Ballivus c. and need not to say in Fait That he is Bailiff or Heir But in a Special Verdict in an Assize 3 4 Mar. Dyer 132. found That I. S. and I. D. Ut Supervisores did Let and doubted if good Vide 6 Ed. 4. 2. where the Condition of an Obligation was To serve one by Seven years without absenting himself at any time without License And the Defendant did plead Quod servivit per septem Annos se non absentavit per idem Tempus sine Licentia without shewing the Number of Years he might be Licensed more times And therefore in the Case between Bulkley and Rice Thomas in Plowden's Com. the Plaintiff did alledge That he was Chosen Knight per Majorem Numerum without shewing the Number in certain quod nota Then it appears 22 H. 6. 43. If one do alledge an Abatement Intrusion or Disseisin he ought to alledge it so Specially and not That the Party did Enter c. for that may be intended a Lawful Entry And so it is in Plowden's Com. in the Ejectione firmae brought by Williams against the Lord Berkley touching the Pleading of an Entry upon him and Letting to another when he should have said That he did Enter and him Disseise For by his Entry only he could not Let to the other he being in Possession quod nota But in alledging an Intrusion for an Abatement it hath not been holden such a Sufficient Matter to make the Plea ill quod nota Then touching the Plea of Negative Pregnant see before in Title Issue there set down under the Division of Modo forma and in the Special Title thereof in Brook's Abridgment And see Dyer fo 17. Num. 95. But especially Plowden's Commentaries fo 121. That although the Plaintiff in his Declaration did but shew quod licet he was Chosen Knight Per Majorem Numerum yet holden good and the most Eloquent Pleading Where you may see also divers Writs Pleas and Latin Authors there Vouched to prove the word Licet an Express Affirmative Then Where an express Seisin or Possession must be alledged and not implied in Pleading For which see 9 Eliz. Dyer 257. where one brought an Action of Covenant upon this word Demise declaring of a Lease by Tenant for Life to himself shewing his Death also during the Term and how that he in the Reversion did Enter and oust him and Exception taken to the Declaration for that he did not shew Expresly that he was possest and after expulst but by Implication Where holden also That this word Demise doth not Charge the Executor And in Dyer 9 10 Eliz. 254. one brought Debt upon a Lease made by himself to A. who Devised the same to the Defendant who did Enter and was possest And Exception taken because he said not Virtute cujus he did Enter and was Possest because he might Enter by reason of another Title And in the Sergeant's Case in Dyer 7 Ed. 6. 83. where divers Mesn Steps and Degrees are shewed in the Plaint how the Tithes came from the Abbot to the King's Hands and that to say Quorum praetextu is very good and refers to all of them But as it s said 7 H. 7. Nec auget aut minuet sententiam for there by reason of Virtute cujus it shall not be intended that the Use there alledged doth continue Then How a Deed shall be Pleaded See 5 Eliz. Dyer 221. in a Writ of Annuity against the Successor of a Prebend of A. granted by his Predecessor he did Declare That the Predecessor Per scriptum suum geren ' dat' vicesimo die Januarii deliberat ' eidem Quer ' tricesimo die ejusdem Mensis and did not say primo deliberat ' ut Factum so that this word Suum doth suppose a perfect Deed 20 Ianuarii at which time the Predecessor was not Inducted See touching this Matter a Case 1 Eliz. Dyer 167. Then Of the Pleas Non est Factum or Riens passa For which see first 1 2 Mar. Dyer 116. where in an Ejectione firmae of Tithes the Defendant pleaded a Grant and Assignment from the Plaintiff himself and the Plaintiff by his Replication maintaining his Count took a Traverse Absque hoc quod vendidit per praedictam Indenturam totum statum c. To which Exception was taken That he being privy to the Deed ought to Traverse the same especially when the thing granted doth not pass without Deed. But by Stamford he ought to have pleaded That he had nothing in the Term at the time of the Grant As in avoiding a Release to plead That the Party to whom c. had nothing at the Time Or to have pleaded Non est Factum And for these Reasons and others the Jury were discharged and a Replegiar ' awarded But touching this Matter Whether he that is privy to a Deed may plead Riens passa or where one Privy or Estranger shall plead Ne Enfeoffa or Ne Granta pas per le Fait or Ne Charga pas Ne Relessa Non est Factum Nient Comprise or the like see accordingly in Brook in his Title Estraunge al Fait Then Where a Plea in it self is not good but by Referring the same to another Plea First See 28 H.
the Cause generally but the Custom yet that was Adjudged to be helped by the Statute of Ieofails as Matter of Form because Absque tali Causa contained the Custom and more And Idem ibid. Parker versus Parker The Plaintiff brought Trover and Conversion of certain Goods against the Defendant and the Declaration was Entred upon the Imparlance-Roll with Blanks or Spaces for the Day and Year of the Plaintiff's losing the Goods and of the Defendant's finding and converting them to his own proper use but the Issue-Roll and the other Proceedings were perfect in this Point And per Cur ' the Imparlance-Roll being the Original cannot be made perfect by the Issue-Roll which was waranted by it but in regard a Verdict was given for the Plaintiff upon the Issue of Not Guilty the Court gave Judgment for him For the Declaration as Entred on the Imparlance-Roll was good enough in Substance for the Trover and Conversion being laid in the Praeterperfect Tense was before the Action brought and so the Fault in the Declaration being only in Form is helped by the Statute of Ieofails And Idem 117. Napper versus Iasper and George where Issue was taken in Trespass upon a Prescription That I. S. Prebendary of the Prebend of P. in the Church of S. and all his Predecessors Prebendaries c. had used Time out of Mind to keep a Shepherd for certain Sheep of theirs following the same Sheep for the better keeping of them feeding together in a certain Pasture from the Sheep of the Earl of S. in the same Place and the Issue was found accordingly And Moved That this was a Void Verdict for the Prescription was sensless and could not stand That the Sheep could be kept Time out of Mind from the Sheep of the Earl of S. being but one man's Life But yet the Plaintiff had Judgment according to the Verdict for the Substance of the Issue was The keeping the Prebendaries Sheep feeding together and the other part was but a Consequent of it That by that means they were kept from the Earl's Sheep Vide Stiles Rep. 206. where the Plaintiff declar'd upon an Assault and Battery in Surrey To which the Defendant pleaded Justification in Middlesex and the Plaintiff Replied That the Defendant did Beat him in Southwark which is in Surrey de Injuria sua propria absque tali Causa and the Issue was tryed by a Jury in Middlesex and found for the Plaintiff and Objected That the Trial was not good because the Venire facias was from one Place when it should have been from both for here are two Issues to be Tried and so not within the Statute of Ieofails But per Cur ' the Trial is well enough for tho' two Issues yet by Pleading they are made one and so within the Statute of Ieofails and helped by it And see Godbolt 85. where the Plaintiff declared in Account of divers Receipts and Parcels To all which except one the Defendant pleaded to Issue but for that one Parcel he pleaded nothing Whereupon it was Moved That the Plea was Dis-continued for not answering to that Parcel which Dis-continuance was not aided by the Statute of 32 H. 8. and the Plaintiff could not have Judgment according to his Declaration because of the Parcel to which no Answer was made no Judgment could be given But per Cur ' the Statute of 32 H. 8. did Extend to it for the words of that Statute are After Verdict found Iudgment shall be given any Discontinuace notwithstanding And see Cro. Part 2. 