The body of the common law of England as it stood in force before it was altered by statute, or acts of Parliament, or state. Together with an exact collection of such statutes, as have altered, or do otherwise concern the same. Whereunto is also annexed certain tables containing a summary of the whole law, for the help and delight of such students as affect method. By Edm. Wingate of Grayes-Inne Esq;

CHAP. 41. Replication, Rejoynder, Sur-rejoynder, &c. the issue and demurrer.

I. THus far the Pleas of the defendant, the mu∣tual pleas of both, are the debating before issue, or the issue it self.

ij. Debating before issue, is the discussing of the material things to draw it to some one issue.

iij. Of the first sort, are replication, rejoynder, sur-rejoynder, &c.

iv. In an Assize against many, if each take the whole tenancy severally, and plead severall matters in bar, or one Nul-tort, and the other in bar, the Plaintiffe at his peril must choose his tenant. And then after issue for the whole, the Tenancy shall be first inquired of, and being found for the Plaintiffe, then the other issue shal be enquired; but being found against him, and no title made against the tenant indeed, the writ shall abate.

v. In an action of trespasse meer transitory, although the defendant justifie by any speciall matter, yet the plaintiffe may take issue, that it was done de son tort de mesne, viz. wrongfully by the defendant without an∣swering to that matter.

vi. If it be a trespasse upon land, the defendant justi∣fying in some other land then the Plaintiffe meaneth, the Plaintiffe may make a new assignment

vii. An issue is, when both the parties joyn upon somewhat, that they refer to tryal to make an end of the plea.

viii. This issue, is of the fact or of the law.

ix. Of the fact, when the proper contradiction of that, which one alledgeth, is set down by the other.

x After which, if any insufficient pleading appear in the Record, whether the issue be joyned thereupon (which is called a Jeosaile) or no, the Parties must begin a new, where the first defect was.

xi. But no re-pleader shall be in an Assize, if the Plaintiffe have disclosed a sufficient title.

xii. If the tender of this issue come on the plain∣tiffes part the form is, Et hoc petit, quod Inquiratur per recordum or Patriam, &c.

xiii. If on the defendants part then it is, Et de hoc

ponit se super recordum illud, or super Patriam.

XIV. Issue in a writ of Right cannot be joyned up∣on the meer right, but by the party himself, and this is called the joyning of the Mise.

XV. Where the Plaintiff in his his replication ma∣keth title at large, the Tenant may joyn issue upon the title, by saying, Veigne Assize sur le title, and this is cal∣led a Pleading to the action at large.

XVI. But in a personall action, when the title of the Land cometh in question, it lyeth not till issue ioy∣ned, and yet in that case it never lyeth for Tenant for life, but only for tenant for years. Bailiff, &c.

XVII. Aid in these actions shall be of the King before issue joyned onely.

XVIII. This being a matter (In fait, viz.) done in the country is tryable by the oath of twelve free and lawfull men of the same County indifferently chosen.

XIX. Four of the Jury must be of the same Hundred.

XX. If the thing in issue lye in the notice of two severall counties, and not of one only, the Jury shall be made equall out of both.

XXI. But upon an Indictment of an offence against the Crown, the tryall shall never be by Joynder of Counties.

XXII. But if the Defendant plead in any Action, that the Plaintiff is a villeine regardant to a Mannor of his, in in another County, yet the same shall be tri∣ed in the County where the writ is brought.

XXIII. Where a Peer of the Realm is party to the Action, a Knight must be returned upon the Jury.

XXIV. In a Court of Pipowders, the tryall is by the Merchants.

XXV. The Jury in a writ of Right is called the grand Assize, being four Knights (or others in default of Knights) choosing of twelve unto them.

XXVI. This Iury is called the Grand Assize, be∣cause

it alwaies consisteth of more then 12. viz. of 16.

XXVII. Upon tryall by Jury▪ challenges are allow∣ed for the parties (if they will) both to the Array & to the Pols, and are to be tryed by some of the jurors.

XXVIII. If it be before any Iurors sworn, the Court shall choose Triers, but when any of the Iurors are sworn they must try it.

XXIX. Challeng to the Array, is when the Jury is not sufficiently impanelled.

XXX. Upon iust cause of exception to the Sheriff, & afterwards to the Coroner, the Court shall choose cer∣tain persons to return the jury, who are called Esliors.

