Assises 1. accordingly The Bailiff shall have any Challenge to an array and to the heads 9 H. 7. fol. 24. and Abridgment book of Assises fol. 48. the same The Bailiff may plead non-tenure or mis-naming of the Plaintiff but not of his Master and conclude if c. 22 H. 6. f. 44.9 H. 7. f. 24.26 As 61 Bailiff may plead that the Tenements are in another Town for that is an abatement 9. H. 7. fol. 24 Abridgment Assise f. 47. and 6 H. 7. f. 15. accordingly but 22 H. 6. fol. 50. seems contrary but a Bailiff cannot disclaim but an Atturney may 13 Ed. 3. Tit. 8. Bailiff pleads out of his Fee Judgment if without specialty c. and he cannot have that at this day but in 2 Ed. 3. Tit. 10. he hath this Plea for the Bailiff cannot have any Pleas but where he may conclude over and if it be not found no wrong no disseisin c. see the Abridgment book of Assises fol. 47. and 2. Assise 4. Bailiff may plead ancient Demesne and conclude if it be not found c. and conclude to Assise otherwise Bailiff cannot plead ancient Demesne for that that it is triable by the book of Doomes-day and for that he cannot conclude Judgment if the Court will acknowledge Abridgment booke of As f. 48. and 9. book As 2 see 6 H. 7. fol. 15. Bailiffe may plead that the Plaintiffe is seised the day of the Writ purchased and every other exception tryable by Assise 9 As 4. Bailiffe cannot plead that the Writ is purchased hanging another Assise nor not attached by fifteene dayes for it is tryable by the Record Abridgment of Assise fol. 48. 8 As 2. and 8 Ed. 3. As 40. Bailiffe may plead that his Master is Parson of D. not naming Parson and if it be not found no wrong c. 12. As 4. Bailiffe may plead misnaming and joynt-tenancy without Deed 6 H. 4. fol. 15. and 8 H. 6. fol. 56. Bailiffe cannot plead Excommunication or outlawry in the Plaintiffe for he cannot plead a Dilatory Plea unlesse it be tryable by the Assise and that he may conclude and if it be not found no wrong no disseisin 5 Ed. 4. fol 113. Bailiffe may plead not attached by fifteen dayes Abridgment of Assise fol. 47. Pleas of the Disseisor THe Disseisor may plead release of actions personalls in barr but not release of actions realls for none shall plead that but the Tenant Litt. fol. 115. The Disseisor may plead that the Demandant hath entred hanging the Writ notwithstanding that he goes to the Tenancy and the reason which is there made is for that that such Plea goes to excuse him of damages And note that there it appeares also that the Disseisor shall plead every barr unlesse sach a Barr which goes to the Tenancy or to extinguish the right of the Plaintiffe in the Land as if he pleads release of all actions personals or that the Plaintiffe hath entred hanging the Writt that he may plead but he cannot plead release of right made to the Tenant of the Land nor other plea which goeth to the Land but he shall plead every plea to the Writ which doth not extend to the tenancy as if he had no Tenant named in the Writ or no such in Rerum natura and misnaming of the Plaintiffe or of himselfe 35 H. 6. fol. 13. Contrary 37 H. 6.3 by Choke Therefore inquire The Disseisor shall not plead any plea to the Tenancy which the Tenant by his admittance hath made good 26 Book of Assises 49. Disseisor cannot plead in abatement that the Plaintiffe hath a Writ of an older date hanging against him 45 Ed. 3. fol. 25. and 23. Ass 14. Disseisor cannot plead ancient Demesne without taking the tenancy upon him 21 Ass 2. Disseisor cannot plead Record or Estoppell for by the sayling of the Record he cannot loose the Land 20 Ed. 3. Brook Assise 403. Disseisor shall plead misnaming of the Plaintiffe and also that the Plaintiffe is covert of Baron and if he alleadge outlawry in the Plaintiffe he ought to have the Record in hand and note that the Disseisor in proper person or by Attourney and not by Bailiffe pleads that the Plaintiffe hath another Assise hanging against him as it appeares 8 Ed. 3. Ass 140. See 28 Ass 38.24 Ass 91. and this seemes by the Statute of Westm 2. chap. 15.19 Ass 10. and 20 Ed. 3. Ass 20. Disseisor may plead entry of the Plaintiffe after the last continuance and joynt-tenancy for he may plead all Pleas which excuse him of damages or which are in barr which doe not extinct the right of the Land 35 H. 6. fol. 16. Disseisor may plead outlawry in the Plaintiffe that is where the Tenant hath not pleaded and admitted the Writ 29 Ass 61. and 20 Ed. 3. Ass 20. It is sayd by Babington That a Disseisor can not plead any plea in barr but no wrong or that it ariseth to so much 2 H. 6. fol. 1. Pleas by Tenant Where after a Bailiffe hath pleaded or the Tenant himselfe and the Assise upon that adjourned or award or hath imparled the Tenant cannot plead new matter unlesse it be matter of a later time or a matter following or a matter upon which may have Certificate or the generall Issue THe Tenant pleads to Assise by Bailiffe and the Assise awarded the Tenant can plead no plea in barr afterwards but such upon which he may have Certificate of Assise 10 H. 7. fol. 12. 8 Ass 17. The Tenant pleads by a Bailiffe and the Assise remaines for default of Jurors and now the Tenant comes in proper person and saith The Plaintiffe hath received the Tenements of him hanging the Writ and hath let to him for yeares and hath for that he cometh in of later time 10 Ass 24.18 Ed. 3. fol. 33. If a plea be pleaded and the Justices dye all shall be pleaded anew but if they be at Issue that shall stand 5 H. 7. fol. 7. b. by Hussey After adjournment upon the Plea of the Bailiffe the Tenant may plead matter which comes of later time 18 Ed 3. tit 33. The Tenant himselfe after the Assise awarded may leave his barr and plead the generall Issue but he cannot plead a new barr after Issue 34 H. 6. fol. 10. and 29. 40 Ed. 3. fol. 48. b. The Tenant pleads in Barre and after the Jury hath the view and he leaves his Barr and pleads to the Assise 34. H. 6. fol. 29. abridg Assis fol. 138. Where they are adjourned upon a point certaine he cannot plead new plea afterwards unlesse pursuing as if the Tenant himselfe before adjournment had pleaded speciall Bastardy he may plead afterwards generall Bastardy 42 Ed. 3. fol. 12. After adjournment upon a Plea in barr certaine he cannot plead new plea in barr but onely the generall issue 8 As 10. and 10 Ed. 3. tit 157. and 44 Book of Ass 1. Where they are adjourned upon a Plea in abatement and after the
Writ is awarded good he may afterwards plead in barr 6 Book of Ass 1. Infant in Assise pleads Ontlawry of Felony in Barr and at another day was suffered to plead Release of the Plaintiffe in Barr 14 Ass 15. Assise the Tenant pleads in Barr and the Plaintiffe joynes Issue and the Court doe not take the Assise the same day and the next day the Tenant cannot change his Plea 11 H. 4. fol. 2. b. Where the Tenant pleads to the Assise by a Bailiffe if his Master have a Release or a Writing of which the Jury cannot have notice then if the Assise passe against the Bailiffe yet the Master shall have Certificate upon this Writing the same Law is if the Verdict be not well examined by the Justices and see more there Fitzherbart fol. 181. b. The Tenant pleads in Barr a Deed of the Ancester of the Plaintiffe with warranty and the Plaintiffe makes Title and afterwards he cannot plead in abatement that the Lands were in another Towne for that that the Assise was awarded 10 Edw. 3. tit 157. and 1 Ass 17. The Tenant pleads in Barr and the next day pleads by a Bailiff to the Assise and may for that the Assise was not awarded Abridg. As f. 47. Where the Assise was awarded upon the Plea of the Bailiff at another day after the Tenant comes and pleads Release and hath it for that he may have Certificate Abridgment As fol. 138. The Tenant may relinquish his Barr and plead the generall Issue otherwise it is in Cosenage Grand-Father and great Grand-Father but he cannot plead a new Barr 40 Ed. 3. fol. 49. Ass Assise the Tenant pleads in Barr the Deed of the Ancester of the Plaintiff with warranty and the Plaintiff makes Title and after the Tenant waives the Barr and pleads in abatement that the Lands are in another Town and cannot 1 Book of Assises 17. Assise If a Plea be pleaded and the Justices dye all shall be pleaded a new but if they are at Issue they shall stand 4 H. 7. fol. 7. Where in 〈◊〉 Assise a man shall have diverse Pleas to the writ and conclude over no wrong no Disseisin and where not NOte that the party himself or his Bailiff may have diverse Pleas where one is not contrary to the other concluding over no wrong as if he plead mis-naming of the Plaintiff if it be not found no Tenant of the Free-hold named in the Writ and if it be found no such Town and such like and notwithstanding and if it be not found no wrong for one is not contrary to the other but if he will say that the Tenements are in another Town and if it be not found no Tenant of the Free-hold named in the Writ and if it be not found no wrong these Pleas he shall not have for he shall not plead no Tenant of the Freehold named in the Writ c. And after say the Tenements are in another Town Note though the book at large be if it be found leaving out this word Ne yet the book of Entryes is if it be not found and so it seems in reason that it shall be as above if it be not found c. 36 H. 6. fol. 1. Where one pleads to a Writ and also in Barr what Barr is that which doth not go to the point of Assise scilicet no wrong but it is a Barr out of the point of Assise in such a case he shall not have both the Pleas for by such Barr the Plea to the Writ is waived as in an Assise of Rent the Tenant pleads wrong naming of himself and if it be not found out of his Foe he shall not have these two Pleas 3 Ed. 3.15 Tit. 172. Tit. 223. It seems if the Tenant plead in abatement of the Writ he shall not plead over to the Assise if his Plea to the Writ be not triable by the Assise 22 Book of Assises 14. In an Assise of Rent the Bailiff pleads mis-naming of the Town and if found not so c. That another is Tenant of the Rent not named for this is not contrary and it seems that in an Assise of Rent the Tenant of the Land may say that the Land whereout c. is in another Town and if found it be not that he hath a taker of the Rent not named contrary it is in an Assise of Land 15 Ed. 3. Tit. 55. In Assise by a Master and his Brethren of the fraternity of nine orders of Angells in he County Middlesex Defendant plead no such corporation by this name in this County and if it be not found not wrong he shall not have them both for the first Plea is in Barr and shall not have Barr and generall Issue 22 Ed. 4 fol. 34. Assise of Lands in Woxbridge the Tenant pleads that they are in Collam and not in Woxbridge and if it be not found no wrong and he hath 11 H. 4. fol. 2. b. It is said that in an Assise the Tenant or his Bailiff may plead tewnty severall matters in abatement or to an Assise and conclude if it be not found c. and is good 1 Ed. 4. fol. 4. and 8 H. 6. fol. 9. Where the Assise shall be awarded at large that is to say in point of Assise that is to say to inquire of Seisin and Disseisin and where in Right of Dammages and where not ASsise the Tenant pleads in abatement that the Plaintiff hath received the Land of him hanging the Assise and that he hath let to him for yeares again and the Plaintiff saith that he hath continued his Estate which he had by Disseisin without that that any Estate present of him he take and the Assise was charged upon the point and over upon the Seisin and Disseisin 10 book of Assises 24. If the Tenant plead in Barr and the Plaintiff makes title and the Tenant doth not traverse that the Assise shall be awarded at large 45 Ed. 3. fol. 24. Where there is a good Barr pleaded and an outing is confessed and the Barr is traversed or if the Plaintiff make Title and that is found for the Plaintiff or if there be an ill Barr pleaded that the Plaintiff need not answer but say come the Assise upon the Title and it is found for the Plaintif in all these cases the Plaintif shall have judgment without inquiring of Seisin and Disseisin 6 H. 7. fol. 2. Where the Plaintiff makes Title at large without answering to the Barr and the Tenant do not traverse this Title he shall not answer to that as that confessed and avoided or without saying let the Assise come upon the Title but let the Assise run without any thing saying to the Title there the Assise shall be taken at large and not upon the Title as in the Assise the Plaintif makes Title at large and in the end saith and this he is ready to aver by Assise and the foresaid tenant likewise the Assise shall be taken at large the reason