534. where the Plaintiff declar'd in Trespass Quare Clausum fregit Et alia Enormia ei intulit The Defendant pleaded the General Issue Non Culp and the Jury found 400 l. Damages in respect of the Abuse done by the Defendant to the Plaintiff's Wife and to stay Judgment it was moved that the Venire facias wanted these words Quilibet Iur ' per Pleg ' and therefore is as if there had been no Return of the Writ But per Cur ' this is not a Blank Return where no Return is at all or where the Name of the Sheriff is omitted but this is an Insufficient Return helped by the Statute of Ieofails For the Omission of the Pledges is but want of Form and not like to Hussey's Case where there was no Pledges Returned upon the Original And Idem Part 2. 353. where the Plaintiff did declare in Trespass against the Defendant for Entring his Close and House in G. To which the Defendant pleaded in Justification That the Sheriff had directed a Warrant to him upon a Capias Utlagatum to Take one I. S. who as the Common Voice went was at the Plaintiff's House whereupon he went thither in a Foot-Path through the said Close and asked the Plaintiff's Leave to Enter his House to search for the said I. S. and the Plaintiff giving him Leave he Entred the same and not finding I. S. there returned the same way The Plaintiff took Issue upon the License and had a Verdict and to stay Judgment it was Objected That there was not any Replication for the Close or any Issue joyn'd thereupon so that all was Discontinued But per Cur ' Judgment shall be given for that which is found and that which is Discontinued is helped by the Statute of Ieofails Vide Hob. 176. where in Trespass the Defendant did plead That Locus in quo no Place being assigned was two Acres called B. in L. which was his Freehold And the Plaintiff Replied That Locus in quo was a Piece of Land containing Twenty Acres Al' quam c. To which the Defendant Rejoyn'd Quoad aliquam Transgr ' in praedictis viginti Acris Non Culp ' Upon which the Plaintiff joyn'd Issue and the Verdict found for him And to stay Judgment the Defendant moved That this was no Issue for there was no Twenty Acres nor Place certain in the Declaration Yet per Cur ' the Plaintiff shall have Judgment for tho' it be not in the Declaration yet cannot be said a Departure from the Declaration for both Parties agree the Trespass to be done at L. and so no Verdict out of the Matter nor Issue but a Verdict help'd by the Statute of Ieofails And see Goldesbrough's Rep. 158. where in Trespass for Entring the Plaintiff's House and breaking his Close the Defendant pleaded That the House and Close contain'd Twenty Acres and was his Freehold To which the Plaintiff Reply'd Quod locus in quo est unum Mesuagium to which he Entitles himself and because by his Replication he only made Title to a Messuage and did not maintain his Declaration which was the Mesuage and Close Awarded Nil Capiat per Billam Quaere If this amounts to any more than a Dis-continuance of the Close only and so help'd by the Verdict But Cro. Part 2. 528. In Debt upon four Bonds for payment of Mony three of them were Tried in London in Trinity Term and the fourth at Lent Assizes after and there was not
Nov. 24. 1693. I do Allow of the Printing of this Book R. Atkyns 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 Knight Lord Chief Iustice successively of the Courts of Common-Pleas and Kings-Bench in the Reign of King Charles the First With Additions of New Matter to every Title from all the Reports since his Time LONDON Printed for Abel Roper at the Mitre near Temple-Bar MDCXCIV TO THE READER THE Author of this Incomparable Treatise made the Sentiments of the Great Littleton his Rule in Chusing that Subject He so much Commendeth in his Tenures viz. The Science of good Pleading as the most Nice and Critical Part in the Study of the Law which He hath Manag'd in such an Extraordinary Method that all Men of Sense of that Profession cannot sufficiently enough Admire and Value this His most Excellent Discourse of Pleading suitable to the Greatness of his Performance therein To do him Iustice No Person among the Writers of the Common Law hath been more happy in the Contrivance of his Design being so Concise and his Matter so handsomly Couch'd that I must beg the Reader 's Pardon if I confess it to be very difficult to Imitate him without taking up as much Time as He was pleased to allow himself which by the way was not within the Limits of my Province However I have so far taken Care to come near him that the Author himself if he were alive would not I presume altogether dislike what I have done But the greatest Obstacle I am to remove is what some Persons who have seen the Original do Object That it is only taken from the Year-Books Plowden ' s Commentaries and Dyer ' s Reports Things probably good in their Times But alas say they what 's that to the most Refin'd Polite and never enough Valued Equalled much less Out-done Reports Abridgments Tracts c. since their Times Tho' these are not wanting in our Composition I think to all this I may modestly Answer That the Year-Books are the very Foundation of the Law Plowden and Dyer perhaps Inimitable and I hope this may be further said without Offence That had it not been for the Clear Pespicuous Light of the Year-Books the later Reporters would have but grop'd as it were in the Dark and been beholden too much to that incertain Goddess Experience the Mistress of Fools as accounted by the Learned which how far Experimental Knowledge differs from Right Reason drawn by Succession of Time from the Maxims and Rules of the Ancients in all Ages I leave the Reader to guess at and if he Doubts to Consult his Coke upon Littleton W. B. MAXIMS AND RULES OF PLEADING CHAP. I. Of Counts or Declarations A Declaration is the setting forth comprizing or exhibiting in Writing the Cause of Action in any Suit or Plaint grounded upon the Common or Statute Law wherein the Party supposeth himself to be injured This hath been by some supposed in an Action Real to be most properly termed a Count but that being a Norman or Law French word is frequently if not as often used in our Books in all other Actions whether Personal or Mixt for a Declaration A Count or Declaration therefore being Terms equivocal and so used in the following Discourse ought principally to contain Three things First The Plaintiffs and the Defendant's Names which in Actions Real are called Demandant and Tenant and the Nature of the Action and this by some is termed the Demonstration or Demonstrative Part of the Count. Secondly The Time the Place and the Act in which ought to be comprehended How and in what manner the Action did accrue or first arise between the Parties When what Day what Year and what Place and to Whom the Action shall be given which is called the Declarative Part of the Count. And Lastly The Perclose or Conclusion which is Unde deterioratus est c. In which the Plaintiâ—f ought to Aver and Profer to prove his Suit and shew the Damage he hath sustained by the Wrong and Injury done unto him by the Defendant And this Definition consisting of a Tria somewhat resembling the Logical Major Minor and Conclusion some of the Ancients among whom none more fond of it than Mr. Fleetwood the Famous Recorder of London conceived to be a perfect Syllogism The Statute of 36 Ed. 3. cap. ult seemeth to help want of Form in Counts in these words By the Ancient Terms and Forms of Pleaders no Man shall be prejudiced so that the Matter of the Action be fully shewed in the Declaration and in the Writ However it was always at least so presumed by the most Eminent Pleaders and Sages of the Law by drawing this Conclusion from the words Count ne abatera pur default de Form issint que eyt Substance that is to say in English A Declaration shall not abate for want of Form so that it hath substance But Counts are more especially Relieved when defective by the Statute of 18 Eliz. cap. 14. of Jeofails after Verdict although they want Form or Agreement with the Register Note well the Statute and what Cases are remedied by the same For notwithstanding the Statute of 36 Ed. 3. before recited there is holden a Maxim in our Books That It sufficeth if a Bar be good to Common Intent but a Count in the Substance thereof must be good to every Intent And so is 3 H. 7. 