English County to cause the Jury to come de propinquiori Visne of his County to the Visne in Wales adjoyning For the Court shall not be ousted of the Plea Fitz. Abridg. tit Visne 8. Jurisdict 24. In an action against a Hundred the Venire facias may come from the next Hundred generally In Trespass if the Defendant plead not guilty to part and to the residue a Plea which causes the Tryal of that to be by a Jury de Prochein Hundred The Venire shall be awarded al Prochein Hundred for both issues because there ought not to be two Venire facias in one action vide Rolls tit Tryal 596. In an Appeal of murder committed in the Cinque Ports although the King be concerned yet because this is betwixt common persons the Venire facias to the next adjoyning Vill. ibidem If the issue be joyned of a matter in Ireland Ireland this shall be tryed by a Jury of the next County in England ib. If the issue be to be tryed by the Venue of Prochein Hundred a Mannor and the Plaintiff suggests that he is Lord of the Hundred in which the Mannor is and that all within the Hundred are within his Distress if the Defendant acknowledge this the Venue shall not be de Corpore Comitatus but of the next Hundred for if it should be de Corpore Comitatus this should be tryed by the Tenants of the Mannor Rolls ib. 667. If the Visne is in some part mis-awarded or Visne mis-awarded in part sued out of more places or fewer than it ought to be so as some place be right named this is aided by the Stat. of Jeofailes which hath ended the differences in many cases reported in our Books concerning this point wherefore I purposely omit them Error for that the Iudgment was given Infamy where the Land lies by default against the Defendant being an Infant upon issue that he was of full age adjudged that the Tryal should be in Norfolk where the Land was and not in Middlesex where the Action was brought Cro. 3. part 818. If the Visne cometh from a wrong place May be out of a wrong place by Consent yet if it be per assensum partium and so entred of Record it shall stand for Omnis Consensus tollit errorem 1 Inst 125. Holmes vers Sanders Hill 22 23 Car. B. R. Error to reverse a Iudgement given in the Kings Bench in Ireland in Debt for Rent brought by the Assignes of a reversion the Plaintiff declared of a Lease of Land in such a Parish in the Suburbs of Dublin on nil debet pleaded the Venire facias was from the said Parish in Civitate Dublin and Iudgement there per Plaintiff it was assign'd for Error because the Land lies in the Suburbs of the City and the Venire facias was from a Parish in the City Per Cur. It is all one for the Suburbs are always within the Franchise of the City as Fleetstreet is within the Suburbs of London but the Strand not though so reputed Note It was adjudged Error in an Inferior Court that the Venire facias was awarded secundum consuetudinem Curiae which ought to be per Curiam Reader vers More Mich. 1650. B. R. CAP. IX Challenges YOu have already seen of what Visne the Jury ought to be The next thing to be considered is concerning Challenges Challenge is a word common as well to the English as to the French and sometimes Challenge signifieth to claim and the Latine word is vendicare sometime in respect of revenge to challenge into the field and then it is called in Latine vindicare or provocare Sometime in respect of partiality or insufficiency to challenge in Court persons returned on a Jury And seeing there is no proper Latine word to signifie this particular kind of challenge they have framed a word anciently written Chalumniare and Columpniare and Calumpniare and now written Calumniare and hath no affinity with the verb Calomnior or Calumnia which is derived of that for that is of a quite other sense signifying a false accuser and in that sense Bracton useth Calumniator to Calumnâ—ator be a false accuser but is derived of the old word Caloir or Chaloir which in one signification is to care for or foresee And for that to challenge Jurors is the mean to care for or foresee that an indifferent Tryal be had it is called Calumniare to challenge that is to except against them that are returned to be Jurors and this is his proper signification But sometimes a Summons Sommonitio is said to be Calumniata and a Count to be challenged but this is improperly And forasmuch as mens Lives Fames Lands and Goods are to be tryed by Jurors it is most necessary that they be Omni exceptione majores and therefore I will handle this matter the more largely A Challenge to Jurors is twofold either Challenge is twofold to the Array or to the Polls to the Array of the principal Pannel and to the Array of the Tales And herein you shall To the Array understand that the Jurors names are ranked in the Pannel one under another which order or ranking the Jury is called the Array and the Verb to Array the Jury and so we say in common speech Battail Array for the order of the Battail Array And this Array