life by Deed and I deliver it out of the view and no livery of seisin that he is but Tenant at will by Newton as it is sayd before 18 H. 6. fol. 16. Note where a Deed shall enure as a confirmation without Livery of Seisin and where not A Lease for yeares is made and after the Lessor makes a Deed by I have given granted and confirmed to the Lessee to him and his heires and deliver to him this Deed this is good without livery 22 Ed. 4. fol. 37. and 19 H. 6. fol. 44. the same If I let to one for yeares and after make to him a Deed by I have given and granted to have the Land for life or to him and to his heires and deliver to him the Deed he hath an Estate according to the Deed without livery and seisin the same Law where a Disseisee makes a Deed by I have given to the Disseisor and delivers to him the Deed as before is sayd Lit. fol. 121. Feoffment to diverse and livery to one where both take and where not and where one makes a Letter of Attorney by words is not good A Man makes a Feoffment by Deed to twenty and delivers the Deed and Seisin to one in the name of all this is good to them all but if he enfeoffe twenty without Deed and Delivers seisin to one in name of all this is good to him onely Time of H. 8. Br Feoffment 72.15 Ed. 4. fol. 18. and 10 E. 4. fol. 1. by Choke Tenant enfeoffs the Lord and another and makes livery to the other nothing vests in the Lord without his agreement 10 E. 4. fol. 12.6 E. 4. fol. 4. Where a Corporation and another are enfeoffed livery to one is not good to both for that that they take in Common and for that livery shall be to both of them 7 H. 7. fol. 9. by Hussey Attorney by word cannot make livery 19 H. 8. fol. 9. by Shelley and Englefeild A man enfeoffe foure by Deed and one makes letter of Attorney to J. S. to take seifin for him and the rest and he takes seisin accordingly the residue take nothing by the seisin 17 H. 8. Br Feoff 67. Mortdancester Many times Mortdancester is brought of Copy-hold Land and for that some thing shall be said of Mortdancester and it seemes if the Tenant traverse one point of the writ the residue shall not be inquired Contrary is by 9 Ed. 3. fol. 30. Fitzh Mortdancester 13. IF one takes Issue upon one point and found against him the residue shall be held confessed 27 H. 8. fol. 12. and 39 Ass 13. But Abridgement of Assise fol. 120. If the Tenant plead in Barr which is found against him the Assise ought not to inquire of the points at large Mortdancester If the Tenant traverse one of the points of the Writ as to say that he is not next heire and is found for the Plaintiffe there he shall not inquire of other points for when one point is traversed all others are in manner acknowledged otherwise it is where he acknowledgeth no point as pleading that the Plaintiffe is a Bastard there they ought to inquire of the residue of the points Statham 35 E. 3. If the Tenant traverse one of the points of the Writ the remainder shall be held not gainsayd by Sharde 14 E. 3. tit Fitzh 8.33 E. 3. Fitzh 34. accordingly Abridgement of Assise fol. 118. The points of the Writ are three that is First if the Ancestor of the Demandant was seised in his Demesne as of fee the day that he dyed Secondly If he dyed seised within fifty yeares last past Thirdly If the Demandant be next heire The Tenant saith that the Ancestor of the Plaintiffe did not dye seised in fee and the Assise charged upon all the points 9 Ed. 3. tit 13. and 9 Book of Assises 14. according B. 21. If the Tenant plead in Barr without that that the Father of the Demandant dyed seised if that be found against him the points of the Writ shall not be inquired but if he plead to the Writ it is otherwise 27 H. 8. fol. 12. by Fitzherbart Where the Tenant traverseth one of the points of the Writ and the Assise is awarded and found for the Plaintiffe he shall not inquire of the other points but shall be taken confessed Abridgement Book of Ass fol. 118. If the Tenant pleads Feoffment or Surrender he ought to traverse the dying seised IF the Tenant pleads matter in Deed as Feoffment of the same Ancestor they ought to traverse the dying seised but if hee plead recovery this is a Barr unlesse the Tenant convey title afterwards 6 Ed. 4. fol. 11. Mortdancester Natura brevium 119. By Thorpe Feoffment of the same Ancestor is no Plea in Barr but to the Assise for the Action is taken of dying seised after that is to say The day that he dyed or not 34 Book of Assises 20. Where there shall be a re-summons and where the Assise shall be awarded upon default and the points shall be inquired THe Tenant was Essoyned and at the day made default and re-summons was awarded and sayd that it ought 8 Book of Assises 13. Inquire Fitzh fol. 196. G. The Tenant was effoyned and at the day made default and adjudged that the Assise shall be taken by his default and that resummons shall not be but immediately after Summons 4 H. 7. f. 23. and 4 Ed. 2. Fitzh 37. A man cannot recover by default in this Writ without inquiring of the points of the Writ 31 Ed. 3. Tit. 58. Abridgment Book of Assises f. 119. The Tenant makes default by which resummons went out upon which he comes and pleads and doth not answer to the default Where it is found against the Tenant upon Plea which trencheth to the action the points of the Writ shall not be inquired otherwise it is upon a Plea in abatement see 39 Book of Assises 13. and 29 Book of Assises 48. Mortdancester If the Tenant plead non-tenure of parcell to the Writ and if found c. And is ready to heare the Recognisance of the Assise the points shall be inquired 20 Book of Assises 19. and 4. Ed. 2. fol. 39. Mortdancester the Tenant saith that he is ready to heare Recognisance of Assise the points inquired 12 Ed. 3. f. 10. If the Tenant plead non-tenure of parcell he ought to plead over to the Assise that is to pray that the Points be inquired 12 Book of Assisee 8. and Abridgment Book of Ass fol. 122. See there Where Mortdancester lyeth IT lyes for the Heir where his Father Mother Brother Sister Uncle Aunt Nephew or Neece dieth seised of any Lands of an estate in Fee and an Estranger abates there the Heir shall have a Mordancester and when his Father were seised and disseised the day that he dyed yet it lyes Fitzh fol. 195. C.D. If Tenent by the Curtesie alien the Heir shall have Mordancester unlesse he hath assets by him And if a
of a Jury and say that you ought not to take this Inquest notwithstanding this Statute Conspiracy against two one in the year 42 Edw. 3. hath pleaded to the Jury and the other 43 Edw. 3. pleads in Abatement and now in 48 Ed. 3. the first takes Nisiprius and cannot have it before the Court be advised if the Writ be good for though that the other hath accepted the Writ good yet if the Writ doth not lye in the case the Writ shall abate against one and the other by 43 Ed. 3. f. 10. The same Law notwithstanding the Statute of 32 H. 8. aforesaid Debt against two Fxecutors one comes at the Pluries and pleads fully administred and after comes the other by Exigent and pleads to the Writ that 3. others are Executors which have administred not named Judgment of the Writ and for that that the Plaintif hath replyed that the two alone are Executors the Defendant for that may plead this matter in arrest of taking of the first inquest upon the first Issue for by the replication to the second Plea he hath waived the advantage of the first plea where it was sufficient for all by reason of the Statute which wil that he that first shall come by distresse shall answer 7 H. 4. f. 12. Brook Executors 46. and this is good at this day notwithstanding the Statute aforesaid of Jeofailes Severall Tenancy SCire facias of a Fine of Rent Service against many Tenants one saith that The came to a House parcell of the Tenements whereout the Rent in Demand is supposed to be Issuing by it self without that that the other have any thing Judgment of the Writ and that another holds four Acres parcell of the Land whereout the Rent in demand is supposed to be issuing by it self and it is good 5 H. 5. f. 4. otherwise it is of a Rent-charge Scire facias against J. S. J. D. and three others J. S. saith that he and one of the three held parcell joyntly and that the Ancestor was dead day of the writ purchased Judgement of the VVrit and J. D. saith he held another parcell in Fealty Judgement of the VVrit and the VVrit brought against them in common was abated 38 Ed. 3. f. 20. And note also severall Tenancy of parcell shall abate all the VVrit 19 Ed. 3. tit 18. 27 H. 8. f. the last 20 Ed. 4. f. 8. Precipe against two of sixteen Acres of Land one takes the Tenancy of twelve Acres without that that the other hath c. and vouches and the other takes the Tenancy of the residue without that that the Plaintiff ought to maintain his VVrit 41 Ed. 3. f. 20 the other severall Tenancy shall abate the Writ 28 Book of Ass 25. That he which pleads several Tenancy may vouch or plead over in Barr and not conclude to the Writ See Br. title Breife 141 and 13 H 6. f. 26. Assise severall Tenancy is no plea and the same Law in other actions where no land is demanded in cercaine 24 H. 8. tit 18. But see 21 H. 6. f. 57. and 30 B. of Ass 24. Dower severall Tenancy shall abate the Writ â—9 Ed. 3. Brook 30. otherwise it is in Assise 15 Ed. 2. tit 1. 14 Ed. 3. tit Breif 276. It seems that non-Tenure and severall Tenancy in Nuper obiit against 3 is no Plea 7 H. 6.8 See 13 Ed. 1. tit 3. Fitzh fol. 197. D. F. Quid Juris clamat against three which plead severall Tenancy and it was said that it behooveth that the Plaintif should maintain his writ so he he did 12 Ed. 3. tit 9. Mortdancester against 3. which say that they are Tenants in severalty Judgment of the VVrit And for that that the Assise found that one of them was Tenant in severalty the Writ abated 8 Ed. 2. tit 2. In Per quae servitia Severall Tenancy is no plea 12 Ed. 3. tit 15. 32 Ed. 3. tit 7. Scire facias against two one makes default and the other pleads severall Tenancy in abatement and cannot for that Seisin is to be awarded of half 42 Ed. 3. fol. 8. See â— Book of Assises the 16. Precipe against two one takes the Tenancy upon him without that that the other hath anything and the other saith nothing the Plaintiff need not to maintain his Writ 37 H. 6. f. 16. 18. Entry in the quibus against two one pleads severall Tenancy and also over in Barr and the other pleads in the same manner and the Plaintiff need not to answer to the Barr be it good or not but he ought to maintain his Writ for one ought not to recover upon an ill Writ 12 H. 6. f. 4. He which pleads severall Tenancy without that that the other named with him hath any thing he need not conclude to the VVrit but vouch or plead in Barr but the Demandant shall not answer to the Barr nor to the Voucher but ought to maintain his VVrit that they are Tenants as the VVrit supposes 19 H. 6. f. 14. Traverse Where he ought not to traverse and where he ought then what thing in the Plea shall be traversed BY Hussey in Precipe if the Tenant plead that the Land is ancient Demesne and pleadable by a small VVrit of Right close and he need not take Traverse that it is not frank fee for that that the VVrit is but a Supposall 5 H. 7. fol. 13. And in Mortdancester Tenant pleads Joynt-tenancy with the Father of the Demandant and it is good without Traverse that he is sole Tenant for that that this is but a Supposall and by Tremail fol. 14. of his Horse taken the Defendant saith that J. S. sold the Horse to him in an open Market or that the Horse was waived or VVreck or such like there he need not traverse for that that this is matter in Law and if he takes Traverse he waives that matter in Law 5 H 7. f. 6. accordingly 2 Ed. 4. f. 9. Plowd 23. A. By Hussey Fairfax where a matter indeed is alleadged by way of Bar or in Covenant then this ought to be traversed in every Case unless it be for the mischeif of Trial as special Bastardy is alleadged without Traverse it is goood for mischief of Triall 6 H. 7. f. 5. otherwise it is of matter of Supposall and in Assise the Tenant pleads a Feoffment of J. S. the Plaintiff saith that this was upon Condition and that J. S. entered for the Condition broken and infeoffed him and so he confesseth and avoids and for that he ought not to traverse and in Precipe quod reddat against J. S. he shall say that he held ioyntly with J. D. not named in the VVrit and take no Traverse for that that it is but a Supposall and in Trespasse of Goods taken the Defendant saith they were the Goods of J. S. which made him and the Plaintif his Executors the Plaintif saith that the Testator devised that after his Debts and Legacies