11 12. where the Retorn of a Writ of Rescous was adjudged ill because the Sheriff named no Place where the Rescous was made the Retorn of a Sheriff resembling a Count which must be good to every Intent And so is 3 Ed. 4. 21. That a Declaration must be certain to every Intent And yet In some Cases a Count shall be holden good by Intendment as 3 H. 6 35. the Plaintiff in Debt did Declare upon an Obligation made at D. which extended into two Counties yet it shall be taken without other Declaration to be made in the County where the Action is laid where Note that the County is not by express Name declared And 20 H. 6. 23. the Plaintiff in Account did declare that the Defendant was Receiver until the Feast of St. Michael but shewed not which St. Michael and by Intendment shall be taken for St. Michael the Archangel
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
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
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
39 Ed. 3. 15. the Tenant in Dower did plead that the Demandant had an Eign Baron in Life Et issint nient loyalment accouple and nothing Entred but Nient loyalment accouple And so 19 H. 6. 17. if the Defendant plead Bastardy and the Plaintiff Replies that he was born in Espousals Et issint Mulier nothing shall be Entred but Mulier The like of the Pleas of Ne unques seisie que Dower Yet 39 H. 6. 9. the Tenant was admitted to plead That he Let to the Plaintiff's Husband at Will which so continued Absque hoc que seisie de tiel Estate que Dower and so may the Defendant in Debt plead Generally Non est factum or that he is Unlettered c. and so Conclude Non est factum And 11 H. 4. 83. in the like Case the Defendant did plead That the Baron of the Plaintiff nothing had but in Jointure with A. To which the Plaintiff Replied That A. did Release and the Court did persuade her to plead only Seisie que Dower And in Dower of Rent the Defendant did plead Ne unques seisie To which the Plaintiff Replied That the Rent was granted payable at Michaelmass before which day her Husband died Et issint seisie que Dower and the Special Matter ousted And 21 Ed. 4. 22. the Tenant in Dower did demand the View which the Demandant did Counterplead for that her Husband died seised and the Defendant forced to the General Issue without shewing Matter of an Especial Tail See more hereof in the Title of Traverse In the next place we shall Cite some Cases additional to the former to shew Where the Evidence doth stand with the Issue and where not For which see first 30 H. 8. Dyer 41. upon the Plea of Ne unques seisie que Dower the Defendant shall not give in Evidence an Estate upon Condition or other Estate in the Husband defeated by the Remitter of the Heir or the like And 1 2 Mar. Dyer 112. the Defendant upon Non est factum gave in Evidence That the Plaintiff afterwards pull'd off one of the Seals of the Obligation and Doubted And 3 Eliz. Dyer 192. upon the Plea of Ne unques son Baily pur Accompt render the Defendant shall not give in Evidence That according to the Bailment he did deliver the same over nor is the same Plea good before Auditors quod nota And 5 Eliz. Dyer 222. if the Defendant in Debt upon an Obligation plead the Payment at the Day he cannot give in Evidence an Acceptance of the same or other thing in lieu thereof before the day And 10 Eliz. Dyer 276. upon Nul Wast fait the Defendant shall not give in Evidence That the Premisses were amended before the Action brought and yet see before that to say they were Ruinous at the time of the Lease and the like shall be good Evidence in this Case And 10 Eliz. Dyer 272. in Debt against an Heir who pleaded Riens per discent the Plaintiff Replied Assets in London and gave in Evidence Assets in Cornwal and Doubted But clear of Assets of Goods Where 21 Ed. 3. is Vouched That where Issue is upon Tender of Homage in a Foreign County they cannot find the same Tender in the County where the Land is but may in any other Place in the same County where it is alledged to be Tendred quod nota Where it is also said that Assets alledged in Dale alibi in Com. C. all the same must be Traversed And yet 13 14 Eliz. Dyer 305. in the Case of an Obligation made in Ireland in Debt against the Obligor in London Issue was taken If the Obligation at the time of the death of the Obligee were then in London viz. in Parochia beatae Mariae when it was in the same Ward but not in the same Parish and therefore ill But see more of this in this Title in the several Titles before and after Then also further than before is declared shall be shewn What is sufficient Evidence that the Iury shall be obliged to take Cognizance of And therefore first see 9 Ed. 4. 40. where upon the Plea of Ne unques Executor if the Defendant give in Evidence a Gift or Release in a Foreign County the Jury are bound to take Notice thereof upon pain of Attaint Where said also That if the Mise be joyned in a Writ of Right the Grand Iury are bound upon Pain of Attaint to find a Release And so is 40 Ass. 23. and Brook in this Title 33. in Redisseisin because but an Inquest of Office and a Release not pleadable in those Actions But by 43 Ass. 41. a. Release in an Assize cannot be given in Evidence otherwise of a Feoffment But Littleton is of Opinion that the Jury may if they will upon the General Issue find a Condition broken or a Release as it seems that doth Extinguish Right although they may not be forced thereto upon pain of Attaint And so it appears 22 Ed. 4. 19. That in Decies tantum the Jury are not bound to find a Taking in a Foreign County although they may if they will but if they find it by Express words then the Verdict is also ill And so of Assets and such Things Transitory but otherwise of Local Trespasses And 4 Ed. 4. 1. in a Writ of Entry in Nature of Assize of Common the Plaintiff gave a Prescription in Evidence and good because in this Action as in an Assize there is no Title laid in the Count. And 7 Ed. 4. 16. where Divorce or Restore pleaded to the Writ the same may be given in Evidence And it seems by 3 H. 6. 33. That where a Matter in Law is given in Evidence by one the other may Demur Next we shall Observe What Deeds and Writings are sufficient Evidence such as the Iury are to take notice of or shall be delivered unto them First It appears 11 H. 4. 17. and there laid down as a Rule That no Deed or Writing whatsoever shall be privily or secretly delivered to the Jury that was not openly shewed And by 11 Ed. 4. 25 38. That an Office before an Escheator unless Exemplified not to be delivered to the Jury no more than a Testimonial nor by that Reason the Jury bound to Credit the same And 34. H. 6. 25. a Part of a Fine Indented unless Exemplified not to be delivered to the Jury but with the Consent of both Parties No more shall any Copies of Books by 9 H. 6. 6. But a Part of a Fine not Exemplified delivered in Evidence as in Newse and Scholastica's Case or any other Evidence that they are not bound to take notice of they may yet at their pleasure respect in their Verdict or find the same Specially But 7 Eliz. Dyer 239. doubted where the Jury may find a Private Act of Parliament not delivered to them in Evidence Exemplified or otherwise And the Matters aforesaid as it seems are no Cause to Demur
