Jurisdictions, Part 145
Waging of Law.
Then for that, that the ancient Triall in Court Baron is by waging of Law, and alſo in Plaints for Copy-hold-Lands of non-ſummons, it is needfull to ſay ſomething of waging of Law, and what will ſave his Default, and where, without waging the Law of non-ſummons.
TRiall, that in Court Baron the Triall is by waging Law, but it may be by a Jury by conſent of the parties, 33 H. 8. f. 143.
18 H. 8. fol. 3. Of Detinue, and counts of delivering of Goods by another hand, the Defendant may wage his Law, for the Detinue is the cauſe of Action, and not the Delivery: but in Account and Counts of a Receit by another hand, he cannot wage his Law, for the Receit is traverſable, 34 Ed. 3. f. 61.
26. H. 8. f. 26. Detinue, It ſeems though the delivery were by deed, it may be diſcharged by matter in the evidence by redelivery, and in account of receit, by the Plaintiffs own hands, and he ſhews a deed teſtifiing that, yet the Defendant in theſe caſes may wage his Law, 16 Ed. 3. tit. 57. F. See, 27 H. 8. f. 26.
Account, the Defendant ſhews a deed witneſſing the receit, Defendant ſhall not have his Law.
Debt upon Arbitrement, for Money awarded, Defendant may wage his Law for he hath notice of the award, and ought to take notice of it, and ſo it ſeems in debt againſt a Husband and his Wife, for debt of the Wife, for the Wife is party alwayes, 1 H. 7. f. 25.
10 H. 7. f. 18, In debt upon a Statute of Cappers, Defendant cannot wage his Law, for it is a matter of Record, 50 Ed. 3. f. Where the King is party Defendant cannot wage his Law.
13 H. 7. f. 3. Debt againſt Succeſſor of an Abbot, where Predeceſſor makes a bargaine, that is buying Fiſhes which comes to the uſe of the Houſe, and the Succeſſor, hath his Law, and yet it was of anothers Contract
1 H. 7. f. 25. Contrary, for he hath notice of the bargaine, and ſaid, if my Servant buy a Horſe for me, in debt againſt me of that contract, I may wage my Law, 13 H. 7. fol. 3.
2 H. 4. f. 16. Where the Teſtator may wage his Law, no Action lies againſt the Executors, 15 Ed. 4. f.
3 H. 4. fol. 3. Where the Defendant is ready to wage his Law, and the Plaintiffe is Demandant, and makes default, he cannot be non-ſuted, where before he appeared in Court. But if he had imparled to this day he might be non-ſuted.
6 H. 4. fol. 2. In debt for dammages recovered in a Baſe Court, the Defendant tenders his Law, but ſhall not have it. 34 H. 6. fol. 64.
11 H. 4. fol. 54. In debt for money awarded upon arbitrement, the Defendant may have his Law. 22 H. 6. fol. 46. the ſame. 2 H. 5. fol. 6. the ſame.
8 Ed: 4. fol. 4. Detinue of Charters, held by all the Juſtices, that the Defendant may traverſe the delivery generally, for that, that he could not wage his Law but in Detinue of Charters. If the Plaintiffe do not intitle himſelf to Land, the Defendant he may wage his Law: For if one give to me a Deed of feoffment it is but a chattel in me, if I have not the Land.
9 Ed: 4. fol. 1. Debt, where a man lets a Chamber to the Defendant, and takes his wife and ſon to table, rendring for the Chamber and Table 6 s. a week, defendant cannot for his debt wage his Law.
9 Ed: 4. fol. 25. Debt againſt the Husband and his wife for debt of the wife before the marriage, both ſhall wage their Law, for by the marriage the debt is the Husbands. 15 Ed. 4. fol. 2. the ſame.
16 Ed. 4. fol: 15. Debt of the ſale of cloaths, the Defendant may wage his Law. The ſame Law is in debt for wages, unleſſe the reteiner be according to the Statute of Labourers.
21 Ed. 4. fol. 26. Debt for an Horſe ſold for 10 l. where there were two, or the contrary; or if he count of a Cow where it was a garment, it ſeems he may wage his Law by conſcience, for it is another contract.