as above so it shall be done as it seems where the Title is no Title at large but such which confesseth the Barr and avoides it and so it is held by Sharde 28 Assise 24. Contrary Law is if the Plaintif in his Title traverse the Barr and the Tenant letâ— the Assise â—un there the Assise shall be taken to inquire of the thing traversed and also his Title as it appeareth 26 Ed. 3. fol. 61. And the reason of this seems to be for that that in Assise the Plaintif shall not be received to traverse the Barr without making Title and so the Title there materiall and so note that the Assise shall not be awarded at large but in such a case where the Title is not materiall 45 Ed. 3. fol. 24. When the Assise is taken at large if they finde another Title the Plaintif shall recover and the Assise if they will may inquire only of Seisin and Disseisin without being charged or compelled to finde any Title as in Assise nothing is pleaded but no wrong here the Assise may finde Title if they will or otherwise say nothing but of Seisin and Disseisin and also note that in these cases before the Assise is awarded at large without inquiring of the Barr. And the reason is that that which is the Barr is waived the same Law is where the Barr is not good and the Plaintif makes Title accepting the Barr 28. Assise 17. If the Barr be ill pleaded and the Title good the Assise shall be awarded in point of Assise and not upon the Title for if it be pleaded ill on the part of the Defendant the Assise shall be awarded in point of Assise that is to say of Seisin and Diffeisin 35 H. 6. fol. 54. By Fortescue and 33 H. 6. fol. 40. by Littleton The tenant pleads for rain Release and it is found against him notwithstanding the Deed of the Plaintif now the Assise shall be awarded in right of the Dammages for an outing is confessed implicatively by pleading a Release 23 Ass 11.8 Ass 15. but 30. Ed. 3. Fitzh Ass 100. The Assise shall be taken at large The Tenant pleads Deed of the Ancestor of the Plaintif in Barr and found false by which it was inquired only of Dammages 17 book of Assises 13. The Tenant pleads forrain Release in Barr upon which they were adjourned and the Defendant makes default by which the Assise was awarded at large see 26 book of Assises 30. 30 Ed. 3. Tit. 100. and 17 book of Assises 31. Notwithstanding it seemeth where an outing is confessed directly or impliedly and found for the Plaintif the Assise shall be awarded to inquire of Dammages and not upon the Seisin or Disseisin only If the Tenant plead a dying seised and doth not acknowledg an outing Seisin and Disseisin shall be inquired 8 H. 4.51 When an Infant brings an Assise and the Tenant pleads a Deed of his Ancestor then the Assise shall be awarded to inquire at large Natura brevium fol. 169. In point of Assise it is when the Tenant pleads no wrong no Disieisin and out of the point is properly when the Tenant pleads forrain Release or for rain matter triable in another County and in right of Dammages is when the Tenant acknowledgeth over and pleads matter which is found against him or acknowledgeth over or demurrs in Law and that is adjudged against him now the Assise shall be taken in right of Dammages 15 Ass 3.18 Ass 8.23 Ass 36.26 Ass 41.28 Ass 15.28 Ass 14.17 b. If the Tenant plead Release and the Assise found for the Plaintif the Assise shall be awarded in right of Dammages the same Law is if the Tenant plead Record and faile of that the Assise shall be awarded in right of Dammages 8. Book of Assises 10. The Tenant pleads forrain Release by which they were adjourned in Bench and found not his Deed and the Plaintif release his Dammages and hath Judgment forthwith 6. book of Assises 4. The Tenant pleads forrain Release in which are witnesses and Processe was awarded against the witnesses which make default and the Assise was awarded in point of Assise 18 book of Assises 8. Where the Tenant pleads a Record and failes of that by the Statute of Assise shall be awarded in right of dammages 27. Ass 1.17 Ass 2.13 Ass 15. and 16. and 23. Ass 3. Note that in Assise where the Plaintiff makes Title at large without answering to the Barr and the Tenant do not traverse the Title nor answer to it as to confess and avoid in saying comes the Assise upon the Title and lets the Assise run without saying any thing to the Title there the Assise is taken at large and not upon the Title as in Assise the Plaintif makes Title at large and in the end saith he is ready to affirm this by Assise and the aforesaid Tenant likewise 28 Ass 24. If the Tenant acknow ledge an outing in his Plea the Assise shall be awarded in right of dammages 1 H. 6. fol. 5. 6 E. 6. fol. 418. Assise against two if one take the Entire tenancy and plead in Barr and the other make also Plaintif choose his Tenant the same Law if one plead no wrong and the other plead a Barr without that that the other hath nothing and every one take the Entire Tenancy In Assise against many where the Plaintiff ought to choose his Tenant at his perill and where not ASSise against two if every one of these take the whole Tenancy and severally plead in Barr to the whole Tenancy the Plaintif ought to choose his Tenant at his perill but if one plead in Barr and the other knowledgeth the action or saith nothing it is otherwise 33 H. 6. f. 36. and 37. Assise against two it seems if one plead in abatement and the other in Barr if the Plaintif mischoose his Tenant it is not materiall but he shall answer to the Plea in abatement but diverse seem the contrary and it seems if both plead in abatement he ought to choose his Tenant at his perill see 8. book of Assises 1. and 44 Ed. 3. fol. 23. Assise against two each takes upon him the whole tenancy and pleads in Barr the Plaintif mischoose his tenant and was barred by opinion 20 booke of Assises 4. Assise against two one takes the tenancy and pleads no wrong and the other takes the tenancy without that that the other hath any thing and pleads in Barr there the Plaintif shall be constrained to choose his tenant at his perill as well as if both had pleaded in Barr and had accepted the tenancy severally and if it be found that he mischoose his Tenant the Writ shall abate but he shall not be barred 9 Ed. 3. Tit. 384. The Plaintiff was admitted to choose his Tenant after adjournment 23 Ass 16. Assise against two each takes his tenancy and pleads it seems here that the Plaintiff at his own perill shall choose his tenant and that shall be first inquired
no Mortmain Non-Tenure In so much that you sue here plaints for Coppy-holder and make protestation in nature of what Writ serves your case and many times non tenure in them is pleaded let us see where non tenure is a Plea or is a plea of parcell and not of all NOntenure is no Plea in a Nuper obiit for it is to try privity of blood 7 H. 6. fol. 8. Fitzh fol. 197. D. F. accordingly but abridgment Ass fol. 120. Non-tenure is a good Plea in Mortdancester If one plead Ancient Demesne he cannot afterwards plead Non-tenure for none may plead ancient Demesne but the Tenant 41. Ed 3. fol. 22. If one plead Non-tenure of parcell he ought to shew that he is Tenant of that But if he plead Non-tenure of al otherwise it is 8 Ed 4. fol. 6.11 H. 4. fol. 16. and 36 H. 6.6 Non-tenure is no Plea in Scire facias to have Execution upon a Fine 7 H. 4. fol. 12. Generally Non tenure is no plea in Scire facias to have Execution for that that nothing in that is demanded but Execution is demanded only But it seems one may plead speciall Non-tenure as to say that he was a Disseisor and the Disseisee hath entered upon him 7. H. 6. fol. 16. Cessavit and counts that the Tenant held a house of him by fealty and suit of Court he may deny that he is no Tenant of the whole house for he cannot tender the whole arrearages without his companion and goes in abatement of all Rast Non-tenure 1. But Non-tenure of a parcell in a Precipe shall not abate for all 21 Ed. 4. fol. 25. Non-tenure of parcel shal abate all the Writ by the Common Law and now by the Statute but for the parcell 36 H. 6. fol. 6.18 Ed. 4.41 Ed. 3.20 4. Ed. 4.33 Littleton fol. 126. Formedon If the Tenant plead Non tenure Judgement shall be that the Tenant shall go without day and after such judgment the Demandant may enter 26 H. 8. fol. 3. Attaint He which was party to the first Record cannot plead Non-tenure by Hare but his feoffee may 21 H. 6. fol. 62. Attaint against him which recovers and the petty-Jury and he saith that he was not tenant day of the Writ purchased and held good 6. Book of Assises Attaint against J.S. upon a verdict which passed for J. S. in a Writ of Entry upon disseisin and notwithstanding that J. S. pleads as Tenant yet for that that he was not Tenant day of this attaint nor ever after the Writ shal abate by Non-tenure 14 Book of Ass 2. Attaint Non-tenure was good but it was pleaded there by the Heir or other person against whom the recovery was Fitzh fol 107. L. Attaint Non-tenure hath been admitted a good Plea divers times 8 Ed 4.20 A man recovers in Court Baron in right and the other brings false judgement and recovers that and in Scire facias to have Execution he which first recovered pleads speciall Non-tenure to stay Execution and said that he shall have it 9. H. 5. fol. 11. Scire facias to have Execution if the Tenant pleads Non-tenure specially That is that he hath nothing but for years the Plaintiffe shall not have Execution at his peri II. Nuper obii In so much that Nuper obiit is a Plaint sometimes by Copi-holder of that in Court Baron something shall be said of that and where it lies and where not IT appears it lies where Lands discends to Coparceners and after the death of the Ancestor one enters into all and deforceth the other as where Grandfather Father Brother Uncle or other Ancester die seised of an estate in Fee and after their death one of their Heirs enters and deforces the other Coparceners here the Coparceners deforced shall have a Nuper obiit against the other Coparcener which deforceth them And if one Coparcener be deforced by the other Coparcener and a stranger she shall have a Naper obiit against her Coparcener and this Jointenancy shall not abate the Writ And this Writ lieth as well between Coheirs in Gavelkind as between women which are Coparceners if one deforce the other