Jurisdictions, Part 169
Traverſe.
Where he ought not to traverſe, and where he ought, then what thing in the Plea ſhall be traverſed.
BY Huſſey, in Precipe, if the Tenant plead that the Land is ancient Demeſne, and pleadable by a ſmall VVrit of Right cloſe, and he need not take Traverſe that it is not frank fee, for that, that the VVrit is but a Suppoſall, 5 H. 7. fol. 13. And in Mortdanceſter, Tenant pleads Joynt-tenancy with the Father of the Demandant, and it is good without Traverſe, that he is ſole Tenant, for that, that this is but a Suppoſall; and by Tremail, fol. 14. of his Horſe taken, the Defendant ſaith, that J. S. ſold the Horſe to him in an open Market, or that the Horſe was waived, or VVreck, or ſuch like, there he need not traverſe, for that, that this is matter in Law; and if he takes Traverſe he waives that matter in Law, 5 H 7. f. 6. accordingly, 2 Ed. 4. f. 9. & Plowd. 23. A. By Huſſey & Fairfax, where a matter indeed is alleadged, by way of Bar, or in Covenant, then this ought to be traverſed in every Caſe, unleſs it be for the miſcheif of Trial, as ſpecial Baſtardy is alleadged without Traverſe, it is goood for miſchief duplicate page duplicate page of Triall, 6 H. 7. f. 5. otherwiſe it is of matter of Suppoſall, and in Aſſiſe the Tenant pleads a Feoffment of J. S. the Plaintiff ſaith, that this was upon Condition, and that J. S. entered for the Condition broken, and infeoffed him, and ſo he confeſſeth and avoids, and for that he ought not to traverſe; and in Precipe quod reddat, againſt J. S. he ſhall ſay, that he held ioyntly with J. D. not named in the VVrit, and take no Traverſe, for that, that it is but a Suppoſall; and in Treſpaſſe of Goods taken, the Defendant ſaith, they were the Goods of J. S. which made him and the Plaintif his Executors; the Plaintif ſaith, that the Teſtator deviſed, that after his Debts and Legacies paid, that he ſhould have all the remainder, and ſaith, that ſuch and ſuch are paid, which are all; the Defendant ſaith, that ſuch a Legacy was not paid, without that that the Plaintif alleadgeth were all, and he ought to traverſe, for that, that it is a matter in deed.
Treſpaſſe of Trees cut, the Defendant pleads, that J. S. was ſeiſed of an Acre whereof the Treſpaſſe is parcell in Fee, and let to him at will, and that he by his commandement cut the ſaid Trees, and demands Judgement if Action, and this is no Plea without Traverſe, that is, without that, that it is the Soil of the Plaintif, 5 H. 5. fol. 8.
Treſpaſſe, the Defendant conveys that his Father was ſeiſed in Fee, and that deſcended to him; the Plaintif pleads that J. D. infeoffed him, and ought to traverſe, without that, that the Father of the Defendant was ſeiſed in Fee, 27 H. 8. f. 9.
Treſpaſſe, the Defendant pleads, that the place where, &c. was his Free-hold; the Plaintif ſaith, that J. S. was ſeiſed in Fee, and let to him at will, and that the Defendant outed him, and diſſeiſed J. S. and that the Plaintif at the command of J. S. re-entered, and the Treſpaſſe mean between the re-entry and the diſſeiſin, and the Defendant maintains his Barr, and he ought to traverſe the Leaſe, for that is moſt material, 11 Ed. 4. f. 3.
Treſpaſſe, the moſt material matter ſhall be traverſed; and for that if a Gift in Tail, and dying ſeiſed be pleaded in Barr in Treſpaſſe, the Gift is traverſable, and not the dying ſeiſed; ſo in Treſpaſſe, if the Defendant ſaith, that a ſtranger was ſeiſed, and infeoffed the Father of the Defendant, and that his father died ſeiſed, and that the Defendant entered as Sonne, and Heire, nothing is traverſable, but the laſt dying ſeiſed, for that is the effect of his Barr, by Neale, 15 Ed. 4. f. 2.
Treſpaſſe, The Defendant ſaith, that I was ſeiſed, and proteſting died ſeiſed, and conveyed the diſcent to the Defendant; the Plaintiffe ſaith, that M. enfeoffed him, by force of which he was ſeiſed, till the Defendant made a Treſpaſſe, and the Defendant ſaith, as above, without that, that the Plaintiffe was ſeiſed at the time of the Treſpaſſe, but it is not good, for he ought to traverſe, and to ſay without that, that M. enfeoffed him, for that is the effect of the Replication, 19 H. 8. f. 7.
