Avowry, it is a Qucftion, whether he can have a Return, But afterwards this Term, adjudged the
the Plea was cood, tho" he had made no Avowry at all, becaufe he had the firft PolTeflion ; and it was
hot reasonable the Plaintiff ftiould retain, having no Property ; and fo adjudged that he mould have a
Return- Ld Raym Pep. 217. S. C. accordingly.- Ibid fays the S. P. was relolvcd Palch.
10 W. v B. R. in Cafe of Panel v. Strimfliaw. But 2 Ld. Raym. Rep. 9S5. Marg. cites it as Par-
hell v. Scimlhaw. 1, ' ' c , ,
So where the Defendant in Replevin pleaded in Bar, that the Property ®t
was in the Defendant, and traveled the Property's being in the Plaintiff, and Suogd fore other of the
Goods, he faid that the Property was in f. S. and travcrfed its bein? in the Plaintiff, Et hoc paratus eft Ve-
eficare unde petit Judicium li predict' Quer. Actionem Iuam habere debeat &c. and prays a Return
&c Upon a Demurrer, it was objected, that Property in a Stranger ought to be pleaded in Abatement,
and not in Bar ; but Curia contra, and that the Law isotherwife ; For it utterly deftroys the Plaintiffs
Action, and whether the Defendant or a Stranger has the Property, it is all one to the Plaintiff fince
he has it not l Salk. 5. pi. 12. Mich. 1 Ann*. Prefgrave v. Sanders. 6 Mod. 81. S. C And Holt
Ch f faid, he remembered to have heard Hale make the Difference, that if Property be pleaded m
Defendant it may be either pleaded in Bar or Abatement; if in a Stranger, only m Abatement ; but that
upon great Deliberationj it had been held fince, that therc was no Difference at all, for .both might be
pl-aded in Bar, according to 2 Cr. 5 1 9. * SaCRilD fa. £1)1*011. And Judgment was, Plaintiff nil ca-
piat cer Billam, and Return awarded per Cur. * Cro. J. 519. pi. 1. Hill. 1
£ £>tultcr. but S.P. does not clearlv appear.- But 2 Roll. Rep. 64, 65- Salftlll 1). S^lltOU,
-S.'cTadjudgcd; and refolded that the Defendant has Election to conclude his Plea either in Bar or
It Tas aareed 6 Mod. 105. Hill. 2 Ann. B. R. in Cafe of (Erofff b. ZSilfon, That in Replevin the
Defendant is both Actor and Defendant. As Defendant, he may abate the Plaintiffs Writ, which it
were vain for him to do if he could not have a Return ; and therefore he muft proceed from his Plea in
Abatement to make Conufar.ce ; For his Action being a Claim of 'Right to di'Ifrairt, he ought to make Ti-
tle to it againft the Plaintiff in the Replevin, who claims Property 111 the Diltrels. let this Rule would
be explained ; If Defendant, in Replevin, claims Property in himfelf, he lhall have Return without Conu-
sance becaufe his Plea deftreys the Plaintiff's Title.' So it he lays Property in a Stranger,, and' make*
no Conufancej if that Matter be admitted by the Plaintiff, therefhall be a Return without Conufance ;
For in that Cafe, by the Admittance, the Plaintiff 's Property is deftroyed ; But in all Pleas that do not
Jl,«ta the Property out of the Plaintiff, there muft be a Conufance made, and the Pica is what only is antv.ei-
ble, and not the Conufance; for totraverfe that would be a Dilcotmuance.
. . ''.."■' *•
4: In Replevin, where the Defendant pleads Property in a Sranger, he .
•muft after his Plea make his Suggestion thus, Et pro Rdorn' ■habend. idem,
H â– the -
26 Rcpl
exm.
the Defendant dicit quod &cc. and fo fet forth particularly why be took the
Goods i For it a Verdict pafs for him, he cannot without fuch Suggellion
entered upon the Roll have a Return. 2 L P. R. 454.
(D. a) Pleadings by Que EJlate.