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 Replicatiâ—â— 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
plead a Recovery of Twenty Acres Inter alia ill but ought to plead That he did Recover Forty Acres whereof these Twenty Acres were parcel Nor shall he plead That I. S. was seised of Twenty Acres Inter alia and did Enfeoff him Inter alia but ought to plead as before Yet said there it might be permitted in pleading a Feoffment And the same Case of Dyve and Maningham taketh this difference between the Pleading of an Act of Parliament and a Recovery quod nota Where holden also That the Defendant in that Action could not take advantage of the Statute of 23 H. 6. being but Particular although it be touching all Sheriff's in General without Pleading but containing divers Things may well be pleaded Inter alia or so much as doth avail him And in Fulmerstons and Steward's Case there either of the Parties may take advantage by Pleading of so much of the Statute of 31 H. 8. of Monasteries But in the Case of Debt there brought by Partridge against Strange and Croke upon the Statute of 32 H. 8. of Buying of Titles holden by all the Justices except Mountague That the same being General need not Specially to be recited as to pray to be Received and to Demur Generally upon a Vouchee out of the Lieu. But by all the Iustices there the Misrecital maketh the Declaration ill For in Pleading many times a thing not Material is made Effectual And there in Debt by Stradling against Morgan a Receiver upon the Statute of 7 Ed. 6. for Taking great Fees there set down by Statute Exception was taken for not reciting the Statute of 34 H. 8. that set down the Fees And in Williams and Barkley's Case in Coke's Reports although one did but plead part of that Act which did Enable the Queen to Take yet sufficient where said That every one hath Interest in the King therefore the same is a General Act. See the like Learning in Dyer as 28 H. 8. 27. where a Condition of a Lease made to a Parson was That he should not Grant the Estate over if he will have advantage of the Statute of 21 H. 8. which Enacteth That such shall be granted their Terms over it must be Specially pleaded because Particular as a Private Custom And this Statute is but General in Particularity as a Statute that Pardoneth all that were of the Party of Richard the Third of the Statute De Medietate Linguae or if a Statute were made That Tenants for Life shall not be punished in Wast and the like And as it hath been taken of late in all Cases of Pardons by Act of Parliament if any Persons be Excepted for the same thing And Ibid. 7 Ed. 6. 83. by the Better Opinion in an Assize of Tithes given by the Statute of 31 H. 8. the Plaintiff in his Plaint need not to mention the same Statute as well in respect the said Statute is General as that it is to give Jurisdiction to the Common Law as a General Pardon by Parliament and Resembled it to the Case of 14 H. 4. were Conusance granted and after a New Action is given by Parliament the Grant shall not extend to the same But otherwise where the Action was before and other Things granted to be within the same Where said also That in Pleading a Feoffment by Cestuy que Use according to the Statute of Ric. 3. need not to mention the Statute or in Pleading a Feoffment to use at this day to say That it was Executed Vigore c. of the Statute of 27 H. 8. Or in Pleading a Devise to Recite the Statute of Wills quod nota Then How one shall Plead by a Per Nomen And First 30 Ed. 3. Fitz. Tit. Feoffments 18. One pleaded a Grant to I. S. A. sa Feme Per Nomen I. S. Uxoris ejus And 1 H. 7. 28. the Tenant in Assize did plead a Feoffment de praedicta terra per Nomen omnium Terrarum quae sibi discendebant de parte Patris and took no Averment because of the word Praedict ' And so 33 H. 8. Bro. Tit. Pleading 143. in a Praecipe de Manerio de B. the Tenant pleaded a Recovery de praedicto Manerio Per Nomen c. So if I. S. pleads a Feoffment made to him Per Nomen I. N. Where holden also That he may plead the Feoffment Generally of the same thing without a Per Nomen and the Variance in the Deed not Material But there said to be better to Plead it with a Per Nomen Touching which see more in Dyers and Plowden's Reports as namely 7 Ed. 6. Dyer 83. where in Serjeant's Case the Plaint being of a Portion of Tithes issuing out of 300 Acres in N. did make his Title in the same Plaint That Hen. 8. dedit concessit praedictam Portionem inter alia Per Nomen totius Portionis c. provenien ' de Terris Dominicalibus Archiepiscopi Eborum jacen ' in N. nuper Monasterii dudum spectan ' adtunc vel nuper in Tenura A. and did not Aver in facto That the Lands put in View were the Demean Lands of the Archbishop in the Tenure of A. and yet as there seemeth good but not for the Reason aforesaid but in respect there was other Certainty enough As 26 Ass. of a Grant of 20 Carucat ' Ligni in Bosco de D. quas habuit de dono Patris that Deed De dono Patris needs not to be shewn or averr'd because of other Certainty enough And so 2 Ed. 4. where one doth Release all his Right in White-Acre quem habuit per discensum c. Where said also That if one of the Recitals be false yet the Patent good enough because Certain in some part and then in Averring that which was false might be hurtful and that the Counsel should then deserve their Fees ill Where said also That if false in all yet the Patent good and aided by the Statutes of 34 35 H. 8. of Confirmations c. but there not stood upon but if the Patent had been of the Land which the King had by the Attainder of I. S. or in a Release in a Common Person 's Case of all such Lands as discended c. there although pleaded by a Praedict ' yet an Averment ought to be The like Learning where sufficient Certainty is in the Patent as 3 4 Mariae in Wast between Wyburn and Dorril The like in Wortley's Ejectione firmae in Plowden where the Grant was of all that his Farm in the Occupation of A. needs no Averment of the Occupation But in Throgmorton and Tracy's Case his Per Nomen must not be direct contrary or repugnant Then Of the word Continetur in Pleading First Holden 28 H. 6. 3. that to plead Quod patet by the Obligation That A. and B. was bound Joyntly ill but ought to say In facto that they were bound But 21 H. 6. 51. good Pleading of a Condition of an