we call Arraiamentum and to make the Array Arraiare derived of the French word Arroier so as to challenge the Array of the Pannel is at once to challenge or except against all the persons so Arrayed or Impannelled in respect of the Partiality or default of the Sheriff Coroner or other Officer that made the Return And it is to be known that there is a principal Principal Challenges cause of challenge to the Array a challenge to the favour principal in respect of partiality as first if the Sheriff or other Officers be of kindred or affinity to the Plaintiff or Defendant if the affinity continue Secondly If any one or more of the Jury be returned at the denomination of the party Plaintiff or Defendant the whole Array shall be quashed So it is if the Sheriff return any one that he be more favourable to the one than to the other all the Array shall be quashed Thirdly if the Plaintiff or Defendant have an Action of Battery against the Sheriff or the Sheriff against either party this is a good cause of challenge So if the Plaintiff or Defendant have an action of Debt against the Sheriff but otherwise it is if the Sheriff have an action of Debt against either party or if the Sheriff have parcel of the Land depending upon the same Title or if the Sheriff or his Bayliff which returned the Jury be under the distress of either party or if the Sheriff or his Bayliff be either of Counsel Attorney Officer in fee or of Robes or servant of either party Gossip or Arbitrator in the same
is insufficient for the whole But if the Iury give a Verdict of the whole Finding more than the Issue Issue and of more c. That which is more is Surplusage and shall not stay Iudgment for Utile per inutile non vitiatur Leon. 1 part 66. Gro. 1 part 130. But necessary incidents required by Law the Iury may find Yet in many Cases nay almost in all Where the Verdict ought to be of more than is in the Issue the Iury ought to find more than is put in Issue otherwise their Verdict is not good and therefore they are to assess Damages and Cost because it is parcel of their Charge as a Consequent upon the Issue though tâ— be not part of the Issue in terminis li. 10. 119. An Action of the Case on Deceit was brought for that he sold unto the Plaintiff two Oxen and warranted them to be sound on not Guilty the Iury found him Guilty as to one and not Guilty to the other and good for that the Action was founded not on the Contract but the Deceit 3 Cro. 884. Gravenor and Mete In Debt the Plaintiff declares that he had Iudgment against Baron and Feme for a Debt of the Wives dum sola c. that they were in Execution and suffered to Escape the Iury found the Husband only in Execution and Escaped and Iudgment for the Plaintiff Roberts versus Herbert Hill 12. Car. 2. C. B. So in Trespass against two one comes Damages by the first Inquest and pleads Not guilty and is found guilty In this case the first Inquest shall assess damages for the whole Trespass by both Defendants and afterwards the other comes and pleads Not guilty and is found guilty The finding of Damages by the first Inquest to which he was not party shall bind him and therefore if the Damages are outragious and excessive the Defendant Attaint in the last Enquest shall have an Attaint li. 10. 119. So in Trespass Quare clausum fregit if Issue be joyned upon a Feoffment and the Jury give outragious Damages An Attaint lies for the inquiry of Damages is consequent and dependant upon the Issue and parcel of their charge Ibidem In the 11th Report fo 5. It was resolved Damages by the first Inquest That in Trespass against two where one comes and appears c. against whom the Plaintiff declares with a simul Cum c. who pleads and is found guilty and Damages assessed by the Enquest and afterwards the other comes and pleads and is found guilty The Defendant which pleaded last shall be charged with the Damages taxed by the first Inquest for the Trespass which the Plaintiff had made joynt by his Writ and Count and done at one time cannot be severed by the Jurors if they find the Trespass to be done by all at one and the same time as the Plaintiff declared So in the Trespass against divers Defendants Several Damages Vide Devant ca. 4. if they plead not guilty or several Pleas and the Jury find for the Plaintiff in all the Jurors cannot assess several Damages against the Defendants because all is but one Trespass and made joynt by the Plaintiff by his Writ and Count. And although that one of them was more malicious and de facto did more and greater wrong than the others yet all came to do an unlawful act and were of one party so that the act of one is the act of all of the same party being present But in Trespass against two if the Jurors find one guilty at one time and the other at another time there several Damages may be taxed But if the Plaintiff bring an Action of Trespass against two and declare upon a several Trespass his Action shall abate And this