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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
book_n	name_n	place_n	write_v	2,225	5	5.3557	4	false

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

own Wrong And Note 35 H. 6. 38. where the Plaintiff in Debt did Count upon a Lease of four Acres for the Rent of three Pounds and the Defendant did plead to the Count that he did Let those four Acres and other Lands and a good Plea But the greater Doubt whether he should in that case take a Travers for in our Books it is obvious That if the Plaintiff in his Declaration mistake the beginning of a term of Years the Land or number of Acres or declare upon a simple Contract when it is Conditional the same is no good Declaration and Advantage thereof may be had as well upon the General Issue as otherwise And in Fogassa's Case in Pl. Com. If the Plaintiff Count generally upon a Lease and the Defendant plead ne Lessa pas non dimisit the Plaintiff shall not give in Evidence a Lease by Deed. And 28 29 H. 8. Dier 32. an Action of Debt was brought upon a Lease of six and twenty Acres the Defendant said that the Plaintiff Let the same and four Acres more Absque hoc that he Let the six and twenty Acres tantum whereupon Issue was taken and the Verdict found the Demise only of one and twenty Acres and thereupon the Question was Whether the Verdict had found for the Plaintiff or for the Defendant And by Fitz. and Englefield it was found for the Plaintiff because Agreed of both sides that six and twenty Acres were Let and the Question was upon the four Acres But Baldwin and Shelley seemed to be of Opinion that the Verdict was ill But Shelley said therein That if the Defendant had pleaded a Plea without a Travers because he had confess'd the Count and more it would have been good Or if the Travers had been Absque hoc quod predictus le Plaintiff dimisit les four Acres more it had been well enough But touching this Matter of Travers of the Quantity Time or Place see more in the Titles Travers Issue and Verdict afterwards in this Book And see 11 H. 6. 5. That if in Debt for Rent it appeareth by the Count that one of the Days is not yet come the Writ shall abate but otherwise in Avowry by all the Court Nota diversitatem And see Fitzherbert's Natura Brevium in his Writ of Debt That where divers Days of payment are contained in a Recognizance upon the first default shall go out a Scire facias but upon a Bill for Debt not until the last Day Notwithstanding it hath been held That in an Action upon the Case upon an Executory Promise the Plaintiff might have his Writ upon the first default and Recover for that loss and so upon every default It appeareth by 7 Ed. 4. 15. and 1 Ed. 4. 4. 39 H. 6. 4. 11 H. 4. 55. and 50 Ed. 3. 4. in Brook Title Brief by the better Opinion That in Debt Resceit of Parcel Hanging the Writ doth abate the whole Writ but that as it seemeth is intended where the Count and Demand is of one entire Contract as a Precipe of a Mannor and Entry into part For it is otherwise as it seemeth where a Precipe is of sundry Acres and the Demandant enter into but one of the Acres But by the same Book 50 Ed. 3. 4. that ought to be pleaded Puis le darein Continuance And by most of the other Books if the Action were upon Specialty then it can neither be pleaded to the Writ or in Bar of the Action without Specialty and if the Defendant conclude his Plea in Bar it goeth but to the Action for part But as it seemeth be the Action either upon Specialty or not if the Defendant plead in Bar the Resceit of parcel either before or hanging the Writ he must plead the same by Deed and it goeth but to that part But if the Plaintiff bringeth an Action of twenty Pounds and declare that he is satisfied of ten Pounds the Writ doth abate of his own shewing for he ought to bring his Action only for that which is behind and declare himself to be satisfied of the rest But if he bring his Action for the Whole and Nil debet or a Release be pleaded to Part that goeth but to the same and so it seemeth by the Plea quod non debet predict as vigints libras nec aliquem denarium inde And in the said Book of 11 H. 4. Debt was brought for Forty Pounds declaring part upon a Lease parcel upon a Contract and part for Work done And to part the Defendant tendred his Law to other part he pleaded ne Lessa pas non dimisit and to the residue he tendred the Mony in Court and the Plaintiff as to the Plea of the Lease took Issue and to that of the Mony tendred he Rejoyn'd that he had received it accordingly and as to the residue he refused the Law and to that and the Point of Receipt the Writ only did abate quod nota Where the Writ and Declaration are General as in Trespass Quare clausum fregit if the Plaintiff so Declare the Defendant as all the Books agree may plead a Special Plea to inforce the Plaintaiff in his Replication to assign the Place more certain But this Plea of the Defendant must be also very certain as 4 5 Ph. Mar. Dyer 161. for the Defendant to say That the Place where is six Acres is no Plea unless he also give it a Name or Boundaries And so is 22 H. 6. 