CURIOUS SPECIMEN OF VIVA VOCE PLEADINGS IN THE ENGLISH COURTS, IN THE REIGN OF EDWARD II. *

"The case was this: Aleyne de Newton brought his writ of annuity against the abbot of Burton upon Trent, and demanded 30%. arrears of an annual rent of 457. per annum, and he declared that one John, abbot of Burton, and predecessor of the present abbot, did, by assent of the convent, grant an annuity to Aleyne, payable twice in the year, till he was advanced to a convenable benefice; and he exhibited a specialty containing, that the abbot by assent, &c., did grant an annuity to Aleyne de Newton, Clerk, in the above manner, as he had declared. Upon this Willuby (as counsel for the defendant) prayed judgment of the writ, because of the variance between the writ and the specialty; for in the writ, he was named Aleyne de Newton, but in the specialty, Aleyne de Newton Clerk. Ward said, that it was no variance; yet Willuby maintained, that as he might have a writ agreeable to the specialty, if he varied in his own purchase of it, the writ would be ill; but he could in this case have a writ agreeable to his specialty. Ergo, &c. And again, as far as appeared by the specialty, it was made to some one else, and not to the person named in the writ. Stonore, one of the justices, said, 'Then you may plead so if you will, but the writ is good,' therefore respondeas ouster.

Then said Willuby, He cannot demand this annuity, because we say, that John our predecessor on such a day,

* See ante, page 271.

&c. tendered him the vicarage of, &c. which was void, and in his gift, in the presence of such and such persons, which vicarage he refused; wherefore we do not understand that he can any longer demand this annuity. Shard-We say this vicarage was not worth 100 shillings; therefore we do not understand it to be a convenable benefice, so as to extinguish an annuity of 401. Willuby-Then you admit that we tendered you the vicarage, and that you refused it, &c.? Shard-As to the tender of a benefice which was not convenable, I have no business to make any answer at all. Then Mutford, one of the justices, asked, What sort of benefice they considered as convenable, so as to extinguish the annuity? Shard-We mean one of ten marks at least. Then Stonore said, Do you admit that the vicarage was not worth 100 shillings? Willuby-We will aver that the vicarage was worth ten marks, prest, &c.; and he has admitted that one of that value should extinguish the annuity. Shard-And we will aver that it was not worth ten marks, prest, &c.

After this issue, Willuby was desirous of recurring back to his first plea, and said, As you declare that the vicarage was not worth 100 shillings, we will aver that it was worth 100 shillings, &c. But Stonore interposed, and said, He declares that the vicarage is worth ten marks; and after that there is nothing to be done, but that the issue should be taken on your declaration or his: now it seems that it should rather be taken on yours; for, by your plea, you make that a convenable benefice which is worth ten marks, and such a declaration you ought to maintain, &c. WillubyThe mention of the value came first from him, when he said it was not worth 100 shillings; so that it will be sufficient

for me to traverse what he had said. But Stonore pressing him whether he would maintain his plea, Willuby said he would, and acccordingly pleaded that the vicarage was worth ten marks, prest, &c. et alii, that it was not worth ten marks, prest, &c. and so issue was joined.

The pleadings upon the record in the above case must then have stood thus: The defendant said, a vicarage had been tendered and refused, and so the annuity should cease, judgment of the action. To this the replication was, The vicarage tendered was not worth ten marks, and so not a convenable benefice to extinguish the annuity: rejoinder, it was worth ten marks: surrejoinder, it was not.

These instances, without troubling the reader with more, will serve to show the manner of pleading vivá voce at the bar every thing there advanced was treated as a matter only in fieri, which upon discussion and consideration might be amended, or wholly abandoned, and then other matter resorted to, till at length the counsel felt himself on such grounds as he could trust. Where he finally rested his cause, that was the plea which was entered upon the roll, and abided the judgment of an inquest, or of the court, according as it was a point of law or of fact *."

Reeve's Hist. of Eng. Law, vol. ii. pp. 347-349.

I.

DECLARATION IN COVENANT *.

On an Indenture of Lease for not repairing.

In the King's Bench.

The 1st day of January, 1835. Middlesex to wit. A. B. (the plaintiff in this suit), by E. F. his attorney [or, in his own proper person], complains of C. D. (the defendant in this suit), who has been summoned to answer the said plaintiff [or, who has been arrested at the suit of the said plaintiff], in an action of covenant: For that whereas heretofore, to wit, on the 10th day of March, in the year of our Lord 1826, by a certain indenture then made between the said plaintiff of the one part and the said defendant of the other part (one part of which said indenture, sealed with the seal of the said defendant, the said plaintiff now brings here into court, the date whereof is the day and year aforesaid), the said plaintiff, for the consideration therein mentioned, did demise, lease, set, and to farm let unto the said defendant a certain messuage, or tenement, and other premises, in the said indenture particularly specified, to hold the same, with the appurtenances, to the said defendant, his executors, administrators, and assigns, from the twenty-fifth day of March then next ensuing the date of the said indenture, for and during, and unto the full end and term of seven years from thence next ensuing, and fully to be complete and ended, at a certain rent payable by the said defendant to the said plaintiff, as in the said indenture is mentioned.

* See page 284.

And the said defendant, for himself, his executors, administrators, and assigns, did thereby covenant, promise, and agree, to and with the said plaintiff, his heirs and assigns (amongst other things), that he, the said defendant, his executors, administrators, and assigns, should and would, at all times during the continuance of the said demise, at his and their own costs and charges, support, uphold, maintain, and keep the said messuage, or tenement, and premises in good and tenantable repair, order, and condition; and the same messuage, or tenement and premises, and every part thereof, should and would leave in such good repair, order, and condition, at the end, or other sooner determination of the said term, as by the said indenture, reference being thereunto had, will, among other things, fully appear. By virtue of which said indenture, the said defendant afterwards, to wit, on the twenty-fifth day of March, in the year aforesaid, entered into the said premises, with the appurtenances, and became and was possessed thereof, and so continued until the end of the said term. And although the said plaintiff hath always, from the time of the making of the said indenture, hitherto done, performed, and fulfilled all things in the said indenture contained on his part to be performed and fulfilled, yet the plaintiff saith, that the said defendant did not, during the continuance of the said demise, support, uphold, maintain, and keep the said mes. suage, or tenement and premises in good and tenantable repair, order, and condition, and leave the same in such repair, order, and condition, at the end of the said term; but for a long time, to wit, for the last three years of the said term, did permit all the windows of the said messuage