Jurisdictions, Part 73 – Part 74
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 onelyonly 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 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 let… the Aſſiſe …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, 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 …ertaine Scedule annexed to this Writ. J. D. Eſquire, Sheriffe.