Amicus reipublicæ. = The Common-Wealths friend or an exact and speedie course to justice and right, and for preventing and determining of tedious law-suits. With many other things very considerable for the good of the publick. All which are fully controverted and debated in law. By John March of Grayes-Inne, barister.

Whether it be consonant to reason or conscience, that any mans Plea should be adjudged nought, and avoided at any time for any matter of form, false Latine, double Plea, Departure, or any other defect what∣soever, the case and matter it self sufficiently appearing upon the Record, for which the Action is brought▪

FIrst, that I may clear the questi∣on of some things doubtfull in it, I have added to it, at any time, because in some cases and sometimes such defective Pleas are already helpt by Stat. as you will find after.

I shall not need to inform you what matter of Form is, the word it self sufficiently speaks it. Double Plea is, when a man in pleading al∣ledges several things; the one not ne∣cessarily depending upon the other, &c. Departure is when a man goes from his former plea, and pleads some new matter, these will vitiate pleadings; and put a man to a new action.

But to the case it self; M. Little∣ton, I remember, saith, that pleading is one of the most Honourable and profitable things in our Law, and therefore advises his Son to bend his indeavour to the gaining of the knowledge of it. I believe it indeed to be one of the most profitable things, (I mean to the Lawyer) but the Common-wealth suffers in it. For the matter of Honour, I know not where it lies, except it be in this;

that such a one is said to be a subtile Lawyer, a pick-lock of the Law, one, who can discover a flaw or de∣fect in any plea presently, if it be to be found: and this is the Honour I believe, to be able to vex and trouble and undo people by various Suits; if this be the Honour (though I hope no man will therefore count me wholly ignorant of this know∣ledge, because I speak against it) let who will take it for me.

Cook upon Litt. fol. 303. 304. ob∣serves, that many a good cause is dayly lost for want of orderly and good pleading; the more the pittie. And after he saith, when I diligently consider the course of our Books of Years, and Terms from the begin∣ning of the Reign of E. 3. I observe that more jangling and questions grew upon the manner of pleading, and exceptions to form, then upon

the matter it self, and infinite causes lost or delayed for want of good pleading, what a gross shame, and most unconscionable thing is this, that form should be insisted upon more than matter; and the Clyent should lose his case, or have it de∣layed, for formalities. The Clyent sues not at Law for to make cases or questions, or to occasion scruples about nice formalities, but to have Justice done according to the truth of his case; and this is the end of all Law, to put an end to controver∣sies, in doing right to the parties, without delay, or regarding any thing but the truth of the case it self. Interest Reipublicae ut sit finis litium, it very much concerns the Common-wealth, that strifes be end∣ed; and not that one dispute or con∣troversie should occasion another; much less that contention should be

about words, the matter layed aside, and the party depart, not as he came, but in a worse condition, his money fruitlesly expended, and his right, if not lost, suspended.

My Lord Cook saith again, that it is worthy of observation, and so in∣deed it is, That in the Reigns of E. 2. E. 1. and upwards, the pleadings were plain and sensible, but nothing curious, evermore having chief re∣spect to matter not to forms of words; I am sure we cannot say so of these latter times; for I am confident, they were never more nice and cap∣tious than of late.

Then he said, that in the Reign of E. 3. pleadings grew to perfection, both without lameness and curiousity. And that in the time of H. 6. the Judges gave a quicker ear to excep∣tions to pleadings, than either their predecessors did, or the Judges in

the Reign of E. 4. or since that time have done, giving no way to nice exceptions, so long as the substance of the matter were sufficiently shewed.

I attribute much of Honour and respect to my Lord Cook; yet I shall crave that freedom, to deliver what is truth, and that is, as I have said before, that pleadings were never more curious and subtile than of late; and never more nice exceptions given way to.

I shall not here meddle with the order of pleading, as first to the Ju∣risdiction of the Court, Secondly to the Person, &c. which must be ob∣served in their due course, or you lose the benefit of the former. Nor yet with my Lord Cooks rules of pleading in his institutes, in which he is very large: I go not about to teach or inform you of the forms

and subtleties of our pleas; though they are worth the knowing, yea, and observing too, so that the Clyent may not be prejudiced for want or defect of such forms.

For the double plea, I cannot under∣stand any just reason why it should not be allowed; that reason which the Law gives, is, that the Court and Jury may be invegled by such pleas; I have inquired exactly into this rea∣son, but cannot find how, or which way; and I do profess my self one of my Lord Cooks non-intelligents too; for he said the Law in this point, is by them that understand not the rea∣son thereof, misliked; and I do ac∣knowledge my self of their minds who say. Nemo prohibetur pluribus defensionibus uti; no man is prohi∣bited to use several defences.

And so likewise for the departure, I know no reason that any man

should be barred or concluded from offering any other or new matter, but that any man, may at any time make the best of his own case; cer∣tainly, Judges ought to have princi∣pal regard to the truth of every mās case, that that may be discovered, thereby the better to inable them to give righteous and true judgement; not to forms or words; these are but apices Legis, the meerbark, out∣side, and inconsiderable part of the Law; and indeed non sunt Jura, they are not Law.

The rule that we have in pleading, that Parols font plea; that is, whatso∣ever the truth of his case is, that is his case, and that he must stand to, as he hath pleaded: and the other rule, that a mans plea shall be taken most strongly against himself, where it is doubtfull, these seem to me very hard and unreasonable; it is strange

to conclude any man, where there is a mistake in words, from laying open the truth of his case; this, if any thing, is to invegle the Court, and make them give an unjust judge∣ment, and if they be informed of the mistake, and yet judge according to that, I doubt whether a rule of Law, will another day be a good plea for them.

Besides, if a man shall but truely reason this case, he must needs judge it very unjust, that a man should suf∣fer through anothers default, which is contrarie to the rule of Law, for that saith, Nemo debet puniri pro ali∣eno delicto. Now pray who is it that draws these pleas? why the Clerk or Lawyer, according to the informa∣tion he receives from his Clyent; can it then be agreeable to reason or conscience, that the mispleadings, or formal mistakes of these, whom I

intrust, as being wholly ignorant thereof my self, should prejudice me; again, is it not frequent, for the most learned men of the Law, to erre, or at least, to differ in judgement, from the Judges? and yet not to be bla∣med neither, why then should I suf∣fer for other mens faults, or defects in judgement?

By divers Statutes made in the reign of H. 8. E. 6. Q. El. and King James, it is provided, that after is∣sue tried, after verdict, after demur∣rer (except where the matter of form is specially demurred to) that the Judges do give judgement according to the right of the cause, and matter in Law, and no matter of form, false Latin, or variance, &c. to hin∣der it.

These are good laws so far as they have gon, and I hope none that con∣siders these will blame me; for with∣out

doubt, the same or the like con∣siderations, caused the making of them; that justice or right might be advanced above all punctilioes or nice formalities. And since those are defective in many things, as com∣mon experience teacheth; and the same reason that caused the making of them, may, and ought to perswade our great Parliament to a total ex∣tirpation of such immaterial nicities; I doubt not, in good time, we shall have an Act made, which will fully answer our desires therein; which will be much for the good and ease of the people, and no less beneficial to Lawyers. The next thing that I shall treat of, is Conveyances, and therin propound this short que∣stion;