1, IN Replevin, the Defendant made Conufance as Bailiff' of J. S. the
X Plaintiff /aid that J. N. Que F.Jiate J. S. has in the Seigniory
releafed to M. N. Que EJlate this rtaintiff has in the 'Tenancy ', to hold by
lefs Services; Norton faid, the Plaintiff ought to Jheiv How he has the
Eitate of M. N. But Shard faid, he is 1 enant of the Land, and you
have accepted him by your Conufance, therefore he need not to lhew How
he has the Eitate, by which the other palled o\er. Br. Que Eitate, pi.
17. cites 24 E. 3.
2. In Replevin, the Defendant avowed becaitfe J. N. was Lord, and was
feifed by the Hands of W. N. then Tenant &c. of fuch Services Que Ejfate
of the faid J. N. in the Tenancy the Plaintiff has ; and the Delendant as
Bailiff to the Lord, avow'd &c. and a good Avowry per Judicium,
notwithitanding that he conveyed to the Plaintiff by a Que EJlate with-
out jkewing How &c. For this is the Title of the Plaintitr to the Tenan-
cy, and not his own Title to the Seigniory ; For this cannot be con-
veyed by him by Que Eftate in the Seigniory, without fhewing How, by
34 H. 8. Quod Nota. For the Seigniory is here in Demand, and not tht
Tenancy, Quod Nota. Br. Que Eitate, pi. 2. cites 3 H. 6. 11.
3. In Replevin, fee Que EJlate of the Part of the Plaintiff ; For the
Defendant avowed for Rent-charge given to his Anceflor in Tail, and the
Plaintiff/hewed, that after the Gijt T Ancejhr of the Defendant ', whofe'Heir
&c. was feifed of the Land, out of which &c in Fee, and thereof infeoff'd
J\f. with Warranty in Fee Que Ejfate he has, and permitted without Quef-
tion ; (the Realbn feems inafmuch as after Avowry made, the Defen-
dant is become Actor,) and the Plaintiff thereto pleaded in Bar. Br.
Que Eitate, pi. 20. cites 21 H. 7. 9. 10.
4. In Replevin, the Defendant avows, the Plaintiff replies in Bar to
the Avowry, and fays, that King James was feifed, and granted to Sir
iV. B. who granted to J. S. Que Eitate by diverfe mean Alignments came to
J. D. and he put in his Bealts ; to which a Demurrer, and ruled for
the Avowant; For the Plaintiff ought to fliew that he put in his Cattle
by the Licence of J. D. and mould therefore derive a Title to him. And
tho' it was objected, that here is an Eftate pleaded in a third Perfon, pa-
ramount the Tide of the Avowant, and therefore the mean Alignments
after not necelTary to be fhewn; yet the Court was of a contrarv Opini-
on, Caufa qua fupra, and gave Judgment for the Avowant. Skin. 303,
304. Mich. 3 W & M. B. R. Tucker v. Hodges.
Scc^a. a) fj±. a) Pleadings. Traveife Good, or Neceflary in what
Cafes.
S.P.Br. Re- 1. TN Replevin, the Plaintiff counted of taking fuch a Day, and the
plcvin, pi. Defendant avowed in the fame Place, and at another Day. for Da-
\\^ l0 ^ i mage feafant in his Severalty, and the Plaintiff laid that he had Common
3 ' there,
Replevin, 2 7
there, ant* no Plea ; For it ihall be intended now that the taking was
the iame Dav that the Delendant avowed ; and the Reafon leems to be,
becauie the "Count is only fuppofal, and the Avowry Matter in Faff, by
r, liich the Plaintiff [aid that be took it the Day that he counted, at which Day
he had Cowmen there, and was not iurler'd, becauie the Delendant had not
travar fed that it was the Common of the Plaintiff this Day ; For it may
be the Common ol* the Plaintiff' at the Day or the Count, and the Seve-
ralty of the Delendant at the Day of the Avowry, by which the Plain-
tiff maintain'd that he took the Day that he counted , Prill, and the o-
ther econtra, and Co lee the Day traversable. JBr. Traverie per &c. pi.