is the diversity betwéen the fâ—nding of the Jury and the confession of the party And in Trespass where the Defendants plead several Pleas all tryable by one Jury and they find generally for the Plaintiff the Jurors cannot sever the Damages if they do their Verdict is vicious But in Trespass against two where one Judgment de melioribus dampnis appears and pleads not guilty to a Declaration against him with a simul Cum c. and afterwards the other appears and pleads not guilty to a Declaration against him also with a simul Cum c. Whereupon two Venire fac issue out and one Issue tryed after the other and several Damages assessed in judgment of the Law the several Juries give one Verdict all at one time and the Plaintiff hath his Election to have judgment de melioribus dampnis by any of the Inquests And this shall bind all but fiat nisi una Executio It is a Maxim That in every case where Damages an Inquest is taken by the Mise of the parties by the same Inquest shall damages be taxed for all And in Mich. 39 H. 6. fo 1. In an Action of Trespass against many who pleaded in Barr the Term before and one of them made default which was Recorded Writ of Inquiry There it is resolved by all the Court That for saving of a Discontinuance a Writ of Enquiry of Damages shall be awarded but none shall issue out because he shall be contributory to the damages taxed by the Inquest at the Mise of the parties if it be found for the Plaintiff and if it be found against the Plaintiff then the Writ of Enquiry shall issue forth And the Reason wherefore no Writ shall issue out at first to inquire of damages until c. is because that if a Writ should issue out and be executed this is nothing but an Inquest of Office and not at the Mise of the parties and yet this Inquiry if it might be allowed ought to serve for all the damages For inquiry of damages shall not be twice and the others which have pleaded to Inquest if the Issue be found against them shall be chargeable to those damages which are found by the Inquest of Office and if they be excessive they shall have no remedy although there be no default in them for they cannot have an Attaint because it is but an Inquest of Office But in Trespass against two who plead Damages by the first Inquest not guilty c. severally and several Venire fac awarded The Inquest which first passes shall assess damages for all and the second Inquest ought not to assess damages at all but that Defendant shall be contributory to the damages assessed by the first Jury notwithstanding he is not party to it yet if these damages be excessive he shall have an Attaint because though he is a stranger to the Issue yet in Law he is privy in Charge And so no damage or mischief can accrue to him in this Case Now let us sèe when something is left Verdict when to be supplied by Writ of Inquiry c. out of the Verdict which the Jury ought to have inquired of whether
for the Battery of the Baron by its self and for the Battery of the Feme by its self and Iudgment was given for the damages for the batâ—ery of the feme and the Writ abated for the residue And of that Opinion was Lea Chief Justice and Doderidge al. contra And the same Law I conceive if the Iury had found the Defendant Not guilty of the battery to the Palmer's Reports 338. Husband but guilty to the Wife Cro. 2. part 655. Rochel and his Wife brought an Action of Trespass and Assault in the Exchequer Rochel and his Wife against Steel Hill 1659. against Steel and others who pleaded Not guilty and the Verdict found Steel guilty of the Battery to the Wife but found nothing concerning the Husband Wherefore Iudgment was stayd but the Barons held That if the Iury had found the Defendants not guilty as to the Husband then the Verdict had helped the Declaration and the Plaintiff should have had Iudgment for the Damages for the Battery of the Wife The Iury may find any thing that may be Of what a Verdict may be given in Evidence to them as Records either Patent Statute or Iudgment Things Plo. Com 411. done in another County or Country for which sée Evidence before Hob. 227. And of those things they ought to have Conusance they are to have Conusance also of all Incidents and dependants thereupon for an Incident is a thing necessarily depending Incidents upon another Co. Littleton 227. b. If the Verdict may by any ways be construed How construed good a construction to destroy it ought not to be made If one of the Iury be Outlawed when the Verdict is found the Verdict is not good but Outlaw may be reversed by Error In a special Verdict the case in Fact must be found clear to a Common intent without Equivocation Vaughan's Reports 78. If the Iury collect the Contents of a Contents of a Deed. Deed and also find the Déed in haec verba the Court is not to Iudge upon their Collection but upon the Déed it self The Iury may find the Contents of a Déed or Will proved by Witnesses Ibidem Trespass for disturbing him of