process. that by virtue thereof, he had caused to be levied of the goods Under final and chattels of the said AB, the said sum of -. part whereof, to wit, the sum of. he had retained for poundage due on the said levy, and that. residue thereof he had paid to the said E F in part satisfaction of the debt and damages therein mentioned, and that the said A B had not any other or more goods and chattels in the bailiwick of him the said CD whereof the said CD could cause to be levied the residue of the said debt and damages, or any part thereof. Which are, &c. [same as the precedent, ante, 586. to the end.] IN EJECTMENT. In the King's Bench, (or "C. P." or "Exchequer.") Term, 48 Geo. III. CD And the said C D by General issue. John Doe, demise of AB and others. *REPLICATIONS IN ABATEMENT. To coverture In the King's Bench, (or “ C. P." or " Exchequer,") and non-join der. To a plea of coverture, denying the fact. (a) To a plea of non-joinder in assumpsit, A B Term, 48 Geo. III. And the said AB saith, that his said bill, (or "the said CD. writ,") by reason of any thing by the said C D,. in her said plea above alleged, ought not to be quashed, † because he says, that at the time of exhibiting the said bill, (or " at the time of the issuing of the said writ,") against the said CD, she the said CD was not married to the said E F, in the said plea mentioned, in manner and form as the said C D hath above in her said plea in that behalf alleged, and this he the said A B prays may be inquired of by the country, &c. [Commencement as above to the obelisk.] Because he saith, that the said several promises and undertakings were made by that the pro- the said C D alone, in manner and form as the said A B hath mises were made by the above thereof complained against him the said CD, to wit defendant alone.(b) *590 To a plea of misnomer, that defend ant was known as well by the one name as the other.(c) at, &c. aforesaid, and not by the said CD, jointly and together with the said E F, in manner and form as the said CD bath above in his said plea in that behalf alleged, and this he the said A B prays may be inquired of by the country, &c. A B agt. And the said A B saith, that his said bill, (or "the said CD. writ,") by reason of any thing by the said E D, in his said plea above alleged, ought not to be quashed, because he (a) See the plea, ante, 415. The proceedings are in the common precedent in Lil. Ent. 123. concludes pleas or by original,) will in all cases with a formal traverse and verifica- suffice. tion; but this, according to the general rule of replying in 1 Saund. 103. b. n. 3. is unnecessary, and the above form of cominencement and conclusion, (inserting the word “writ” instead of "bill," when the (b) See the plea, ante, 415. and the precedents, 1 Wentw. 17-53—47. and the note to the last precedent. (c) See the precedents, Rast. Ent 54. Thomp. Ent. 1. 1 Wentw. Index, &c. saith, that the said E D, long before and at the time of the Ta misnomer, exhibiting the said bill, (or " issuing of the said writ,") was and still is known as well by the name of CD as by the name of ED, to wit, at, &c. aforesaid, and this he the said AB prays may be inquired of by the country, &c. agt. misnomer, es And the said A B saith, that the said person against To a plea of whom he the said A B hath exhibited his said bill, by toppel by putC D. the name of CD, ought not to be admitted or received to plead ting in bail. (d) the plea by him above pleaded, for quashing the said bill of the said A B; because he saith, that the said person against. whom he the said A B hath exhibited his said bill, by the name of CD, heretofore, to wit, in the term of last past, came into this court here, and put in bail at the suit of the said A B, in the plea aforesaid, by the name of CD; as by the record thereof remaining in the said court of our said lord the king, before the king himself at Westminster aforesaid, more fully appears; and this he the said A B is ready to verify by that record; wherefore he prayeth judgment if the said person, against whom the said A B hath exhibited his said bill by the name of CD, ought to be admitted or received to his said plea for quashing the said bill, contrary to his own acknowledgment and the said record, &c. and that he may answer over to the said bill. And hereupon the said A B, inasmuch as he cannot deny the several matters above pleaded by the said CD, *but admits the same to be true, prays judgment that the said bill (“or writ") of him the said A B may be quashed, to the intent that he the said A B may exhibit a better bill (or "issue a better writ”) against the said CD; therefore it is considered by the court of our said lord the king, before the king himself, (or if in C. P. "of the bench aforesaid,") now here, that the said bill (or "writ") of the said A B, be quashed, &c. Cassetur billa vel breve. * 591 (d) As to this replication, see Bac. 1. Tidd's Prac. 3d edit. 582. n. 1. Abr. tit. Pleas, I. 11. Thomp. Ent. 1 Ld. Raym. 249. Estoppel.(e) REPLICATIONS IN BAR. [The replication of matter of estoppel, commences differently from other replications, and is as follows:] "And the said A B saith, that the said C D ought not to be admitted or received to plead the said plea by him secondly above pleaded, as to so much thereof, wherein he alleges that, &c. (stating the part of the plea to which the estoppel relates,) because he says, that," &c. (here state the ground of estoppel, either by the pleadings and verdict in a former suit, or by a bond, &c. as in the precedents referred to in the note (e), and conclude as follows :) and this he the said A B is ready to verify; wherefore he prays judgment if the said CD ought to be admitted or received against the said record, (or "against his own acknowledgment by his deed aforesaid,") to plead the plea by him lastly above pleaded in this suit, that, &c. (stating and concluding with the allegation in that part of the plea to which the estoppel rëlates.) In the K. B. (or " C. P." or "Exchequer.") 1. Special si A B militer.(f) Term, 48 Geo. III. And the said A B, as to the plea of the said CD by CD. him first above pleaded, and whereof he hath put himself upon the country, doth the like. In general. 2. Comm.e.ce ment of a re plication to a And the said A B as to the said plea of the said CD by him secondly above pleaded saith, that he the said A B by reason of any thing by the said CD in that plea alleged, ought not to be barred from having and maintaining t his aforesaid special pa, usually cal ed action thereof against him the said C D, because he saith, prechidi non that, &c. [here state the subject matter of the replication.] (8) In the K. B. (or " C. P." or " Exchequer.") Term, 48 Geo. III. A B V. CD. ants. And the said A B prays a day to imparl to the said The like, sugand then to reply to the same, and it is granted Sesting of the to him, &c. and thereupon a day is given to the parties afore- of the defendsaid, to come before our said lord the king at Westminster, on, &c. that is to say, for the said A B to imparl to the said pleas, and then to reply to the same, &c. at which day, before our said lord the king at Westminster, come as well the said A B as the said CD, by their attorneys aforesaid, and the said E F cometh not; and hereupon the said A B giveth the court here to understand, and be informed, that after the last continuance of the plea aforesaid, and before this day, to wit, on, &c. at, &c. aforesaid, the said E F died, and the said CD survived him, which allegation the said CD doth not deny, but admits the same to be true; therefore let all proceedings in this cause against the said E F be stayed. And the said A B as to the said plea of the said C D and E F, by them first above pleaded, and whereof they have put themselves upon the country, doth the like. *And the said A B as to the said second plea, &c. (same as in the last precedent.) * 594 And this he the said A B prays may be inquired of by the 3. Conclusion country, &c. to the country. (g) This is the proper mode of because a replication assuming to commencement when the replication denies or contains an answer to the whole of the plea, but when the replication contains only an answer to a part of the plea, it must in the commencement be qualified accordingly, VOL. II. answer the whole of the plea, but in fact only answering a part is insuffi cient, 1 Saund. 28. n. 3. Com. Dig Pleader, F. 25. Ante, vol. 1. Index, tit. Replication. [67] |