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plaintiff doth declare upon an execution by force of a recovery in the prison of Ludgate sub custodia I. S. et I. D. then sheriffs in 1 K. H. VIII. and that he so continued sub custodia I. B. et I. G. in 2 K. H. VIII. and so continued sub custodia I. N. et I. L. in 3 K. H. VIII. and then was suffered to escape; I. N. and I. P.1 plead, that before the escape supposed, at such a day anno superius in narratione specificato, the said I. B. and I. G. ad tunc vicecomites suffered him to escape; this is no good plea: because there be three years specified in the declaration, and it shall be hardest taken that it was 1 or 3 H. VIII. when they were out of office. And yet it is nearly induced by the ad tunc vicecomites, which should lead the intendment to be of that year in which the declaration supposeth that they were sheriffs; but that sufficeth not, but the year must be alleged in fact; for it may be it was mislaid by the plaintiff, and therefore the defendants meaning to discharge themselves by a former escape, which was not in their time, must allege it precisely.
For incertainty of intentment:
[26 II. 8.] If a warranty collateral be pleaded in bar, and the plaintiff by replication, to avoid the warranty, saith that he entered upon the possession of the defendant; non constat whether this entry was in the life of the ancestor, or after the warranty attached : and therefore it shall be taken in hardest sense, that it was after the warranty descended, if it be not otherwise averred.
For impropriety of words:
39 II. 6. f. 5. If a man plead that his ancestor died by
1 L. in MSS. It seems intended the defendants should come into office in the 4th year, and the case is so stated in Dyer.
protestation seised, and that I. S. abated &c. this is no plea for there can be no abatement except there be a dying seised alleged in fact; and an abatement shall not be improperly taken for disseisin in pleading, car parols font pleas.
If a man in his avowry declare, that he Dy. f. 256. was seised in his demesne as of fee of white acre, and being so seised did demise the same white acre to I. S. habendum the one moiety for twenty-one years from the date of the deed, the other moiety from the surrender, expiration, or determination of the estate of I. D. qui tenet prædict' medietatem ad terminum vitæ suæ reddend' 40s. rent: this declaration is insufficient, because the seisin that he hath alleged in himself in his demesne as of fee in the whole, and the estate for life of a moiety, are repugnant; and it shall not be cured by taking the last, which is express, to control the former, which is but general and formal; but the plea is naught: yet the matter in law had been good to have entitled him to have distrained for the whole rent.
But the same restraint follows this rule in pleadings that was before noted in grants: for if the case be such as falleth within another rule of pleading, then this rule may not be urged.
It is a rule that a bar is good to a com- 9 Ed. 4. f. 12. mon intent, though not to every intent. As Plow. f. 38. b. if debt be brought against five executors, and three of them make default, and two appear and plead in bar a recovery had against them two of three hundred pounds and nothing in their hands over and above that sum; if this bar should be taken strongliest against
them, then it should be intended that they might have abated the first suit, because the other three were not named, and so the recovery not duly had against them: but because of this other rule the bar is good; for that the more common intent will say, that they two did only administer, and so the action well conceived, rather than to imagine that they would have lost the benefit and advantage of abating the writ.
So there is another rule, that in pleading a man shall not disclose that which is against himself: and therefore if it be a matter that is to be set forth on the other side, then the plea shall not be taken in the hardest sense, but in the most beneficial, and to be left unto the contrary party to allege.
Dy. f. 17. And therefore, if a man be bound in an obligation, that if the feme of the obligee do decease before the Feast of St. John the Baptist which shall be in the year of our Lord God 1598,1 without issue of her body by her husband lawfully begotten then living, that then the bond shall be void; and in debt brought upon this obligation the defendant pleads that the feme died before the said feast without issue of her body then living: if this plea should be taken strongliest against the defendant, then should it be taken that the feme had issue at the time of her death, but this issue died before the feast but that shall not be so understood, because it makes against the defendant, and it is to be brought in on the plaintiff's side, and that without traverse. So if in detinue brought by a feme against
30 E. 3. f. 25.
1 The case in Dyer is of 28 Hen. VIII. This date therefore, in which all the MSS. (except the Camb. MS. which does not contain the case) and editions agree, seems to fix the date of composition of this particular paragraph as one at which Midsummer 1598 might suggest itself to Bacon while writing. See supra, p. 167, note 1.
the executors of her husband for the reasonable part of the goods of her husband [and] her demand is of a moiety, and she declares upon the custom of the realm, by which the feme is to have a moiety if there be no issue between her and her husband, and the third part if there be issue had, and declareth that her husband died without issue had between them; if this count should be hardliest construed against the party, it should be intended that her husband had issue by another wife, though not by her, in which case the feme is but to have the third part likewise; but that shall not be so intended, because it is matter of reply to be showed of the other side.
And so it is of all other rules of pleading; these being sufficient, not for the exact expounding of these other rules, but obiter to show how this rule which we handle is put by when it meets with any other rule.
As for acts of parliament, verdicts, judgments, &c., which are not words of parties, in them this rule hath no place at all; neither in devises and wills, upon several reasons: but more especially it is to be noted, that in evidence it hath no place, which yet seems to have some affinity with pleadings, especially when demurrer is joined upon the evidence.
And, therefore, if land be given by will by Plow. f. 412. H. C. to his son I. C. and the heirs males of his body begotten; the remainder to F. C. and the heirs males of his body begotten; the remainder to the heirs males of the body of the devisor; the remainder to his daughter S. C. and the heirs of her body, with a clause of perpetuity; and the question comes upon the point of forfeiture in an assize taken by default, and evidence is given, and demurrer upon evidence; and in
the evidence given to maintain the entry of the daughter upon a forfeiture, it is not set forth nor averred that the devisor had no other issue male; yet the evidence is good enough, and it shall be so intended.
And the reason thereof cannot be, because a jury may take knowledge of matters not within the evidence, and the court contrariwise cannot take knowledge of any matter not within the pleas: for it is clear that if the evidence had been altogether remote and not proving the issue, there, although the jury might find it, yet a demurrer might well be taken upon the evidence. But I take the reason of difference to be, between pleadings, which are but openings of the case, and evidences, which are the proofs of an issue: for pleadings, being but to open the verity of the matter in fact indifferently on both parts, have no scope and conclusion to direct the construction and intendment of them, and therefore must be certain; but in evidence and proofs the issue, which is the state of the question and conclusion, shall incline and apply all the proofs as tending to that conclusion. Another reason is, that pleadings must be certain, because the adverse party may know whereto to answer, or else he were at a mischief; which mischief is remedied by demurrer but in evidence, if it be short, impertinent, or uncertain, the adverse party is at no mischief, because it is to be thought the jury will pass against him yet, nevertheless, because the jury is not compellable to supply the defect of evidence out of their own knowledge, though it be in their liberty so to do, therefore the law alloweth a demurrer upon evidence also.