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I. THus far the beginning of a suit: the Proceeding followes, which hath two parts: The Count and the Pleading.
II. A condition (annexed to an estate of freehold) can∣not be alleadged in Count or pleading, unless it be by Deed.
III. The Count is a larger declaration of the substance of the original writ, and therefore is usually termed Declaration.
IV. In reall actions, which are in the right, the de∣mandant
must alledge the taking of the-profits, called Esplees, in the declaration.
V. In stead of the Count a plaint shall be made in Assizes of novel disseisin, and in writs of Dower a demand.
VI. Pleading is the parties debating of the suit.
VII. Every plea must be offered to be proved true by saying in the plea, Et hoc paratus esse verificare, and this is termed an averment.
VIII. An advantage of a matter, which cannot be pleaded, shall be saved by protesting, not acknowledg∣ing it to be true, although the matter pleaded passe a∣gainst him.
IX. Pleas are either of the defendant, when he is first brought in to answer, or the mutual pleas of both.
X. In a joynt action against two or more, one of them appearing shall not answer, till the other come in to answer, or the suit be finished against him, as by death, outlawry &c.
XI. An action by, or against an Infant, as heir, shall not proceed, till his full age, unlesse it be apparant, that by proceeding he cannot be prejudiced.
XII. But in a writ of Dower an Infant heir shall not have his age.
XIII. The defendants first pleas are dilatory, or to the Action.
XIV. Dilatory, which are before any plea in Bar.
XV. When an action is brought against many they must joyn in the plea, if they inrend to plead these dila∣tories.
XVI. Dilatory Pleas are exceptions, or forein ad∣vantages.
XVII. Exceptions are dilatories grounded upon the matter it self of the suit; and are in disability, or abate∣ment
XVIII. Those in disability are to the jurisdiction or perso••, both which must be before the Count.
XIX. To the jurisdiction, when it is alledged that the Court ought not to hold plea of it.
XX. To the person, when it is alledged, that the Plaintiffe ought not to be answered, as if he be outlaw∣ed, excommunicated, &c.
XXI. But in case of excommunication the suit shall be put without day, onely till he be absolved.
XXII. Those in abatement are for any fault in the first matter of the suit.
XXIII. For this cause the defendant may have Oy•••• of any thing tendred by the Plaintiffe, and not being parcel of the Record, as of the writ, condition, &c.
XXIV. Pleas in abatement are to the Count first, and then to the writ.
XXV. Amongst Pleas to the writ, exceptions tha•• arise upon the view of the writ are to be pleaded before those that are forein, as non-tenure, several tenancy, &c.
XXVI. Pleas to the Count, are for insufficiencie, va∣riance from the writ, &c.
XXVII. Pleas to the writ, are for default of for•• false Latine, &c.
XXVIII. By waging of law, for non-summons in a praecipe quod reddar, the writ shall abate.
XXIX. In Assize of novel disseisin and nusance, and in appeals of felonie, and Juris utrum, the defen∣dant may have many pleas in abatement.
xxx. The writ abating for some cause, that can not be imputed to the Plaintiffes folly, himself bringing another with speed in the same Court against the same party, shall have all advantages of the former; an•• this is called a writ purchased by Journeys accompt
xxxi. Forain advantages are delayes without ex∣cepion to any thing; as in all actions, Oyer of the
writ, &c. In real actions, view, aid, prayer, and voucher.
XXXII. View, is (in real actions) of the thing de∣manded, or of the land, whence it cometh, when it is so necessary, as without view the defendant cannot wel answer.
XXXIII. Ayde prayer is for the tenant for life, to request him that hath the inheritance, to help him to plead: so must the Incumbent pray in aid of the patron and Ordinary.
XXXIV. Voucher is the calling in of one that should warrant, to answer the action.
XXXV, Here the voucher loosing, the tenant shall recover in value against him any hereditaments, that he had at the time ••f voucher.
XXXVI. Therefore voucher is in liew of another action, where the original processe is Summons ad War∣rantizandum, and then a Grand Cape ad valentiam.
XXXVII. If one be vouched within age, it is a sum∣mons ad habendum visum first, and being awarded of full age, a summons ad warrantizandum. and Grand Cape, as before.
XXXVIII. But if he be awarded within age, the parol shall demurre until his full age.
XXXIX. If the summons ad warrantizandum or habendum visum be not served, then a sequatur sub suo periculo is to go forth, and if the tenant cannot get that served, he looseth his warranty; for it is sub periculo of the tenant.
