The works of Francis Bacon, lord chancellor of England.

228 MAXIMS OF THE LAW.
abatement shall not be improperly taken for dis- makes against the defendant, and it is to be
seissin in pleading, car parols sont pleas. brought in on the plaintiff's side, and that with9 R. Dy. fo. For repugnancy, if a man in avowry out traverse.
256. declare that he was seised in his de- So if in a detinue brought by a feme
rnesne as of fee of white acre, and being so seised against the executors of her husband
did demise the same white acre to I. S. habendum for her reasonable part of the goods of her husthe moiety for twenty-one years from the date of band, and her demand is of a moiety, and she dethe deed, the other moiety from the surrender, clares upon the custom of the realm, by which the
expiration, or determination of the estate of I. D. feme is to have a moiety, if there be no issue
qui tenet prwdict' mzedietatem ad tcrminum vitw soe between her and her husband, and the third part
reddend' 40s. rent: this declaration is insufficient, if there be issue had, and declareth that her husbecause the seisin that he hath alleged in himself band died without issue had between them; if
in his demesne as of fee in the whole, and the this count should be hardliest construed against
state for life of a moiety, are repugnant; and it the party, it should be intended that her husband
shall not be cured by taking the last, which is had issue by another wife, though not by her, in
expressed to control the former, which is but which case the feme is but to have the third part
general and formal; but the plea is naught, and likewise; but that shall not be so intended,
yet the matter in law had been good to have en- because it is a matter of reply to be showed of
titled to have distrained for the whole rent. the other side.
But the same restraint follows this rule in And so it is of all other rules of pleadings,
pleading that was before noted in grants: for if these being sufficient not only for the exact exthe case be such as falleth within another rule of pounding of these other rules, but obiter to show
pleadings, then this rule may not be urged. how this rule which we handle is put by when it
And therefore it is a rule that a bar meets with any other rule.
9. Ed. 4.
4z.Ed 6. is good to a common intent, though not As for acts of Parliament, verdicts, judgments,
Plow.
to every intent. As if a debt be brought &c. which are not words of parties, in them this
against five executors, and three of them make rule hath no place at all, neither in devises and
default, and two appear and plead in bar a wills, upon several reasons; but more especially
recovery had against them two of three hundred it is to be noted, that in evidence it hath no place,
pounds, and nothing in their hands over and which yet seems to have some affinity with
above that sum: if this bar should be taken pleadings, especially when demurrer is joined
strongliest against them, it should be intended upon the evidence.
that they might have abated the first suit, because And, therefore, if land be given by IP.14.2.
the other three were not named, and so the re- will by H. C. to his son I. C. and the
covery not duly had against them; but because heirs males of his body begotten; the remainder
of this other rule the bar is good: for that the to F. C. and the heirs males of his body begotten'
more common intent will say, that they two did the remainder to the heirs males of the body of
only administer, and so the action well consider- the devisor: the remainder to his daughter S. C.
ed; rather than to imagine, that they would have and the heirs of her body, with a clause of perpelost the benefit and advantage of abating the writ. tuity; and the question comes upon the point of
So there is another rule, that in pleading a man forfeiture in an assize taken by default, and evishall not disclose that which is against himself: dence is given, and demurrer upon evidence, and
and therefore if it be a matter that is to be set in the evidence given to maintain the entry of the
forth on the other side, then the plea shall not be daughter upon a forfeiture, it is not set forth nor
taken in the hardest sense, but in the most bene- averred that the devisor had no other issue male,
ficial, and to be left-unto the contrary party to yet the evidence is good enough, and it shall be
allege. so intended; and the reason thereof cannot be,
23 H. S. And, therefore, if a man be bound in because a jury may take knowledge of matters
Dy. fo. 17. an obligation, that if the feme of the not within the evidence; and the court contrariobligee do decease before the feast of St. John wise cannot take knowledge of any matter not
the Baptist, which shall be in the year of our within the pleas; for it is clear that if the evidence
Lord God 1598, without issue of her body by her had been altogether remote, and not proving the
husband lawfully begotten then living, that then issue, there although the jury might find it, yet a
the bond shall be void; and in debt brought upon demurrer might well be taken upon the evidence.
this obligation the defendant pleads that the But if I take the reason of difference to be
feme died before the said feast without issue of between pleadings, which are but openings of the
her body then living: if this plea should be taken case, and evidences which are the proofs of an
strongliest against the defendant, then should it issue; for pleadings being but to open the verity
be taken that the feme had issue at the time of of the matter in fact indifferently on both parts
her death, but this issue died before the feast; have no scope and conclusion to direct the conbut that shall not be so understood, because it struction and intendment of them, and therefore