22. Ed: 3. fol: 2. Detinue, if a man deliver to me goods in ſatisfaction of debt due to me, and after having brought Detinue, Defendant may wage his Law, for the property is changed, and in Detinue of a thing of 4 ounces which is but two, The Defendant may wage his Law, the ſame law in Detinue of a white horſe, which indeed is bay. The ſame in Detinue of cloath of 20 yards, where it is but 13. the Defendant in theſe caſes, by conſcience may wage his Law.
34 H. 8. tit: 97. Detinue of a Deed Indent of a Leaſe for years, the Defendant cannot wage his Law, for this concerns Land, and a Chattell reall.
21 Ed: 4. tit: 79. Detinue of a cheſt with Writings, enealed, or of a Box enſealed with Writings, the Defendant may wage his Law. And where he counts of a cheſt enſealed with Writings, and of a ſpeciall Deed, the Defendant may ſay to this deed he detains not, and to the reſt wage his Law. 19 H. 6. fol. 9. the ſame. And 38 H. 6. fol: 25. the ſame. 44 Ed: 3.1. and 10 H. 6. fol: 20.
12 R: 2. tit. 43. Debt for amerciament in Leet, Defendant ſhall not have his Law.
39 H: 6. fol: 36. Debt upon a Bargain, the Plaintiffe ſhews a Deed witneſſing the receit of it, yer defendant ſhall have his Law.
32 H: 6. fol: 19. Debt for a Sallary in Husbandry reteined, Defendant ſhall not have his Law.
8 H: 5. tit. 5. Quo minus. B. A man ſhall not wage his Law in a (Quo minus) where one ſues that for debt, and payes the King: 32 H. 6. fol: 28. the ſame.
32 H: 8. tit. 112. It was ſpoken for Law, that a man ſhall not wage his Law in (Quo minus) But ſee Tit. 102. B.
2 H: 5. fol: 6. Debt for money awarded by Arbitrators, defendant ſhall have his Law, for they are not Judges of Record. 5 H. 5. fol: the laſt, the ſame.
9 H. 5. fol. 5. Debt upon Arrearages of account before Auditors, defendant ſhall not have his Law for that, becauſe they be as Judges of Record: otherwiſe it is of Arrearages before the Plaintiffe himſelf. 5 H. 6. fo: 17. 43 Ed: 3. fol. 1. 49 Ed: 3. fol. 3.
38 H. 6. fol. 6. The Lord in debt againſt him of ſurpluſage of Account, he may wage his Law by Priſot.
38 H. 6. fol: 14. Debt for wages, he counts that he was reteined to ſerve in Husbandry, defendant could not wage his Law; and if he count of another reteiner, he may have his Law.
38 H: 6. fol: 24. If a Gentleman be reteined in Huſbandrie in debt for their ſallarie, defendant cannot wage his Law: But if a Gentleman, or a Carpenter be reteined in other Art then Husbandrie, in debt for their wages, the defendants ſhall have their Law: 39 H. 6. fol: 19. 3 H: 6. fol: 43. the ſame.
1 H: 6. fol: 1. Debt, and counts that he left to the defendant certain ſheep, paying for every ſheep by the yeer 4 d. and 15 d. for every ſheep dead; Defendant tenders his Law forthwith, and had it. The ſame Law is in debt upon Arbitrement: but otherwiſe it is in debt upon a Leaſe of land rendring Rent.
3 H: 6. fol: 14. Debt, Defendant Imparles till the next day, and then comes and tenders his law forthwith; And for that, that all was in one ſelf ſame Tearm, the Plaintiffe ſhould not be demanded to be non-ſuited. But for that, that he ſaid nothing, it ſhall be entended acknowledged by him. But if he had Imparled till another Tearm, Plaintiffe ſhall be demanded, and may be non-ſuited.
3 H: 6. fol: 34. Debt by Counſellor, and how he was reteined by 20 li. yearly, and the Plaintiffe ought to count that he hath given him Counſell; And the defendant tenders his Law, and had it. But in debt for wages of a Common Labourer, Defendant cannot wage his law, for it is certain by the Statute.
3 H: 6. fol: 43. Debt of 40 s: for Tallow, the defendant ſaith that he bought the Tallow for 3 s: 6 d: which he is ready to pay, &c. And to the remnant tenders his Law, and had it: and for that it was the ſame Tearm, Plaintiffe ſhall not be demanded; But if it were in another Tearm he ſhall be demanded.