XXXI. And then the parties shall never afterwards make any challenge to the array.

XXXII. Challenge to the Poll, is, when any of the jurors are not fit to passe upon the triall.

XXIII. This Challenge must be taken before the panell be perused, and shall be tryed by two of the ju∣rors chosen by the Court.

XXXIV. But Challenges that sound not in reproach of the juror, shall be examined upon his Oath which is called examination upon Voire Dire.

XXXV. He that challengeth the array, if it passe a¦gainst him (or that he release it) shall never chal∣lenge the polls, without shewing cause presently, which shall be tryed out of hand.

XXXVI, After Challenge to a juror for one cause, which passeth against the Challenger, hee shall not challenge him for another.

XXXVII. In Indictments and appeals of felony, the defendant may challenge thirty five jurors without shewing cause, and this is called a peremptory challenge.

XXXVIII. When there lacketh some to fill the jury, others of the same sort shall be taken till it be full, and they are called a Tales.

XXXIX. The Tales must be an even number, and

lesse then the principal Pannel, as Decem Tales, Oct•• Tales, &c.

xl. Every Tales must be of lesse number then the other, as after an Octo Tales, a sex Tales, &c.

xli. But in Indictments and appeals, that touch life, a Tales may be of a greater number then the prin¦cipal pannel.

xlii. The Jury being charged, may neither eat no•• drink (but by leave of the Justices) before their Verdict given.

xliii. Doing so before they be agreed, it maked their verdict void, but after they are agreed, it is onely finable.

XLIV. The Jury upon arraignment, acquitting on•• that was found guilty of the death of a man upon an enquiry before the Coroners super visum corporis, mus•• finde who did the fact.

XLV. The Jury in an Assize of novel disseisin shal•• inquire of the plea in abatement.

XLVI. And therefore in such an Assize no plea i•• abatement is answerable.

XLVII. An Infant bringing an Assize, if a matte•• done in the same County be pleaded against him, th•• Jury shall inquire of all the circumstances.

XLVIII. The like inquiry of the circumstance•• shall be, if in an Assize brought against him, he plea•• to the Assize at large.

XLIV. If the tenant in a mordancester travers•• any point of the writ, yet the jury shall inquire of al•• the points, and any one found against the Demandan•• abateth the writ.

L. For the better direction of the Jury in their ver¦dict, greater liberty is permitted in pleading a matte•• doubtful in law.

LI. For somtimes a traverse may be omitted.

LII. Sometimes also, the speciall matter may b••

pleaded together with the general issue.

LIII. Likewise the Court may be abridged before verdict, so as the original remain true.

LIV. After acquittal upon an appeal or indictment of felonie or treason, he shall never be drawn in questi∣on for the same offence again.

LV. In writs of right and in appeals, that touch life, trial may be by battail at the defendants choice.

LVI. The battail in a writ of right may be by Cham∣pions, who must be freemen.

LVII. Here, the demandants Champion must have seen him or his ancestors in possession, and thereof take his oath.

LVIII. The battail in an appeal must be in proper person; and therefore here the defendant is restrained from the choise of Battail (and must needs try it by Ju∣ry) if there be any notorious presumption of the fact in him, or imbecility in the Plaintiffe: Also against a Peer of the Realm bringing an appeal, the defendant shall not wage Battail.

LIX. In a writ of Dower, issue taken upon the death of her husband, shall be tried by witnesses.

LX. In some cases also the trial shall be by the de∣fendants oath, as 1. Where the tenant in a Praecipe quod reddat alledgeth, that he was lawfully sum∣moned according to the law of the land. 2. In meer personal contracts growing without deed, or privitie of others, the defendant may wage his law.

LXI. Therefore in such kinde of actions executors are not chargable.

LXII. No wager of Law shall be against the King.

LXIII. But wager of law may be upon plaints in Court Barons for personal things under 40 Sh.

LXIV. An issue of Law (returned a Demurrer) is, when admitting the matters alledged, either of them

resteth in the judgment of the Court.

LXV. The demurrer being joyned upon an exception to the original it self, or Count for fault appearing in them, doth onely drive the defendant to make a bet∣ter answer (which is called a respondes ouster) if it passe against him.