37. ekes 43 E. 3. 1 1.
2. Replevin ihall not be fued by 3 of federal Beajis, where they have fe-
deral py.perties ; but it is a good Plea that the one has Property in one
Beulr. ; Abfqke hoc that the others have any thing \ and §0 of the others j
and the Writ ihall abate. Br. Replevin, pi. 12. cites 3 H. 4. 16.
3. Replevin ; Defendants /aid, That upon the Plea in the Ccuntv, it was re*
turned Aver i a ehnga.ta, by which 4 Cows of the Defendant were delivered to the
Plaintiff l ' -in Withernam, and that he gaged Deliverance of the Withernam.
Per Akue J u it ice, it does not appear belbreus of Reord, that fitch Wither*
Ham was awarded, therefore he lhallhaveDeliverance by Suggeition in the
Chancery. Per Newton Ch. J. when w r e are made Judges ot the Plea, by
the Record of the Principal, then we are Judges of the Acceffary; by
which Mark ham I aid, That betooktheBeaftsthe 24?/? of Augnft, as is de-
clared, of which Taking he has brought his Aiiion, and fitch a Day after the
Defendant took other heajls of the Plaintiffs, and (hewed when, and he find
Replevin in the County, and it was returned Averia elongata, of which E-
Joignment the Withernam was awarded; Abfque hec, that the Wither-
nam was awarded of the Beafls taken the 24th of Anguft ; and note, that
after, nothing was entered of all this Matter, but only the Declaration,
and lb it is admitted that the Sheriff may award V/ithcmam m the County.
Br. Gage Del iterance, pi. 9. cites 21 H. 6. 40.
4. In Avowry /or 20 s. of Rent-fervice, the Plaintiff' [aid that he held
by 10 s. Abfque hoc, that he held by 20.?. and as to the 10 s. Run Arrear,
and to the other 10 s. not feifed unlefs byCoertton &c. and an ill Traverfe ckc.
For it implies double Matter, by which the Traverfe was ouftcd, and the
reft of the Plea /feed ; Quod nota. Br. Avowry, pi. 121. cites 30 H 6. 5.
5. In Replevin, the Defendant avowed in 3 Acres Parcel of 1000 Acres, Br.Avowrvj
whereof he himfelf is feifed in Fee, as of his proper Soil, and for Damage pi. Qi. cites
feafa tit avow' d, the Plaintiff faid that he is feifed of Soo Acres in the fame S( - : -
Vi'll in Fee, other than thofe the Defendant has whereof the Place is Parcel ;
Abiquehoc, that the Place where ^c. is Parcel of the 1000 Acres ; and
the Opinion ot the Court was, That it is not a good Traverie to fay that
Not Parcel, but /hah 'fay if it was the Soil of the Defendant or not ; For it
may be Parcel of the 800 Acres at one Time, and econtra at the Time
of the Taking ; but he ought to anfwer if it be the feveral Soil oi the
Delendant or not; Quod nota bene. Br. Traverfe per &c. pi. 197.
cites 5 E. 4. in.
6. T'rcfpafs dc Parco f ratio, and taking his Beafls ; the Defendant faid,
TfhatJ. N. fued Replevin to the Sheriff of the fame Be a (is, and he made
U arrant to the Defendant to make Deliverance, who found the Park open y
and made Deliverance, Judgment &c. and the Plaintiff faid that the Pro-
perty of them was to W. P. and he took them /or Damage fcafant, Abfque hot
th.tt the Property was in f. N. and a good Replication without traverfing
the Poffeffion ; Fur notwithstanding that Replication lies of Bealls in Cul-
tody, yet it is a good Plea Prima Facie, till it be fhewn that J. N. had
them in Pofleffion or Cuitody. Br. Replication, pi. 54. cites 21 E. 4. 66.
