Iffue, as that it was fe defendendo, &c. So in Trover for 1 Jones 240. Goods, the Defendant may give in Evidence, that he took them for Toll on the General Iffue of Not guilty, because he could not plead it; but it would be otherwise in Trespass for taking the Goods, because there he might have pleaded it.

The ninth general Rule is, That if the Substance of Co. L. 282. the Iffue be proved, it is fufficient. In an Action of Hob. 53. Wafte for cutting twenty Afhes, Proof that he cut ten is fufficient, for, in Effect, the Iffue is Waste or no Waste. So in Debt upon a Bond conditioned to perform Cove- Hob. 55. nants, and Breach affigned in cutting down twenty Trees. So in Account, if the Defendant plead an Account before 2 Rol. 706.

A. and B. and Iffue thereon, Proof of an Account before
A. is fufficient. But if the Iffue were, Whether A. and
B. were Churchwardens, Proof that one was and not the
other would not be fufficient?

If the Iffue be, Whether Lord Delaware demifed,
Proof that A. B. who was not then, but now is, Lord
Delaware is not fufficient, for whether he were at the
Time of the Demise, Lord Delaware, is Part of the Iffue.
So in Replevin, if the Defendant avow Damage Feasant, 2 Ro. Abr. 706.
and the Plaintiff juftify for Common, and aver that the
Cattle were levant and couchant, and Ifsue thereon, Proof
only for Part of the Cattle is not fufficient.

The Plaintiff declared, that he had 7. S. and his Wife in Execution, and that the Defendant fuffered them to 1 Sid. 5. efcape. Special Verdict that the Hufband only was taken in Execution, (it being for a Debt due from the Wife before Coverture) and that he escaped. The Court held that the Subftance of the Iffue was found and gave Judgment for the Plaintiff.

March 25.

In Error to reverse a Fine, for that the Plaintiff was beyond, &c. If the Defendant plead that the Plaintiff returned into the Realm in Auguft, and Iffue thereupon, if it be proved that he returned at any Time within five Years it is fufficient. In Debt against an Executor the Defendant pleads that the Teftator was taken in Execution Hob. 53, 4. by a Ca. Sa. if it be proved that he was taken by an Alias Ca. Sa. it is enough, but Proof that he had been taken by a Capias pro fine, or by a Capias utlagatum, would not maintain the Plea. If Outlawry at the Suit of A. be pleaded, and the Record prove Outlawry at the Suit of C. it is fufficient.

Debt upon Bond against the Defendant, as Brother and Heir to F. S. upon fue Riens per defcent, the Jury found Cr. Car. 151.

that

Dy. 368.

Carth. 126.

Co. L. 281.

Hob. 72.

Langdon v.
Knight.

that the Obligor was feized in Fee, had Iffue and died feized, and that the Iffue died without Iffue, whereupon the Land defcended to the Defendant, as Heir to the Son of his Brother, and the Court held that the Iffue was found against the Plaintiff; for the Defendant had nothing as immediate Heir to his Brother, and if he would charge him as collateral Heir, he ought to have a special Declaration.

But if A. fettle an Eftate upon himself for Life, Remainder to his first and other Sons, in Tail, Remainder to his own right Heirs, and enter into a Bond and die, leaving a Son who dies without Iffue, whereupon the Uncle enters, he may be charged as Brother and Heir of A. for he muft make himself Heir to him who was last. actually seized.

It is neceffary towards the better comprehending of this Rule, to fee in what Cafes modo et forma is of the Substance of the Iffue; for where it is, it must be proved.

Where the Iffue is joined on the Point of the Action, there modo et forma is mere Form, and need not be proved; as where a Demandant in Cafu provifo counts of an Alienation in Fee, and the Tenant fays, Non alienavit modo et forma, and the Jury find (or Evidence is given of) an Alienation in Tail, it is fufficient; for the Point and Gift of the Writ is, whether Tenant in Dower aliened to the Disherifon of the Demandant. So in Replevin, where the Defendant avowed the Taking, as a Commoner, Damage Feafant; the Plaintiff in Bar faid J. S. was' feized of an House and Land, whereto he had Common, and demised unto him the thirtieth of March, to hold from the Feaft of the Annunciation next before for a Year, the Defendant traversed the Leafe modo et forma; the Jury found that J. S. made a Leafe to the Plaintiff on the twenty-fifth of March for one Year; and though this be not the fame Leafe as pleaded, for this begins on the Day, and the other from the Day, yet the Plaintiff had Judgment; for the Subftance of the Iffue is, whether the Plaintiff have fuch a Lease, as by Force thereof he might ufe the Common. Yet it must not depart altogether from the Form of the Iffue, as if it had been found that he had a Right of Common by Lease from another.

