An exact abridgment in English, of The commentaries, or reports of the learned and famous lawyer, Edmond Plowden, an apprentice of the common law.: Concerning diverse cases and matters in law, and the arguments thereupon; in the times of the reignes of King Edward the Sixth, Queen Mary, King Philip, and Queen Mary, and Queen Elizabeth, with the exceptions to the pleadings, and answers thereunto; the resolutions of the matters in law, and all other principall matters arising upon the same. By F.H. of the Inner Temple London, Esq;

Partridge against Strange and Croker.

IN [unspec 78] Debt the Plaintiff counts upon the Statute of 32. H. 8. cap. 9. Of buying and selling of preten∣ced Titles and Rights, and alleadge this to be done 28. April, 32. H. 8. where in truth it was not done this day; and that the Defendants have made a Lease for years of a house, and nine acres of Land pertaining to it, whereof they nor their ancestors, nor any by which the claim were in pos∣session, Reversion, or Remainder, nor took the Profits for one intire year before, &c. and holden.

1. That the Statute need not to be specially re∣cited and pleaded, because it is general; but for

that it is misrecited, it is not good by the Court, sol. 84. and yet is surplusage, and it shall prejudice the party in some cases, sol. 29. as debt by I. S. Parson of D. it is a good Traverse, because he is not Parson; or that there is not such a village cal∣led D.

2. When the Term shall not be certainly plead∣ed, for that it is Conveyance of the Action, and is not material here, and he which pleads it is a stranger; as an Indictment of the death of a certain man unknown, or the stealing of the goods of a cer∣tain man unknown.

3. That a Lease for years, or a grant of parcell of the Right is within the Statute; because the Statute speaketh of any right, and is not intended only of an entire right, and that the entire value of the Land shall be forfeit by such Lease, per Curiam fol. 87.

That this Lease made by one in possession, is out of the Statute; for that it is not averred to be a pretenced right, by Hales and Montague, fol. 87. against Cook. For they mean that he which hath possession one day, or however may make a Lease, or Feoffment bona fide, and shall be forth of the Statute, although that he hath not possession, or taketh the profits one whole year without averment, that it is made for maintenance, and the Statute shall be intended onely of those which makes Lea∣ses, &c. having but a right, and not the possession, as Montague held, a promise by him which is out of possession, to depart with the Land when he shall attain the possession. is within the danger of the Statute. fol 88. And if the Issue in Tail at full age marry a woman discontinuee of his father, and ma∣keth a Lease for years, this is within the Statute;

for that he Leases his ancient right. So by Morgun, if the heir release to the Abator, and afterwards claiming by discent, maketh a Lease for years, this may be averred a pretenced right, and then is within the danger of the Statute: fol. 86: and a right is within the Statute, which comprehends all rights.

Pretenced right is, where one hath the possession, and another which is out of possession claims this, or sues for it by Mont. f. 88.

Morgan, [unspec 79] Serjeant for the Defendant. He which voucheth a Record, and vary in the year or Term, haith failed of his Record. So the Statute here, no Act without the consent of the King, when all as∣sent, it shall have relation to the first day of the Parliament, and from that time is an Act of Par∣liament, unless it be otherwise appointed when it shall first take effect. An act made in the first, or second Session relates not but to the first day of the same Session. Misrecital shall prejudice the party in some cases; as Debt by I. S Parson of D. where there is no such Village D. a good Traverse, and abates the Writ; yet the naming of him Parson, surplusage. So here because it recites a Statute cer∣tain made such a day, where it was not, although that the day is surplusage, it hath made the matter vitious, although it be a general; because the not referring to the science of the Judges, as he doth, if he saith generally contra formam Stat. &c.a Statute hath no words in vain.

Whiddon, for the Plaintiff. A general Statute shall not be recited, as 27. H. 8. of Conveyance of the possession to the Use. So the demandant may Demur without recital of the Statute of W. 2. c. 36. If the Tenant vouches out of the line. So an Ex∣ecutor

of an Executor shall have account without recital of the Statute, of 25 E. 3. cap. 5. So 5. H. 7.17. Information for Liveries, good, without re∣citing of the Statute.