his Common Common belonging to 100 Acres and the Iury find Common for 50. this is for the Plaintiff otherwise upon an Avoury or Quod permittat which are founded upon the right but the Trespass is for Damages Palmer's Rep. 289. If the matter and substance of the Issue The Verdict may be against the Letters of the Issue so the substance is found be found it is sufficient though it be against the Letter of the Issue As in the first Institutes fo 114. b. A Modus decimandi was alledged by prescription time out of mind for Tythes of Lambs And thereupon Issue joyned And the Iury found that before twenty years then last past there was such a prescription and that for these twenty Prescription years he had payd Tythe Lamb in specie And it was objected first That the Issue was found against the Plaintiff for that the prescription was general for all the time of the prescription and 20 years fail thereof 2. That the party by payment of Tythes in specie had waved the prescription or custom But it was adjudged for the Plaintiff for albeit the modus decimandi had not been paid by the space of twenty years yet the prescription being found the substance of the Issue is found for the Plaintiff In Assiise of Darrein Presentment if the Avoydance Plaintiff alledge the avoydance of the Church by privation and the Jury find the voydance by death the Plaintiff shall have Iudgment for the manner of voydance is not the title of the Plaintiff but the voydance is the matter 1 Instit 282. If a Gardein of an Hospital bring an Assise against the Ordinary he pleadeth that Deprivation in his Visitation he deprived him as Ordinary whereupon Issue is taken and it is found that he deprived him as Patron the Ordinary shall have judgment for the deprivation is the substance of the matter Ib. The Lessee Covenants with the Lessor not to cut down any Trées c. and binds himself in a Bond of 40 pounds for the performance of Covenants The Lessee cut down 10 Trees the Lessor bringeth an Action Breach of 20 Trees cut down for 10. of Debt upon the Bond and assigneth a breach that the Lessée cut down 20 Trées whereupon Issue is joyned and the Jury find that the Lessée cut down ten Iudgment shall be given for the Plaintiff for sufficient matter of Issue is found for the Plaintiff to forfeit the Bond. Ib. And this Rule holds in Criminal Causes For if A. be appealed or indicted of Murder viz. that he of malice prepensed killed J. A. pleadeth that he is not guilty Modo forma yet the Jury may find the Defendant Indictment of Murder and Verdict finds Manslaughter guilty of Man-slaughter without malice prepensed because the killing of J. is the matter and mâ—lice prepensed is but a Circumstance Plo. Com. 101. And generally where modo forma are Modo forma not of the substance of the Issue but words of form there it sufficeth though the Verdict doth not find the precise Issue As if a man bring a Writ of Entry in câ—su proviso of the Alienation made by the Tenant in Dower to his disinheritance and counteth of the Alienation made in Fee and the Tenant saith that he did not Alien in Manner as the Demandant hath declared Alienation and upon this they are at Issue and it is found by Verdict that the Tenant aliened in tail or for term of another mans life The Demandant shall recover yet the Alienation was not in manner as the Demandant hath declared Littleton Sect. 483. Also if there be Lord and Tenant and the Tenant hold of the Lord by fealty only and the Lord distrain the Tenant for Rent and the Tenant bringeth a Writ of Trespass against his Lord for his Cattel so taken Trespass by the Tenant against the Lord. and the Lord plead that the Tenant holds of him by fealty and certain Rent and for that Rent behind he came to distrain c. And demand Iudgment of the Writ brought against him Quare vi armis c. And the other saith That he doth not hold of him in manner as he supposed and upon this they are at Issue And it is found by Vâ—rdict that he holdeth of him by fealty only in this case the Writ shall abate and yet he doth not hold of him in manner as the Lord hath said For the matter of the Issue is Whether the Tenant holdeth of him or no for if he holdeth of him although that the Lord distrain the Tenant for other services which he ought not to have yet such Writ of Trespass Quare vi armis c. doth not lye against the Lord but shall
