Jurisdictions, Part 160
Material.
Let us ſee what things are material in pleading, Evidence and Verdict, and otherwiſe, and what not.
ACtion upon the Caſe in London, and counts that he was poſſeſſed of Wine and Stuff, and ſhews that certain in ſuch a Ship, and the Defendant at London aſſumed for ten pounds, that if the Ship and Goods did not come ſafe to London, and are put upon the Land there, that then he ſhall ſatisfie one hundred pounds to the Plaintiff, and counts that aftewards the Ship was …obbed upon the Trade in the Sea, and for not ſatisfying, Action did accrue, and though that the Plaintiff doth not ſhew where he was poſſeſſed, it is good, and though it appear upon the Evidence, that the Bargain was made beyond Sea, and not in London, yet for that the place is not local, it is not material, and though they were robbed upon the Sea, the Action lies in London upon the Aſſumpſit, 34 H. 8. Tit. 107.
40 Ed. 3. fol. 2. Precipe, againſt H. Son of W. Oſmond, the Tenant at the great Cape came before he ſaved his default, and ſaith, that his Father is named Edmond, and not Oſmond, and ſhall have that Plea before he ſave his default, and that is material, for miſcheif of the Warrant: 40 Ed. 3. f. 48.
41 Ed. 3. fol. 15. Raviſhment of J. Heir to his Father, where he was Heir to his Father and Mother, for the Lands were given to the Father and Mother, and to the Heirs of their two Bodies, and the Mother ſurvived, and yet it is good, for the Action is perſonal, and it is not material if he be named Heir to one or other; 43 Ed. 3. fol. 4. the ſame.
3 H. 7. f. 14. Where a Jury appears, and notwithſtanding the Diſtreſſe, for the Jurors were not w…ll returned, it is not material, and for that it ſhall not be aſſigned for Error.
21 H. 7. fol. 36. It ſeems in the Caſe of a Leaſe of Common, except profits, that where a Leaſe is pleaded to be made one day, and it is found by Verdict to be made another day, the day is not material, and the party ſhall recover; and where Treſpaſſe is alleadged to be made one day, and it is found to be made another, it is not material, but the party ſhall recover.
33. H. 7. f. 11. In an Obligation one is named of D. he is not eſtopped to ſay, that he is dwelling at S. and not at D. for it is a recitall not materiall. 34 H. 6. f. 21. Debt againſt J. wikes at Briſtoll.
38 H. 6. f. 9. The Array was challenged, for that it was made at the denomination of the party by one J. S. the Sheriffs Clerk, and given in Evidence, that it was made at the denomination, by the Baillff of the Franchiſe, and that is good Evidence, for the ſubſtance and effect is, if it were made favourably or not, and the other is not materiall.
32 H. 6. fol. 3. The Original in Debt is two and forty pounds, and there is a Superſedeas ſued upon that, for that the Defendant is Clerk of the Chancery, and the Superſedeas doth mention four and forty pounds, and yet for that he is a Clerk of the Chancery hath the priviledge allowed, and the other is not material.
36 H. 6. f. 2. Debt upon a Recogniſance, the Defendant pleads no ſuch Record, and it is certified Recogniſance upon Condition not expreſſed, and the Plaintiff ſhall recover, otherwiſe it is, if it were certified upon Condition therein.
42 E. 3. f. 3. Covenant by one as Heir, where a Covenant was made to his Father and his Heirs, to ſing Divine Service within his Mannour, he need not to be named Heir, whether he be named Heir or not, it is not material, for if he be Tenant of the Land, it ſhall not abate for that, for he that hath the Mannour ſhall have this Covenant, for the thing is to be done upon the Land; 44 Ed. 3. f. 38.
44. Ed. 3. fol. 45. Aſſiſe of Tenements in Belham, Defendant pleads Recovery of the ſame Lands put in View in Eſton, and for that, that the Town is not material in Aſſiſe (for he ſhall recover by View of the Jurors) is good.
6 H. 7. fol. 6. Appeal againſt J. Haſſet, Cannon of the Monaſtery of W. the Defendant ſaith, no ſuch J. Haſſet Cannon of the Monaſtery of W. it is not good, for if he be Cannon or not, it is not material, but no ſuch J. Haſſet as is ſuppoſed by the Writ; 10 H. 7. f. 27.
3 E. 2. tit. Eſchea… 8. In Eſcheat, the Plaintif counts that his Tenant committed Felony, for which he was attaint, and the count was challenged, for that he doth not ſay for what Felony, and yet it is good, for it is not materiall for what Felony it was.