Misrecital of the surplusage shall not make the mattor bad, as 21. H. 6.1. by Newton; one as an Executor shall not bring an action of Debt up∣on a Contract made with himself; he shall not shew the Testament, for that the naming of him [Executor] is surplusage. So 33. H. 6.19. by Danby in Detinue against two as Executors; They shall not plead that another is Executor with them, because they are not charged as Executors. But Detinue is cause of Action, and the naming of them Executors, is surplusage. A man shall not aver that, which by the Statute is made apparent; as the Lord shew that he entred into the Land with∣in the year, because his Tenant aliened to the Dean and Chapter, he shall not aver that it is Mortmain, because it appeareth now; nor here that it is a pretenced right, because he counts that the Defendant nor his Ancestors, &c. were not in possession the space of a year before the Lease, and then is pretenced Conveyance to the Action (as the Lease is here) shall not be pleaded. So cer∣tainty is the substance it self, as appeareth 34. H. 6.4 by Prisot in decies lantum. If the Plaintiff sheweth such part of the Record as conveys him to his Action, it is sufficient without shewing all. But a Writ judicial ought to recite the Record cer∣tainly out of which it issueth; because the Record is the substance and effect there; and not only the Conveyance a stranger to the Deed or thing, as the Plaintiff here is to the Lease that he pleads, shall not shew the certainty of it; as 35. H. 6.8.

after fol. 148.13. H. 7.19. By Fineux; au ancient Major in Trespass justifie the taking of goods, be∣cause the Plantiff was out-lawed without shewing Pattent, because he is now as a stranger to them; for it belongeth to the successor, and not to him. So a Wife shall have Dower for a Rent Charge granted to the husband without shewing the Deed. So 7. H. 6.1. by Strange; Lessee in Debt against him for Rent reserved, may say, That the Estate of his Lessor was upon Condition, for which bro∣ken, such a one had entred before the Rent arear, Judgement, if Action, without shewing what con∣dition.

Sanders, [unspec 82] to the same intent. The Statute here, although penall, yet because it is beneficial for the Common Wealth, viz. for to avoid maintenance, subordination of witnesses, &c. Things taken out of the Works thereof, taken by equity, and the words obscurely expounded, most strong for the Common wealth; and words are but the image of the Statute, and the life thereof in the minds of the makers, and Expositors of it, and which ap∣proach nearest to their minds, are the true Exposi∣tors; and words should be inclinable to the mind. So W. 3. cap. 2. Fines upon Lands intailed ipso jure sit millus, viz. as to right, to be bound; but as to the possession, is a discontinuance, before fol. 57. and after fol. 137. So the heir may demand the he∣ritage of his Mother, aliened by his Father; if he onely Levied the Fine: Yet Gloucester cap. 3. saith, Whereof no Fine is Levied, intends lawfull Fines by the Father and Mother: before fol. 57. So a Statute Marchant wills that it shall be delivered to the Conusee: Yet 21. E. 3.21. shall be delivered to the extendors, because prised too high; it shall

he delivered to the praisors for the price, after f. 172. So if the Plaintiff be nonsuit in a second deliver∣ance, the Defendant shall recover Dammages by the equity of 7. H. 8.4. Return irreplevisable shall be awarded; and so by this means the Plaintiff is barred, and so the intent of the makers directs the words and equity of Statutes. Lessee for years [unspec 83] hath a right Estate, and Title to Enter, right; be∣cause by Bracton he hath jus utendi & fruendi in a∣lieno libero Tenemento; an Estate, because a Re∣mainder in Fee is good upon a Lease for years, and a Remainder is not good without an estate prece∣dent, Title because 7. H. 7.11. a Termor may falsifie a faint Recovery against his Lessor by the Common Law. So 9. H. 6.64. by Strange: I grant to B. That if my Tenant for life dies, living my self, that he shall have for 10. years. B. may maintain, because he hath colour, yet he hath no∣thing, and is in doubt if he shall have it for 10. years or not: Then if the Leffee for years hath such interest, that by the Common Law he may maintain, there is no need of a remedy, for all other the Statutes before avoid maintenance, the suit de∣pending; for the Staute of 32. H. 8. is made for the avoidance in medling with other mens matters before any suit or after. Account shall not abate for default of form, if it hath substance. 36. E. 3. cap. ultimo. After fol. 190. If one be found guilty of an offence which is pardoned by Parlia∣ment, Judges ought not to proceed to judgement; yet it is not pleaded, because they are bound to take notice of it; for it appeareth to them by judici∣al knowledge. 26. H. 8, 7. by Fitz. H. But if A. kill B. in the presence of the Justices, and C. is found guilty of it. 7. H. 4.41, by Tirwit and Gascoin,