Treſpaſſe, the Defendant pleads his Freehold, the Plaintiffe ſaith, that the Defendant let to A. for years, which granted his eſtate to B. which granted to him, the Defendant maintained his Barr, without that, that B. granted to the Plaintiffe, and is not good, for he conveys from the Defendant himſelf, and that is traverſable, and ſaith, without that, that the Defendant let to A. But where an eſtate is conveyed all by ſtrangers, he may traverſe one conveyance or other, 10 H. 7. f. 8.
Aſſiſe, the Defendant pleads Barr, and the Plaintiffe makes Title by a gift in Tail to his father, and dying ſeiſed of his father, the gift is traverſable: but if it be by Feoffement of J. S. to his father, and dying ſeiſed of his Father, the dying ſeiſed is traverſable, 9 H. 6.22. and 10 H. 4.1. accordingly.
Meſne, and counts that he held a hundred Acres by Fealty, of the Defendant and he over, &c. the Defendant ſaith, that the Plaintiffe held of him by Homage and Fealty, and ought to traverſe the acquittal, & not the Tenure, 2 H. 5. f. 2.
Treſpaſſe of cloſe broken, the Defendant faith, that J. S. and J. D. were ſeiſed in Fee, that J. S. enfeoffed the Anceſtor of the Plaintiffe, and J. D. enfeoffed the Defendant, and ſo they hold as undivided, and the Plaintiffe ſaith, that his Anceſtor died ſole ſeiſed of all, and this deſcended to him, without that he held as undivided, and it is no Plea, but he ought to traverſe the Feoffement made by J.D. to the Defendant, for the Plea is as good without (So) and for that in this Caſe, that which comes after the (So) is not materiall, but whre it is materiall, it is traverſable, and for that by Choke; Debt upon an Obligation, the Defendant ſaith, that he was a lay man, and not learned, and this Writing was read to him in place of an Acquittance, and ſo this Obligation is not his Deed, now this which cometh after the (So) is materiall, 32 H. 6. f. 16. Tit. Iſſue 9.
Debt upon a Leaſe of four Acres, for four pounds of Rent, the Defendant demands Judgement of the Count, for that that the Plaintiffe let the four Acres, and a Rectorie for the four pounds, and ought to traverſe without that, that he let the four Acres onelyonly, &c. 35 H. 6. f. 38. and 18 Ed. 4. fol. 17.
One avowes for that, that the Plaintiffe held an Acre of him by twelve pence, the Plaintif ſaith, that he held the ſame Acre, and another by ſix pence, without that, that he held of him by the ſame Services onelyonly, and it is not good, but he ſhall ſay, without that, that he held the ſaid Acres in Manner and Form, 13 H. 7.25.
One avows, for that, that he held two acres by twenty ſhillings of him, the Plaintif ſaith, that he held the two Acres and two others in the ſame Town, by the Services of twelve ſhillings, without that, that he held the two Acres onelyonly by the Services of twenty ſhillings in Manner and Form, as, &c. this ſeems good, 8 H. 7. f. 5.
Where one juſtifies at another day then the Plaintiffe alledges, and ought to traverſe onelyonly, before the day of his iuſtification, and where, before and after, where onelyonly after.
TReſpaſſe againſt the Sherif, of a Cow taken, the Deſendant juſtifies, at the day after by a Precept he attached the Cow, and took her with him, without that, that he is guilty, before that Precept to him directed, and this ſeems good, 9 H. 7. f. 6.
Treſpaſſe of impriſonment ſecond day of May, the fourth year, the Defendant iuſtifies the fourth day of Auguſt, Anno fourth aforeſaid, by force of a Warrant of the Peace, &c. which is the ſame Impriſonment, without that, that he is guilty before that day, and it is doubted if he ought to traverſe before and after, and there it ſeems if one plead his Freehold ſuch a day, after without that, that he was guilty before, it ſeems good. 5 Ed. 4. fol 12.