7 H. 4. f. 1. Debt by a woman, Defendant pleads that ſhee is out-lawed at the Suit of J.S. and the Plaintif pleads no ſuch Record, and ſhe was out-Lawed at the Suit of N.S. and ſhe ſhall not be anſwered, for it is not materiall at whoſe Suit ſhe was out-Lawed.
4 Ed. 4. fol. 29. Obligation is W.N. to be bound to J.S. and is to be paid to W. N. where it ſhould be J. S. and this to be paid is not materiall, for the Obligation is good without, to be paid, and may count ſolvendum J. S. and it is good.
7. Ed. 4.5. Hominereplegiando, by an Abbeſſe, they were at Iſſue, and it is a principle challenge, that one of the Jury was cozen to a Nun of the Abbeſſe, and it ſhall be tried if he were Cozen or not, and it is not materiall how he is Cozen.
9 Ed. 4. fol. 4. A man is bound in an obligation, the condition of that is, if he go to the Church and marry his Daughter, &c. and he rides and marryes her, that ſufficeth, and the other not materiall, for the Marriage is the ſubſtance, and not going, or riding to do it.
10 Ed. 4. fol. 13. Detinue, againſt J. Curſon and the writ was, command J. Curſon, Son and Heire of J. Curſon, where in truth he was Son of William Curſon, and the Plaintiff counts of delivery of Goods, and for that it is not materiall.
12 Ed. 4. fol. 1. Treſpaſſe of Goods taken, the Defendant ſaith that in London there is a Market every day but Sunday, and that J.S. ſold them to him upon a Fryday, and though he do not ſhew what year, it is good, for it is not materiall.
22 Ed. 4. tit. 128. Shewing of Deeds, treſpaſſe by Admiſtrator, and counts of Goods taken out of his own poſſeſſion, he need not ſhew Letters of adminiſtration, for that it is of his own poſſeſſion, and is not materiall.
38 Ed. 3. tit. 14 Detinue of writings, by J. Son of T.W. it is no Plea that the Plaintif is a Baſtard, for he demands but Chattells, whereof he was in poſſeſſion, and it is not materiall.
15 H. 7. f. 11. Treſpaſſe, where the Defendant conveyes to him title by diverſe ſcoffments of ſtrangers the Plaintiff may traverſe any which he will, but if he convey any title from the Plaintiff himſelf, that is more materiall and traverſable.
3 Ed. 4 fol. 19. Treſpaſſe, the Defendant ſaith that J.S. gave in taile to his Anceſtor, which dyed ſeiſed, and this diſcended to him, the Plaintiff ſaith that he was ſeiſed in Fee, in right of his Church, till the Defendant outed him, and ought to traverſe without that, that J.S. gave in taile, &c. For this is moſt materiall, 15 Ed. 4. fol. 2. the ſame.
26 H. 8. f. 1. The King recites that for the good ſervice that he had done in the Warrs, he grants, where he was never in the Warrs, it is a good grant, for the recitall is matter in deed, not materiall.
9 H. 7. fol. 7. If the King make a Denizen, and recite that where he was borne in France, where indeed he was borne in Spain, this grant and making him Denizen, is a good grant, and the recitall is not materiall.
3 H. 6. fol. 9. Where proceſſe is miſcontinued, and Judgment given by default, this Judgment upon miſcontinuance is errour, and may be aſſigned for errour, but where it is miſcontinuance of proceſſe, and the party appear and pleads, and Judgment upon Verdict is given, this cannot be aſſigned for errour. See, 3 H. 7. f. 8.
1 H. 7. f. 12. Errour was aſſigned, for that it was contained in the Record, that in baſe Court the Entry was, that the Court was held upon Tueſday, that is the third day of March, where Munday was the third day of March, and this was adjudged errour, and the (Videlicet, &c.) materiall.
4 H. 7. f. 6. Where one is named Executor, where that name Executor is not materiall, the Writ ſhall not abate.
17 Ed. 4. f. 2. Where the Defendant in treſpaſſe pleads, that the plaintiff bargained and ſold to him ten acres of Corn, though he do not ſay ten Acres ſowne with corn, it is not materiall, for it is uſually ſo called, and a good Plea.
1 H. 7. f. 21. A certaine Memorandum was entred, that is to ſay, Memorandum that Simon Wiſeman came this 31 day of November, this Tearme of S. Michaell.
2 H. 7. f. 11. If proceſſe be miſcontinued, and the party appear and pleads to the Iſſue, and Judgment is given, there the miſcontinuance is not materiall, and is no Errour.
9 Ed. 4. f. 42. Treſpaſſe of a Bagg taken with Money, the Defendant ſaith, that the Plaintif was indebted to him in a certain ſumm, and delivered that unto him for diſcharge, and is good, though he do not ſhew for what cauſe he was indebted, for this is not traverſable, and for that is not materiall.