Jurisdictions, Part 167 – Part 168
Replication.
Where a faulty Barr is made good by Replication, and where not.
TReſpaſſe, the Defendant pleads an Agreement to pay Money, and to make Windows, and ſaid, that he paid the Moneys, and nothing of the Windows, and the Plaintiff replied and ſaid, no ſuch Agreement, and yet the Plaintiff in Barr pleaded an Agreement, and that not executed, is not made good by the Replication, for the Barr is not good, to no intent, and the Replication cannot make that good, 6 H. 7. f. 10.
But count where a Barr may be made good by a Plea of the other party, where the Count or the Barr is uncertain, as where the Plaintiff counts of an Obligation in Debt, and doth not count where it was made; and the Defendant pleads Releaſe, and acknowledge it, and the Coniſee, where the place ſhould be in is now outed, and need not to have that; the ſame Law in Treſpaſſe, where a man pleads Arbitrement, and doth not ſhew the place where the Submiſſion was that is not good: but if the Plaintiff reply, and ſaith, that he diſcharged the Arbitrators before the Award, now it is good, for that which was ill is now confeſſed, 10 H. 7. f. 24. & 20 H. 7. f. 12.
By Huſſey, if one plead Joint-tenancy, day of the Writ purchaſed, it is not good, for that he might be ſole Tenant after, if the Demandant ſaith, ſole Tenant, and doth not demurr, it is made good by Replication, 5 H. 7. f. 14. The ſame Law if in Debt againſt Executors, they plead nothing in their hands, day of the Writ purchaſed, and do not ſay, nor ever after, the plea is not good: but if the Plaintiff reply, and ſay, that they have Aſſets, and that is found, he ſhall have Judgement, 3 H. 7. fol. 8. accordingly.
Falſe Impriſonment the tenth day of May, the Defendant ſaith, that the Plaintiff made an affault in the Court before the Steward, and for his diſturbance of the Peace in the Court, he was committed to ward, the Plaintiff ſaith of his own wrong, without ſuch cauſe, and now though the Defendant hath not ſhewed what day the Court was, yet by the replication it is made good, for now the day is not materiall, 21 H. 7. f. 32.
If double Plea be pleaded, and the Plaintiff replies, and rakes Iſſue of one matter, and that is found, he cannot after plead in arreſt of Judgment, for by the Replication it is made good, 18 Ed. 4. fol. 17.
Debt upon in Obligation, the Defendant pleads a defeaſance, which is, that if the Defendant deliver to the Plaintif in London certaine Clothes of Kerſey of as good Stuff, and of as good making, as before theſe times have been made in the Town of D. in the County of Darby, that then the Obligation ſhould be void, and ſaith that he hath delivered to the Plaintif in London the Clothes of as good, &c. According to the condition, and this Plea is not good, for that, that it cannot be tried, for thoſe of London cannot try if they were as good, &c. But the Plaintif replied, and ſaid, that the Plaintif did not deliver to us any manner of Cloth in London ready, &c. and now by the Replication it is good, 22 Ed. 4. fol. 2.
Debt, the Plaintif counts upon a Leaſe for terme of yeares, and doth not ſhew where it was made, and the Defendant traverſes the Leaſe, and the Plaintif replies, and joynes Iſſue, and after acknowledges the action, and after pleads in arreſt of Judgment, for that the Plaintiff hath not declared in what place the Leaſe was made, and yet he had Judgment; for when the Defendant hath in Barr gainſaid the Leaſe, he hath admitted the count good, 18 Ed. 4. fol. 17. And in Debt, if I Plead the Releaſe of the Plaintif, and do not ſhew where it was made, and the Plaintif replies, and pleads not his Deed, the Plea of the Defendant, is made good by his Replication, Br. title Repleader 38.
Annuity for Counſell given, and to be given, and counts that he hath given to him Councell, in doing his buſineſſes, and though he do not ſhew in what buſineſſes it is good, for if the Defendant ſaith, that he doth not give to him Councell againſt the Plaintif in his replication, he may ſhew in what things he gave Councell, and ſo the replication hath made all good, and the Count was good generally, 39 H. 6. fol. 33.
By Vaniſor, Replication may make an ill Barr good; as I plead in Barr grant of Reverſion, and omit attornement, if the Plaintif reply, and confeſs and avoid the grant by ſpeciall matter, then is the Barr good, 11 H. 7.24.
By Read, in Debt againſt one as Executor, which pleads nothing in their hands day of the Writ purchaſed, which is no Plea, for that, that he may have aſſets afterwards: But if the Plaintif reply that he hath aſſets and that found by Verdict, is good, 6 H. 7. fol. 6. The ſame Law, if the Tenant in Precipe plead non-Tenure, day of the Writ, and the Plaintif replies, that he was Tenant.
And now though by the ſtatute of, 32 H. 8. chap. 30. It was enacted, that if any Iſſue be tryed by the Oath of 12. in any of the Kings Courts of Record, that Judgment ſhal he given, any miſpleading not having colour, inſufficient pleading, or Jeofaile, not worrant of Attorney put in any miſ-conſtruction, or diſcontinuance, misjoyning of Iſſue, or other default, or negligence of parties, their Councellours or Attorneys had or made to the contrary notwithſtanding, and that the Judgement ſhall be in force, and ſhall not be reverſed by Writ of Errour. And yet at this day, one may plead in arreſt of a Jury, and ſay that you ought not to take this Inqueſt, notwithſtanding this Statute.