7. In Replevin, the Defendants made Conufance as Bailiffs to A. for.
Rent refcrved upon a Lea fe for Life, the Plaintiff* replied^ 'Tlnat 2 Strangers
had a Right of Entry into the Place where ckc. and that the faid 2 Defen-
dants
I. —i^ ■— ■■I I I - ■. ™ —
28 Replevin.
dantsby their Command entered and took the Cattle Damage feafynt Al <;'que
}m i 7 bat they took them as Bailiff's to A. and upon Demurrer ic was ob-
jected, That by this Means the Intent of the Party ihall be put in Iffue,
which no fury can try, but only in Cafe of Recaption j Eut it was ad-
judged the Traverfe was well taken. Le. 50. pi. 64. Patch. 29 Eliz.
C. B. Buller's Cafe.
8. In Replevin the Defendant avowed for Damage feafant in his Free-
hold ; The Plaintiff rc/»//W, That hug before the Defendant had any thing
he htmfelf was feifed, tint ill by A. B. and C. dijfeifed, againjl whom he
brought Afjife, and recovered.; and that the Eft ate of the Plaintiff' was mean
between the AJftfe and the Recovery in it. The Defendant rejoined, that
long before the Plaintiff had any thing, one Q. was feif'ed, andinfeof) d him ;
Abfque hoc, that tbe /'aid A. B. and C. or either of them, had any Thing in
the faid Lands, at the Time if the faid Recovery. Walmiley J. was ot O-
pinion, That the Bar to the Avowry was not good, becaufe the Plaintiff
did notalledge therein, that A. B. and C. were Tertenants at the Time
of the Recovery, which ought to be ihew'd in every Recovery, where
it is pleaded ; and then when the Defendant traverfed that which was
not alledged, his Traverfe is not-good. Eut Windham contrary ; For
the Affile might be brought againlt others as well as the Tertenants j
As againlt Dilieifors, and therefore the Plaintiff need not fliew that A. B.
and C. were Tertenants at the Time of the Recovery, and alfo the Tra-
verfe here is well enough. Le. 193. pi. 277. Mich. 31 & 32 Eliz. C. B.
Rigden v. Palmer.
Sce(C. a) p. In Replevin the Defendant faid, That He Joad Property in theBeafts
p 5 Abfque hoc, that the Property was in the Plaintiff, and fo pray'd Judg-
ment of the Writ, and it was found for the Plaintiffs It was mov'd in Ar-
reit of Judgment, that there never was fuch a Traverfe as this, That the
Plaintiff had not Property, but only that the Property was in the Defen-
dant ; and 2dly, the Conclufion of the Plea is not good, for he ought to
conclude to the Writ and not to the A6~tion. Hobart faid, That 2 Meu
may have fuch Property in the fame Thing, that every of them may
have a Replevin ; and Hutton faid, That when the Defendant in the
Replevin claim'd Property, he ought to conclude to the Action ; and Hen-
don Serjeant being only at the Bar, and not of Counfel in the Cafe faid,
That the Book ot Entries is, That he ihall traverfe the Property of the
, Plaintiff, as in the principal Cafe. Hutton j. faid, That this was never
feen by him ; but they all agreed that this being after Verdi£t, Judg-
ment Ihall be given for the Plaintiff. Winch. 26. Mich. 19. Jac. Anon.
(F. a) Judgment. How.
1. T N Replevin by Judgment for the Defendant to have Return, the
Defendant/^?// not have Scire facias to have the Rent or Services, for
which he made Avowry ; For the Judgment is only of the Return, by
which he may retain the Cattle till he be paid, and if they die in Pound,
he has no Remedy but to diflrain De novo. Er. Judgment, pi. 100.
cites 21 E. 3, 22
2. If the Sheriff in Replevin returns thai the Defendant claims Property,
and the Proprietate Probanda ijfues, and is found for the Defendant, the
Plaintiff Ihall take nothing by his Writ. Br. Replevin, pi. 15. cites
H. 4. 27.
For more of Replevin in general, fee atJ0ftr|>, O3reC0, ECllt, and
other Proper Titles.
Repli-
29
Replication and Rejoinder.
(A) Replication. Plea at large ; where h mttft fet forth
a T'ttle at large.