shall not be tryed by Certificat but per pais Rolls tit Tryal 583. Concerning Certificates of Spiritual persons vide Rolls ibidem 591 592. 7. A Record shall be tryed by the Record it Records self and not per pais But matter of fact concerning a Record is tryable by a Jury as whether a plaint c. was levied according to the Custom non prosecutus est ullum breve is tryable by the Country Mixt with fact Hob. 244. Hutt 20. So if a Statute hath two Seals or but one 1 Leon. 229. 2 Cro. 375. 1 Inst 125. b. so in a per quae servitia if the Tenant say he held not of the Conusor Jour del note levie shall be tryed per pais In Escape upon a Cepi returned ne unques in son gard shall be tryed per Record but upon Rolls tit Tryal 574. a Capias not returned the prisal shall be tryed per pais So shall an action brought by Covin for the Covin is not of Record In a scire facias per Roy to have execution of a Iudgment in a Quare impedit if the Def. say that after the Recovery the King presented issint Judgement execute and the issue be whether the King presented per cause del Judgement or of an avoydance after the death of J. S. who was presented by a stranger after the avoidance upon which the King had Iudgment This shall be tryed per pais And Why there needs no visne where Letters Patents were made otherwise in pleading Deeds 4 Rep. 71. for this Reason in pleading of Letters Patents the place need not be alledged where the Letters Patents were made because the Dâ—fendant cannot plead nul tiel Record but must plead non concessit and then the Jury shall come from the place where the Lands lie Vide li. 6. fo 15. 1 Inst 117. 260. Plo. Com 231. But upon a Non est factum pleaded to a Deed there must be a place alledged where the Deed was made because though the Deed as to the matter of Law be tryable by the Court yet the sealing and delivery thereof Deeâ— and other matter of fact must be tryed by the Jury so that in this case of a Deed there is a Tryal per Pais and by the Court. 1 Inst fol. 35. vide apres 18. The issue upon an Indictment or acquittal What issues shall be tryed per Record upon this shall be tryed by the Record So shall the allowance of a Protection in Bank The imprisonment upon the execution and not for other cause in escape The justification of an imprisonment because he is a Iustice of Peace A Statute-Merchant Count or not Count Baron of the Parliament or Vicount or not Whether a place be within the Ligeance of the King of England or in Scotland A Fine sur release Rendring his body in discharge of his Baile shall be tryed by the Record Rolls tit Tryal 574. But in escape against the Mayor of Astaple What per Pais for suffering J. S. in execution upon a Statute Staple to go at large if the Defendant say he was not in Prison upon the execution but upon a Plaint there this shall be tryed per pais and not per Record because 't would be unreasonable that the Defendant should certifie a Record where he himself was concerned ibid. The time of inrolliing Letters Patents shall be tryed per pais Co. Lib. 4. 71. 9 H. 7. 2. Disseisin of an Office in any Court or Office Raseing a Record rasing a Record in any Court by the Filizers and Attorneys of the Court. 8. A Peer of the Realm i. e. a Lord of Peers the Parliament shall upon an Indictment of Treason or Felony misprision of Treason and misprision of Felony be tryed by his Peers without Oath 1 H. 4. 2. But in an Appeal at the Suit of the Party he shall be tryed per probos legales homines Juratores 10 E. 4. 6. c. because that is not the Kings Suit but the Parties Vide li. 9. 31. Le case del Abbot de Strata Mercella And in a Praemunire his Tryal shall be per pais 12 Bep 93. Lamb. Inâ—t 520. 3. Inst 30. Bolstr 1. part 198. Dutchesses Countesses or Baronesses although married shall be tryed as Peers of the Realm are but so shall not Bishops and Abbots Stam. 153. 20 H. 6. 9. 2. Inst 48 49 50. 156. b. 294. 9. The Customs and usages of every Court shall be tryed by the Judges of the Customs of Courts c. tryed by the Judges same Court if they are pleaded in the same Court ib. and many other things are tryed by the Judges as the reasonableness of a fine of an offender or upon surrender of a Copy-hold Estate and so it is of Customes services and also of the time that a Tenant at will shall have to carry away his Goods And these Cases come under the Rule which makes matter of Law to be tryed by the Judges Vide 1 Inst fol. 56. And in some Cases matter of fact shall be tryed by the Judges as if the Plaintiff appear by Attorney in Court and then the Defendant pleads that the Plaintiff is dead If one appears and saith that he is the Plaintiff whether he is or not shall be tryed by Inspection the Judges li. 9. 30. So the non-age of an Infant generally by inspection of the Court But in many Cases Infancy shall be tryed per Pais as if an Infant appear by Attorney v. Bulst 1 part 131. Rolls tit Tryals 573. in Error this shall be tryed per Pais li. 9. 31. and so it is in an Aetate probanda Maihim in an Appeal of Maihim the Maihim Court may adjudge this upon the view at the prayer of the Defendant and this Tryal is peremptory to the Parties by a Jury of Chirurgeons Vide Rolls tit Tryal 578. Maihim may be tryed again by the Court by inspection for increase of Damages but then these things are to be considered First it must be a Maihim and not a bare wounding Secondly The Maihim must be ascertained in the declaration so as that it Maihim may appear that the Maihim inspected and the Maihim in the declaration be all one as was resolved Mich. 21 Car. 2. B. R. in the Case of Badwel and Burford the principal Case of which was that the Defendant whip'd the Plaintiffs Horse which made him throw her and another Horse trod on her and maim'd her hand and adjudged no increase of Damages in that Case being a Consequential and not a direct Maihim Nonage in a Writ of Error to reverse a Inspection Iudgement or a fine of the Tenant by resceit of one vouched come deins age issint praie le paroll à demurrer Nonage sur aid praier in Appeal Audita querela to avoid a Statute Accompt and in all actions where 't is prayed that the paroll demurroit Nonage shall be tryed per