24. that the Defendant shall plead certainly and this for the advantage of the Defendant for if he plead the General Issue the Plaintiff may in any Place in that Town assign the Trespass Or else as is the Book 28 H. 8. Dyer 23. If the Defendant doth say that the Place where is six Acres which is his Freehold and the Plaintiff Reply That it is not his Freehold c. If the Plaintiff have a Close of like quantity it shall be intended the same But the Plaintiffs New Assignment must also be as true and certain to all Intents as is 9 Eliz. Dyer 204. It must be both true in the Name and in the Boundaries and must not be as there una acr ' prat ' sive terr' And as 1 H. 7. 11. and 21 H. 6. 2. and other Books the Plaintiff must say also in his Declaration alia quam c. And then as in 14 H. 4. 24. the Defendant shall not plead that the Place where is all one c. but shall have advantage thereof best by the General Issue if the Pleas aforesaid be entred and so is 1 Ed. 5. 4. Yet in the said Book 21 H. 6. 2. the Defendant did Rejoyn that the Place was all one c. and known by one Name But as 27 H. 8. 22. where the Defendant in his Bar said The Place where was an Acre and three Roods the Plaintiff might have assigned the Trespass in the three Roods without the Acre and the Bar as to the

Acre to no purpose And 1 H. 7. 11. the Defendant did plead That the Place where was three Acres parcel of the Mannor of B. of which A. did him enfeoff c. To which the Plaintiff Replied That the Place where was the said three Acres and thirty Acres more parcel of the said Mannor and no Plea because he doth not say Al' quam or agreeing with the Defendant's Answer So that it seemeth the Plaintiff may Reply to or take Issue upon the Defendant's Plea if it should be untrue as for the most part the first part of it is And it should seem also by 9 Ed. 4. 24. and divers other Books That the Plaintiff may at his pleasure in his Declaration of Trespass Count of the Place certain by Name and Number of Acres and there the Defendant must Plead at his Peril And so are the Books of 5 Ed. 4. 124. and 9 H. 7. 6. in Trespass of Goods and as 38 H. 6. 5 H. 7. 8. and other Books in Entry upon the Statute of R. 2. and 8 H. 6. But 21 Ed. 4. 18. in Trespass quare domum fregit without giving a Name the Defendant may enforce the Plaintiff to a new Assignment notwithstanding by Brian and Littleton 15 E. 4. 23. in manner Ruled that the Plaintiff in his Declaration in Trespass naming the Place certain is but Nugation to which the Defendant by the Plaintiff's Act shall not be enforced to Answer As if the Plaintiff in Debt upon an Obligation doth declare that the Defendant is of full Age the Defendant may Plead that he was within Age without Travers But as there it seemeth in an Assize of Rent the Plaintiff may declare either Generally or Specially at his pleasure according to which last recited Book is 20 Ed. 4. 9 10. Where it is said also that the better Opinion is to Declare in Replevin according to the Ancient Use that is to say to name only the Town in the Declaration and not the Place or number of Acres and so is 9 Ed. 4. 43. And yet notwithstanding see the Book of 14 H. 6. 3. that in Ejectione Custodiae the Defendant did Plead Jointenancy and the Plaintiff assigned anew So 9 Ed. 4. 23. in Detinue of Charters but there the better Opinion seemeth that no New Assignment ought to be By 38 H. 6. the Defendant in Trespass did Justifie for a Way through the Plaintiff's Close and the Plaintiff assigned the Trespass in another place of that Close And 39 Ed. 4. 7. the Defendant Justified that day by the Plaintiff's License To which the Plaintiff Replied That the Defendant came back again the same Day and re-entred his Close where also it appeareth that where one Justifieth the same Day he need not conclude Que est eadem Transgressio Vide Brook Tit. Trespass Vide Noy's Reports fol. 70. Roll's and Walter 's Case where in Replevin the Defendant avowed Damage fesant as Tenant to I. S. who was seised in jure Ecclesiae and demised to him for years and held good without saying that he was Parson But secus in Quare Impedit for there the Plaintiff must name the Defendant Parson Imparsonee because till then in that Case he cannot plead in Bar. By Co. 1 Inst. fol. 145. the Sheriff ought to take two sorts of Pledges in Replevin one by the Common Law ad prosequend ' Querelam and the other by the Statute De Retorno habendo Note the Plaintiff in Replevin must alledge a Place certain where the Beasts Cattle or Goods were taken By Co. 1 Inst. fol. 145. several persons whose Beasts Cattle or Goods are taken shall not joyn in Replevin nor is it a good Plea to say that the Property is to the Plaintiff and another But by Co. lib. 7. in the Case of Swans a Replevin lies of such things in which one hath but a qualified Property as of Beasts that are ferae naturae and made tame so long as they have Animum revertendi So 2 Ed. 2. Fitzherbert Title Avowry 182. Replevin lies of a Leveret or of a Ferret and by the Register Original fol. 81. it lies of a Swarm of Bees And by 7 H. 4. 