I. A Plea at large is where the Plaintiff in his Replication meddles
r\ not with the Defendant's Bar. As to fay that a Stranger was
feifed, and enfeoff d h.m , or, that h.s Father was feifed, and died feifed
and lo hew as ieiied until &c.nt:cllKwingexprelily the Defcent to be'
alter the Defendant's Title. Heath's Max. 70.
2. In trefpafs of [piling his Grafs, theDejendant pleaded, that his Frank- Heath's
tenement &c. Kirton laid, He took our Grafs AJodo & Forma 1 Prifl; and Mak '' >°>
was not iunered to have this General A verment without (hewing how // CItesSC -
•was his Grafs, by which the Plaintiff lhewed Title. Br Replication
pi. 15. cites 38 E. 3. 11. r »
3. In trefpafs the '.Defendant [aid, That he leas' d to J. N. for Life, who
alien d in fee to the Plaintiff by which he enter'd, and a good Replication
lor the Plaintiff, that -J. N. Neahenapas, without making title, or (hewing
how ae has Intend; Por he has Intereft by his Poffeffion againlt all ex-
cept the Defendant ; and when the Defendant has lhewn Title, it fuffices
tor the Plaintiff to deny it, quod nota ; and fo it feems that the Plaintiff
in Trefpafs need not to make Title ; Contra in Affile. Br Replication
pi. 8. cites 40 E. 3. 5. '
4. In trefpafs upon the Statute of 5 R. 2. ubi ingreffus non datur per * Heath's
Legem the Defendant/aid, that his Father was feifed in Fee, and infeoft'd Max - 7°.
Join fee and the one dy'd, and the other furvrid and leas' d to the Defen- S? S <£-
tlf^r fr &/W to the Plaintiff, and a good Plea, and the ffirifff
f rT ,l!f fli t° T ffr Ca T> %? ° m A - a S <™>Wr was feifed, and died !b£?£*
Med. and the Land defended to If . who was Mother of the Plaintiff which bound to
W ay d, and the Plaintiff enter' d, upon whom the Defendant enter' d, and no a R nfwe ; ? ie
Plea per tot. Cur. For tho' in Affife upon Bar at large the Plaintiff mav n'r a°
make title at large and not meddl^wit&the Bar, yet \l AftfoVof * VS KjSl
pa s, nor in any other Aft ion, a Man lhall not make Title or Replication w»hft.,nd-
at large but ought to conjefs and avoid the Bar, or traverfe it, quod nota j n SP lead . a t
Br. Replication, pi. 7. cites 34 H 6 22 lar S e ' WIth "
T out anfwer-
yvhich is (in a Manner) altogether in an Jjffi, where a General Barwith Colour U &J&*??"''
xn ^y,r Nature ofan^je, nor other A&ion. H eath's Max 7 c L 54 H Y 'Jf S ^ â„¢
5- The Defendant in trefpafs pleaded his Freehold; to which the Plain-
tiff replied, That long time before the Defendant any thine- had in the Frankte-
nementf. S. was feis d, and leas' d to him for Tears ; and fo he waspolfefs'd
until &c; and holden a good Plea. Heath's Max. 70 cites 41 E%
6. The Defendant in Trefpafs for taking a Ship, pleaded the Gift of the
Plaintiff ; and the Plaintiff would have replied, that he took his Ship Prill
and .11; and after would have added to that his Plea, Abfque hoc, that
the Ship was the Pontiff's tempore Don,, andillalfo; and fiftly, would
have pleaded, that tempore Don, the Ship was Alice at Stile's, and was not
*• fullered ;
^o Replication and Rejoinder.
fuffcred ; wherefore he added to his Plea, that {after the Gift) Alice gave
the fame unto him, and fo he took his Ship, and that held a good Plea, and
the Defendant nT/MAw/, That it was tie Ship of the Plaintiff at the Time of
the Gift. Heath's Max. '71. cites 42 Ed. 3. 2.
