Law, Book 4 · Chapter 34
CHAP. 34.
Of Replication, Reioynder, Surreioynder, &c.
THe mutuall pleas of both are the debating before iſſues, or an iſſue it ſelfe.
Debating before iſſue, is the diſcuſſing of the materiall things, to draw it to ſome one iſſue. As in an action of treſpaſſe or an aſſiſe, if the Defendant claime by a leaſe from the Plaintife to A. who granteth his terme to B. and to B. the defendant, the Plaintife muſt anſwer onelyonly to his owne leaſe, for the aſſignements of A. are but conueyances and not materiall. But in an aſſiſe if the defendant deriue his intereſt from a ſtranger, and that A. was ſeiſed and enfeoffed B. who enfeoffed C. and C. the Tenant: there the Plaintife may trauerſe any of the meane conueyances, for they are all materiall.
Therefore repugnance of a plea vntounto it ſelfe is a fault in pleading, as in an action of Treſpaſſe of his houſe, and wals broken downe, the Defendant cannot plead touching the houſe, not guiltie, and as to the breaking downe of the wals iuſtifie, for this carrieth a repugnancie in it, inaſmuch as the houſe and the wall are all one thing.
So is a departure, where he forfeiteth not the matter of his plea that went before, but commeth in with a new matter. As if the reioynder be a matter puiſne, vnderneath the matter of his barre, not aboue and going before it. As in an action of Treſpaſſe, the Defendant pleadeth a deſcent vntounto him of the land, the Plaintife ſaith, that after the deſcent the Defendant enfeoffed him. Now if the defendant reioyne that the feoffement was vponupon condition, and he entred for the condition broken; this is a departure for the matter of the barre, that is the deſcent, is before the matter of the reioynder, that is to ſay, the entrie for the condition broken, whereby the feoffement is auoided. So if in an aſſiſe, the Defendant pleadeth the feoffement of I. S. and the Plaintife make title to himſelfe by deſcent, and that he was diſſeiſed by I. S. who enfeoffed the defendant: or that he enfeoffed I. S. vponupon condition who brake the condition, and afterwards enfeoffed the defendant, &c.
Now if the defendant ſay that after the diſſeiſin (or condition broken) and after the feoffement of I. S. to the defendant, the Plaintife did releaſe to the defendant, or confirme the eſtate of the defendant, this is a departure, for that is a matter that groweth after the feoffement pleaded in bar. But if he plead ſuch a releaſe or confirmation from the plaintife to I. S. that is no departure, for it is a matter before the feoffement, or in an action of treſpaſſe for goods, if the defendantentitle himſelfe by the gift of I. S. and the plaintife ſaith, that himſelfe was poſſeſſed till I. S. tooke them from him, and gaue them to the defendant. Now the defendant may ſay that after the taking the plaintife gaue them to I. S. who gaue them to the defendant: for although the defendant might hauehave pleaded theſe things at the beginning, yet in aſmuch as it is purſuing and fortifieth his barre, and no puiſne matter vnderneath the title of his barre, but eigne and aboue the matter of his bar, therfore it is no departure. So a plea in barre which is intendible at the Common Law, cannot bee maintained by a matter of cuſtome, or by ſtatute Law. As in an aſſiſe the tenant pleadeth in bar a deuiſe vntounto himſelfe of the land being deuiſible by the cuſtome, the plaintife ſaith that the deuiſor was within age at the time of the deuiſe. Now if the tenant ſaid that by the cuſtome there an infant of 15. yeares of age may make a deuiſe: This is a departure, for the cuſtome pleaded in bar ſhal be entended of thoſe that may make a deuiſe by the Common Law So if in an action of treſpaſſe the defendant plead in bar a leaſe for 50. yeares from a houſe of Religion, and the plaintife auoid it by reaſon it was made within a yeare before the diſſolution, and ſo void by the Statute 31. H 8. Now if the defendant will alledge that by the ſame Statute it is prouided that all ſuch leaſes ſhall be good for xxj. yeares, and ſo maintaine the leaſe to be good for ſo many yeares, this is a departure: or if one plead a fine, and that being auoided becauſe the parties to the fine had nothing, wil maintaine the fine to be good by the Statute 1. R. 3. becauſe he had leuied the fine ceſti qui vſe. Laſtly, when matters are pleaded which offer ſeuerall iſſues, that is termed a double plea, and is a fault in pleading As in an aſſiſe to plead a feoffement of the anceſtor with warrantie. In debt vponupon a ſimple contract to plead payment and an acquittance. In an aſſiſe to plead diuers deſcents of the land in fee ſimple, for eueryevery of them requireth a ſeuerall anſwer. But in an aſſiſe to plead diuerſe deſcents in taile, is not double, for one anſwer maketh an end of all, that is to denie the gift in taile. So as the matter cannot come but to one iſſue: So in an action of debt to plead fully adminiſtred, and ſo riens enter mains, for one anſwer, aſſets enter mains ſerueth.
