Lavv, or, a discourse thereof in foure bookes. Written in French by Sir Henrie Finch Knight, his Maiesties Serieant at Law. And done into English by the same author.

CHAP. 28.

Of pleading.

PLeading is the parties debating of the suite.

Euerie plea, as Barre, replication, reioynder, Surreioynder, &c. must be * 1.1 assered to be proued true. By saying in the plea, Et hoc patro natus est verificare, which we call an auerment. But no auer∣ment need to be in auowrie, for it is in liew of a Count and declaration. And the auow∣ant is in a manner actor and plaintife, and to haue a returne,

An aduantage of a matter which cannot be pleaded, shall be saued by protesting not acknowledging it to be true, although mat∣ter pleaded passe against him As if an in∣fant bring an action of waste against his * 1.2 gardein, and appeare by Atturny (which none should do but one of full age) if the gardein take his nonage by protestation be∣cause he cannot plead it, it shall saue him from all mischiefe. But in detinue brought by the Executor of A. the defendant cannot take by protestation, that A. made not the * 1.3

plaintife his executour, for that is the verie ground of the suit, and may be denied by answer, and issue ioyned vpon it. And a pro∣testation is but a sauing to the partie that taketh it, from being concluded of some matter alledged against him, whereupon he cannot ioyne issue.

Pleas are either of the defendant when he is first brought in to answer, or the mu∣tuall pleas of both. In a ioynt action a∣gainst two or more: as in (a) 1.4 an action of debt. But otherwise it is in a writ of (b) 1.5 con∣spiracie against two, for they are seuerall wrongs, one of them appearing shal not an∣swer. But must haue idem dies till the other come in to answer, or (c) 1.6 the suit be finished against him. As by death or outlary in a personall action, debt, accompt, or such like.

An action by or against an Infant as heire, as (d) 1.7 a formdon en descender brought by him, or a writ of (e) 1.8 error against him where his auncestor recouered; but (f) 1.9 not where he commeth in of his owne wrong shall not proceed till his full age, vnlesse it be apparant that by proceeding hee cannot be preiudiced. As in (g) 1.10 a formedon en des∣cender by an Infant, if the tenaunt plead a warrantie with assets against him, the par∣roll shall demurre, for if he trauerse the as∣sets hee should acknowledge the deed of warrantie. But (h) 1.11 if the tenant pleade a re∣couerie in auoidance of the estate taile, the parroll shall not demurre: for there the Court shall plead for him. But (i) 1.12 it shall

not demurre in a writ of entrie sur disseisin by an infant, though the tenaunt pleade a matter enfait, as a feoffement with warran∣tie by the ancestor of the infant, for there the infant claimeth of his owne possession. And if an infant and his ancestor be Ioin∣tenants * 1.13 in fee, and the infant suruiueth: in a praecipe quod reddat against the infant hee shall not haue his age.

Statutes.

Westm 2. cap 40. The husbands heire called to warranty by the alience by a Cui in vita shall not haue his age.

Glocest. cap. 2. An infant holden out of his heritage after the death of his father, co∣sin, grandfather, great grandfather, in an action thereupon shall not haue his age.

Westm. 1. ca 46. In a writ of entrie by the heire of the disseisee the suit shall not stay for his nonage, no more shall it for the no∣nage of the heire of the disseisor, if the dis∣seisee bring his assise, and before the assise passe the disseisor dye. The like incorpora∣tions where the lands go by succession. But in a writ of dower an infant heire shall not * 1.14 haue his age, (a) 1.15 nor the heire of the vou∣chee, in a Quod ei deforceat vpon a recoue∣rie in a writ of dower, for it is in the nature of the fitst writ.

Notes

• * 1.1

  7. El. Ploy. 343.
• * 1.2

  48. E. 3. 10.
• * 1.3

  4. El. Plo. 276.
• (a) 1.4

  48. E. 3. 1.
• (b) 1.5

  1. H. 7. 25.
• (c) 1.6

  41. E. 3. 3.
• (d) 1.7

  48. E. 3. 33.
• (e) 1.8

  9 H 6. 46.
• (f) 1.9

  age 16.
• (g) 1.10

  48. E. 3. 33.
• (h) 1.11

  48. E. 3. ibid.
• (i) 1.12

  12: E. 4. 17. Age 18.
• * 1.13

  48. E. 3. 35.
• * 1.14

  39. H. 6. 39.
• (a) 1.15

  44. E. 3. 4••.