Fitzh fol. 197. A. C. Nuper obiit lieth between sisters of the half blood 3. Ed. 1 Tit. 5. Fitz. f. 179. G. Nuper obiit is maintainable where her Ancester was carried out of the same tenements the day before his death against his will by the other Coparcener and dies out of the same tenements 4. Ed. 2. Tit. 10. Fitzh 197. L. Nuper obiit lieth of a Corody 16. Ed. 2. tit 11.10 Ass 11. Br 3. Fitzh 179. If there be two Coparceners and one of them marries a Villain and the other deforce them the Villain and his wife shall not have a Nuper obiit 16. Ed. 3. tit Fitzh 17. Officer Where your Officer or Sheriffe shall be punished for executing of Processe as trespassor and where not and how he ought to carry hemself in executing Processe OFficer shall be punished in trespasse that by Fieri facias out of any Court breaks the door of a house to do execution and for that only not for taking the goods in execution 18. Ed. 4. fol. 4. It is held that an Officer cannot break the close to make a Replegiare where there is a gate unless that that be stopt the same Law is of executing Processe out of a Court Baron 21. H. 6. fol. 30. Where one is indicted of trespas and Capias awarded or a Commission to take the party indicted and he shuts his gates there the Officer may break the gates unlesse he may otherwise come to take him for this is for the King otherwise it is to execute Processe out of a Court Baron 27. Book of Assise 35. Where erronious Judgment is given in any Court the Officer which doth the execution is excused Contrary where the Court gives Judgment of Land or contract which lieth out of their jurisdiction for their trespasse or Assise lies against the Officer 22. Ass 64. Plowden 19â— There is also a Diversity where in Court Baron Judgment is given that is void or voidable for where judgment and execution is there of a thing whereof they have no jurisdiction there trespasse lies against the Officer for executing it but if Judgment be there but erronious and so not void false judgment lies and no trespasse against the Officer Plowdens Com. 394. contrary Law Where an Officer by commandment of a Bishop arrests one for holding an opinion that he would not pay Tithes false Imprisonment lies The same Law where a Justice of Peace laies his command upon one out of the Sessions without other matter and for that is Imprisoned Where one by a Capias out of the Court Baron arrests one false Imprisonment lies against the Officers 10. H. 7. fol. 17. It seems if the Sheriffe arrest one by a Capias awarded against him out of the Common Bench where there is no Originall yet false Imprisonment doth
in Maintenance if he justifie he shall say he shall say without that that he maintained in other manner 32 H. 6. f. 1 Trespasse of Assault and threatning the Defendant saith that the Plaintiff called him Traitor and he said thou lyest in thy throat it is no Plea for he doth not confesse any threatning 37 H. 6. f. 3 Conclude Order and form how one ought to conclude in his Plea WHere to a Bar there ought to be a Reply the Conclusion of his Plea shall be and this he is ready to prove c. and where but ready that so there it is otherwise 33 H. 6. f. 21 12 Ed. 4. f. 13 the same As in Dower the Tenant pleaded not ever seised that Dower he ought to conclude and of this he puts himself upon the Country for no Reply shall be but ready that so Where the Defendant pleads to the Issue the conclusion shall be and of this he puts himself upon the Countrey and where the Plaintiffe pleads to the Issue he shall say and he desires that this may be inquired by the Countrey 26 H. 8. f. 4. If one plead a Plea which is not traversable as no wrong or generall Issue or Record as Outlawry he need not in his conclusion averr his Plea that is and this he is ready to prove c. 36. H. 6. fol. 17. When the Defendant justifies he ought to conclude and this he is ready to prove c. and when he pleads the generall Issue he need not 6 H. 4. fol. 18. and the Book of Entries fol. 152. the same Quare impedit If the Defendant plead that it is incorporated by another name Judgement if Action this conclusion is not good but he ought to conclude Judgement of the Writ 26 H. 8. fol. 1. â—nd 4 H. 6. fol. 27. Where the Defendant saith that the Parties to the Fine have nothing but one such a one whose estate he hath he ought to conclude and this he desires may be inquired by the Countrey and the aforesaid Plaintiffe likewise it shall be entered for here needs no Reply but ready that so as above 12 Ed. 4. fol. 13. Debt upon Obligation the Defendant saith that it was endorsed upon Condition to perform Covenants of an Indenture and that part was read and part not and that he was a man unlearned there he ought to conclude Judgement if Action the same Law is where he saith it was made by constraint or that he was under age or that it was delivered as an Eserow 7 Ed. 4.3 B. he ought to say Judgement if Action 14 H. 8. fol. 30. Debt upon obligation to plead payment and delivery of that in place of an Acquittance he ought to conclude judgement if action but if he avoid that for that it is raced or interlined there it shall be concluded not his deed for where a Deed is void he ought to conclude not his Deed and where voidable or matter in Law judgment if action 1 H. 7 f. 14. Debt upon Obligation to say he is a man unlearned and this was read to him to be with Condition and so this Obligation being single is not his Deed 7 Ed. 4. fol. 5. 15 Ed. 4. fol. 17. 16 Ed. 4. f. 1. the same 9 H. 5. f. 15. and 3 H. 6. fol. 52. Debt upon a Lease to plead payment in another County or levyed by Distresse without concluding and so he ows him nothing is good 9 Ed. 4. fol. 57.3 H. 7. fol. 3. and 33 H. 6. f. 4. the same but levied by Distresse or payment in the same County is not good without concluding and so he owes him nothing Debt for Wages upon a Bargain to plead payment in the same County and conclude and so he oweth him nothing is good 40 Ed. 3. fol. 24. Debt upon a Lease by Indenture for the defendant to plead payment in the same County it is no Plea without concluding and so he oweth him nothing to the point of the Writ 1 H. 5. fol. 6. Where he ought to conclude and so not his Deed. DEbt upon a single Obligation the Defendant saith that he is a man unlearned and this was read to him with a Condition and so not his deed 1 H. 6. fol. 3 H. 6. fol. 38. Debt by a Husband and his Wife of an Obligation made to them the defendant being Executor J.S. pleads Release of the Husband made to him and the Release was of all actions and demands as Executor and all actions personalls and other demands and the Plaintiffe saith that he is a man not learned and it was read for Actions as Executor and so not his deed and good See 3 H. 7. fol. 5. and 19 H. 8. 1 H. 7. fol. 14. If the defendant confesse that once by his own Plea his deed he cannot afterwards conclude and so not his deed As if an Infant makes a deed or a man by constraint if he plead these matters to avoid that he cannot conclude and so not his deed but where an Obligation is void he ought to conclude and so not his deed as where an Obligation is made by a married Wife or a deed raced or interlined 1 Ed. 3. fol. 5. the same Where he ought to conclude according to his matter pleaded LIttleton f. 39 Six manner of men are against which if they sue Actions Judgement may be demanded if they shall be answered in the Conclusion of his Plea and first if he say that the Plaintiff is his Villain he shall say Judgement if he shall be answered second is outlawed third is a stranger born fourth is one attaint in a Premunire fifth is professed in Religion sixth is excommunicated the Defendant may plead these and demand Judgement if the Plaintiff shall be answered 34 H. 6. fol. 9 If the Tenant plead Joint-tenancy or other Plea in Abatement he ought to conclude Judgement of the Writ and where one pleads in Barr he ought there to conclude Judgement if Action 49 Ed. 3. f. 24 Account of Receit in C. the Defendant saith that C. is within the five Ports Judgement if the Court will acknowledge it and so alwayes to the Jurisdiction that is Conclusion as Parson sue for Tithes c. In divers Cases they ought to conclude in the Negative where so to the Affirmative pleads that his Plea is but as an Argument and not full Answer and also to make the matter in Law plain SCire facias against a Parson of Arâ—erages of an Annuity the Defendant pleads that before the Writ purchased he resigned and so not Parson and it is good 7 Ed. 4. fol. 16 10 H. 7. f. 4 Said in Debt upon a Lease for the Rent behinde if the Defendant pleads Payment in another County this is good without concluding and so he owes him nothing c. But if he plead Payment in the same County it is no Plea without concluding and so he owes him nothing 9 Ed. 4. f. the last 9 Ed. 4. fol. 15 Debt
and by some if he mischoose his Tenant the Writ shall abate 8 Ass 1. Assise against two one pleads that he is a Villaine of J. S. and the other by Bailiff plead to the Assise and the Plaintif chose him which pleads by Bailif to the Assise for his Tenant and pray the Assise and he comes and pleads in Barr and was suffered the same day 22 book Assises 7. Assise against an Infant and two others where each one severally takes the whole tenancy upon him and pleads in Barr the Plaintif shall choose his Tenant at his perill and he chooseth the Infant for the Tenant and the Tenant and they found the Infant Tenant and the two others Disseisors also and the Plaintif recovers but it seems there if he mischoose his Tenant the Writ shall abate and for that that the Diffeisin was made to the use of the Infant which did not enter and is Tenant only by agreement for that it seems it is here an Errour to adjudge the Infant Tenant which had nothing but by agreement to the Disseisin 3 H. 4. fol. 16. If the Plaintif choose one to be his Tenant of all which is not tenant the Writ shall abate Abridgment of the Assises fol. 41. B. By Fortescue in Assise against two one takes the tenancy severally and pleads in Barr the Plaintif shall not answer to their Pleas in Barr nor to none of them but first shall choose his Tenant then after may the Plaintif answer to his Barr sufficiently in time and if he ill choose his Tenant the Writ shall abate Abridgment of the book of Assises fol. 116. a. Returne of Assise against J. S. Pledges to prosecute Adam Clarke David Parke THe within named J. S. is attached by one Oxe of price twenty shillings The Rest of the execution of this complaint and before the Justices of Assise and of this Writ doth appear in â—â—â—ertaine Scedule annexed to this Writ J. D. Esquire Sheriffe The Pannell THe recognition of an Assise of novell Disseisin betwixt J. D. Plaintiffe and J. S. Deforceant of a Freehold in D. and then the names of the Recognitors follow and afterward The sum of the Jurors aforesaid and every of them John Hart. Richard Smart Manucaptors summoners of the aforesaid Jurors and every of them John Doo Christopher Croo. John Den. Richard Fen. This by Plowden Com. fol. 37. Ass 12. What is a good Title in Assise for the Plaintiffe and what not TEnant plead in Barr it is no title for the Plaintif to say that he was seised tell by the Tenant disseised and traverse the Barr without conveying unto him possesion by title before his possesion as by feoffment or otherwise 27 H. 6. fol. 2. Tenant pleads a feoffment made by J. S. to him and gives colour Plaintif saith that J. D. levied a fine upon release to him and it is not good but to say that he was seised and levied a fine otherwise the title is good so if he be intitled by feoffment or recover of a stranger he shall say for title that the stranger was seised and infeoffed him 10 H. 6. fol. 22. Where the Barr is materiall as diffent feoffment of Ancestor the Plaintif with Warranty Recovery Fine c. Plaintif shall not make title at large but ought in his title answer the Barr as confesse and avoid or traverse it but where it is a Barr at large he may make title at large without answering the Barr 34 H. 6. fol. 46. 