• 7. If the Replication be "ftgainlt an Act of Parliament, Recovery^ or
Matter of Record, the Title muft be fet forth fpecially, & depuifne temps ; lb
10 All". 23. ox" a Warranty ; bat againit a Matter en fait, the Plaintnf may
well fay, that alter his Father was feifed, and died foiled, without View-
ing how. Heath's Max. 72. cites Fitz. Abr. and Bro. Ai>r. Tit. Repli-
cations and Titles.
8. It the Title be before the Fine or Recovery, 'it may be general. Heath's
Max. 72. cites 47 Ed. 313.
9 The Delendant in Trefpafs pleaded a Gift in fail by the King ; and
the Plaintilf replied, Ne dona pas ; and good. Heath's Max. 72. cicas
18 Ed 4. 10.
10. And where the Defendant gives to the Plaintiff' a Title, and in his
Plea dejlrcys the fame, the Plaintiff may maintain or traverfe that Matter
without other or further Title. Heath's Max. 72. cites 9 Ed. 4. 46.
11. And where the Defendant in 'Trefpafs made Title by a Gift in Tail
of a Stranger, the Plaintiff replied, That he was feifed until the Defendant
did the Trefpafs, and traverfed the Gift in Tail ; and good, ahho' his Title
was but of his own Pofielfion. Heath's Max. 72. cites 40 Ed. 3. 5. and
3 Ed. 4. 18.
12. The Defendant in a Replevin avowed, that B. -was feifed, and let to
him for Tears ; to which the Plaintiff >Â¥/>//
buit, A. w is feifed and let to C. whofe EJiate the Plaintiff had ; and doubt-
ed, whether it were not a meer Title, as before at large, becaufe he doth
ho way encounter with the Avowry, nor confeft and avoid the fame, but on-
lv with the Word Antequam. Heath's Max. 70. cites 1 & 2 Maria?,
D. 171.
(B) Good. Where they muft tend to a proper' Jjjue\ and
what is a Proper IiTtie.
1, TN Afjife of Rent, the Defendant pleaded Grant of the Rent by A. Uncle
of the Plaintiff' whofe Heir he is &c. with Warranty to this Dc] ai-
dant for 10 Tears, and fo is the Franktenement m the Plaintiff \ Judgnicnt
if he pall have Affife during the Term. And the Plaintiff' replied, that he
never had fuch Uncle ; and admitted for a good Replication, by which the
Defendant durlt not ftand to it, but waiv'd this Plea, and pleaded Nul
tort. Br. Replication, pi. 30. cites 44 All* 1.
2. In Precipe quod reddat, if the Tenant pleads that the Demandant has
enter'd after the loft Continuance, and the Demandant replies Prift, that he
did not ; this does not make Illue, unlefs the Tenant rejoins Prijl that it
did. Br. Replication, pi. 50. cites 9 H. 6. 58. And Brooke fays,
See more of this Libro Intrac. placitor.
3. In Trefpafs the Defendant pleaded His Franktenement, and the Piain-
tift" replied, That he was feifed, till by the Defendant diffeifed, upon whom he
re-entered, and the Trefpafs Mefne between the Diffei/in and the Re-entry,
the Defendant rejoin' d, that his Father was feifed, and died feifed, and be
enter'd as Heir, and this Ffl ate continued till the Trefpafs, abfque hoc, that
he diffeifed the Plaintiff'', and it is awarded that all this is only a Tra-
verfe of the Dilleilin, and yet all was enter'd ex Gratia Curias. Br.
Replication, pi. 19. cites 21 H. 6. iy.
4. In
Replication and Rejoinder. 31
4 'In trtfpafs or Faife iMprifonmnt, if the Defendant jufnjies, inafmucb
tastbe P{ai»t$ bad poifoiid J. S. it is a good Replication, that be did not
toiion the fad f.S\ Per Cur. Br. Replication, pi. 51- cites 5 H. 7. 4. .