Treſpas in Wood, 1. day of Auguſt, the Defendant juſtifies by preſcription to have yeerly, twenty cart load there betwixt Michaelmaſſe and Chriſtmas, and that ſuch a day in November he took them, without that, that he is guilty before Michaelmaſſe, and after Chriſtmaſſe, and good, And the Plaintiffe ſaith, that he knowledgeth the day that he counted, and traverſeth the preſcription, and good, notwithſtanding he doth not maintain the day that he traverſeth; for it is in the election of the Plaintiffe to maintain the traverſe of the time, or to traverſe the ſpeciall matter, as in treſpas, Anno 7. The Defendant pleads Releaſe, Anno 6. without that he was guilty after the Releaſe, the Plaintiffe may ſay it is not his Deed, without maintaining the day. 10 Ed: 4. fol. 2. and 21 Ed: 4. fol: 79. the ſame of Releaſe pleaded, without that he was guilty afterwards.
Treſpas, where one pleads a Releaſe, or Arbitrement atano ther day, he ought to traverſe all the time after the Releaſe, or after the Arbitrement; for all time before is extinct. But if he plead ſuch a day, it is Free-hold, there he ought to traverſe all time before. And in Treſpas of Corn taken the 6th day of July, the Defendant juſtifies as Parſon the 10th of Auguſt, for that they were ſevered from the 9th, without that, that he is guilty at another time: but after the Tythes ſevered, and till they were dry, and it is good without traverſing before and after, for it is yeerly, and not certain what day of the yeer. The ſame Law where one juſtifies for Common after corne ſowed, till cut: But otherwiſe it is for having Common from Lammas till Candlemas, there he ought to traverſe all the time before Lammas, and after Candlemas. 12 Ed: 4. fol: 6.
Treſpas of a Cloſe broken firſt day of May, Anno 8. the Defendant pleads that the Plaintiffe enfeoffed him, the 4th of May the yeer aforeſaid, without that that he was guilty before the ſaid 4th. day. And the Plaintiffe ſaith that he did not enfeoffe him: and it is good, without maintaining the day which was traverſed before. 15 Ed: 4. f: 23.
If the Defendant juſtifie by Licence at another day, he ought to ſay without that, that he is guilty before or after. 31 E: 4. fol: 9.
Treſpas of Batterie, the Defendant juſtifies at another day before, yet he ought to traverſe without that, that he is guilty before or after. 30 H: 6. fol: 4.
Treſpas of beating 1. day of July, the Defendant juſtifies in defending himſelf the 2. day of July, he ought to ſay without that that he is guilty before or after. 2 R: 3. fol: 16.34 H: 6. fol: 14. the ſame. and 19 H: 6. fol: 47.
Where one ſhall traverſe the Town, and where the County, and where not.
TReſpas, why he broke his Cloſe, and took his Reeds in B. it is no plea that the place is in D. in the ſame County, and not in B. but he ought to juſtifie in D. the taking, as by preſcription for repairing his houſe, or any matter of juſtification, without that, that he took in B. 9 H: 5. fol: 9. and 4 H: 7. fol: 5 by Huſſey.
Treſpas of goods in D. in the County of Middleſex, Defendant juſtifies at S. in the County of D. by commandment of J. S. in whom the property is, without that, that he is guilty in the County of Middleſex: 22 Ed: 4.38.
Treſpas of goods in one County, the Defendant may juſtifie in another, and traverſe the County. 7 H. 6. f: 37.
Treſpas of a Cloſe broken in D. the Defendant juſtifies for common appendant in S. in the ſame County, he ought to traverſe without that, that he is guilty in D. 4 H: 6. fol: 13.
Treſpas, why he broke his Cloſe in D. in the County of Darby, the Defendant cannot juſtifie in S. in the County of N. in manner and form, and traverſe the County, but plead not guilty; for upon not guilty, the Jury cannot finde him guilty in another Town in another County: but in another Town in the ſame County they may, and for that he ought to traverſe. But in treſpas of goods taken, or of Battery in D. the Defendant may juſtifie in S. in the ſame County without travers. 9 H: 6. fol: 62.
Treſpas of Fiſh taken in a Cloſe in little Henberry, the Defendant juſtifies in great Henberry in the ſame County, without that, that he was guilty in little Henberry, and it is good. 19 H: 6.8. and 20 H: 6.29.
Treſpas of Aſſault, Batterie, and Impriſonment in D. the defendant …uſtifies in S. in the ſame County for helping a woman, which the Plaintiffe would have robb'd at S. and it is good, without traverſe, that is, without ſaying, without that, that he is guilty in D. for it is a juſtification in every place of the ſaid County. 9 Ed: 4 fol: 26.