35 H. 6.67 and the book of Entries 120. 5 H. 7. fol. 29. Where the Barr is not sufficient the Plaintif may demur and need not to make title and where the tenant in his Barr gives sufficient title to the Plaintif Plaintif need not make title as if the tenant saith that his Father had him eldest and the Plaintif youngest Plaintif may say that the tenant is a Bastard without making title and is good 20 H. 6. f. 38. and 39. Where the Plaintif makes title at large the tenant may say come the Assise upon the title and is good 15 H. 7. f. 13. The tenant pleads that he recovered against J. S. and the Estate of the Plaintif mean by abatement upon J. S. hanging the Writ Plaintif saith that long time before the Writ that he himself was seised and good without shewing how he came to it for the Defendant hath given to him possession seek 9 book of Ass 10. The tenant pleads feoffment of the Grand-Father of the Plaintif with Warranty Plaintif saith that his Grand-Father was seised and he as Cosen and Heire to him entered and is good without shewing how his Grand-Father came to it see 10 Ass 23. 9 Ass 11. The tenant pleads one Barr the Plaintif intitles himself by release with collaterall Warranty and it is good 17 Assise 18. 38 H. 8. Tit. 3.26 Br. Tit. Traverse P. 26. if the tenant plead that his Father was seised in Fee and by protestation died seised it is said that the Plaintif may make title by a Stranger without that that the Father of the tenant was seised in Fee 5 H. 7. fol. 29. Where the Barr is materiall the Plaintif shall not make his title at large without answering to the Barr but in Assise 34. H. 6. fol. 24. 11 H. 7. fo 28. If the Barr be ill the Plaintif may pray the Assise without title 6 Ass Tenant pleads Fine of an Ancestor of the Plaintif to which the Plaintif saith the same Ancestor had but for life the reversion in him and that he entred by forfeiture and good without shewing how he hath the reversion Nat. Bre. 109. If the tenant pleads Plea in Barr and the Plaintif makes him title and traverseth the Barr although the title of the Plaintif be false yet the tenant shall not have advantage to take the Assise upon the title but he shall be driven to maintain his Barr otherwise it is where the Plaintif makes him title and doth not answer the Barr. Abridgment of book of Ass fol. 81. VVhere the title is found for the Plaintiffe and there is no Disseissor the VVrit shall abate The tenant saith that J. S. held the Land of him and died without Heire by which he entred as in his Escheate and gives colour c. the Plaintif faith one H. enfeoffed him and it is no title for he ought to answer to the Barr as well as where the tenant makes title by discent 27 Assise 71. Assise of Rent it is no title to shew that J. S. granted to him the Rent by Deed or by Fine but he ought to shew how the Rent began that is to say If it be a Rent charge or a Rent service or a Rent Seck 31 Ass 16. Assise the tenant pleads in Barr feoffment of the Father of the Plaintif with warranty and the Plaintif saith that his Ancestor died seifed and this discended to him and allowed by Scroope without shewing how he came to that afterwards 10 book Ass 23. VVhere the
yet the Land shall be ancient Demesne as it was before By Knivet Fine levied in ancient Demesne is nothing worth for it is no Conrt of Record but common recoveries are used there to cut off an intaile 50 Ass 9. No Land may be pleaded there by right close and not else where How Land in ancient demesne is made frank Fee for a time and how for ever DUring the time that Lands in ancient Demesne is in the hands of the King it is Frank Fee but if the King grant that over to hold of the Mannor againe it is ancient Demesne againe 21 Book of Ass 13. If Recovery or Fine be in Common Bench of Land in ancient Demesne the Land is Frank fee till it be defeated by the Lord by Writ of Deceit and when that is defeat it is void to bind the parties 8 Ed. 4. fol. 6. See 3 H. 4. fol. 6. accordingly If the Tenant in ancient Demesne enfeoffe his Lord of the Mannour being common person and not King the Lordship is Frank see for ever 9 H. 6. fol. 24. B. 3 H. 4. fol. 16. the same Where the King gives Land of ancient Demesne to hold in Franke Almaigne that is Franke fee 6 H. 4. fol. 2. Where a Fine is in common Bench of Land in ancient Demesne is Frank fee so that after if a Recovery of that be in ancient Demesne it is void and before not a Judge 7 H. 4. fol. 3. B. 7 H. 4. fol. 29. the same If the King was once seised of Land in ancient Demesne and lett that for life it is Frank fee for the time 11 H. 4 fol. 84. Where Land in ancient Demesne is forfeit to the King by attainder and the King grants that over to another and his heires now they are Frank fee for ever 13 H. 4. fol. 7. Where a Fine is levyed of Land in ancient Demesne in the Common Bench the Lord may defeat that by a Writ of Deceipt and yet if he to whom the Fine was c. hath a Release with confirmation of the party made after the Fine his Estate is good notwithstanding that the Fine be defeated Fitzh 98. a. The Lessor by his confirmation to his Tenant may make the Land in ancient Demesne Frank fee but if he confirme to hold by meaner services it is no Frank fee 30 Ed. 3. fol. 16. Where Land in ancient Demesne Escheats to the Lord for that that the Tenant dyes without heire generall or speciall are Frank fee for ever for he holds them now of the Lord Paramount 18 Ed. 3. fol. 19. If the Tenant in ancient Demesne answer the action in Precipe in the Common Bench yet it is no Frank fee before Judgement given 2 Ed. 4. fol. 26. The Lord by his confirmation may alter the tenure but not the estate of the Land where he confirmes to hold at the Common Law 49 Ed. 3. fol. 7. Fine at the common Law recovery or where he is in by the Kings Charter or by feoffment of the Lord these prove the Land frank Fee and not ancient Demesne Fitzh fol. 13. C. If the King be seised of Land in ancient Demesne this is Frank fee but if the King demise it to another the Land is ancient Demesne again 17 Ed. 3. fol. 52. A man recovers in ancient Demesne Lands which were at the common Law against a man by Verdict of a Jury and he against whom the recovery was brought an Assise upon that and awarded that he should recover Seisin 30 Ed. 1. Tit. Assise 379. Note the tenure and tryall of ancient demesne and who shall plead ancient demesne LAnds which are ancient Demesne are Soccage Fitzh fol. 11. Tenants in ancient Demesne are those which hold of the Mannors which were in the hands of Saint Edward the Confessor at the time that the Book of Doomsday was made but the Lands written in that Book to be in other mens hands are not ancient Demesne Fitz. 16. E. All the Lands which were in the seisin of Saint Edward the Confessor when the Book of Doomsday was made are called ancient Demesne and the Lands in other hands c. Frank fee Natura brevium fol. 14. If the Land be ancient Demesne or not shall be tryed by the Book of Doomsday 49 Ed. 3. fol. 22. In Monstraverunt Assise The Tenant pleads that the Land was ancient Demesne and it was tryed by Assise in the Book of Notting and also North. 8 Ed. 2. Statham fol. 20. Triall of ancient Demesne is by the book of Doomsday and by that it was certified that London was not ancient Demesne 7 H. 6. fol. 34. In Assise of Mortdancester ancient Demesne was tried by the Country 8 Book Ass 35. 9 Book Ass 9. the same In Assise the tenant saith that it was parcell of the Mannor of B. which is ancient Demesne and the other saith that it is not parcell and upon this at issue and that was tryed by Assise 12 Book of Assises 18.22 Book of Assises 45. the same Assise none shall plead ancient Demesne but he which is Tenant and not the Disseiâ—or 21 Book of Ass 2.41 Ed. 3 tit 22. the same If Land be in the book of Doomsday written under the Title Land of the Bishop and not Land of the King yet though it be in the book of Doomsday it is no ancient Demesne 40 Ed. 3. fol. 45. Form of Pleadings that the Land is ancient Demesne and how he shall sue for ancient Demesne and for Copy-hold in ancient Demesne BY Prisot he which pleads ancient Demesne shall say that the Land is held of the Mannor of D. which is ancient Demesne and pleadable by a petty VVrit of Right close from time out of minde and demand judgment if the Court will acknowledge 36 H. 6. fol. 18. 3. H. 6. fol. 48. But see by Thirne and granted that frank Fee may be held of a Mannor of ancient Demesne 11 H. 4. fol. 85. Precipe the Tenant saith that the Land was parcell of the Mannour of D. which is ancient Demesne and pleadable by petty VVrit of right close time out of minde and demand judgment if the Court will acknowledge and it is no Plea for the Demandant to say to that that it is frank fee for that that it doth not gainsay but that the Mannor is ancient Demesne and that this is parcell but he ought to plead specially how it is become frank fee 41 Ed. 3. f. 22.12 Book of Ass 16.22 Book of Ass 45. Right close lieth alwaies between Plow-holders and no Plow-holder may implead another Plow-holder of Lands in ancient Demesne unlesse by this VVrit and shall make in this his protestation to sue in nature of what VVrit he will as his case is Nat. Brevium fol. 11. They call Tenants in ancient Demesne Sokemaines Britton fol. 105. Copy-holder of base Tenure shall not have a Right close but ought to sue by Bill in the Lords Court but copy-holder in ancient Demesne of free-tenure
they shall plead speedily from day to day so that it may be pleaded and determined before the King depart out of the limits of the same Verge where the trespasse was done and if they cannot be determined within the limits of the Verge the Pleas there shall cease and be determined at the common Law and the Steward shall not take conusance of Debt nor of other things but of such persons only which are of the Kings House nor shall hold any other Plea by obligation and if they do any thing against this Ordinance let their doing be held for nothing see Fitzh 241. B. D. 10. H. 6. fol. 13. Action was brought upon this Statute for that the Defendant impleads the Plaintif in the Marshalsey for trespasse whereof one nor the other was of the Kings House and there it is granted by the Court that of trespasse within the Verge one or the other shall be of the House as well as of action there upon other contract Seek for it seems otherwise by the words of the Statute and it is used now the contrary diversity of Courts agrees as above see the title of 38 Brook 7 H. 6. f. 33. A VVrit was sued upon the Statute Articuli super Chartas Ed. 1. chap. 3. That none shall be impleaded in the Marshalsey if one party were not of the Kings House there did aver the Defendant vext him c. the other saith no such record Brook tit Action upon the Statute 38. That the Marshalsey shall not hold Plea of Contracts unlesse as well the Plaintif as the Defendent are of the Kings House for if it be otherwise the Defendant may plead to the Jurisdiction and if the Plaintif remove out of the Kings Service hanging the Plea the Defendant may plead that and abate the Jurisdiction and the Plea contrary if the Defendant remove out of the Kings Service and there it was held though the trespasse made within the Verge lie there between any though they be not of the Kings House contrary of Debt and Covenant and therefore seek of action upon the case there between strangers upon Assumpsit for it seems that it is a Contract 6 R. 2. Tit. 49. Br. Action upon the Statute Debt upon Recovery of Dammages before the Marshall in an action of Covenant before the Marshal that is a good Plea to the Jurisdiction that none of the parties was