the Justice ought to respite judgement, because he knoweth the contrary; but not to acquit C. be∣cause he cannot judge of his own knowledge. 22. E. 4.47. where it was granted by Parliament, That A. should have a Writ with Proclamation, out of [unspec 84] the Chancery against one G. to answer divers tre∣spasses which were contained in the Act of Patlia∣ment, and the Writ was abated by award, because it did not mention those Trespasses in certainty; because a private Act; and there not recitall, or misrecital, shall hurt.

And as to the cerainty of the Term he shall not shew it, because he is a stranger to it. As the Defen∣dant shall plead Joyntenancie of the Plaintiff with∣out shewing of whose gift.

All the Court say, That Declarations ought to have certainty. So that the Defendant may know to what thing he ought to answer (after fol. 193.) and 3. H. 7.12. So 3. E. 4.21. In Debt for a sal∣lary against a Successor declares, That he was re∣tained with his Predecessor, and shews not who re∣tained him; because a stranger may retain him; the County shall abate by the better opinion for the incertainty; good by Brook: Laborers, 39. and the truth is, That it ought to be conjoyned to cer∣tainty, as 9. H. 7.3. by Fineux, and 6. H. 4.7. Debt upon payment at two days, whereof the one is come abates by shewing of the Plaintiff the same, because he hath shewed falsity. So 20. H. 6.30. one ought to reherse the Stat. upon which he bring∣eth Champerty for to Warrant this certainly, which ought to appear alwaies to the Court, but not in one manner; as sometimes by the replication in Assizes, sometimes by Verdict, as in aquare impe∣dit the value of the Church. In Ward the value of

the Marriage, in Detinue the value of the goods; as in 20. H. 6. Champerty was brought, which was not Warranted by any Statute; and there Newton said, That if the party could not shew to them some Statute by which it is Warranted, that they would award that the Writ should abate. And for that which hath been said that he needs not to recite the Statute, and therefore misrecital is not mate∣rial; it seemed to them, That howbeit he need not, yet if he recites it, and there is none such, then he hath failed of his substance; for the Court will not aid him nor think he intendeth any other thing then what he hath shewed; and by this abundance in reciting more then needs, hurts the party many times. And therefore in 20. H. 6. fol. 42. contra∣ry to 8. H. 6.33. Fitz. H. Count 15. of forging of false Deeds, the Writ was of Diversa facta, and minimenta, &c. and he counted but of one onely, and by assent of all the Justices it was awarded, That the Writ should abate, and so abundance a∣bated the Writ.

And if one maketh Title in Assize in his plaint where he need not, yet if it be not formall, all shall abate; and yet it was abundance, and more then he was compelled to do. So in the principal case. And where it was said, That the Defendants by their Demurrer have confessed such Act of Parliament as the plaintiff hath declared, they held, that ad∣mitting this to be a confession, yet this binds nor the Court, which is a third person; as appears by 10. E. 4. Wherein Trespass of Cattle taken, brought by the Lessee for years; the Defendant said, That the Lessor held of him by Rent, which was Arear, and he took the beasts for it the Plain∣tiff said nothing Arear, and there although the

Defendant had admitted the Writ good, yet the o∣pinion of the Justices was, That the Writ should abate, for that the Lord was Defendant. And so if the Defendant will admit good an appeal brought by the wife of the death of her Father, yet the Court ought to abate it, although the party af∣firm [unspec 85] it: and a Demur-is a Confession of all mat∣ters in Fact but not of matters in Law. For by the Demurrer he puts it to the Judgement of the Court, and confesseth not the Law against him∣self, although the King may wave the Issue, and so Demur in Law, and recover; afterwards fol. 236. and he hath many other prerogatives, yet shall he be bound by misrecitall, or by misusing, or misconceiving of his Action, and there shall a∣bate the Writs where he is sole party: as in the case of a common person à fortiori where another is party with the King, as here; the Plaintiff ought to shew certainty of the Lease here by Cook, by o∣ther Justices not.