Conſpiracy againſt two, one in the year, 42 Edw. 3. hath pleaded to the Jury, and the other, 43 Edw. 3. pleads in Abatement, and now in, 48 Ed. 3. the firſt takes Niſiprius, and cannot have it before the Court be adviſed, if the Writ be good, for though that the other hath accepted the Writ good, yet if the Writ doth not lye in the caſe, the Writ ſhall abate againſt one and the other, by, 43 Ed. 3. f. 10. The ſame Law notwithſtanding the Statute of 32 H. 8. aforeſaid.
Debt againſt two Fxecutors, one comes at the Pluries and pleads fully adminiſtred, and after comes the other by Exigent, and pleads to the Writ that 3. others are Executors, which have adminiſtred not named, Judgment of the Writ, and for that, that the Plaintif hath replyed, that the two alone are Executors, the Defendant for that may plead this matter, in arreſt of taking of the firſt inqueſt upon the firſt Iſſue, for by the replication to the ſecond Plea, he hath waived the advantage of the firſt plea, where it was ſufficient for all, by reaſon of the Statute, which wil, that he that firſt ſhall come by diſtreſſe, ſhall anſwer, 7 H. 4. f. 12. Brook Executors 46. and this is good at this day, notwithſtanding the Statute aforeſaid of Jeofailes.
Severall Tenancy.
SCire facias, of a Fine of Rent Service againſt many Tenants, one ſaith that The came to a Houſe, parcell of the Tenements, whereout the Rent in Demand is ſuppoſed to be Iſſuing, by it ſelf, without that, that the other have any thing, Judgment of the Writ, and that another holds four Acres parcell of the Land, whereout the Rent in demand is ſuppoſed to be iſſuing by it ſelf, and it is good, 5 H. 5. f. 4. otherwiſe it is of a Rent-charge.
Scire facias againſt J. S. J. D. and three others, J. S. ſaith, that he and one of the three held parcell joyntly, and that the Anceſtor was dead, day of the writ purchaſed, Judgement of the VVrit, and J. D. ſaith, he held another parcell in Fealty; Judgement of the VVrit, and the VVrit brought againſt them in common was abated, 38 Ed. 3. f. 20. And note alſo, ſeverall Tenancy of parcell, ſhall abate all the VVrit, 19 Ed. 3. tit. 18. 27 H. 8. f. the laſt, & 20 Ed. 4. f. 8.
Precipe againſt two of ſixteen Acres of Land, one takes the Tenancy of twelve Acres, without that, that the other hath, &c. and vouches, and the other takes the Tenancy of the reſidue, without that, that the Plaintiff ought to maintain his VVrit, 41 Ed. 3. f. 20 the other ſeverall Tenancy ſhall abate the Writ, 28 Book of Aſs. 25. That he which pleads ſeveral Tenancy may vouch or plead over in Barr, and not conclude to the Writ. See, Br. title Breife 141 and 13 H 6. f. 26.
Aſſiſe, ſeverall Tenancy is no plea, and the ſame Law in other actions where no land is demanded in cercaine, 24 H. 8. tit. 18. But ſee, 21 H. 6. f. 57. and 30 B. of Aſs. 24.
Dower, ſeverall Tenancy ſhall abate the Writ, …9 Ed. 3. Brook 30. otherwiſe it is in Aſſiſe, 15 Ed. 2. tit. 1. & 14 Ed. 3. tit, Breif. 276.
It ſeems that non-Tenure, and ſeverall Tenancy in Nuper obiit, againſt, 3, is no Plea, 7 H. 6.8. See, 13 Ed. 1. tit. 3. Fitzh: fol. 197. D. F.
Quid Juris clamat, againſt three, which plead ſeverall Tenancy, and it was ſaid that it behooveth that the Plaintif ſhould maintain his writ, ſo he he did, 12 Ed. 3. tit. 9.
Mortdanceſter, againſt 3. which ſay that they are Tenants in ſeveralty, Judgment of the VVrit. And for that, that the Aſſiſe found that one of them was Tenant in ſeveralty the Writ abated, 8 Ed. 2. tit. 2.
In, Per quae ſervitia, Severall Tenancy is no plea, 12 Ed. 3. tit. 15. & 32 Ed. 3. tit. 7.
Scire facias againſt two, one makes default, and the other pleads ſeverall Tenancy in abatement, and cannot, for that Seiſin is to be awarded of half, 42 Ed. 3. fol. 8. See …. Book of Aſſiſes the 16.
Precipe againſt two, one takes the Tenancy upon him, without that, that the other hath anything, and the other ſaith nothing, the Plaintiff need not to maintain his Writ, 37 H. 6. f. 16. & 18.
Entry in the quibus againſt two, one pleads ſeverall Tenancy, and alſo over in Barr, and the other pleads in the ſame manner, and the Plaintiff need not to anſwer to the Barr, be it good or not, but he ought to maintain his Writ, for one ought not to recover upon an ill Writ, 12 H. 6. f. 4.
He which pleads ſeverall Tenancy, without that, that the other named with him hath any thing, he need not conclude to the VVrit, but vouch or plead in Barr, but the Demandant ſhall not anſwer to the Barr, nor to the Voucher, but ought to maintain his VVrit, that they are Tenants, as the VVrit ſuppoſes, 19 H. 6. f. 14.