Law, Book 4 · Chapter 32
CHAP. 32.
Of Pleas in Barre.
THus farre of Dilatorie pleas.
Pleas to the action are thoſe that go to the bodie of the matter.
And are pleas in barre or c… ſſions. Pleas in barre are th…ſe which are to barre the plaintife of his …ion, where the Defendant muſt make defence, as to ſay, Defendit vim & ini…ri… quando. But this defence ſhall not bee i… 34. H. 6. 33.dower aſſiſe of nouell diſſeiſin, Per quae ſeruicia, and attaint.
The Tanant may plead a warrantis i… Litl. 150.bar of him that ſhould warrant if he bring the action. As if there bee grandfather, father and ſonne, the grandfather is diſſeiſed, the father releaſeth to the diſſeiſor with warrantie, and dyeth after the grandfather dyeth. Now if the ſonne bring an action to recouer the land, he ſhall be barred by the warrantie made by his father, and this is called a Rebutter.
Statutes.
Gloceſt. cap. 3. The heire ſhall not bee barred of his mothers inheritance by the warrantie of the father, being Tenaunt by curteſie, or alienating without fine in the mothers life time except he leaue aſſets.
And though the Tenant of the land bee a ſtranger to the warrantie, as a diſſeiſor or one that commeth in by a recouerie, may plead that hee hath a third perſons eſtate and (a)42. E. 19.rebut, but not vouch by a warrantie made vntounto the perſon. But in (b)21. E. 4. 82.writs of dower the anceſtors warrantie is no barre.(c) Lit. Chap. of G…ranty.
A warrantie made by the diſſeiſor at the time of the diſſeiſin: we call it a warrantie commencing by diſſeiſin. As the feoffement with warranty of a father, or other anceſtor, leſſee for yeares or at will, of the demiſe of his ſonne, or of gardein in Knight ſeruice or ſoccage, or where one which hath not right entreth into the land, and preſently maketh a feoffement with warrantie, barreth not his heire, (d)50. E. 3. 12.for then his action and right ſhould be loſt for euer. But by ſuch a warrantie the heire may be vouched, for that is in the nature of a couenant againſt him as heire to his anceſtor. So that if hee hauehave other land deſcended to him from the ſame anceſtor, it is reaſon that he warrant that which he may do, ſauing to him his action that he may hauehave by reaſon of the diſſeiſin.
In an aſſiſe of nouell diſſeiſin and treſpaſſe the defendant pleading a title in barre muſt giuegive colour of title to the Plaintife, for if either it bee no title, as either in treſpaſſe to plead (a)22. H. 6 50.it is his freehold, or (b)2. E. 48.the freehold of I. S. and that he entred by his commandement, or (c)15. H. 7. 10.when one prayeth in aide of I. S. or of the King, or Rege in c… ſuleo, though he entitle himſelfe by a leaſe at will, &c. colour needs not. Otherwiſe it is (d)21. E. 4. ibid.if hee entitle another to a leaſe for yeares, and iuſtifie by his commandement. So (e)32. H. 6. 1.if a matter that deſtroyeth the plaintifes title, as a releaſe in an aſſiſe, in a Treſpaſſe of goods a ſale by a ſtranger in (f) 21. E. 4. & 5.market ouert, and that the plaintife tooke them out of his poſſeſſion, and he retooke them, there colour needs not.
No more it doth where he pleadeth to the writ and not in bar, though the plea indeed go in bar. As in treſpaſſe of goods, that I. S. was poſſeſſed and made Alice S. and I. D. his executors and died. Alice S. tooke the Plaintife to husband and was couert day of the treſpaſſe and after died. So ſhould the writ be brought by I. D. who is yet in full life, not named in the writ, Iudgement of the writ, &c.
And in giuing colour theſe things muſt be obſerued.
1. It muſt bee to the plaintife, not to a 38. H. 6. 7.ſtranger, nor to the defendant.
Not to a ſtranger, as in treſpaſſe that A. was ſeiſed and him enfeoffed, and I. S. claiming by colour of a deed of feoffement from A. where nothing in truth paſſed, &c. entred and enfeoffed the plaintife. This is no good colour, for in a ſtranger matters en fait muſt alwaies be alledged, as to ſay, that I. S. enfeoffed A. who enfeoffed the Plaintife: or that A entred and diſſeiſed I. S. and enfeoffed the plaintife, &c.
Neither muſt the plaintife giuegive colour to the defendant, as where the defendant pleadeth 19. H. 6. 31.his freehold, now if the plaintife ſay that before the defendant any thing had, A. was ſeiſed and enfeoffed the plaintife, & the D. claiming by color of a deed of feoffement frō A. where nothing paſſed, &c. entred, vponupon whom the reentred is not good.
