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Of Replication, Reioynder, Surre∣ioynder, &c.
THe mutuall pleas of both are the debating before issues, or an issue it selfe.
Debating before issue, is the dis∣cussing of the materiall things, to draw it to some one issue. As in an action of trespasse or an assise, if the Defendant claime by a lease from the Plaintife to A. who granteth his terme to B. and to B. the
defendant, the Plaintife must answer onely to his owne lease, for the assignements of A. are but conueyances and not materiall. But in an assise if the defendant deriue his interest from a stranger, and that A. was seised and enfeoffed B. who enfeoffed C. and C. the Tenant: there the Plaintife may trauerse any of the meane conueyances, for they are all materiall.
Therefore repugnance of a plea vnto it selfe is a fault in pleading, as in an action of Trespasse of his house, and wals broken downe, the Defendant cannot plead tou∣ching the house, not guiltie, and as to the breaking downe of the wals iustifie, for this carrieth a repugnancie in it, inasmuch as the house and the wall are all one thing.
So is a departure, where he forfeiteth not the matter of his plea that went before, but commeth in with a new matter. As if the reioynder be a matter puisne, vnderneath the matter of his barre, not aboue and go∣ing before it. As in an action of Trespasse, the Defendant pleadeth a descent vnto him of the land, the Plaintife saith, that after the descent the Defendant enfeoffed him. Now if the defendant reioyne that the feoffement was vpon condition, and he en∣tred for the condition broken; this is a de∣parture for the matter of the barre, that is the descent, is before the matter of the re∣ioynder, that is to say, the entrie for the con∣dition broken, whereby the feoffement is auoided. So if in an assise, the Defendant
pleadeth the feoffement of I. S. and the Plaintife make title to himselfe by descent, and that he was disseised by I. S. who en∣feoffed the defendant: or that he enfeoffed I. S. vpon condition who brake the conditi∣on, and afterwards enfeoffed the defendant, &c.
Now if the defendant say that after the disseisin (or condition broken) and after the feoffement of I. S. to the defendant, the Plaintife did release to the defendant, or confirme the estate of the defendant, this is a departure, for that is a matter that grow∣eth after the feoffement pleaded in bar. But if he plead such a release or confirmation from the plaintife to I. S. that is no depar∣ture, for it is a matter before the feoffement, or in an action of trespasse for goods, if the defendantentitle himselfe by the gift of I. S. and the plaintife saith, that himselfe was possessed till I. S. tooke them from him, and gaue them to the defendant. Now the de∣fendant may say that after the taking the plaintife gaue them to I. S. who gaue them to the defendant: for although the defen∣dant might haue pleaded these things at the beginning, yet in asmuch as it is pursu∣ing and fortifieth his barre, and no puisne matter vnderneath the title of his barre, but eigne and aboue the matter of his bar, ther∣fore it is no departure. So a plea in barre which is intendible at the Common Law, cannot bee maintained by a matter of cu∣stome, or by statute Law. As in an assise the
tenant pleadeth in bar a deuise vnto him∣selfe of the land being deuisible by the cu∣stome, the plaintife saith that the deuisor was within age at the time of the deuise. Now if the tenant said that by the custome there an infant of 15. yeares of age may make a deuise: This is a departure, for the custome pleaded in bar shal be entended of those that may make a deuise by the Com∣mon Law So if in an action of trespasse the defendant plead in bar a lease for 50. yeares from a house of Religion, and the plaintife auoid it by reason it was made within a yeare before the dissolution, and so void by the Statute 31. H 8. Now if the defendant will alledge that by the same Statute it is prouided that all such leases shall be good for xxj. yeares, and so maintaine the lease to be good for so many yeares, this is a depar∣ture: or if one plead a fine, and that being auoided because the parties to the fine had nothing, wil maintaine the fine to be good by the Statute 1. R. 3. because he had leuied the fine cesti qui vse. Lastly, when matters are pleaded which offer seuerall issues, that is termed a double plea, and is a fault in pleading As in an assise to plead a feoffe∣ment of the ancestor with warrantie. In debt vpon a simple contract to plead pay∣ment and an acquittance. In an assise to plead diuers descents of the land in fee sim∣ple, for euery of them requireth a seuerall answer. But in an assise to plead diuerse
descents in taile, is not double, for one an∣swer maketh an end of all, that is to denie the gift in taile. So as the matter cannot come but to one issue: So in an action of debt to plead fully administred, and so riens enter mains, for one answer, assets enter mains serueth.