of the Kings House at the time c. For the Statute of Articuli super chartas cap. 3. will as above and therefore it is coram non Judice if it be otherwise 19 Ed. 4. fol. 9. By Littleton and not denied where one is out-lawed in the common Bench without Originall it is not void but errour but Judgement given in the Marshalsey between parties which are not of the Kings House is voide for they have no power to hold the Plea and if execution of that Judgement be sued the other shall have trespasse upon it Then for that that the Statute of Articuli super chartas aforesaid limits what actions shall be sued in the Marshalsey it seems that information upon penall Statutes shall not be sued there for the Attorney of the Queen nor informer shall not inform there and this is no Suite between the parties that the Statue of Artic. provides and they are no such actions and for that Mr. Poole Steward there did well to reiect the informations of penall Statutes aforesaid out of the Court and in this Court and the Court of Pipowders the Suite is J.S. complaines against J.D. and your information is Memorandum that such a day J.S. came here into the Court c. And gave the Court so to understand that c. And there is another form and where there are diverse Statutes which gives liberty to sue for penalties in any Court of Record of the King by expresse wordes yet it was never seen in any suite by information for such penalties in the Chancery Court of Wards Court of Requests for suits there are by English Bills and matters of conscience and Leet is a Court of Record of the King and yet no information shal be there and so it seems in a Court of Pipowders they do not use in these Courts English nor in Leet where the matters are by presentment of the Jury to be informed there nor in Court of Pipowders unlesse the Lord hath the panalties by the Kings Grant for in these Courts the attendance of the Kings Attorney is not requisite and who shall account and pay the King his halfe in these Courts and for that it is hard to sue information there see 44 Ed. 3. Tit. 1. Action populer B. And though that some Statutes by expresse words are That it is lawfull to sue for these penalties of Statutes in any Court of the King of Record this is to be intended in such Courts which have been used as in the Common Bench the Kings Bench the Exchequer and for that the Statute of Acton Burnell fol. 136. is That where an Extent upon a Statute Merchant is found too high it is forthwith that the extenders shall answer for this is to be intended at the day of extent and not forthwith 2 H. 4. fol. 19. So this is taken by intendment as above 8 H. 4. fol. 11. Also the Statute of Donis condicionalibus the letter is That Fine by Tenant in taile in right is nothing for that is to be taken as wise men have taken it that is to say That the Issue in taile be put to a Formedon and cannot enter 11 H. 6. fol. 19. Also the Statute of the yeare 8 H. H. 6. chap. 10. is That upon Indictment shall goe two Capias and Exigent and that the second Capias shall be with Proclamation at a place which hath addition If he be Indicted in another County then where he dwells and it be not so the Outlawry shall be void and this is taken by this Booke of 11 H. 6. fol. 19. It shall be avoided by Writ of Errour and not voyd according to the expresse words of the Statute Also it is not used where Faires or Markets are granted to grant to the Lords of that forfeiture of penall Statutes that that is not granted to the Steward and Marshall and for these causes Informations shall not be sued there Customes It is sayd that the fifth ground of the Law is particular Customes and for that Custome is inquirable by the third Article Doctor and Student fol. 20. And for that it is expedient to say some thing of Customes and first to write such Customes to you which I have seene allowed between Copy-holders within Mannours where I have been at Courts FIrst Heire Custome of some Mannor is that the youngest Son or Daughter of the first Wife being marryed a Virgin ought to inherite Custome of some Mannor is Dower That the Woman being espoused a Virgin shall have all the Copy-hold whereof the Husband dyed seised for her frank bench but
six English men otherwise the Jury shall not be taken and so shall be Tales of that 4 Mar. b. Tit. Jurors 8. Jury tooke a Writing of the Plaintiff which was not delivered to them in Court and passed for the Plaintiff and for that that this matter appeared to the Court by examination therefore the Plaintiff shall have no Judgment 35 H. 8. B. Tit. Replead 54. It was in use in the Kings bench though that the Jury was ready to passe there if there be a Jeofaile apparent in the Record the Jury shall be discharged 26 H. 8. f. 6. Jurors after they are in the House return to heare evidence again upon matter which they were in doubt of and may 14 H. 7. f. 1. The Jury eate and drink before the Evidence finished or after they are agreed depart and drink before Verdict they shall be Fined and the Verdict is good but if he eat and drink after evidence given and before they agree the Verdict is void And it seems that this matter shall be shewed when the Jury comes in to give their Verdict and shall be examined and not after And it seems that the Jurors may depart asunder by cause of great tempest of a House falling or fire where they are Execution For that that execution is used in many Court-Barons by Levari facias let us see what Goods upon that may be taken in Execution and what not and the order of execution GOods pawned shall not be taken in execution for the Debt of him which pawned them during the time they are pawned 34 H. 8 Pledge 28. and 4 Ed. 6. Distresse 75. Where A. lets Oxen for time and after A. is condemned these Oxen during the tearme shall not be taken in execution 22 Ed. 4. f. 10. Debt in Court-Baron the Plaintiff recovers by Judgment and shall have execution and the Beasts of the Defendant were taken and delivered to him in Execution 33 Ed. 3. Tit. Execution 133. In Debt where three are bonnd joyntly and severally and hath of those three severall Judgments and if Execution be against one the other shall have a supersedeas but in trespasse against three Execution against one doth not suffice and the same Law is in a ioynt Debt 4 Ed. 4. fol. 39. By Fieri facias or Levari facias the Officer cannot break the Doore nor Chest to take Goods in Execution for if he do trespasse lies against him for the breaking only 18 Ed. 4. f. 4. 13 Ed. 4. fol. 9. by Choke notwitstanding 8 Ed. 2. Tit. Executors 152. contrary If one recovers in Court-Baron he shall not have execution by Eierifacias nor otherwise but may distrain the Defendant after Judgement and detaine the distresse in their hands in safegard till the Defendant hath satisfied the Plaintiff of the condemnation 22 Ass 72 Statham 11 Ed. fol. 93. Nat. Bre. fol. 165 and 4 H. 6. fol. 17 action Bailiff in Court Baron cannot sell the Goods in execution but shall restraine them as distresse notwithstanding where it is used to make Levari facias it is a good custome and note that it is used in many Mannors that the goods are praised and execution made of them by Levari facias 22 Book of Ass 72. A Writ of Execution Judicii lieth where Judgement is given in a Court-Baron upon a Writ of right patent or in debt or trespasse and the Bailiff will not make execution this Writ lieth as well as it lieth where Judgement is given in a Court of Record and the Sheriff will not make execution and if he will not levy the execution upon the Goods it was in vaine to award this Writ Fitzh f. 20. A. Capias doth not lye in Court-Baron and for that the Capias to satisfie doth not lye to have execution and Elegit doth not lye there c. for this is given by the Statute of Westm 2. chap. 18. 29 H. 8. Tit. Execution B. 132. Two are bound in an obligation joyntly and severally if he sue one and takes his Body by a Capias to satisfie yet he may take the other but if one satisfie him the other may plead that 37 H. 8. Tit. condition B. 16. One taken by a Capias to satisfie is in execution though that be not returned 13. H. 4. Tit. Avowris 237. One avowes for that that J. S. was seised of a place where c. And let that to the Plaintiff for life rendring Rent and after J.S. grants the reversion to B. who was bound in a recognsance to the Avowant and that the Avowant hath that Rent delivered in execution and good 15 Ed. 3. Tit. Execution 93. Rent was delivered in execution upon a Recognisance time of Ed. 1. Title Audita querela 402. If the Father be bound in a Recognisance and dies and his Issue within age the Execution shall not be against him for if it be he shall have an Assise Time of Ed. 1 Tit. 417. If a man takes a Wife and after be bound and dyes the VVife is indowed if she be outed by extent she shall have Assise 29 H. 8. Tit. Stat. Merchant 40. If one sue Execution upon a Statute and he accept part of the Land in name of all he shall not have extent of the residue but it seems upon a Nihil returned upon the Testatum he may have processe into another County 2 R. 3. f. 8. Statute Staple was certified by the Maior of the Staple and the Conisee upon that sues a VVrit to take the Body and to extend his Land in Suff. and Middlesex only and this VVrit was not returned and by Certiorare he caused the Maior to certifie the Statute again and upon that he hath a VVrit of extent in ten Counties but not in Suff. and Middlesex and this VVrit is not returned and he hath the third Certificate and the third VVrit of Extent into six Counties but not in Suff. and Middle and now hath his Extent and hath Land that the Cognifor hath in right of his VVife which died and for threats durst not take the profits of the residue and by all the Justices the Cognisee shall have a Capias into the County where he took his first Writ and not otherwise that is into the County of Suff. and Middlesex only upon the fourth Certificate and upon that the Conisor found suerties to the King and party according to the Statute 11 H. 6. chap. 10. He shall have a Scire facias against the Conisee to prove the matter in his VVrit and to be at the Judgment in the Court and if he faile of any he shall forfeit his Recognisance 2 R. 3. fol. 9. If the Conisee of a Statute dies his Executors or Administrators if he dye Intestate shall have execution upon it without suing Scire facias or that the Conisor cannot have any Plea although he have a deed of Release but if he have a Release he shall have an Audita querela or a Scire facias and so it is where one