4 H. 6. fol: 25. Debt upon Arrearages of account, before an Auditor, Defendant tenders his Law, and had it: 20 H. 6. fo: 17. the ſame.
… H. 6. fol: 58. Debt upon Arbitrement, Defendant ſhall have his Law, and in Detinue of delivery by anothers hand, but not in account of receit by another hand.
10 H. 6. fol. 20. Detinue of Writings enſealed, and counts of one, eſpeciall of the Land, the Defendant may plead barr to that, and to the remnant tender his Law, and had it.
11 H. 6. fol: 11. If debt be upon a leaſe and Bargain, or upon an Obligation, and Bargain, Defendant may plead to the Obligation, and to the Bargain wage his Law: 14 H. 6. fol: 1. the ſame. 19 H. 6. fol: 10. the ſame: 33 H. 6. fol: 26.
44 Ed: 3. fol: 41. Detinue, where the Plaintiffe count of a cheſt for Writings, the Defendant may wage his Laws but if he counts of a ſpeciall Writing concerning land, he cannot wage his law of that, but of the Cheſt and the reſidue.
46 Ed: 3. fol: 6. Debt upon Contract for 40 s. the Defendant ſaith that he doth not know the Contract to be made for ſo much: but only for 4 s. which he hath been alwaies ready to pay, and yet is: And to the 40 s. he owes him nothing, ready to wage his law, 3 H. 6. fol: 43.
49 Ed: 3. fol: 3. Debt upon arrearages of Account, found before Auditors aſſigned by the Party out of the Court, and the Defendant tenders his law and had it.
21 H. 6. fol: 48. Detinue of two Writings obligatory, the Defendant may wage his law.
7 R. 2. tit: 42. Fitzh. Debt upon a Leaſe of land, the Defendant ſhall not have his Law.
12 R. 2. tit: 43: F. Debt for Amerciament in Leet, the Defendant ſhall not have his law.
14 Ed. 3. tit: 48. F. Account of Receit by his own hand, the Defendant ſhall have his law, 25 Ed: 3. fol: 46. the ſame.
5 Ed: 3. tit: 54. F. Account of receit by the hands of his Wife, the Defendant ſhall have his law.
14 Ed: 2. tit: 69. F. Account of receit by other hands, the Defendant ſhall not have his law, 17 Ed: 2. tit: 72 the ſame caſe.
27 H. 8. fol: 26. Account of Receit by his hands, and ſhews a deed witneſſing that, yet the Defendant may wage his Law.
39 H. 6. fol: 36. Debt upon a Bargain, the Plaintiffe ſhews a deed witneſſing that, yet the Defendant ſhall have his Law, ſee before. 26 H. 8. fol: 26.
18 Ed. 3. fol: 53. One which was dumb waged his Law by ſignes, and the words were read to him, and he put his hand upon the book, and kiſt it, and ſo waged his Law without words.
21 H. 6. fol: 47. Where a Lumbard waged his Law.
22 H: 6. fol: 14. Debt for Commons of one, Defendant ſhall have his Law. 1 Ed: 4. fol: 5. 9 Ed: 4. fol: 1. the ſame.
28 H. 6. fol: 5. Debt againſt a Priſoner of the Tower for his meat, he ſhall not have his Law, for the Plaintiffe is compellable to give that to him.
27 H. 6. fol: 16. If the Tenant at the day of the great Cape appear, and tenders his Law of non-ſummons, and the Sheriffe do not return the Writ, yet he may wage his Law, for he hath day by Roll.
33 H: 6. fol: 8. Precipe, At the day of the great Cape returned, the Tenant ſaith that he was not ſummoned, ready to prove by the Countrey, and ſhall be tried by waging law, and not by the Countrey, unles upon ſpeciall matter ſhewed, as if the party were ſick, or it be a Mayor and Commonalty, or be a Recluſe: And waging of Law ſhall be by 12 hands, that is 12, and he himſelf ſhall be ſworn: But the uſe is in Court Baron by 6.
40 Ed: 3. fol: 40. Ceſſavit againſt 3. which 3 at the day of the great Cape returned, waged their Law of not ſummoned, and at the day 2 made default, and the third appeared, and tendered the Arrearages, and could not, unles for the third part, for that, that they are joyned in Tender.