2. It muſt be of ſuch a poſſeſſion wherby he may maintaine his action.32. H. 6. 6.
As in an aſſiſe the defendant muſt giuegive the Pl. a colour of the Pl. owne poſſeſſion, and not of the poſſeſſion of his anceſtor, as to ſay that the plaintife claiming by colour of a deed of feoffement made vntounto himſelfe where nothing paſſed, &c. is good. But not to ſay that the plaintife claiming by colour of a deed of feoffement made to his anceſtor where nothing paſſed, &c. for of ſuch a poſſeſſion in his anceſtor he cannot hauehave an aſſiſe.
3. The colour muſt bee a matter doubtfull in Law, or otherwiſe difficult to the 19. H. 6. 21.lay people, elſe it is not ſufferable, but he ſhall be forced to take the generall iſſue, as in an aſſiſe to ſay, Nul tort, &c. or in an action of Treſpaſſe, not guiltie. As if I bring an aſſiſe againſt you, and you ſay that you let the ſame land to one for terme of life, and after granted the reuerſion to me, and the Tenant for terme of life dyed, and that I claiming the reuerſion by force of the ſaid grant, where the Tenant did neuer att… entred, &c. This eſpeciall matter is ſuff… … ble, becauſe that is dangerous to plead … tort, &c. For the lay people will thinke th… the reuerſion paſſeth by force of the g… without atturnment. The ſame Law it i… where the Tenant ſaith, that he himſel… let the land to the Plaintife, for terme of h… life, and then the Plaintife did ſurrend… ▪ For the lay people know not that a ſurrender may paſſe by word. The ſame Law it i… where the Tenant ſaith, that the father … the Plaintife let vntounto him for terme of another mans life, and after releaſed vntounto hi… ▪ And the Plaintife ſuppoſing that his father died ſeiſed of the reuerſion ouſted him after the death of him, for whoſe life, &c. becauſe the lay people vnderſtand not … this releaſe doth inure, whether by way of enlargement, feoffement, confirmation, … extinguiſhment. The ſame Law it is if the Tenant ſay that the father of the Plaintife enfeoffed him, and afterwards ſuffered him to occupie at will, and hee ſuppoſing, &c The ſame Law it is to ſay, that the plaintife claiming as baſtard and eldeſt ſonne entred, becauſe the lay people thinke th… the eldeſt ſonne, though he bee a baſ…rd, may inherit. The ſame Law it is to ſay th… ſuch a one was ſeiſed and infeoffed, the … nant and the plaintife claiming by a deed of feoffement made before where nothing paſſed, &c. becauſe the lay people thinke it a good feoffement, though it bee made without liuerie. But where the ſpeciall matter is not a matter in Law, or difficult, there the Tenant or defendant muſt take the generall iſſue, as if the Tenant ſay, that hee was ſeiſed vntill he was by the pl. diſſeiſed, whereupon he re-entred, this plea is not ſufferable, becauſe all men know that the Tenant in this caſe is no diſſeiſor: or otherwiſe if he ſay, that the plaintife claimes as younger ſonne, becauſe that euerie man knoweth, that the younger ſonne cannot inherit before the elder. The ſame law it is if he ſay, that he leaſed to the father of the plaintife for terme of life or yeares, or for terme of another mans life, and the plaintife ſuppoſing that he had died ſeiſed of an eſtate in fee ſimple, entred, &c. becauſe in theſe caſes the Lay people doe wel vnderſtand that he is no diſſeiſor: & therefore in theſe and in al other like, the tenant ſhall take the generall iſſue.
In reall Actions for the méere right when it is in reſpect of a diſſeiſin done to him or his anceſtors, and not founded vponupon a ſeigniorie, as a Writ of Eſchete, a writ of right ſur diſclaimer, &c. the Tenaunt 16. E. 4. 9. 3. E. 3. Dr. 26.cannot trauerſe the ſeiſin, but may tender halfe a Marke to the King to hauehave it inquired by the Iurie: and being found that the demandant was not ſeiſed in the time whereof he counteth, that ſhall barre him for euer.
Prerogatiue.
The tenant cannot tender halfe … againſt the King.