5 In 5lv/>.;/:v, the Defendant faid that ?. S. was fe fed in Fee, and in- *«• m Tref
f«#W /""», dftrf !w:v &/**>•;, the Plaintiff Jaid that before this bisPredecef- De f triianl
for was fetfed in Fee of the Manor of C. of
mifalle h Copy, and leas' ct it to the [aid T. S. by Copy for Life of the LeJJor 5 ?«/«*&,
snd a'ter the Leffor died, and this Plaint, f was made bis Succcfor, and en- *£ '»M A
tered into the Manor, find was feifed till the [aid T. S. infeoff'd the Defen- g ^ iCllttr%
dant. And it was held per Cur. That this is no good Replication 5 lor , t \ s , 70 roi ,d
he ought to fay that be entered into the Manor, and was feifed till T. S. dif- Repticatkn,
Wed him, and mfccf'd the Defendant; tor tho' the Entry of T S. im- ** l,sF,-
plieda Diileilin, yet in Pleading he ought to allege exprefsly how he fg . fed ^
enter'd, and by what Title; quod nota. Br. Replication, pi. 1. cites di edfeifed,
„ n o , and he en-
„7 n. o. 4. ter'd as Herts
axdvutsfeilidti'li 4. entered and infiefd the Defend*** bntfiatt f*y that he msMeifed *> A &l in-
frtjfdtfce Defendant; for IJfue ma} be jcind Upon Opiftn, but net t$on an Ei.liy, " M enter u, or notj
a;i'd flwli not fliew by what Title ; quod nota. Ibid.
6 Scire facias av&inft X. R. Adminiftratrix, upon * Judgment againft ** ett g5£ &
her 'for a Debt due by the Inteftate, the Defendant pleaded that the Inteftate by N : ; me of
madeaWi/l and B. his Son (an Infant) F.xcctttor, that Adminiji ration uâ„¢^l
was cow anted to the Defendant, Durarte Minor* Mate. That B refu/ed Rivet's
at the Age of 17, and thereupon Admimft ration ike was committed to W. gj^jv
and that at the fime B. &c. came of Age the Defendant bad fully admin 1- {Jfag^
ftcfd all the Eftate which came to her : The Plaintiff rtplied, that at the Litr. Rep.
Time B came of Age DevafraDit di-verfa Bona ; but doth not lay, that the 52. S. C
Defendant Devallavit ; the Defendant K. rejoined, that Ipfa non de-oafta- ^Ha?"
rat ; and being found lor the Defendant, the Plamtni would have avoid- tion . d
ed i't bv an Exception to his own Replication, viz. That no Iliue was
ioin'd 'becaufe it is not alleged in the Replication that K.. the Defendant
Devallavit, but that Devastavit and K. not nam'd but by a Parentheik
But 3 lull fees conceived it mould be conitrued, that K. devallavit; for
me was Administratrix, and by Intendment the other could not commit
the Wafte and the Rejoinder jbews who was meant in the Replication, viz.
Prsed. K. 'dick, quod ipfa non devallavit. But V'elverton and Croke J.
contra, That an Intendment ihall not make a Replication good. But by
the Op'inion of the other 3. Judgment was given tor the Defendant. Cro.
C 79 pi. 2. and 93. pi. 18. Mich. 3 Car. C. B. Oxford v. Rivett.
(C) Where-'gDod, without maintaining the Writ.
1 r-TTRefpafs of breaking bis Clofe the if Day of May, Anno 8, the De-
S (aidant pleaded Feoffment of the Plaintiff the #h Day of May Anno
pfmtio, 4>fque hoc, that he was guilty before the $th Day j and the Plain-
tiffaiFtm be Neinfeotfa pas, And per Brian, This no good Replica-
tion without maintaining the Writ, but Littleton, Pigot, and Nele J.
contra. Br. Replication, pi. 22 cites 15 E.4. 22 _
2. If in Debt ufWT an- Obligation, the Plaintiff makes a Replication
as certain as "the Words oft!.-xffhndition,tbo notfo certain as the Cafe feems to
require yet it is good ; As where the Condition was, That if A. D. an
Apprentice, ftmild wafh any of theM^L^ ods, an ' the fame be duly
proved by A. D. 's Con^ effio 1, or ctlfi^M â– j&Obiigor would make