41 Ed: 3. fol: 2. Precipe againſt 2 which wage their Law of not ſummoned, and at the day one comes and the other not: And he which comes wages his Law, and awarded, that the demandant ſhould recover the half againſt him which made default, and took nothing by his Writ againſt the other, 40 Ed: 3. fol: 35.
48 Ed. 3. fol. 13. Ceſſavit againſt three, they wage their Law of not ſummoned at the day, the great Cape returned, and at the day gives them to make their Law, two appears and wage their Law, and the third makes default, and the Writ abates for two parts, and one was received for the third part in deſault of the three, and ſo the Writ ſhall be for the third part.
40 Ed. 3. fol. 35. Debt againſt two which tender their Law, and at the day one makes default, and the other was readie to wage his Law, and waged his Law: And for that, that the Plaintiffe ſuffered that, he was barr'd. And yet where the two tendered their Law, and at the day one made default, this was the default of both, If the Plaintiffe had prayed it, and not ſuffered the Law of one.
44 Ed. 3. fol. 38. Precipe, the Tenant wages his Law of not ſummoned, the Writ ſhall abate.
7 H. 4. fol. 3. Precipe the Tenant makes default after appearance, by which iſſues Pettie Cape, at which day he appears by Attorney, and the Attorney wages his Law, and day given for his Maſter againſt another day to make his Law.
7 H. 4. fol. 7. The waging Law ſhall be in perſon by the Tenant, and not by Attorney.
24 Ed: 3 tit. 57. 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 ret…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 Te…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 plead in perſon afterwards, that he is Prior of the Church of St. Peter, and Paul, for that is parcell of the name, which cannot be pleaded after Imparlance, for that doth notſtand with, &c.
35 H. 6. fol: 37. Treſpaſſe againſt J.S. of D. after Imparlance he demands Judgment of the Writ, for day of the Writ purchaſed he was dwelling at S. and not at D. and ſhall not have it, for it is contrary to the name which the hath affirmed by the Imparlance.
32 H. 6. fol: 35. After Imparlance, the Defendant cannot plead, that he is dwelling in another place, then is in the Count: 19 H. 6. fol: 1.
35 H. 6. fol: 43. Debt againſt J. S. as Executor of J. D. and he imparles, he ſhall not ſay after, that he is Adminiſtrator, and nor Executor: 32 H. 6. fol: 32. The ſame, 36 H. 6. fol: 17.
37 H. 6. fol: 32. If the Defendant in perſonall action imparle, and at the day makes default, Judgment ſhall be given, and in a reall action ſhall be awarded a Pettie Cape: 7 H: 6. fol: 30. The ſame, 11 H 7 fol: 5.38 H. 6. fol: 36.39 H. 6. fol: 17.
4 H. 7. fol: 12. If a man in debt upon an Obligation, imparle before he demands hearing of the Obligation and Condition, and hath that entred, he cannot plead the Condition afterward, for he ſhall not have hearing of that, if he do not alledge variance.
13 H. 7. fol: 17. Precipe of Lands in D. the Tenant imparles, and at the day he may ſay no ſuch Town: 9 Ed: 4. fol: 33. the ſame, 7 Ed: 4. fol: 1. Treſpas.
16 H. 7. fol: 17. Debt by Prior, the Defendant imparles, and at the day ſaith, that the Plaintiffe is depoſed, for that goes in Bar.
7 Ed. 4. fol: 1. Treſpas againſt J.S. de D. in the County of Middleſex, after Imparlance the Defendant cannot ſay, no ſuch Town D. within the ſaid County: but he may ſay there is over D. and nether D and none without addition: 22 Ed: 4. fol: 1. the ſame.
9 Ed. 4. fol: 38. Precipe, after Imparlance one may plead Non-tenure, and Joyntenancie: But in Precipe of Lands in D. and S. the Tenant Imparles, and at the day ſaith, That D. is an Hamlet of S. without that, that there is any Town or place known out of the Town named D. in the ſame County, Judgment of the Writ, and hath the Plea by the whole Court.
9 Ed. 4. fol. 42. Debt againſt Executors, after Imparlance he cannot ſay that the Teſtator dyes inteſtate, and that the Adminiſtration was committed to him, Judgment of the Writ, for he is eſtopped by the Imparlance, but he may plead never Executor, nor ever adminiſtred as an Executor, for that is with the, &c. 32 H. 6. fol. 32. the ſame.