8. Dyer 27. in Debt upon an Obligation brought by the Abbot of Westminster declaring the same to be made at VVestminster 10 die Novembris Anno duodecimo Henrici Octavi To which the Defendant did plead an Indenture of Defeasance not alledging any Date or saying post Confectionem scripti praedicti and the words in his Plea Eisdem die anno shall not be referr'd to the Date of the Obligation mentioned in the Plaintiff's Declaration because the Defendant is a Stranger to the same and his Adversary And further If one of the Defendants in Trespass plead a Release of the Plaintiff made after and the other plead a Release also Eisdem die Anno that 's ill And 14 H. 7. one of the Defendants in a Quare Impedit made Title as Patron c. and the Incumbent did plead That he was Presented by the other ex Causa supradicta and ill Quaere tamen And in the same Case it s said That in Pleading an Indenture he shall not need to say Prout per Indenturam praedictam plenius liquet or apparet yet he may say so if he will And so is Mich. 7 8 Eliz. Dyer 242. in Pleading an Arbitrement and likewise in Pleading the Covenants of an Indenture or a Record need not say Quae sunt omnia singula as in pleading a Condition to Enfeoff the Plaintiff of all my Lands in Middlesex c. And 19 Eliz. Dyer the Defendant in an Ejectione firmae did plead That the Lessor Devised to the Plaintiff for years and then alledged in his Plea a Custom to destroy the same and did not say in his pleading Quae est eadem dimissio and ill as it seems Quaere inde And see 29 H. 8. Dyer The Defendant in Wast did Justify the Cutting of Trees to Convert to Arable pro melioratione without shewing Quod est idem Vastum and Exception taken for that Cause And in the same Book Mich. 7 8 Eliz. Dyer 242. the Submission was touching Kelstorne and the Arbitrement was of Brokes by another Name and took an Averment That the same Place and Kelstorne being all one and ill without the usual Course Et non al' neque divers In Partridges Case in Plowden's Com. fol. 77. b. is said That Surplusage in a Plea doth not make the same ill where was pleaded the Grant of a House and ten Acres to the same appertaining And so of the word Praedict ' when the thing is not before spoken of Then ought to be observed That a man take care he Plead not his Cause but in due Time for otherwise it shall be taken for nothing For which see in Walsingham's Case in Plowden's Commentaries where before it appeared in Pleading what Estate Sir Thomas Wyat had he pleaded that Sir Thomas had Issue yet living As if one Declaring upon an Obligation doth shew That the Obligor was of full Age. The like in Pleading a Feoffment to say It was Simple and without Condition and if Issue be taken upon the same it is Mispleading and a Ieofail Then shall be shewn Where an Ill Plea may be made good by Admittance For which see first 29 H. 8. Dyer 39. In Debt upon an Obligation not Declaring at what Place and the Defendant pleaded a Release the Declaration good The like 18 Ed. 4. 17. If in Debt the Plaintiff Count in like manner of a Lease for years and the Defendant pleads Non dimisit but otherwise it would have been if he had demurr'd But more question as the Case was there in Dyer in an Appeal against an Accessary declaring his Notice in another County to which the Defendant did demur in Law For by Demurring all Matters in Fait contained in a Declaration or Pleading are Confest As if the Defendant in an Ejectione firmae will Confess and Avoid the Plaintiff's Lease by saying It was made by Tenant for Life although his Plea be otherwise apparently ill and the Plaintiff demur upon the same And see 6 H. 7. 10. where the Defendant in Trespass did plead a Concord to do Two things and pleaded the doing of One and the Plaintiff Replied Nul tiel Concord and found for the Plaintiff and yet taken to be a Ieofail by the Court For that the Bar is not good to any Intent because a Concord without Satisfaction is an apparent ill Plea in the Law And where there shall be such an ill Plea that is not good to any intent a Replication or a Verdict cannot make it good But it is otherwise where the Bar is good to some Intent and to other Intent not As in this Plea Riens entermains Iour del ' Brief Purchase or Nontenure in like form without saying Ou ne unque puis there the Replication Assets or Tout Iour del Brief and Verdict thereupon will make it good because good to some Intent Vide 12 Ed. 4. 6. where an ill Issue as Negative pregnant Double Plea or the like and found with the same is made good by the Verdict Otherwise if found against it See more hereof in the Titles of Repleaders and Ieofails as also of Verdicts And Note That the Defendant in Time may waive his Pleading and betake him to the General Issue As 34 H. 6. 29. the Defendant in an Assize did plead in Bar and although the same was Entred and in another Term yet he pleaded the General Issue And see Mich. 9 10 Eliz. Dyer 265. the Defendant did Wage his Law and at the Day would have Confest for part and Waged his Law for the rest and by the Better Opinion could not nor Waive his Law and plead to the Country without the Consent of the Plaintiff as it seems For which see more in the Title of Waiver in Brook As namely there 31 Ed. 1. The Tenant did Vouch one who was found and yet he afterwards Waived his Vouchee and pleaded the General Issue So there 4 Ed. 4. 28. touching Aid Prayer And 4 Ed. 3. 56. one that doth Counterplead the Voucher may at another Day waive the same and admit the Vouchee And see there also That he who pleadeth to the Writ or in Bar may afterwards waive the same and plead the General Issue Quaere If after Issue or Demurrer Entred For by the Book of 11 R. 2. Fitzh Issue 146. after Demurrer without Consent of the Parties the Defendant cannot waive the same and plead the General Issue And so seems 50 Ed. 3. 19. If one plead to the Writ in an Assize whereupon Issue is Joyned and Adjorn'd for Trial he cannot waive the same and Plead in Bar. Quaere If altogether in respect of the Adjornment for otherwise it were an advantage for the Plaintiff to have his Writ Confest to be good And 50 Ed. 3. 19. the Defendant in Cosinage did plead an Estoppel Judgment if the Plaintiff shall be received to say That his Father died seised and the Plaintiff did Confess
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 Annâ— 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 câ—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-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 Hobâ— 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
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
not the Plea over See 1 Cro. 247. Southby and Price's Case An Appeal of Murder was brought in A. being the next County to B. where the Murder was done the Writ shall abate For by 26 H. 8. cap. 6. Indictments may be in Counties next adjoyning but not Appeals By Yelverton 204. Bradley and Bank's Case and 2 Cro. 283. Discontinuance of Process in an Appeal is not aided by Appearance afterwards And by Yelverton ibid. Conviction with Clergy is a good Bar in Appeal And Idem 205. Non Culpabilis ad Murdrum Feloniam praedict ' is a good Bar in an Appeal of Manslaughter See Dyer 348 349. where A. Appeals one as Accessary to B. C. of D. in the County of E. who pleads Nulla talis persona in rerum natura as B. C. die impetrationis brevis nec unquam postea 'T is good tho' there be one named B. C. in another County And so it is if he were dead the Day of the Writ brought But 26 H. 6. 8. A. brings an Appeal and the Defendant pleads Nulla talis persona in rerum Natura die impetrationis brevis It seems not to be a good Plea for he should have pleaded Quod Quer ' obiit ante diem impetrationis brevis or Nulla talis persona unquam fuit in rerum Natura By Keilway 106 107. the Court will not suffer the Defendant to plead Variance between the Appeal and the Indictment and to Conclude to the Felony Vide eundem ibid. What Pleas are Peremptory in Appeals By Co. Lib. 3. fo 30. If a Stroke be struck in one County and the Party die in another County an Appeal of Murther may be brought in either of the Counties although nothing be done in that County where he died towards his Death By Co. Lib. 4. fo 47. one Appeal of Murder must be brought against all the Parties Principals and Accessories and not several Appeals and the Declaration must be against them all for the Wife brought an Appeal of Murder of her Husband against divers and afterwards brought another Appeal against others Resolved by the whole Court That all the said Appeals but the first should abate That she ought to have one Appeal against them all That she cannot have two Appeals of Death but ought to joyn all in one Writ That if one brings an Appeal of Death against divers and all but one makes Default yet the Plaintiff must declare against them all But by Keilway 83. In Murder an Appeal shall be first brought against the Principal and after that