L. brought an Action upon a promiffory Note of thirty Pounds, to which the Defendant pleaded that the Plaintiff was indebted to him in a larger Sum, fcilicet fixty Pounds,

which

which far exceeded the Damage laid in the Declaration : the Plaintiff replied, that he was not indebted to the Defendant in the Sum of fixty Pounds modo et forma, and on Demurrer (for the Plaintiff might, for any Thing appearing to the contrary in his Replication, owe the Defendant fifty-nine Pounds, nineteen Shillings, and eleven Pence Halfpenny; and therefore it was infifted, that he had tendered an immaterial Iffue) the Court held that the Subftance of the Replication was, that the Plaintiff was not indebted to the Defendant in fo much as would exceed his own Demand in the Declaration, and that was the Queftion for the Court and Jury, whether he were fo indebted to the Defendant as to exceed his Demand, and not precifely how much; and a Cafe was cited by Mr. Filmer, which was allowed to be Joy v. Roberts, Law, where in Debt upon Bond conditioned to pay one Tr. 5 & 6 G. 2. thoufand Pounds, the Defendant pleaded that at the Time in Scac. of the Bill the Plaintiff owed the Defendant fifteen hundred Pounds, to which the Plaintiff replied, that he was not indebted to him in fifteen hundred Pounds modo et forma, as alledged, and Iffue thereon, and Verdict for the Plaintiff, and upon Motion in Arreft of Judgment, one Question was, Whether the Iffue were well joined, and the Court held it was.

Covenant by a Leffee against his Leffor, and Breach Salk. 260. affigned on the Covenant for quiet Enjoyment, for that the Leffor oufted him,-the Defendant pleaded, that he entered to diftrain for Rent, and traversed that he oufted him de præmiffis; the Plaintiff demurred, for that he did not traverse, that he oufted him de præmiffis, or of any Part thereof. Sed per Curiam the Plea is good, and Proof of any Part, had the Plaintiff joined Iffue, would have been fufficient.

But when a collateral Point in pleading is traversed, Co. L. 282. then modo et forma is of the Subftance of the Iffue, and must be proved; as if a Feoffment be alledged by two, and this is traversed modo et forma, and it is found the Feoffment of one, there modo et forma is material: So if a Feoffment be pleaded by Deed, and it is traverfed abfque boc quod feoffavit modo et forma, the Jury cannot find a Feoffment without Deed. But though the Iffue be upon a collateral Point, yet if by finding Part of it, it shall appear to the Court that no fuch Action lies for the Plaintiff, no more than if the whole had been found, there modo et forma are but Words of Form ; as in Trefpafs, Quare vi et armis, if the Defendant plead, that the Plaintiff holds of him by Fealty and Rent, and

for

for Rent behind he came to diftrain, and the Plaintiff deny that he holds of him modo et forma, and the Jury find (or Evidence prove) that he holds of him by Fealty only, the Writ shall abate, for by the Statute of Marlb. c. 3. no Tenant can maintain Trespass against his Lord, fo the Matter of the Iffue is, whether he hold of him or not; but it would have been otherwise in Replevin, for there the Avowant being to have a Return must make a good Title in omnibus.

PART

PART VII.

Containing ONE BOOK.

Of General Matters relative to Trial.

H

INTRODUCTION.

AVING in the feveral foregoing Parts of this Work taken Notice of the various Actions which may be brought, the feveral Iffues that may be joined thereon, and the Evidence which is proper to be admitted on fuch Iffues, as alfo of the Nature of Evidence in general, and of fuch Rules relating thereto as are univerfal and equally applicable to all Cafes, I fhall conclude by treating of fome other general Matters relative to Trials at Nifi Prius under the following Heads.

1. Of Juries.

2. Of Pleas puis darreign Continuance.

3. Of Abatement by the Death of Parties.

4. Of Demurrer to Evidence.

5. Of Bills of Exception.

6. Of Defects amenable after Verdict, or aided by it. 7. Of new Trials.

8. Of Cofts.

CHA P.