Treſpas upon the Statute of Rich: the fifth yeer, for entring in 20. Acres of land in D. the defendant ſaith, that J. S. was ſeiſed of 20 Acres in S. in the ſame County, and of them enfeoffed him, and juſtifies, without that, that he entred into the Lands in D. and it is good. If he give colour in S. to have the Town par…ell of the Iſſue, for inveigling the Jury. 11 Ed: 4.9.
Treſpas in D. of Beaſts taken, the Defendant juſtifies in S. in the ſame County doing dammage, without traverſe. The ſame Law of Battery. Yet ſee the Book. 18 Ed: 4.11.
Detinue of a delivery to the Defendant in D. in the County of D. to re-deliver to the Plaintiffe, the Defendant ſaith that the ſame day and yeer at S. in the County of N. the Plaintiffe bought the goods of the Defendant for 10 li. upon condition, that if he payed the 10 li. ſuch a day, that the Sale ſhould be void; and that he did not pay at the day, without that that the Plaintiffe delivered them in the County of D. for to re-deliver, and admitted a good Plea. 8 H. 6. fol: 10.
Detinue of a delivery in one County, where it was delivered in another: the Defendant may ſay, that the delivery was in another County, without that it was delivered where the Plaintiffe counts; otherwiſe he ſhall be twice charged. 33 H. 6. fol: 28.
By Nedham, in Debt upon a bargain, the Defendant ſaith it was made upon condition at another place in the ſame County. The Plaintiffe may ſay that it was made ſimply, without any condition, ready without traverſing of the place, for that, that it is in the ſame County. But if the Condition were made in another County, there he ought to traverſe that it was made ſimply where the Plaintiffe counted. 34 H: 6. fol: 32. And the ſame Law in detinue of chattels, and ſee a bargain traverſable, which is in effect the ſame conveyance, where he might have waged his Law 33 H. 6. fol: 25.
Account of Receit in London, by the hands of R. the Defendant ſaith that he received them by the hands of R. in C. to deliver to the Plaintiffe himſelf, which he hath done without that, that he ever received them in London, and good. 9 Ed: 4.48. and 22 H. 6.55.
Account of Receſt of 10 Marks in London, the Defendant ſaith he received them in Cornwall, to deliver them to J.S. which he hath done, without that, that he was his Receiver in London, and it ſeems a good plea. 9 Ed. 4. f. 48.
Treſpas in the Pariſh of W. in D. in the County of E. the Defendant ſaith that the place is called W. in D. in the County of K. and juſtifies, without that, that W. is in the County of E. and not guilty ſhall be entred. 34 H. 6. fol. 5.
Treſpas of a bagge with money taken at C. the Defendant ſaith, that the Plaintife delivered that to him at L. and it is not good, but that he delivered that to him at L. to deliver to J.S. which he did, without that, that he is guilty at C is good. 34 H. 6.9. and 19 H. 6. fol. 43.
Treſpas of an Horſe taken at D. in the County of M. the Defendant juſtifies the taking for a Waife at S. in another County, without that, that he is guilty at D. and it ſeems nothing ſhall be entred but not guilty. Inquier 19 H. 7.27. and 22 Ed. 4.38. this was entred, and not the generall Iſſue.
Action upon the Caſe for that, that the Defendant ſold Woad to him at J. and there ſhewed to him a peice, which is march…ntable, and warranted the reſt to be as good as the example, where it is defective. The Defendant ſaith, that he ſold to him Woad at B. and warranted that, &c. without that, that he ſold at I. and is good. 14 H. 6. fol: 24.
Action upon the Caſe upon Aſſumpſit at London to cure his Horſe; the Defendant ſaith at Oxford he aſſumed to cure, &c. without that, that he aſſumed at London, and it is good. 19 H. 6. fol: 49.
Treſpas of beating at D. in the County of D. If the Defendant juſtifies at S. in the County of N. he ought to traverſe the County. 9 H. 6.62. and 11 H. 6.20. the ſame.
Treſpas of goods taken at E. the Defendant pleads that they were delivered to him at S. in the County of M. to deliver to the Plaintiffe, which he did, without that, that he was guilty at E. 19 H. 6.48.
In Treſpas tranſitorie, where the Defendant juſtifies in another County he onght to take traverſe. 29 H. 6.72. and 5 H. 4. fol: 3. the ſame. 22 Ed. 4. fol: 38.7 H. 6. fol. 37.10 H. 7. fol: 27.