another against the Abettor So per eundem ibid. an Appeal of Robbery shall be first brought against the Principal and then against the Accessory An Accessory shall be discharged where the Principal before Judgment obtains his Pardon as appears by Co. Lib. 4. fo 43. where the Brother and Heir brought an Appeal of Murder against A. B. as Principal and C. D. as Accessory of the Death of his his Brother The Principal pleaded Not Guilty but was found Guilty of Manslaughter and had his Clergy It was Resolved in this Case 1. That the Accessory was discharged because he could not be guilty before the Fact in case of Manslaughter 2. Although the Principal was Convicted yet forasmuch as he had his Clergy before Judgment the Accessory shall be discharged So where the Principal upon his Arraignment confesseth the Felony and before Judgment obtains his Pardon the Accessory is thereby discharged Vide Cro. Car. 382 383. where an Appeal was brought against two one for Petty-Treason the other for Felony The Defendants pleaded Not Guilty the same Term in which the Appeal was Arraigned and therefore there was no other Declaration filed But if they had pleaded a Plea which was adjorned to another Term or had not pleaded that Term then it ought to have been filed And it was then agreed by the Court That the Plaintiff might take out one or several Writs of Venire facias for doubt of Challenge And see Co. Lib. 4. fo 45. That Auterfoits Indicted of Manslaughter and thereof Convicted and Clergy allowed was a good Bar in Appeal of Murder But contra if the Indictment be insufficient And see 6 Ed. 6. Dyer 88. where an Appeal is brought by a Woman of the Death of her Husband To which the Defendant pleaded Not Guilty and afterwards the Plaintiff took another Husband and it was Adjudged that the Appeal was determined by her Intermarriage See 3 H. 7. 5. where in an Appeal of Death one Challenged above 35 and had Judgment of Pein fort dure that is was Prest to Death So 21 Ed. 3. 18. Bro. Tit. Corone Pl. 43. fo 181. where one against whom an Appeal of Robbery was brought did stand Mute out of Malice and it was found by the Jury that he could Speak whereupon he was presently Condemned to be Hanged and the Appellor had his Goods But if it had been by Indictment at the King's Suit he should have had Judgment of Pein fort dure Lastly by Co. 3 Inst. 212 If the Defendant in an Appeal be Vanquished or Slain the Judgment is the same that is Suspendere per Collum And thus much shall suffice of Appeals In the next place We shall say something of Indictments and the Pleadings thereupon and what will Maintain or Quash the same An Indictment is an Accusation drawn and ingrossed in Form of Law in the nature of a Bill or Declaration against one for some Offence Criminal or Penal and presented to the Grand Jury to be Inquired of who in case they Find the same do write Billa vera upon it but otherwise do Indorse the word Ignoramus thereupon An Indictment is always at the Suit of the King so that he who Prefers it is no way tied to the Proof of it upon any Penalty except there appear Conspiracy It ought to be drawn with the greatest Exactness Curiosity and Certainty and the Day Year and Place must be sure not to be omitted Indictments are called Pleas of the Crown and are exhibited for Treason Felony Misprisions of Treason High Misdemeanors against the Common-Weal and all other Crimes which touch the Life or Mutilation of a Man and these cannot be Prosecuted in the Name of any one but the King because he only can Pardon them as Offences committed against his Crown and Dignity By Co. 3 Inst. 106 107. If any of the Grand Jury discover what persons are Indicted of Felony or Treason they are guilty of high Misdemeanour and shall be Fined and Imprisoned for thereby the parties Indicted may Escape Vide Co. 3 Inst. 230. and 4 Rep. Sier's Case where said That it is not necessary for the Coroner to set down the Day precisely in his Inquisition of Felony or Murder for if it be alledged to be a day before or after the Fact done the Jury ought to find the party Guilty and also find the Day when it was done and the Attainder shall relate to the Day found
in the Verdict And if he be found Guilty thereupon he may plead Auterfoits acquitte But if they find him Guilty generally his Feoffee or Lessee may falsify the time if alledged before it was done to their prejudice By Co. 4 Rep. 46 47. Wrote and Wigg's Case an Inquisition was taken before the Coroners of the Sejeantry and of the County concerning a Death c. at D. within the Verge and by him that pleaded a Conviction in Bar thereupon averr'd to be Indented but it not appearing to be so by the Inquisition it self it shall be intended otherwise and so the Inquisition insufficient and the Conviction thereupon void and no Bar. Vide Dyer 323. a. 323. b. where an Indictment was brought against divers for saying and hearing of Mass and every one was Fined one hundred Marks upon the Statute of 1 Eliz. where said That the word Minister includes Priest and Clerk is sufficient to prove one a Priest And where one is Convicted of three Offences upon three Indictments at one time he shall be Fined only for the first And by Popham in his Rep. fo 93. In Indictments of Iesuits upon the Statute of 27 Eliz. for coming into England mention must be made that he was born within the Kingdom of England and that he is a Iesuit but need not shew where he was made a Iesuit Vide Stile 's Rep. 245 312 324 350. That an Indictment or Information brought against Two or more for speaking Words c. may be good but in Cases of Felony a joynt Indictment against them is not good By Cro. 2 Part 479. the Court is to take notice ex Officio of all apparent Faults as Insufficiency in Indictments and toaward Supersedeas thereupon if it be found against the party Indicted without any Exception taken by him thereunto And by Dyer 367. Co. 11. Rep. 6. in Case of Indictments and Outlawries thereupon the Court may amend all Imperfections therein as to want of Form But by Stile 's Rep. 437. a Caption of an Indictment of a former Term cannot be amended in another Term but the same Term it may Then What shall be sufficient Causes to quash Indictments and what shall not See first Dyer 50. b. Co. 4. Rep. 41. a. 44. b. 47. a. 3 Cro. 739. One strikes a man in March who died thereof 15 April and the Indictment concludes that he killed him in March 'T is not good but that he killed him upon the 15th of April is But the best way is to Conclude generally and say he killed him without naming the day And Note That in an Indictment of Murder the word Murdravit supplies ex Malitia praecogitata and so doth Furatus fuit Felonice cepit But where an Indictment was That A. assaulted B. at C. ipsum Murdravit without saying adtunc ibidem it was holden to be ill for want of naming the Place for the Assault and Murder are several things and may be done at several places So an Inquisition taken by a Coroner in this Form Berk ss Inquisitio capt ' primo die Maii without saying where was Adjudged to be ill So by Co. 3 Inst. 135. if one be Indicted for Poisoning another with Rats-bane and it be proved that he was Poisoned with Cantharides it doth well maintain the Indictment because Poison is the substance of them both but killing by Weapon or otherwise will not maintain such Indictment But if the Indictment be for killing with a Sword Dagger or other Weapon it will maintain the Indictment because 't is killing under the same Clauses by Weapons See Dyer 99 a. 285 a. 370 a. where holden That an Indictment de Morte or for stealing the Goods Cujusdam ignoti is good for the party slain or robbed may not be known So Stile 's Rep. 124. an Indictment for Assaulting one Iohn of the Parish of A. omitting his Surname holden to be good as well as of Killing quendam ignotum and if he should be Indicted again under the whole Name he may help himself by Averment But by Cro. 2 Part 606. an Indictment for Striking in the Church-yard was quashed because it was Ad Generalem Sessionem Pacis tent ' apud B. not mentioning the County for tho' the County were in the Margin and so may be intended that County yet Indictments shall not be taken by Intendment Yet by Cro. 3 Part 108 an Indictment was of a Riot That he coram A. B. Iustic ' Domini Regis c. and Exception was taken to it that it should have been coram A. B. duobus Iustic ' c. But Resolved by the Court That false Latin shall not quash an Indictment where the Intendment is evident But see Stile 's Rep. 155. and Cro. 3 Part 331. contra And see Cro. 3 Part 137. an Indictment of Murder quod in Brachia sua dextra percussit held to be sensless and uncertain And so to say instanti die obiit without the word Ibidem or naming the Place where is as ill So by Co. 3. 