the Residue the Court may direct the Tryal of the Issue or judge the demurrer first at their Latch 4. pleasure though by the opinion of Dodrige It is the best way to give Iudgment upon the Demurrer first because when the issue comes afterwards to be tryed the Jury may assess Damages damages for the whole A Scire facias was brought on a Recognisance in Chancery the Terre-tenants pleaded several Pleas the Plaintiff demurred to one and took issue on the other the Record was sent into B. R. to try the issue and it was tryed and Verdict pro Plaintiff the demurrer not being argued and it was adjudged per R. B. that Iudgment ought to be given on both by that Court Jeffreyson and Dâ—wson's Case Hill 21 22 Car. 2. B. R. vide for these things 1. Roll. abr 534 535. Roll. rep 287. and in the principal Case 4 Inst 80. was denied to be Law An Immaterial issue joyned which will Immaterial issue not bring the matter in question to be tryed is not helped after Verdict by the Statute of Jeofailes but there must be a Repleader because this is matter of substance for if there were no issue there could be no Verdict and so it is as if nothing had béen done in the cause In an Action against two the one pleads Plea to the Writ in abatement of the Writ the other to the Action the Plea to the Writ shall be first tryed for if that be found all the whole Writ shall abate and make an end of the business for the Plaintiff ought not to recover upon a false Writ 1 Inst 125. In a Plea personal against divers Defendants Plea to the whole first tryed the one Defendant pleads in barr to parcel or which extendeth only to him that pleadeth it And the other pleads a Plea which goeth to the whole the Plea that goeth to the whole that is to both Defendants shall be first tryed because the other Defendant shall have advantage thereof For in a personal Action the discharge of one is the discharge of both As for example if one of the Defendants Release in Trespass pleads a Release to himself which in Law extends to both and the other pleads not guilty which extends but Rolls tit Tryal 628. to himself or if one pleads a Plea which excuseth himself only and the other pleads another Plea which goeth to the whole the Plea which goeth to the whole shall be first tryed for if that be found it maketh an end of all And the other Defendant shall take advantage hereof because the discharge of one is the discharge of both Discharge of one dischargeth both But in a Plea real it is otherwise for every Tenant may lose his part of the Land as if a Praecipe be brought as Heir to his Father against two and one pleads a Plea which extendeth but to himself and the other pleads a Plea which extends to both as Bastardy in the Demandant and it is found for him yet the other issue shall be tryed for he shall not take advantage of the Plea of the other because one Ioyntenant may lose his part by his misplea Brown and Stamford Iustices consulted with Grammarians in things of Grammar and Hulls a Batchelor of Law Tempore Hen. 6. was called into Court to shew the difference between precise and causative Compulsion Vide Plow 122. 127 128. Pasch 16 Car. 2. B. R. An action of Trover c. was brought de sex Capitalibus fibulatis Anglice 6 laced Coifs after Verdict for the Plaintist it was moved in Arrest of Iudgement that the Latine words were both Adjective and so not certain but it was answered that Capaital is a Substantive and the Nomenclator of Westminster School was produced to warrant it and it was adjudged for the Plaintiff accordingly and the Court allowed that authority before Rider's Dictionary CAP. III. Of a Venire facias To whom it shall be directed when to the Sheriff when to the Coroners when to Esliors and when to Bayliffs When well awarded c. HAving given you the Epitome of what Tryals are allowed by the Common Law and what shall be tryed per pais and what not we shall now apply our selves more particularly to the Tryal by Juries And because a Venire facias is the foundation and Causa sine qua non of a Jury I mean in Civil Causes for in Criminals as upon Indictments the Justices of Gaol Delivery give a general Command to the Sheriff to cause the Country to come against their coming and take the Pannels of the Sheriff without any process directed to him yet