So is it also of two or three matters toge∣ther with the general conclusion, as in debt vpon an obligation to say, that hee is not lettered, and the deed was read vnto him in another sort: and further, that he deliuered it vpon a condition which is not perfor∣med, so not his deed. So to iustifie an arrest for twentie causes of suspition of felonie, is not double, for one answer serueth Des•••• tort demesne. No more to assigne in a Writ of error as many errors as appeare in the re∣cord, for in millo est erratum answereth then all. But to assigne diuerse errors en fait is double, for these are to bee tried by the Countrey. And the reason of all this is, because vpon diuers issues ioyned, ••f one be found for the party, and another against him, the Court shall be inueigled, and not know how to giue iudgement, whether for him or against him. But to plead a feoffe∣ment with warrantie, and relye vpon the warrantie onely is not double, for he can∣not plead the warrantie without the feoffe∣ment.
Of the first sort are Replication, reioin∣der, surrender, &c.
In an assise against many, if each (a) take the whole tenancie seuerally, a plead (b) seuerall matters in barre: or (c) one Nul tort and the other in barre: otherwise (d) it is if one plead in barre, and the other Ioyntenancie by deed: the Plaintife at his perill must chuse his Tenant. And then after issue for the whole, that, viz. the Te∣nancie, shall be first enquired of. And being found for the Plaintife, then the other issue shall bee enquired. Being found against him and no title made against the tenant indeed, the writ shall abate.
In an action of Trespasse meere tran∣sitorie, although the defendant iustifie by any speciall matter, as in a (a) Trespasse of goods, by commandement of I. S. whose the propertie is, in (b) assault and battery, or an (c) appeale of mayme, in his owne de∣fence vpon the plaintifes first assaulting of him: in false imprisonment by (d) beeing Constable of the Towne, and that the plaintife brake the peace, or (e) by an arrest for suspition of felonie, or by (f) the com∣mandement of I. S. to seise the bodie of the Plaintife in ward, by reason his ancestour, whose heire he is, held of I. S. by Knight seruice, &c. yet the Plaintife may take issue that it was done De son tort demesne, which is to say, wrongfully by the Defendant without answering to that matter. But if the iustification be by matter of writing or record, as in false imprisonment, by (a) a warrant of Iustice of peace to arrest him, or
a (b) Capias that came to him as Sherife to take the body of the plaintife, or if it be any (c) title or licence (d) from the plaintife, there de son tort demesn is no plea, but the speciall matter must be answered. So (e) al∣wayes in a trespasse locall, as of his close broken downe, &c. if the defendant entitle a stranger to the land, whether to the free∣hold, or though it be but to a lease of it, and iustifie by his commandement. And like∣wise in a (f) repleuin which is reall, the ti∣tle or speciall matter must alwayes be tra∣uersed. If it bee a trespasse vpon land, the defendant iustifying in some other land then the Plaintife meaneth, the Plaintife may make a new assignement, setting forth the place more specially. As if the defendant iustifie in a place called A. as his freehold, the plaintife may say the place where, &c. is called B. other then the place called A. & then the defendant may plead all anew.
33. H. 6. 36.
33. H. 6. 36.
ces Br. ass. 383
44. E. 3. 23.
8. ass. Pl. 1.
ce•• ibid.
19. H. 6. 65.
34. H. 6. 16.
41. ass. Pl. 21.
5. H. 7. 6.
2. E 4 9.
22 ass. Pl. 85.
21 H▪ 6. 5.
5. H. 7. 6. 2 E. 4. 9.
44. E. 3. 18. 22. ass. Pl. 185.
12. E. 4. 10.
H. 29. El. C. B.
B. Roy.
27. H. 8. 7.