Ed. 3. f. 14. Conspiracy in the nature of an Action upon the case was brought against three which conspired to make one of them Attorney for the Plaintiff and to plead as they pleased and so to cause the Plaintiff to be found a Villain to one of the Defendants and it lies 26. Book of Assises 62. 47 Ed. 3. f. 15. Action upon the case lies in nature of a Conspiracy for that the Defendant procured and caused a false Office to be found by which the Mannour of the Plaintiff was seised into the Kings hands Tit. Conspiracy 8. B. See 27. Book of Assises 73. Fitzh 114. D. 43 Ed. 3. f. 20. Deceit for that the Defendant procure J. S. to bring a Formedon against the Plaintiff by Collusion by which he was travell by the Suit and brought a Writ of Warrantia Chartae in defence of that and it lies Where an Action upon the Case lies for a thing pawned and for a thing borrowed and where not ACtion upon the Case doth not lie for riding his Horse which he had hired of the Plaintiff which was weary so that he had no service of him by six Dayes for wearinesse is natural after labor and for that he ought to shew some Fault in the Defendant if he will have that Action Fitzh 86. C. If one borrow certain Money and deliver certain of his Goods in pawn for it and he offers the Money to the party again and prayes Delivery of his Pawn and the other refuse it he shall have an Action upon the Case for the Pawn 40 Ed. 3. f. 6. If I borrow a Horse and he dies suddenly and not by my default I shall not be charged to restore a dead Horse Doct. Student f. 29. If one use the thing borrowed in other manner then to what it was borrowed he shall be charged if they perish in any manner but if he use them as they were lent if they perish not through his default which borrowed them the Owner shall bear the losse Doct. Student fol. 128. If a man borrow a Horse and puts him in a house which fals upon him if it were strong and not feeble to fall he shall be discharged otherwise it is if it were weak 21 Ed. 4. Tit. 42. Detinue of Goods Br. Detinue of a Horse it is a good Plea that at the time of the Delivery the Horse was sick of divers Diseases as Botts Glanders and such like by which he died at D. such a day and year before request made by the Plaintiff to re-deliver him and it is a good Plea contrary if he do not say it was before request for if it were after request that had been the folly of the Defendant Where Action upon the Case lies or Detinue and where Trespass and where not IF the Lessor will not discharge his Farmer of a Tenth or of a Fifteenth or of Quit-rent which are due by the Lessor and the Farmer pay it yet he cannot keep that back in the payment of his Rent but shall have an Action upon the Case 21 H. 7. f. 12. 7 H. 4. fol. 3. If the Testator hath my Goods amongst his Goods and dies Trespasse by force and Arms doth not lie against his Executors for these Goods but Detinue in an Action upon the Case and if one finde my Goods Trespasse doth not lie against him but Detinue or an Action upon the Case 12 Ed. 4. f. 10. If one take my Beasts and another take them from him I shall not have Trespasse against the second but Action upon the Case 21 Ed. 4. fol. 89. the same 13 Ed. 4. fol. 9. If Goods be delivered to one he cannot be a Trespassor of them but a Detinue lies of them 18 Ed. 4. f. 28. VVhere one hath Goods by my Delivery I shall not have Trespasse but Action upon the Case and Count of mis-using of them 46 Ed. 3. fol. 15 Trespasse if the Defendant saith that the Goods were thrown into the Sea by a Tempest for safeguard of the Ship and he took them and Trespasse doth not lie against him for that they were not taken out of the possession of the Plaintiff 21 H. 7. f. 39. By Fineux and Tremail if I deliver Goods to a man and he gives them or sels them to a stranger if the stranger takes them without Delivery I shall have a VVrit of Trespasse but if he makes Delivery to the stranger of them I shall have no Trespasse Littleton fol. 14. If I deliver to one my Sheep to dung his Land or my Oxen to plow his Land and he kils my Beasts I shall have Trespasse that is to be intended Trespasse upon the Case and not Trespasse by force of Armes See 2 Ed. 4. f. 5. in Parco fracto 18 Ed. 4. fol. 23. In Action upon the Case where he counts of mis-using of a thing delivered to the Defendant or converting it to his own use is to recover Damages for the thing and where one will recover the thing it self he shall have Detinue 7 Ed. 4. f. 4. Where one comes to Goods lawfully as by Delivery Trespasse doth not lie against him but Detinue 12 E. 4. f. 8. A man shall not have trespasse general that is by force of Armes against him that mis-uses a License in Deed as to ride a Horse twenty Miles where he borrowed the Horse but for ten Mile but he shall have an Action upon the case contrary if one mis-use a License in Law as to enter into a Tavern there he shall have Trespasse by force of Armes 21 Ed. 4. f. 76. the same 18 Ed. 4. f. 2. If my Bailiff kill my Kine Trespasse by force of Armes doth not lie but an Action upon the Case 21 Ed. 4. fol. 22. Action upon the Case lies against J. S. Officer of the Kings Bench for that that the Plaintiff affirmed a Plaint of Debt against J. D. in London the said J. S. purchased a Supersedeas of Priviledge for J. D. supposing that he was his Servant 2 H. 4. f. 19. Action upon the Case by the Neighbour of a fire lies that according to the Law and custome of the Realm of England c. that every one shall keep his fire least by his fire any losse should come to his Neighbours 42 Ed. 3. fol. 11. Action upon the case lies where throughout the whole Realm of England it was a custome that the Host should keep the Goods that their Guests brought into their House if it be a common Inn and should be charged though they were not delivered and though that the key of his Chamber were delivered to the Guest 22 H. 6. f. 24. 2 H. 4. f. 8. 14 H. 4. f. 43. Fitzh f. 94. B. 11 H. 4. f. 43. 28 H. 6. f. 7. Action upon the case lies for that that the Dog of the Defendant worried the Sheep of the Plaintiff he knowing his Dog to be accustomed to worry Sheep and it is no Plea for the Defendant that he did
If Sommons in Precipe be not served fifteen days before the first day of the return of the Writ the Tenant may wage his Law of not sommoned 42 Ed. 3. fol. 7. Precipe at the great Cape returned the Tenant tenders his Law of not sommoned and at the day comes to wage his Law And the Demandant offers to waive the default and prays that the Tenant may plead in cheif But cannot if the Tenant will not assent by which he made his Law and the Demandant takes nothing by his Writ But at the first day that the Tenant offered his Law the Demandant might have released the default 27 H. 8. fol. 17. the same 2 H. 5. fol 1. Formedon at the great Cape returned the Demandant is essoined and for that the Tenant need not wage his Law for the default is saved 18 H. 6. fol 6.3 H. 6. fol. 50. the same 8 Ed 4. fol 2 Precipe If the Demandant be essoined the day that the Tenant tenders his Law the default is saved he need not wage his Law of not summoned But if it be at the day that he hath waged his Law it is otherwise for he cannot release the default 33 H. 6. fol. 49. the same 7 Ed. 3. tit 51. Saving default Fitzh at the Petty Cape returned the Demandant was essoined and had day over at which day he took him to the default and the Tenant was put to answer at the default notwithstanding the said Essoine 5 Book of Ass 11. the same 4 Ed. 3. tit 62. F. At the great Cape returned the Demandant was essoined and day given over at which day the Demandant took him at default by which it was awarded that he take nothing by his Writ 3 H. 6. fol. 48. Precipe at the great Cape returned the Defendant saith that he was imprisoned by J. S. upon a Statute Merchant by vertue of a Statute acknowledged to him that he could not come and notwithstanding that this was his own act that is to say the acknowledging the Statute and not paying it yet the Imprisonment was by the act of the Law and his default and by that Plea his default was saved The same Law of encrease of water 12 Ed. 4. fol. 44. Saving default F. 42 Ed 3. fol 7. Precipe at the Petty Cape retâ—â—â—ed the Tenant saith that he was in Prison at the time of the default made ready c. And the Demandant to the contrary that he was at large and the Enquest taken sound that he was in prison by which the Demandant took nothing by his Writ 13 Ed. 3. Tit. 49. F. 18 Ed. 3. tit 35. F. At the great Cape returned the Tenant saith that he was in prison c. The demandant saith that he was in prison by his own consent and by fraud to save his default And the Tenant was driven to aver that he was in prison against his will and upon this Issue taken 14 Ed 3 tit 39. F. 13 Ed 3. tit 49. At the petty Cape returned the Tenant saith that he was in prison upon a Statute c. and the demandant saith that that was by covin and so Issue taken that he was in prison against his will taken and others to the contrary 39 H. 6. fol 17. The Attorney may save the default where his Master came and for that both may save the default by encrease of water and by Imprisonment and not by weakness neither of the one nor of the other for that cannot be tryed if he may come without unavoidable perill of death or not 38 H 6. fol 12. Weaknesse of an Attorney is not sufficient to save a default but encrease of water and Imprisonment is a cause See 50 Ed. 3. fol. 9. And the Tenant plead in abatement matter for mischeif of war and death which proves the Writ abated without saving his default 40 Ed 3. fol. 2. Precipe against H. son of W. Osmond the Tenant at the great Cape comes without saving his default and saith that his Father is named Edmond and not Osmond and for mischeif of the war he shall have that plea before default saved by waging of Law 40 Ed. 3. fol. 42. Formedon at the day of the Petty Cape the Tenant cometh and saith that the Demandant hath entred hanging the Writ and cannot have that Plea in abatement before the default saved 40 Ed. 3. fol. 18. Precipe against the Husband and Isabel his wife they come before the default saved that the wife is named Elizabeth and had for the mischeif of the war 14 H 4. tit 15. Precipe the Tenant saith that the Demandant is out-lawed and shall not have this before default saved 38 Ed. 3. tit 17. At the great Cape against three they alledge severall Teâ—ancie and the Writ abate if he do not maintain And they shall not wage the Law of not summoned for then they admit the Writ and that they are Tenants as the Writ supposeth 12 Ed. 4. fol. 1. 14 H. 6. f. 4. Precipe at the great Cape the Tenant would plead Joyntenancy and could not before his default saved for this comes upon the view 42 Ed. 3. fol. 11. the same 21 Ed. 4. fol. 19. Precipe against two at the great Cape one Tenant pleads that the other is dead after the day of the default and for that this Plea proves the Writ abated he shall have this Plea before his default saved 20 H. 6. fol. 2. the same 42 Ed 3. fol 3. Precipe against two one Tenant may plead that in the conclusion of the Writ the one is left out and the Writ for that is abated before the default saved Pleas after Continuance and Imparlance and what not ASsise where they are adjourned upon Plea in Bar it seems that he shall not have but one Plea after the last continuance for otherwise he may delay the party Infinitely 28 H. 6. fol 1.9 H. 7. fol 9.9 H. 6. fol 22. Quare impedit cleerly agreed that a man shall have but one Plea after the last continuance upon matter in Deed And by some the same Law is where it is by matter of Record 1 Ed 4. fol 3. Ass It seems that one cannot have divers Pleas after the last Continuance 2 H. 6. fol 13. Entrie in the Post If the Demandant enter and after there is a Continuance yet he may plead that for that that it is abated And it is folly of the Demandant to abate his own Writ 7 H. 6. fol 15. The same 7 H. 6. f 16. Quare Impedit It was pleaded in abatement Plaintiffe was made knight after the last continuance Judgment of the Writ and he had it 20 H. 6. fol 17. Trespasse after Imparlance the Defendant saith that the Plaintiffe was made knight day of the Writ not named knight Judgement of the Writ and had that Plea 35 H. 6. fol 5. Where a man is sued by the name of J. Prior of the Church of St. Peter of D. and imparles by an Attorney he shall not
