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Of Issues.
AN Issue is when both the parties ioyne vpon somewhat that they re∣ferre vnto a triall to make an end of the plea. And it is of the fact, or law of the fact, which is commonly termed by the generall name of issue, when the pro∣per contradiction of that which one alled∣geth is set downe by the other, which is properly termed a trauerse. As in debt vpon an Obligation for performance of coue∣nants,
and the defendant plead he hath per∣formed all, the plaintife must shew some in * 1.1 certaine which the defendant hath broken, whereupon issue shall be ioyned: but can∣not reply that the defendant hath not per∣formed all. For in Lodgicke there be three kinds of contradictions: Generall, when both the propositions are generall, as, All the couenants are broken, None of the co∣uenants are broken. Particular when one is generall, the other particular, as, All the couenants are broken, Some of the co∣uenants are not broken, None of the coue∣nants are broken, Some of the couenants are broken. Proper, when both the proposi∣tions are proper, as, This couenant is bro∣ken, This couenant is not broken. The two * 1.2 former make no issue in our Law, but the latter onely: and euery issue is of an affir∣matiue and a negatiue. After which if any insufficiencie of pleading appeare in the re∣cord, whether the issue be ioyned thereup∣on, which we call a Ieofaile, or no, the par∣ties must replede or begin a new where the first defect was. And in this case a Iury * 1.3 is readie at the bar that to passe vpon the issue, shall be discharged. As if the barre be good, and the replication ill, and issue taken vpon it, the iudgement must bee that the plaintife must make a new replication, and the barre shall remaine. So if the barre bee good, and likewise the replication, but the reioynder ill, and the issue taken vpon the reioynder, the defendant must make a new reioynder, and the replication shall remain.
But if the bar be il, and the replication good and the issue taken vpon it, now they must plead all a new because the barre which is first of all is vicious.
But no repleader shall be in an assise, •• the Plaintife haue disclosed a sufficient ti∣tle: for in an assise no land in certaine is de∣manded, but an assise onely prayed. And therefore where a sufficient title is disclo∣sed the Plaintife shall haue iudgement vp∣on seisin and disseisin found for him. And no repleder shall bee notwithstanding that the Tenant haue made a (a) 1.4 vicious barre, or (b) 1.5 misreioyned. Otherwise it is if the Plaintife take issue vpon an insufficient barre. * 1.6
If the tender of this issue come on the Plaintifes part, the forme is, Et hoc pe••i•• quod inquiratur per recordu, vel patrid, &c. If on the Defendants part, then it is, Et de hoc point se super recordum illud vel super patriam.
Issue in a writ of right cannot bee ioy∣ned, * 1.7 we cal it ioyning of the mise, vpon th•• meere right, but by the partie himselfe, not by Atturny.
Where the Plaintife in his replication * 1.8 maketh title at large, without trauersing o•• confessing and auoiding the barre, or any way medling with it, the Tenant 〈◊〉〈◊〉 ioyne issue vpon the title by saying, Ʋ〈…〉〈…〉 assise sur la title, that is, Let the assise co〈…〉〈…〉 * 1.9 vpon the title, which is called a pleading •••• the assise at large. This to bee vnderstood
where the title is by a matter en fait, but not record, or done (a) 1.10 in a forraine Countie, for they are not triable by the assise. * 1.11
And in a personall action, whether tres∣passe * 1.12 or repleuin where iustification is made * 1.13 for damage fesant, for that is meerely in the * 1.14 personaltie, where the title of the land com∣meth in question, lyeth not till issue ioyned. And yet in that case it neuer lyeth for Te∣nant for life, but onely for tenant for years, bailyfe, &c.
Aid in these actions shall be of the King * 1.15 before issue ioyned onely, though the King be seised but in his naturall capacitie, as in the right of his Duchie of Lancaster.
15. H. 7. 2.
33 H. 6. 9.
35. H. 8. Br. repled. 54. 7. H. 7. 3.
14. H. 7. 12.
5. H. 7. 29. 35. H. 6 37.
(c) 5 H. 7. 29.
19. H. 6. 57.
15. H. 7. 13.
15 H. 7. ibid. 5. H. 7. 29.
5. H. 7. ibid
(b) 14. H. 7. 6.
(c) 46. E. 3. 11.
(d) 46. E. 3. 11. 10. H. 6. 26.
(e) 14. H. 7. 6. 4. H. 6. 10.
5. E. 4. aid de Roy 50. 3. H. 6. {per} Pl. 216.