194. an Indictment for Murder on the Coroners Inquest being quod percussit cum gladio not saying Felonice was quashed for that Reason So Idem ibid. 583. an Indictment quod felonice burglariter fregit domum was held to be no good Indictment for Burglary because it wanted the word Noctanter But by Gawdy Justice 't is good for the Felony yet because the Addition was in the Alias dictus and not in Primo nomine it was quashed as to both And Id. ibid. 920 an Indictment of Burglary was quod Burglarit fregit and Exception taken to it because not said Burglariter but Resolved to be good Yet Co. Rep. 4. 39 b. Burglarit for Burglariter was Adjudged ill So in Ryley's Case Murderaverunt for Murdraverunt held not good So Idem ibid. and Dyer 261 a. 304 b. Felonice ex Malicia sua praecogitata fregit will not serve instead of the word Murdravit for vocabula Artis are not to be supplied by words that tantamount And by Stile 's Rep. 12. the like Law is in Cases of Rape So by Cro. 2 Part fo 20. an Indictment shall be taken strictly not by Intendment and therefore to say quod Rapuit Foeminum without saying Felonice was held ill See a Notable Case in Co. 5 Rep. fo 120 121 122. where an Indictment was upon the Coroner's Inquest for Murder and Exceptions taken to it First Because 't is super Mammillam in anterior ' parte Corporis and Mamilla is spelt with a double m and so false Latin But Resolved false Latin shall not quash an Indictment tho' it will an Original but an Insensible word in a Material place may Also super Mammillam is but a Redundancy for super anteriori parte Corporis intending the Trunk was certain enough But super Caput super Faciem in dextra parte Corporis in sinistra parte Corporis super sinistram or dextram Manum Brachium Latus c. without addition
is not Secondly 'T is Dans unum vulnus for unam plagam but that was Ruled well enough Thirdly The length breadth and depth of the Wound was not shewed but because it was shewed that he was shot through with a Pistol that was certain enough for they are but set forth to shew the Mortality Fourthly 'T was said Dans unum vulnus totaliter penetrans c. and thereto Objected That it was not the Wound but the Total did penetrate but that was Ruled to be 〈◊〉 enough for the Wound went through Fifthly There wanted the word Percussit for it was dans unum vulnus without the word Percussit and for that tho' it was shooting with a Pistol the Indictment was quashed as Insufficient And see Cro. 1 Part 334. an Indictment against Two for striking in a Church where the Grand Jury found Billa vera as to or 〈◊〉 Ignoramus for the other and Exceptions taken to it First Because the Bill is laid joyntly quod fecerunt sed non allocatur for that is but false Latin which of it self shall not quash an Indictment Secondly The Bill is contra formam Statuti and yet it doth not appear by the Indictment that the striking was with a Weapon and that lies not within the first Clause of the Statute and the second Clause gives only Excommunication to the Offender ipso facto and contra formam Statut ' cannot stand in an Indictment of Battery at Common Law So Leon. Rep. 2 Part 183 184. an Indictment was upon the Statute of 5 Ed. 6. 4. for Drawing in the Church upon one A. B. without saying That he did it with an Intent to Stab him and for that Cause holden to be ill and moreover for that it Concluded contra formam Statut ' it did not appear to be like to an Indictment at Common Law See Cro. 697. acc And see Noy's Rep. 171 172 173. an Indictment for striking one in the Church-yard quashed upon two Exceptions First Because it is laid quod extraxit Gladium percussit instead of Extraxit Gladium ad percutiend ' according to the words of the Statute which are If any person maliciously Strike in the Church-yard or Draw any Weapon there with an Intent to Strike c. Secondly Because the word 〈◊〉 was omitted in the Indictment which is a Material Error because expresly named in the Statute Then For Indictments of Nusances take these Rules See Cro. 3 Part 63. where an Indictment against one for making a Nusance in the Horse-way was quashed because it was not said the Kings-way or the High-way And Note by 22 Ass. an Indictment doth not lye for a Nusance done to a partilar Place for it must be â—aid to be done to all the King's Liege-People So Idem ibid. 148. an Indictment for stopping an High-way was said to be ad Nocumentum diversorum Ligeâ—runs Domini Regis c. and quashed because too particular for that thereby only is intended a Nusance to some not all the King's Subjects So Leon. 2 Part 183 184. an Indictment was for not Repairing a Bridge where said Ita quod Ligei Domini Regis ibidem transire non possunt ad Nocumentum eorum and for that Exception was taken to it because not said ad Commune Nocumentum for when the King's Subjects are named in an Indictment it ought to be expressed to be a Common Nusance So Mich. 16 Car. 2. in B. R. Rex versus Morris an Indictment for keeping a Glass-House ad magnum Nocumentum Subditorum Domini Regis was quashed because not said ad Commune Nocumentum and Serjeant Maynard doubted if this Offence were Indictable And see Cro. 3 Part 90. Leon. 1 Part 117. and 27 Ass. 6. one was Indicted at the Assizes Quare vi armis he inclosed Land wherein others had Common and Ruled That an Indictment lies not in this Case because it is no Publick but a Private Nusance and the vi armis ill for one cannot forceably inclose his own Land Lastly it was Objected That the Indictment did not lye here because Justices of Gaol-Delivery have no power to take an Indictment of Nusance And see Bendl. Rep. 152. an Indictment was Exhibited against one for Erecting a Wear in the River W. which Concludes ad Nocumentum omnium Inhabitantium in Comitatu H. and Resolved by the whole Court tho' not said to be ad Commune Nocumentum or Nocumentum omnium Ligeorum or Subditorum yet General enough because a Nusance to the whole County of H. And see Cro. Car. 274 275. an Indictment against one Quare vi armis he burnt his own House Iones and Berkly were of Opinion That it did not lye Vi armis because the House was in the parties own possession But Croke was of the contrary Opinion and said That if a Servant runs away with his Masters Goods committed to his charge the Indictment against him shall be Vi armis And Note That an Indictment upon the Statute of Hen. 6. of Forcible Entry Quod pacifice intravit ipsum expulit extratenuit was Adjudged to be ill for want of the words Vi armis manu forti So Cro. Iacobi 20. an Indictment upon the Statute of H. 6. not shewing how the Entry was Pacifice or Falso was holden ill by two Judges And Mich. 13 Car. 2. in B. R. an Indictment upon the same Statute saying Pasifice ingressus for Pacifice and having no Manu forti in the whole Indictment was for that Reason quashed and the Clerk of the Peace fined for it So Cro. Caroli 422. an Indictment for Erecting an House upon the High-way and streightning it ill for want of the words contra Pacem Mich. 16 Car. 2. in B. R. an Indictment was against one for Seducing a Man into an ill House and cheating him of his Mony By 29 Ass. 45. an Indictment against one as Communis Latro or Common Forestaller Champertor Conspirator c. without charging the Party with some particular Fact is not good But by 30 Ass. 37. an Indictment of Common Confederacy is And by 38 Ass. 11 12. an Indictment for taking Charters of Land quashed for not setting forth what the Charters were But Pasch. 