The heire or Executours in an Act… brought againſt them, where they are c… geable pleading a matter in their … knowledge (a)3 & 4. P. & M. Dy. 149. 21. E. 3. 9. 6 & 7. E. 6 Dy. 81 34. H. 6. 22. Br. Exec. 22.which goeth in perp… bar, As for the heire to plead that nothing diſcended to him from the ſame Anceſter▪ the Executour to plead a releaſe or acqui… tance made vntounto himſelfe, or that hee was neuer Executor, nor neuer adminiſtred … Executor ſhall be charged as in their … perdutie, if it paſſe againſt them. Otherwiſe it is if the Executor pltad Miſ…, or another Executour aliue not named i… the Writ, (for that is no barre but onelyonly … the Writ) or Oriens inter mains (for that is no perpetuall bar, for a Scire facias lyeth if they come to hauehave lands after) or a releaſe, or acquittance to their Teſtator: or Nie… le fait of their teſtator, for they cannot hauehave knowledge of it. Otherwiſe it is alſo if … ther 6 & 7. E. 6. Dy. 81. Where the heire is condemned by a Nihil dicit, execution ſhall be of lands deſcended by a ſpeciall Elegit not of his goods, &c. nor no Cap. ad ſatisf. lyeth againſt him. 21 E. 3 ibid.the heireor Executor bee condemned by a Nihil dicit, or confeſſe the certaintie of the aſſets. And in the firſt caſe, as whe… the heire pleadeth nothing by diſcent, … which is found againſt him, the plainti… ſhall hauehave an Elegit of the moitie of all … lands as well purchaſed, ar by diſcent: … in a Formedon en Deſcender, if the Ten… plead in barre a warrantie with aſſets, and the demaundant ſaid Rien per deſcent, and it is found that he hath by diſcent, he ſhall be barred of all that hee demandeth by his Writ (of how ſmall value that bee which deſcendeth) becauſe the iſſue that he tendered is falſe.
In Aſſiſes of Nouel Diſſeiſin, Nuſance, Mortdanceſter, Iuris vtrum, & in Enditements and Appeales of Felony, the defendant may plead in abatement, & ouer in barre, or take the generall Iſſue alſo. As in a Mortdanceſter, (a)40 E. 3. 29.that he hath nothing but in right of his wife; or (b)2 E. 3. 62. 22 E. 4. 3….I. S. holdeth parcell of the land in demaund, not named in the Writ: and if that bee found againſt him, then that he hath abated. In an aſſiſe of Iointenancie, or Miſnomer, which are in Abatement, or any matter in barre: (vnleſſe he confeſſe a putting out of the Tenant, or that which amounts to as much, as by pleading a releaſe, or ſuch like) and if that bee not found, then he hath done no wrong. In a Iuris Vtrum the Tenaunt may plead 12 E. 2. Iur. v…r. 12Miſnoſmer of the Demaundant, or that a ſtranger holdeth parcell not named. And if it be found, &c. that the demandant hath receiued his fealtie, &c. And if it be found, &c. then that it is his Lay fee, and not Franke Almoigne, &c. In an Enditement, or Appeale of death, miſnomer of himſelf, or no ſuch towne; and to the felonie not guiltie. But he cannot plead a Releaſe, and to the felonie not guiltie: for by the Releaſe he hath in a maner confeſt the felony: 4. H. 6. 15. 22 E. 4. 39. Ibid.alſo he may plead a matter in bar, & vponupon that found againſt him, then plead not guiltie, though he pleaded it not before.
In Aſſiſes of Nouel Diſſeiſin, and Nuſanc, 1. E. 5. 5.he may plead a ſpeciall matter that amounteth but to the generall Iſſue. As in an Aſſiſe of Rent by Deane and Chapter, to ſay that Reſcous was made to the predeceſſor, and no ſeiſin in him, or in any Succeſſor ſince that time. Though in the pretence of him that pleadeth it, it amount to no more, but that the plaintife was neuer ſeiſed, ſo as he could not be diſſeiſed.
VponUpon (a)9. E. 4. 2.Enditements of Felonie … Treaſon, otherwiſe it is in Appeales, the defendant being put to anſwere, which is called an Arraignement, is not allowed councell, if he denie (b)Stamf. 151. b.the fact. For either his conſcience perhaps wil ſting him to vtter the truth, or otherwiſe by his geſture, countenance, or ſimplicity of ſpeech, it may be diſcouered; which the artificiall ſpeech of his Councell learned, would hide and colour. Alſo himſelfe can beſt anſwere to the fact. But if he plead Sanctuarie, or any other matter in Law, then he ſhall hauehave … H. 7. 23. 32. H. 8. Dy. 13. 41. E. 3. 27.councel. A preſentment in the left or ſherifs turne, after the day of the preſentment bindeth the partie for euer, and is not trauerſible but in caſes that touch ones Freehold: as that one ought to clenſe the Highway 5. H. 7. 3.or ſuch like rationae tenure ſuae: therfore the courſe is to remoue ſuch preſentments into the kings Bench by a Certiorari, where he may trauerſe them.