18 Ed. 4. fol. 19. Writ is abated by death, and abateable by Joyntenancie, and ſeverall tenancie, and where a man is made knight, or a woman takes an husband, and ſuch like, and ſaith, where a Writ is abateable if he Imparle, or take continuance, he cannot plead in abatement: But otherwiſe it is if it were abated. See 7 H. 6. fol. 16. and 20 H. 6. fo. 17. And note that it pleaded there that the Plaintiffe is a knight.
44 Ed. 3. fol. 4. After Imparlance the Defendant may plead to the Action, as to ſay, that the Plaintiffe is a Channon profeſſed, &c. But he cannot plead to the Writ, unleſſe he come after the Continuance, unleſſe it were for that, that the Writ is abated, as death, &c.
20 Ed. 4. fol. 9. Debt upon a Leaſe of a Corodie, the Defendant imparles, and after that ſhall not have hearing of the Deed. See 4 H. 7. fol: 12.
4 H: 7. fol. 17. Replegeare againſt three which imparle joyntly, and one makes default, the other cannot plead no ſuch in being, as one is, which makes default.
11 H. 7. fol. 5. Debt for Corn, the Defendant imparles, and at the day makes default, there ſhall go a Writ to inquire of the value. See 37 H. 6. fol. 32.
15 H. 7. fol. 14. Attorney for Corporation after Imparlance, he cannot plead that they are corporate by another name.
32 H. 6. fol: 12. Where a Writ is abated, he may plead that though there be a Continuance, as to ſay that the Plaintiffe is dead, or hath an Husband day of the Writ, but if it be abateable, it is otherwiſe, he may ſay that after the laſt continuance, is made knight, Judgment of the Writ, &c. where it is abateable.
34 H. 6. fol: 49. Debt upon Obligation by three, the Defendant pleads not his Deed; yet he may plead that after the laſt continuance one Plaintiffe is dead.
22 Ed: 4. fol: 36. Treſpaſſe. The Defendant after Imparlance, may ſay that the Plaintiffe is his wife, Judgment if Action; or that the Plaintiffe is a Monk profeſſed. And in Mordanceſter that the Demandant is a Baſtard. And in Debt againſt Executors, after Imparlance he may ſay he was never Executor, nor ever adminiſtred as Executor; for theſe are diſabilities which go in Bar.
32 H. 6. fol: 32. It ſeems a man may plead after a Continuance, that the Plaintiffe is a ſtranger born, or Monk profeſſed, Judgment if Action, and not to the perſon. 36 H. 6. fol: 7.
7 H. 6. fol. 39. It ſeems that after Imparlance, one cannot plead to the Juriſdiction, unleſſe it be after ſpeciall Imparlance, ſaving all advantages, as well to the Juriſdiction of the Courts as to the Writ, and Declaration.
19 H. 6. fol. 7. Debt by Executor, which ſhews the Will (as it behoveth) and after the Defendant imparles, there he ſhall not have reading of the Will again. 38 H. 6. fol. 2. But if he plead variance, he ſhall have (Reading) and ſo in Debt upon Obligation.
16 Ed. 4. fol. 4. Debt upon ſpecialtie, the Defendant may plead Out-lawrie in the Plaintiffe, though he hath parled; for that is a Bar, and intitles the King.
4 Ed. 4. fol. 15. Debt, after Imparlance, one ſpace in the Count cannot be amended in another tearm.
39 H. 6. fol. 22. Debt upon arrerages of annuitie, after Imparlance; the Defendant cannot have hearing of the Deed: But if the Defendant plead that it was made in another County, then where the Writ was brought, and then he ſhall ſhew. 39 H. 6. fol. 17. the ſame.
Pleas after day given.
IF the Defendant imparle, and make default, he ſhall be condemned, and upon day given ſhall iſſue Proceſſe. 7 H. 6. fol. 42.
19 H. 8. fol. 6. Note by all the Prothonotaries that (day given) is ever before the Count, and Imparlance is after the Count, and therefore where three Capias and Exigent is awarded, and the Defendant appear upon the Exigent, and hath (day given) and after makes default, Diſtringas ſhall go, and upon that returned, (Nihil) other 3 Capias and Exigent, and upon default in perſ…r all action, he ſhall be condemned. See 7 H. 6. fol: 42.