So is it alſo of two or three matters together with the general concluſion, as in debt vponupon an obligation to ſay, that hee is not lettered, and the deed was read vntounto him in another ſort: and further, that he deliuered it vponupon a condition which is not performed, ſo not his deed. So to iuſtifie an arreſt for twentie cauſes of ſuſpition of felonie, is not double, for one anſwer ſerueth Deſ… tort demeſne. No more to aſſigne in a Writ of error as many errors as appeare in the record, for in millo eſt erratum anſwereth then all. But to aſſigne diuerſe errors en fait is double, for theſe are to bee tried by the Countrey. And the reaſon of all this is, becauſe vponupon diuers iſſues ioyned, …f one be found for the party, and another againſt him, the Court ſhall be inueigled, and not know how to giuegive iudgement, whether for him or againſt him. But to plead a feoffement with warrantie, and relye vponupon the warrantie onelyonly is not double, for he cannot plead the warrantie without the feoffement.
Of the firſt ſort are Replication, reioinder, ſurrender, &c.
In an aſſiſe againſt many, if each (a)33. H. 6. 36.take the whole tenancie ſeuerally, a plead (b)33. H. 6. 36.ſeuerall matters in barre: or (c)ces Br. aſſ. 383one Nul tort and the other in barre: otherwiſe (d)44. E. 3. 23.it is if one plead in barre, and the other Ioyntenancie by deed: the Plaintife at his perill muſt chuſe his Tenant. And then after iſſue for the whole, that, viz. the Tenancie, 8. aſſ. Pl. 1.ſhall be firſt enquired of. And being found for the Plaintife, then the other iſſue ſhall bee enquired. Being found againſt ce… ibid.him and no title made againſt the tenant indeed, the writ ſhall abate.
In an action of Treſpaſſe meere tranſitorie, although the defendant iuſtifie by any ſpeciall matter, as in a (a)19. H. 6. 65.Treſpaſſe of goods, by commandement of I. S. whoſe the propertie is, in (b)34. H. 6. 16.aſſault and battery, or an (c)41. aſs. Pl. 21.appeale of mayme, in his owne defence vponupon the plaintifes firſt aſſaulting of him: in falſe impriſonment by (d)5. H. 7. 6.beeing Conſtable of the Towne, and that the plaintife brake the peace, or (e)2. E 4 9.by an arreſt for ſuſpition of felonie, or by (f)22 aſſ. Pl. 85.the commandement of I. S. to ſeiſe the bodie of the Plaintife in ward, by reaſon his anceſtour, whoſe heire he is, held of I. S. by Knight ſeruice, &c. yet the Plaintife may take iſſue that it was done De ſon tort demeſne, which is to ſay, wrongfully by the Defendant without anſwering to that matter. But if the iuſtification be by matter of writing or record, as in falſe impriſonment, by (a)21 H▪ 6. 5.a warrant of Iuſtice of peace to arreſt him, or a (b)5. H. 7. 6. 2 E. 4. 9.Capias that came to him as Sherife to take the body of the plaintife, or if it be any (c)44. E. 3. 18. 22. aſſ. Pl. 185.title or licence (d)12. E. 4. 10.from the plaintife, there de ſon tort demeſn is no plea, but the ſpeciall matter muſt be anſwered. So (e)H. 29. El. C. B.alwayes in a treſpaſſe locall, as of his cloſe broken downe, &c. if the defendant entitle a ſtranger to the land, whether to the freehold, or though it be but to a leaſe of it, and iuſtifie by his commandement. And likewiſe in a (f)B. Roy.repleuin which is reall, the title or ſpeciall matter muſt alwayes be trauerſed. If it bee a treſpaſſe vponupon land, the defendant iuſtifying in ſome other land then the Plaintife meaneth, the Plaintife may make a new aſſignement, ſetting forth the place more ſpecially. As if the defendant 27. H. 8. 7.iuſtifie in a place called A. as his freehold, the plaintife may ſay the place where, &c. is called B. other then the place called A. & then the defendant may plead all anew.