28. and 6 H. 7. 29. 't is at the Plaintiff's Election in many Cases to have Replevin or Trespass for his Cattle or Goods taken which he will but he cannot have an Action of Trespass against his Lord for taking them But by the Books of Entries viz. Rastal 567 572. and Coke 610. and Fitzh Nat. Brevium fol. 69. b. Replevin lies de averiis capt ' detent ' quousque c. de aliis averiis capt ' adhuc detent ' and there said that when the Plaintiff declares that the Defendant yet detains the Cattle and the Defendant appears and makes default the Plaintiff shall recover all in Damages and also 't is there said that if the Beasts are chased into another County after they are taken the Party may have a Replevin in which of the Counties he pleaseth or in both Also it appears in Dyer's Reports fol. 280. That if the Plaintiff be Nonsuited before Declaration and he sueth out a Writ of Second Deliverance and is again Nonsuited before Declaration the Defendant shall have the Cattle irreplegiable without any Avowry Note If Replevin be before the Sheriff by Writ it may be removed by the Plaintiff into the King's Bench or Common Pleas by Pone without Cause and by the Defendant with Cause mentioned in the Writ but if it be before him by Plaint then it may be removed by the Plaintiff by a Writ of Recordari facias loquelam issuing out of Chancery without shewing Cause but if the Defendant removes the Plaint by that Writ he must shew Cause therein Note also If live Beasts or Cattle and Goods and Chattels which are Dead or things Inanimate are named together and Replevied by one Writ as they may the live Beasts or Cattle must be named before the dead as Quandam vaccam suam quedam averia sua que J. S. cepit Note farther That by the Common Law when the Goods or Chattels of any Person are taken he may have a Writ out of the Chancery commanding the Sheriff to make Replevin of them and this Writ is Vicontiel and in the nature of a Iusticies by which the Sheriff may hold Plea of any value and in all Cases but when the Defendant claims property and when more than one live Beast is taken then the Form of the Writ is Quod Replegiari faceret J. S. quendam Spadonem vel Equam c. And when many dead Chattels are taken then the Writ shall be Quod Replegiari faceret bona catalla sua and the Plaintiff must ascertain them in the Declaration but if but one dead Chattel be taken then the Writ shall be Quod Replegiari faceret J. S. quoddam Examen Apium 3 Cro. 627 628. the Plaintiff brought Trespass for taking an Hide and the Defendant pleaded in

Plaintiff in the first Judgment upon two Scire fac ' shall have Execution or if he be Nonsuit in the first Writ quaere And by 20 H. 6. 18. If upon the Scire fac ' then if the Plaintiff be Nonsuit the Court may award Execution unless he bring a New Writ of Error presently And where the Plaintiff is in Execution there he must assign Error in Person otherwise by Attorney And Note That upon a Writ of Error the Record it self is always removed and not the Transcript But by 24 Ed. 3. 24 25. the Original Writ is not at first removed unless the want thereof be assigned Except upon a Fine which if the Justices Reverse they shall send for the Record of the Fine and avoid it And so 44 Ed. 3. 28. Bro. 24. how Error of a Fine non ritè levat ' in a Franchise shall be prosecuted And sometimes Errors shall be redressed in the same Court as Error in Process in the Kings Bench because the Default of the Clerks but not without Writ tho' the same Term. But the like may be done the same Term in the Common-Pleas without Writ but in another Term neither by or without Writ And it appears by the same Book That Error in Durham in any Mean Court there shall be redressed by Writ of Error there before the Bishop himself And the like in Ireland in the Kings-Bench there but Error there or before the Bishop himself in Durham shall be redressed in the Kings-Bench here And 19 H. 6. 12. Error in County-Palatine to be redressed here at Westminster and Errors in Wales to be redressed by Justices Errants there if there be any otherwise in the Kings-Bench here quod nota And 21 H. 7. 