18 Car. 2. in B. R. and Roll's Abridg. 2 Part 79. an Indictment against one for being Communis Oppressor was Ruled good upon Exception but the Court was of Opinion that Communis Forstallator is not good See Mo. Case 302. touching the words Communis Fur Latro c. Pasch. 16 Car. 2. in B. R. Resolved That an Indictment lies for the Breach of a Private Statute where no particular Penalty is provided if the Statute concern a multitude of Persons so as an Action of the Case will not lye But if it concerns a Particular Person or Interest an Action of the Case lies and not an Indictment An Information is a kind of Declaration as well at the Suit of the King as the
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
Informer therefore called a Qui tam from the words in the Information A. B. qui tam pro Domino Rege quam pro seipso sequitur for the Breach of some Statute or Penal Law wherein some part of the Penalty as a Moiety or Third part is given to him and may be either by Action of Debt or Information Informations are also brought by the Attorney General only in Cases where the whole Penalty or Forfeiture is given by some Penal Law to the King Vide Co. 6 Part Gregory ' s Case 3 Inst. 43 194 223. 340 356. 15 Eliz. ca. 5. 29 Eliz. ca. 5. 21 Iac. 1. ca. 4. Cro. 3 Part 375. touching the Duty of an Informer By 18 Eliz. ca. 5. Every Informer upon Penal Statutes must Exhibit his Information in Person not by Attorney and pursue it by himself or Attorney a Note of the Day of the Month of the Entry of it must be made no Jury must be Compelled to Westminster to Try any Offence done Forty Miles off unless the Attorney General for special Reasons requires it and the Informer not to make Composition without License of the Court on pain of Pillory By 15 Eliz. ca. 5. Defendants in Informations upon Penal Statutes may Appear by their Attorneys where they are Bailable by Law or by the leave and favour of the Court. But by 31 Eliz. ca. 10. This last Act shall only extend to Natural Subjects and Denizens By the Statute of 21 Iacobi ca. 4. for all Offences against Penal Laws the Information must be laid in the proper County where the Fact was done and not to be received till the Informer hath made Oath That it was done in that very County and that within a Year before and the Defendant may plead thereto the General Issue But this Statute shall not extend to Informations touching Recusants Tonnage and Poundage Transportation of Gold Silver Powder Shot Wool Wool-fells or Leather And by Cro. 3 Part 138. Co. 3 Part 138. 5 Part 48. 583. 11 Part 65 b. 3 Inst. 141 238. Mo. Case 715. Leon. 1 Part. 292. If the Informer dies the Attorney General may proceed for the Kings Moiety after his death And so 't is if the Informer will not Prosecute any further And so if the Attorney General will not Prosecute any further or will not Reply as the Course is for him to Reply alone in these Cases the Informer may Prosecute for his Part for after the Suit begins the Informer hath an Interest which the King cannot Release or Pardon And it appears by Stile 's Rep. 329 330. where an Action or Information is tam pro Domino Rege quam pro parte there if the Judgment be Entred only for the Party 't is Erroneous And Idem 318 319. upon an Information where part of the Mony did belong to the King the Party sued Execution of all to himself the Execution was ordered to be stayed and a New one awarded and in the mean time the Mony to be brought into Court And Idem 387. an Information was Exhibited for several Things whereof some of them appeared to be done before the Date of the Information and other part of them afterwards yet all well if done before the filing of the Information and Bail upon it for then the Action begins See Mo. Cases 165. Cro. 1 Part 24. 2 Part 366 666. by Dyer where a Statute appoints the Information to be brought within a Year yet if it be brought within six years after 't is sufficient for the Party And so Cro. 1 Part 341. in Demands less than due good for the King tho' ill for the Informer And see 35 H. 6. 27. b. in an Information for Detaining the Kings Goods 't is sufficient to say That they were in his Possession without shewing how they came as it must be in Trover or Detinue by a Common Person See Noy's Rep. 118. where the Defendant pleads to an Information upon the Statute of 23 H. 8. for selling Beer without License that there is another Information depending in the Exchequer for the same Offence 't is a good Plea if there be no Covin in the Case and if there be the Informer may set it forth in his Replication Mich. 22 Car. 2. an Information was brought in the Kings-Bench against one for being Perturbator Pacis Communis Oppressor and for that he took unreasonable Distress of divers of his Tenants after Verdict Judgment was staid for Three Reasons First Because not said which of his Tenants Secondly For that Information lies not for unreasonable Disterss but Action upon the Statute of Marlbridge 43. Thirdly Because Communis Oppressor and Perturbator Pacis are words too General to ground an Information upon So Hill 15 16 Car. 2. an Information was brought in the Kings-Bench against one for using the Trade of a Draper and Ruled to be ill for two Reasons First Because not saying it was a Trade at the time that the Statute of 5 Eliz. was made Secondly Because it wanted the words Contra pacem But Mich. 24 Car. 2. in B. R. an Information That diversis diebus vicibus between such a day and such a day the Defendant did such Offences held good tho' in a Criminal Case A TABLE OF THE CHAPTERS And Their CONTENTS CHAP. I. p. 1 Of Counts or Declarations A Declaration what ibid. Of the formal parts of which a Declaration ought to consist p. 2 Counts shall not abate for want of Form so that they have substance by the Statute of 36 Ed. 3. cap. ult ibid. p. 3 And Counts when defective Relieved by 18 Eliz. cap. 14. of Ieofails ibid. Contra per Maximi for a Count in Substance must be good to every Intent tho' it sufficeth that a Bar be good to Common Intent p. 3 Tho' a Declaration must be certain to every Intent yet in what Cases it shall be holden good by Intendment ib. 4 Vide Chap. 8. of Intendment p. 207. A Declaration shall not abate for Surplusage p. 4 But a Blank or Space in the Declaration shall abate the same ibid. Either Anno Domini or Anno Regni only may be mentioned in the Declaration according to the Specialty ibid. In Debt against the Ordinary or against a Gaoler the Plaintiff needs not declare how they were made Officers because an Action lieth against Officers in possession p. 5 Where a Condition contained in the Obligation is to the advantage of the Plaintiff there he must declare thereof Otherwise if it be to his disadvantage or contained in the Condition of the Obligation ibid. Of Declaring upon Indentures of Covenants ibâ—d Of Declaring in Annuity pro Consilio impenso impendendo by a Counsellour Attorney c. or by a Special Officer as a Keeper Baily Steward c. and the difference Ruled therein ib. 6 In Formedon the Plaintiff may Declare of a Gift without Seisin otherwise in a Bar p. 6 Where two Defendants and the one appears and the Plaintiff Counts