XL. But in exchanges the hereditaments are liable from the very time of the exchange.
XLI. In partition amongst co-perceners from the death of the ancestor.
XLII The King shall not be vouched but prayed in aid off, which in case hath the force of a Voucher.
XLIII. So is it also of co-perceners.
XLIV. In an Assize of novel disseisin, and nusance voucher lieth not, unlesse the vouchee be present in Court, and will by and by enter into warrantie.
XLV. He that is impleaded in any action, wherein he may vouch and doth not, shall never have the be∣nefit of a Warrantia Cartae
XLVI. Advantages in certain personal actions are Garnishment and Enterpleader.
XLV••I. Garnishment is upon a writ of detenue, when it be alledged by the defendant to have been upon a bailment by the Plaintiff, and another. or for another upon condition, that other shall be brought in to shew whether by reason of that bailment himself, or the Plaintiffe ought to have the goods, chattels, &c.
XLVIII. Enterpleader is, when divers bringing se∣veral writs of detenue, ward, or Quare impedit against the same person in the same County, and for the same thing, the rest shall answer him, that brought the first writ.
XLIX. The King may appoint any place he thinketh good to be a safeguard for all offenders flying tbither, tha•• they shall not be molested, or compelled to answer, which priviledged places have in former times been called San∣ctuaries.
L. Thus far of dilatory Pleas, Pleas to rhe acti∣on are such as go to the body of the matter, and are Pleas in Bar, or Confessions.
LI. Pleas in bar, are those, which are to bar the Plain∣tiffe of his action.
LII. In these the defendant must make defence, as t•• say, Defendit vim & injuriam quando, &c.
LIII. But no such defence shall be made in Dower, Assize of novel disseisin, per quae servitia, or At∣taint.
LIV. The tenant may plead a warrantie in bar o•• him that should warrant; if he b••ing the writ.
LV. And though the tenant of the land be a stran∣ger to the warrantie, yet he may plead that he hath a third persons estate, and so rebut by a warrantie, made unto that person.
LVI. But in writs of Dower the ancestors warrantie is no bar.
LVII. A warrantie made by the disseisor at the time of the disseisin, barreth not the heir, and this is called a warrantie that commenceth by disseisin.
LVIII. In an Assize of novel disseisin and trespasse the defendant pleading a title in bar, must give colour of titl•• to the Plaintiffe.
LIX. In the giving of this colour, these three, things must be observed, 1. It must be to the Plaintiffe not to a stranger, or to the defendant, 2. It must be of such a possession, whereby he may maintain his action. 3. The Colour must be a matter doubtfull in law, or otherwise difficult to the Lay people.
LX. In real actions for the meer right, when it is in respect of a disseisin done, the tenant cannot traverse the seisin, but may tender half a mark to the King to have it inquired by the Jurie: and being found, that the demandant was not seized in the time, whereof he counteth, that shall bar him for ever.
LXI. The tenant cannot tender half a Mark against the King.
LXII. The heir or executors in an action brought a∣gainst them (where they are chargable) pleading a matter in their own knowledge, which goeth in perpe∣tual bar, shall be charged as in their proper duty, if it passe against them.
LXIII. In Assizes of novel disseisin, nusance, mort∣dancestor, Juris utrum, and in indictments and appeals of felony, the defendant may plead in abatement, and over in bar, or take the general issue also.
LXIV. In Assizes of novel disseisin and nusance,
he may plead a speciall matter, that amounteth but to a general issue:
LXV. Upon Indictments of felony and treason, the defendant being put to answer, is not allowed Council, if he denie the fact.
LXVI. A presentment in the Leet or Sheriffes turn, after the day of presentment bindeth the party for ever, and is not traversable but in cases that touch ones freehold.
LXVII. Therefore the course is, to remove such pre∣sentments into the Kings Bench by a Certiorari, where they may be traversed.
LXVIII. Confession is, when the defendant confes∣seth the Plaintiffes action to be good.
LXVIX. The defendant confessing an Indictment of felony may accuse others of the same offence.
LXX. One that flying to a Church or Church-yard and confesseth before the Coroner, when he cometh the certainty of any bare felonie, where life and mem∣ber is to be lost, before he be thereof attainted, may abjure.
LXXI. Abjuration, is his oath before the Coroner himself to depart the Realm for ever at the time and place set him; going the direct way theither; tarrying there but one floud and ebbe, if he can have passage, and, till he can so passe, going every day in the sea up to the knees to assay if he may passe over; and if he cannot passe within 40 dayes, then to put himself again into the Church as a felon, &c.