33. Error in Callice was Redressed here although the Judgment was there according to the Civil Law And see 24 H. 6. 241. and 18 Eliz. Dyer 15. How Error in Chester shall be redressed And touching Erroneous Proceedings in London if they be in the Sheriffs Court the Writ shall issue out of Chancery causing the Record to come before the Mayor be the Judgment upon Writ out of Chancery or upon Plaint only and another Writ that after the removing of the Record they Award no Execution But if the Plaintiff in Error there will not proceed then a Writ is to be Awarded to the Mayor to make out Execution But if the Erroneous Judgment in London be given before the Mayor and Sheriffs in the Hustings then to be Reversed by Commission out of the Chancery upon which the Commissioners shall Award a Precept to cause the Record to come before them and to summon the Parties And by the same Book last cited the form of a Writ upon an Erroneous Judgment in an Assize be the same Adjorned into the Bench or otherwise doth appear And where an Erroneous Judgment is given in the Chancery the same shall be Reversed in the Kings-Bench As 14 Eliz. Dyer 315. where a Deed bore Date before the Recognizance and delivered after And touching Erroneous Proceedings in all other Inferiour Courts of Record the same are to be Reformed by Writ of Error out of the Chancery retornable at the Pleasure of the Party either in the Kings-Bench or the Common-Pleas and to assign Errors and warn the Parties as before And see 14 Eliz. Dyer ubi supra That an Erroneous Judgment in the Chancery was Reversed in the Common-Pleas Quaere of the Erroneous Proceedings in the Cinque-Ports Ubi Brevia Domini Regis non currunt For by the Book 30 H. 6. 6. of Debt against a Gaoler of the Cinque-Ports upon an Escape Holden That an Erroneous Judgment there was Reversable before the Constable of Dover And so seems the Book of Diversity of Courts by a Special Writ out of Chancery directed Custod ' Quinque Portuum who shall write to the Barons for the Record And so 23 Eliz. Dyer 376. at Shipway and if it be Reversed the Mayor and Iurats to make a Fine and the Mayor to be Deposed But 3 4 Eliz. Dyer 206. an Attaint here of a False Judgment in Romney-Marsh But if Erroneous Proceedings be in the County-Court Hundred-Court or Court-Baron either in Plea Real as Droit Patent or Personal or by Writ or Plaint the Writ shall issue out of Chancery If in the County-Court then directed to the Sheriff and if in another Court then is the Writ an Accedas ad Curiam to the Sheriff and ought to be Certified by the Suitors for if no Suitors then no Writ of False Iudgment And Note That upon a Judgment in a Real Action in an Inferiour Court the Writ of False Iudgment lieth against the Tenant of the Land and not against him that is Party to the Judgment Neither doth it lye for the Defendant in a Real Action until the Demandant hath Entred upon him The like as it seems in Personal Actions not before Execution But in an Assize of Fresh Force no Writ of False Iudgment but a Writ of Error And when all the Record is Certified as well the Original as all the Mean Process then the Plaintiff is to Assign his Errors And if he proceed not but be Non-suit the other shall not have Execution without a Scire facias against the Plaintiff in the Writ of False Iudgment who then shall Assign his Errors and put in Sureties c. And it appears in the said Writ of False Iudgment That if the Defendant in that Writ of False Iudgment make Default after Appearance a Grand Distress shall be awarded against him And if he make Default again or cannot save his first Default Judgment shall be given against him without respect to the Errors as it seemeth And if upon the Record Returned the Defendant offer to Aver That the Record was otherwise it shall be Tried by the Country quod nota per Stat. 1 Ed. 3. And touching Error in the Exchequer none lay at the Common-Law before the Statute of 32 Ed. 3. which speaks only of Error in Process and that they should amend the Rolls and send them into the Exchequer to proceed to Execution and yet they do Reverse Judgment c. But by the Book of 15 Ed. 4. 18. the Chancellor and Treasurer cannot proceed to Execution as the Justices of the Kings-Bench may do but must Remand the same into the Exchequer for that purpose And it appears 28 H. 6. 11. That the Writ of Error ought to recite the Judgment to be given coram Baronibus and not coram Thesaurario Baronibus And of Error in the Common-Pleas the words of the Writ must be Coram Capital ' Iustic ' Sociis suis for that is the Form of Entry of the Pleas there And touching any Erroneous Judgment given in the Kings-Bench see the Statute of 27 Eliz. cap. 8. How Erroneous