20 H. 6. fol: 17. Treſpas, the Defendant at the day which he hath by Imparlance ſaith, that the Plaintiffe was knight day of the Writ purchaſed, not named knight, Judgment of the Writ, and had plea by Judgment. Otherwiſe it is ſaid after continuance by (day given.)
42 Ed: 3. fol: 1. Debt, the Defendant came at the Exigent, by (Reddidit ſe) and was bayled, and the Plaintiffe came and prayed day by (Prece partium) and had it, notwithſtanding that the Defendant was by Bayl, for that is by agreement of the parties.
8 H. 5. fol: 8. After day given, and after ſpeciall Imparlance, the Defendant may plead in abatement, and not after generall Imparlance.
14 H. 4. fol: 14. If the parties be at Iſſue, and the Demandant releaſes to the Tenant, and he takes continuance by requeſt of the parties, he ſhall not plead the releaſe.
22 Ed: 3. fol: 8. The Tenant after the (requeſt of the parties) was received to plead Joyntenancie by Fine.
Pleas after Iſſue, and at the Niſi prius day in Bench, and after Verdict.
DOwer, by Thorpe, the day of the Niſi prius, and the day in Bench is not all one to all reſpects; for a Writ purchaſed mean between the Niſi prius and day in Bench, ſhall abate, for the firſt Writ is hanging till Judgment be given, notwithſtanding the Plaintiffe was non-ſuited at the Niſi prius. But when to plead any Pleas, which come mean between them, there ſhall be one ſame day. 40 Ed: 3. fol: 38.
28 H. 6. fol: 1. A man may plead a Plea after laſt continuance at the Niſi prius. Inquire what Pleas.
34 H. 6. fol: 45. At the day of the Niſi prius, the Defennant pleads to the Writ, that one of the Plaintiffes was dead after the laſt continuance at D. in the County of Darby. Judgment of the Writ, and had it.
47 Ed: 3. fol: 2. If it be found againſt the Plaintiffe at the Niſi prius, and the Plaintiffe makes default at the day in Bench, yet Judgment ſhall be upon the Verdict, for that is all one day, and the day of the Niſi prius.
10 H. 7. fol: 21. Debt upon a Leaſe for yeers, and the Iſſue was levyed by diſtreſſe or not; And now at the Niſi prius, he could not plead a Releaſe made after the laſt continuance.
19 H. 6. fol: 36. Forging of falſe Deeds againſt many, they were at Iſſue, Proceſſe continued againſt the Enqueſt till the Jury appeared, at which day the Defendant pleads arbitrement after the laſt continuance, and upon this the Jury was diſcharged.
21 H. 6. fol. 10. Niſi prius was returned Octa: Mich: that is, the day in Bench: and one Plaintiffe dyed after Octa: Mich: and before Judgment given upon the Verdict; And the Defendant may plead that, for Judgment ſhall have relation to Octa: Mich: and then the Defendant cannot have remedie by Writ of Error, Audita querela, nor otherwiſe; therefore he ſhall have the Plea again. But it ſeems that the Defendant cannot plead Releaſe made to him, by the Plaintiffe after Verdict, for he ſhall have an Audita querela, contrary of his death, the day of Niſi prius, and the day in Bench were all one ſelf ſame day, and no mean time; and therefore Releaſe made mean between theſe two cannot be pleaded at the day in Bench, notwithſtanding it ſeems at the day of Niſi prius before the Jury taken. The Releaſe which is made mean between the Award of the Writ of Niſi prius, and the day of the Niſi prius, may be pleaded at the Niſi prius. See 10 H. 6. tit: 53 and tit: 55. Br.
22 H. 6. fol: 1. Dower, It ſeems if the Plaintiffe releaſe to the Defendant mean between the award of the Niſi prius and the day of the Niſi prius, there if the Jury remain for default of Jurors, the Defendant may plead this Releaſe at the day in Bench after the laſt continuance, though he did not offer it at the day of Niſi prius, and contrary it ſeems, if the Jury had been ready at the Niſi prius.