In Decies tantum, certainty of the Summ received here, because he shall not recover ten times as much, and may not without shewing in Champer∣ty, the certainty of the first plea here, because privy to the Record.

So in Trespass, if the Defendant pleads Franck-Tenenemt; the Plaintiff intitles himself by a Lease made by him; the Defendant will shew that he made a Feoffment, and that he entred for Forfei∣ture; he ought to shew the name of the Feof∣fee, and certainty of the Feoffment, because he is privy, and in all cases of privies, he ought to shew the certainty, as 2. H. 7.6. in Bar of Dower, the Heir pleaded detainer of evidences, he shall shew certainty, for he is privy to them, that he affirms to

appertain to him; of a bag sealed with Charters not, 18. H. 8.1. because the bag sealed is cer∣tain. Indictment cujusdam ignoti, good. Stamford fol. 95. and after fol. 129. Statute penal here not taken by equity by all the Justices, as an Attaint shall not 14. H. 7.13. nor the Statute which aug∣ments bread by evil making, nor things out of the words shall not be taken by equity. But the words may be expounded beneficially, as Treason by the Statute 25. E. 3. for killing of a Master, so of a Mistris, are of one effect. 19. H. 6.47. but not by equity, but rather within words. Plural number contains singular, by Hales. So here pre∣tenced Rights and Titles as shall be punished for forging one false Deed; yet 1. H. 5. cap. 3. speaks of false Deeds: So for Entry into one Tenement; yet 5. R. 2. cap. 7. speaks of Entry into Tenements, [unspec 87] under this word [any] the lesser Estate is contain∣ed in the greater, as 23. H. 6.10. prohibits that a Sheriff shall Lease his County to farm in any manner, shall not Lease part thereof (after fol. 124.) contrary by Hales. This Lease here made by one in possession, is out of the Statute, because it is not averred to be a pretenced right, viz. the bargain and Lease to be made for maintenance (contrary Cook) for this was the point of the Sta∣tute [unspec 88] as 9. H. 6.26. if published onely; yet the Stat. is in the Copulative, for forging and publishing this within the Statute, but ought to aver, That it was published to trouble the possession and Title of the Plaintiff for this is the point of the Statute. So here the Lease ought to be averred for mainte∣nance, for this is the point of our Statute.

Montague, Chief Justice. He that is in possessi∣on, may buy the pretenced right of another, he

which is out of possession, if he promise or bargain to depart with the Land, when he shall get the pos∣session, is within the Statute, and maketh it void by the Common Law, wherefore the Statute af∣firms it, and adds a greater pain to the thing done against the Common Law; and the Statute shall be meant to avoid a bargain of Right, when out of possession; he which hath possession but one hour, alwaies may sell, or it shall be a hard Exposi∣tion.

Acts expounded against the words of the Sta∣tute, because Law and Reason allows it. As Te∣nant hanging a Precipe, Infeoffs his Son and Heir. 6. E. 3. fol. 274. after fol. 204. good, contray to the words of the Articuli super Chartas, cap. 2. be∣cause the Son may not maintain to the Father, but is bound to aid his father. So an Heir may abet his Mother for to bring an appeal; as W. 2. Cap. 12. So a Trespass in a Park without hunting, shall not be punished: by a year before refers to the Clause before onely; so that the Clause being in possessi∣on, Reversion, or Remainder, are absolute, viz. if for one hour onely, it sufficeth, and there he [unspec 89] may alien without danger of the Statute, and here no offence is shewed to be made against the Statute.

Notes

• H. 6. & 7 E. 6. In the Com∣mon Leath.