solvat where it should be Reddat it shall abate 22 Ed. 4. f. 21. Debt upon the Statute of Farms against a Preist the Writ shall not be quod reddat to the Plaintiffe the sum so much but it shall be quod reddat as well to us as to the Plaintiffe otherwise the Writ shall abate for it is not according to the Presidents 27 H. 8. f. 23. Two Infants alien in Fee and one dies the other shall have dum fuit infra Atatem of the whoâ—e supposing that he himself aliened the whole for that there is no other Ferm of the Writ 21 Ed. 3. f. 50. If Tenements be let to one man for Term of half a year or for a quarter of a year In such Case if the Leffee make Waste the Lessor shall have a Writ of Waste and the Writ shall be which he holds for Term of years for that there is no other Form of the VVrit but he shall have a speciall Count Litileton f. 14. So the VVrit of VVaste is that he made VVaste and yet may count of many VVastes for that that there is no other Form and President of a VVrit 4. H. 6. f. 11. Trespasse why with force and arms his goods and chattells to the value c. where it is of dead things and if he counts of Horses or Kine where the VVrit is goods and chattells it shall abate for that that the Form is otherwise and if the VVrit be of things living he shall make metion of that in his VVrit that is to say by force and armâ— four Tenches or four Pikes he took or shall say he took his beasts and where it is a Horse it shall be he took his Horse or he took his Cow 2â— H. 6. f. 39. Trespasse if the VVrit be that he took his goods and Chattells and counts of ten pounds in money the VVrit shall abaâ—e for of money the VVrit is that he took so many pencâ— and that is the Form 39 Ed. 3. f. 23. Trespasse by the Husband and VVife The VVrit was he broke the Close of the VVife and the graffe thereof the said VVifes did â—atdown and the Declaration was whilest she was unmarried and the VVrit was awarded good for the Register is accordingly 21 H. 6. f. 30. Trespasse by the Husband and Wife why by force and armes he took his Goods and Chattels and counts that the Trespasse was when she was unmarried the Writ shall abate because he may have a Writ of Forme that is the Goods and Chattels of the said Wife and not his Goods and Chattels 7. H. 7. f. 2. Where Battery is made to a Woman unmarried which takes a Husband they shall have an Action that he struck D. his Wife whilest she was unmarried 22 Book of Ass 87. But where an unmarried Woman beaâ—s another and after she takes a Husband the Writ shall be that they both made the Battery and this is the Form A Woman diffeises one and after takes a Husband the Writ against them shall be that they disseised the Plaintiff and not that the Wife whilest she was unmarried disseised him but if the Woman unmarried be disseised and after takes a Husband and they bring an Assise in shall be disseised her whilest she was unmarried 4 Ed. 4. Br. Tit. Falfe Latine 1. What is the same Where in a Trespass or Action of that nature one justifieâ—â—â— Wrong where he ought to conclude that it is the same and where not ACtion upon the Case for threatning his Tenants at will by which they left the it holdings the Defendant saith that the Plaintiff disseised him and that he shid to him of he would not depart he would sue him aâ— the Law would which is the same threatning and it is good 9. H. 7. f. 7. 16 Ed. 4. f. 7. 28 H. 6. fol. 4. Defendant in Trespasse justifies for that that he and his Ancestors Tenant of such a House and Land have had a way in the place where c. to the Market and Church of D. time out of minde by which they used the way which is the said Prospasse c. 21 H. 6. fol 5. False Imprisonment Defendant justifies for that the Plaintiff was arrested by a Justice of Peace his Warrant and carried to him being Goaler which is the same Imprisonment False Imprisonment against an Abbot which justifies that he gave counsel to J. S. being in fear of his life to go to a justice of Peace for a Warrant of the Peace against the Plaintiff and that by vertue of a Warrant of the Peace so had the Plaintiff was arrested which is the same Imprisonment and this he cannot say for this is not Impâ—â—sonment by the Defendant and for that the general Issue was entered 12 H. 7. f. 14. False Imprisonment by a Woman the Defendant saith that she is carâ—ied to Southwark by her consent which is the same Imprisonment upon which the Plaintiff counts and it is no Plea for Imprisonment is against the will of one and that is not so 14 H. 6. f. 2. Trespasse of Assault Battery and wounding the Defendant saith that he laid his hands upon the Plaintiff peaceably and arrest the Plaintiff the same day and place by a Warrant which is the same Assault Battery and wounding and held it is no Plea for the reason aforesaid 21 H. 7. f. 49. Trespasse of a Close broken such a day the Defendant justifies that the Plaintiff licensed him the same day to enter and need not say that it is the same Trespasse for that it is the same day but if he justifie at another day â—â—at another place then he must say that it is the same Trespasse 21 H. 7. f. 39. The same Law is of Goods carried out if the Defendant justifie at the same day and place and so in â—â—â—pâ—sse of Battery if the Defendant â—â—stifie for thâ—â— the 〈◊〉 day and place the Plaintiff made Assault on him 〈…〉 he had was of his own Assault he need not in these Cases to say it was the samâ— Trespasse But in Trespasse of Goods taken the first year c. the Defendant pleads all the Record and saith that one J. S. recovered and that year the ninth by vertue of a Precept to make Execution he took them which is the faine taking upon which the Plaintiff c. and this is not good for it cannot be the same 12 H. 6. f. 3. by Coâ—esmore False Imprisonment the Defendant iustifies as Sherif that he arrested the Plaintif by a Capias and it is good if he shy that is the same Trespasse and otherwise it is not goodâ— 22 Ed. 4. Br. False Imprisonment 29. False Imprisonment the Defendant saith that he took the Plaintif from Jack Cade and other Rebells and delivered him to the Mayor for his safeguard which is the same Imprisonment and that is good for that was the Imprisonment but iustifiable 35 H. 6. f. 53. Conspiracy the Defendant iustifies for that that he is
Sheriff returns Issues upon J. Burton where there is no such of the Jury but J. Bormstone and it was amended 2 H. 5. f. 8. The Sheriff upon a Capias returns Non inveni where he ought to return Non est inventus and the party was outlawed and this was assigned for Error and awarded Error and shall not be amended 9 H. 5. f. 10. One was outlawed and Proclamari feci of that was returned that I made be proclaimed that he should deliver himself to the Sheriffs of London where the Writ was the Sherif of Kent and this Outlary was reversed by Error and shall not be amended 27 H. 8. f. 34. One was outlawed and the Exigent was returned at my County Court held at the Castle of Oxford he was first called and because it was not in what County it was Error and shall not be amended 21 H. 7. f. 34. One was returned outlawed and for that that it did not appear that it was by the Judgement of the Coroners it was reversed without Writ of Error and shall not be amended 21 H. 7. f. 33. The Sherif returns Scire feci J. A. Clio where it should be Clico and was amended 7 H. 6. f. 1. Where the Sherif upon a Distringas returnes to small Issues he shall amend the Return 27 H. 8. f. 3. Process against a Voucher Averment the Sherif returns the Vouchee dead the Demandant may aver that he is alive by the Statute of 14 Ed. 3. chap. 10. Vouch. 8. And there held that a man shall not have a direct Averment against the Return of the Sheriff unlesse that his person is to be charged or his Inheritance for ever to be lost and that by the same Law he cannot have remedy to save the same Inheritance 40 Ed. 3. f. 6. Debt against two the Sheriff returns upon the Capias I have taken their Bodies and have them before you and now one comes and saith that his Companion is dead and had it for that the other cannot gainsay it 50 Ed. 3. f. 7. By the statute of Westm 2. before said upon a Distringas one may aver that the Sherif hath returned to small Issues and by this Book the Sherif ought to return in Issues so much of Rent as the Defendant receives the Day of the Writ purchased untill the Day of the Return of it 27 H. 8. f. 3. Where the Sherif returns to small Issues upon a Distringas one may aver that they are to small but some seem that if he return to small upon a distringas Juratores it is on t of the Statute 10 H. 7. f. 11. Debt the Sheriff returns upon the Distringas twenty pence upon the Defendant and averment was that the Shetiff might have returned mean between the writ delivered and the return of that 100 s. and the writ was awarded to the Justices of Assise to inquire of that 20 H. 6. fol. 26. Where the Sheriff returns one out-lawed he cannot aver that he was called but three or four times But in appeale he may have the averment 10 H. 7. f. 22. In Re-disseifin he cannot aver that the Sheriff did not go to the place for he is Judg and also one out-lawed cannot aver that he was not the fifth time called 10 H. 7.28 Trespasse upon Pone goods were returned attached and when the Defendant appeared he had a Writ to the Sheriff to deliver to him again the Goods And the Sheriff returns that he hath redelivered the Defendant cannot averr the contrary the same Law of a return of a seisin in Dower one cannot have an averment to the contrary for the Sheriff is Officer to whom credit shall be given which cannot have averment to the contrary But where one is without remedy and to be dis-inherited it is otherwise as if the Sheriff in a Precipe against one return that he is dead the Demandant may aver that he is alive and may say not attached by fifteen daies which is no direct averment But upon an Habere facias sesinam Where the Sherif returns I have delivered seisin he cannot aver the contrary 3 Ed. 4. fol. 20. One cannot have direct averrment against return of the Sherif in the same action but in another he may As in Debt against a Bailif of a Franchise for an escape of one return by the Sherif that he hath taken him by a Warrant to him directed upon a Capias ad satisfaciendum he may now in this action of Debt aver that no such Warrant was to him directed And in Assise not attached by fifteen dayes he may averr And in a Precipe that he was not summoned according to the Law is a good averment in the same Action but not not attached or not summoned 5 Ed. 4. f. 1. A Writ of Deceit is returned by the Sherif and the Defendant averrs that the summoners now returned were not the summoners in Precipe and he cannot aver that Averment against the Return of the sherif 5 Ed. 4. f 7. 33 H. 6. f. 11. Markham accordingly The sherif returnes I have commanded the Bailif of the Liberty of N. which so answers that at another time the Defendant was committed to the next Gaol by Auditors upon an Account for Arrerages and that he being Bailif of that Goal carried him to Prison and he came in upon a Cepi Corpus and saith that no such Account and shall have that Averment notwithstanding the Return of the sheriff 18 Ed. 4. f. 5. One sues a Libertate probanda to recover Nativo habendo and the sherif returnes that no Nativo habendo was delivered unto him and the other averrs contrary and may 18 Ed. 4. f. 7. Upon a Venire facias the sherif returned four and twenty Jurors and upon the Habeas Corpora he returned that 12. of them were dead the Plaintif shall have Averment that they are alive against the Return 20 Ed. 4. f. 11. The Plaintif praies that the Defendant in Replegiare wage Deliverance the Defendant saith that they died in an open Pound in default of the Plaintif and prayed a writ to the sherif Si constare poterit and if the Sherif return upon that writ that they are dead yet he may aver the contrary and have a sicut alias 30 H. 6.2 Where the Sherif returns I have commanded the Bailif of the Liberty of the Archbishop of York which returns summons the Defendant cannot aver that the Land is within the Franchise of Richmond 34 H. 6. f. 3. The sherif returnes upon an Exigent that four times called and not withstanding Averment was taken that he was outlawed and this was certified by the Coroners and for that the sherif was amerced to fifty Markes 36 H. 6. f. 24. Where the sherif upon a Capias returnes He is not found one cannot have an Averment against this Return 2 H. 4 f. 15. One may have an Averment in another Action against the Return of the Sheriff as in Covenant the Sheriff returns him warned