36 H. 6. fol: 24. At the Niſi prius the Enqueſt paſt for the Plaintiffe, and he releaſed before the day in Bench, the Defendant ſhall have an Audita querela, and of this it follows, that the Defendant cannot plead that at the day in Bench after the laſt Continuance. 34 H. 6. fol: 3.
21 H. 7. fol: 33. After the Enqueſt taken by default, the Defendant cometh before Judgment, and pleads that he and the Plaintiffe have put themſelves to Arbitrement after the laſt Continuance, &c. And by the opinion of the Court, he hath no day in Court to plead that Plea. And it was ſaid that he ſhall plead no plea in ſuch caſe, but as a freind to the Court. But of matter apparent he ſhall be received, but in the Kings caſe, he ſhall have that by plea; for he hath no other remedie. But in the caſe between common perſons, he ſhall have Audita querela, contrary againſt the King. 11 H. 7. fol: 10. tit. B. 61.
38 H. 6. fol: 33. Debt by Moyle, the Defendant after that he was at Iſſue might once plead plea, after the laſt Continuance, as releaſe or ſuch like, notwithſtanding no oftner then once.
41 Book of Aſſ: 19. If Verdict paſſe for the Plaintiffe, and the Defendant get a releaſe before Judgment, yet he cannot plead that.
21 Ed: 4. fol: 52. Adjudge that the Defendant cannot plead Releaſe, made mean between the Niſi prius and the day in Bench.
16 Ed: 4. fol: 5. A man may plead a Plea after the laſt Continuance, after Iſſue joyned, and in another Tearm. And therfore it ſeems, that the parties have day in Court, as well after Iſſue joyned till Verdict, as before. 50 Ed: 3. fol: 4.
Imparlance at a day in the ſame Tearm, and at a day and Tearm between, and Imparlance of the Plaintiffe.
COntinuance by Capias, ought to be made from Tearm to Tearm, and cannot have other Tearm between; for that, that the party ſhall not ſtay ſo long in priſon, but continuance by diſtreſſe may be made by a Tearm between, as from Michaelmaſſe Tearm to Eaſter. 8 Ed: 4. fol. 13.
12 H. 7. fol: Common recoveries for aſſurance, the Tenant tenders Iſſue, the Demandant may Imparle to a day in the ſame Tearm.
44 Ed: 3. fol: 16. If a man Imparle to another day in the ſame Tearm, or till the next day, yet that is a new day, at which the parties are demandable.
37 H. 6. fol: 27. Debt, Defendant pleads miſnaming of himſelf, and the Plaintiffe Imparles, and had it.
22 Ed. 4. fol. 19. Where the Defendant in appeal of Robbery, by which he put his life in jeopardie, the Plaintiffe ſhall not Imparle to that, and therefore ruled that he ſhould anſwer the Court ſitting.
What Pleas he ſhall have after the laſt Continuance.
WHere the parties and Jury appear at the fourth day in the Common Bench, and are adjourned, at another day a man may plead a Plea after the laſt Continuance. 28 H. 6. fol. 1.
8 Ed. 4. fol. 9. Where a man pleads death of the Defenfendant, hanging the Writ, he ſhall not plead that after the laſt Continuance, for that by this the Writ is abated in deed, contrary of a Plea which proves the Writ abateable.
34. H. 6. fol: 49. At the day of Niſi prius, the Defendant pleads to the Writ, that one of the Plaintiffes was dead after the laſt continuance, at D. in the County of Darby, Judgment of the Writ and the Plea recorded, and the matter adjourned, and had that Plea. 14 H. 6. fol: 9.
38. Ed: 3. fol: 5. Precipe by a Woman, the Tenant tenders his Law of not ſummoned, and at the day was eſſoyned, and at the day ſaith that the Demandant took a Husband after the Law tendered, and for that, that he did not ſay after the laſt continuance, that is after the eſſoyn, it was held no Plea.
4. H. 7. fol: 8. A man ſhall have but one Plea after the laſt continuance, 38. H: 6. fol: 33. the ſame.
16 Ed: 4. fol: 5. A man may plead a Plea after the laſt continuance after Iſſue joyned, and in another Tearm, till Verdict, but not mean between Niſi prius and the day in Bench.
…. H. 7. fol: 8. A man ſhall not have a Plea after the laſt continuance, unleſſe ſuch Pleas which were not in being, at the time of the firſt Plea, for otherwiſe it is not after the laſt continuance.