process may be made against the Jury though it is not much used Stamford Plees del Corone 155. I will first recite the Writ in terminis the rather because I intend to order my Discourse according to the method of the Writ Rex c. Vic. B. Salutem Praecipimus tibi Venire facias quod venire facias coram Just ciariis nostris de Banco apud Westm tali die duodecim liberos legales homines de vicinet de C. quoâ—um quilibet habeat quatuor libras terrae tenement vel reddit per annum ad minus per quos rei veritas melius sciri poterit Et qui nec D. E. nec F. G. aliqua affinitate attingunt Ad faciend quandam Jur. patriae inter partes praedict de placito c. quia tam idem D. quam praedict F. inter quos inde contentio est posuer se in Jur. illam Et habeas ibi nomina Jur. illorum hoc breve T. c. This is one of those Latine Letters as Finch terms them fo 237. which the King sends with Salutation to the Sheriff But withall Commands him that he cause to come twelve free and lawful men of his County to resolve the question of the fact in dispute between the parties upon the issue and it is a Iudicial Writ issuing out of the Record for Plaintiff or Defendant after they have put themselves upon the Country for upon the words Et de hoc ponit se super patriam by the Defendant Or Et hoc petit quod inquiratur per paâ—riam by the Plaintiff and issue joyned thereupon the Court awardeth the Venire faciâ—s vid Ideo fiat inde Jurat And if they come not at the day of the Writ returned then shall go forth against them an Habeas Corpora and Distringas to bring them in to try the matter The which two last Writs are usually made with this clause Nisi prius Justiciarii venerint c. and are returnable after the time of the Judges coming their Circuit And first you see it is directed Vicecomiti Sheriff i. e. to one who is Vicecomes and hath the Regiment of the County instead of the Earl of that County to whom once it did belong as we are taught in the Mirror Chap. 1. Sect. 3. scil That it appeareth by the
And all these points were resolved by all the Judges of England upon Conference between them in the Case of John Arundel Esq indicted for the death of William Parker Where there may be a special Visne the De Corpore Com. Tryal shall never be de Corpore Comitatus Leon. 1 part 109. If a Venire facias ought to be of one or more Vills in certain in a County and this is awarded de Corpore Comitatus This seems to be aided by the Statute of 21 Jac. of Jeofailes for this comes from the Vills out of which it ought to come and from others in as much as it comes de Copore Comitatus Rolls tit Tryal 618. and many other cases touching this matter But in Ejectment of Land called S. and no place is named where the Land lyes and a Venire is awarded de Corpore Com. this is erroneous and too large because there is a place certain where the Land lyes and yet it is not named in the Nar. as it ought to be Hob. 121. But if the issue be taken upon a title of dignity as whether Chivaler or not this may come de Corpore Comitatus because that the lieu lou c. is not material ib If A. by the name of A. of the County of Hamshire bring a Scire facias upon a Recognisance in Chancery in the Countie of Mid. against B. And the Defendant plead that the Plaintiff is Outlawed by the name of A. of the County of Chester to which the Plaintiff replies that he is not una eadem persona this may be by the body of the County of Mid. where the Writ is brought ibidem In a quare impedit for the Church de Uselbee and the Defendant pleads that there is no such Church the Venue shall not come de Corpore Comitatus but de vicineto de Uselbee for this is a place known and it is intended the Church of Uselbee is within the Ville of Uselbee Hob. 325. IN a prohibition if the parties be at issue Wild. upon a custom de non decimando of wood in the Wild of Sussex the Venire facias shall be de Corpore Com. for the Wild is not such a place whereof the Court may have conusance to be sufficient to have a Jury to come stom this for the Wild is a wood by intendment Hob. 348. In a real Action where the Demandant Heir tryed where the Land lies where not demands Land in one County as Heir to his Father and alledges his Birth in another County if it be denyed that he is Heir it shall not be tryed where the Birth is alledged but where the Land lyeth For there the Law presumes it shall be best known who is Heir But if the Defendant make himself Heir to a Woman for that is the surer and more certain side and the Mother is certain when perhaps the Father is incertain and therefore there it shall be tryed where the Birth is alledged because they have more Cro. 3. part 818. Cro. 2. part 303. certain Conusance than where the Land lyeth And so it is where Bastardy is alledged Bastardy the Tryal shall be in like Case Mutatis mutandis If the man plead the Kings Letters Patents Non concessit where the Land lies and the other party plead non concessit it shall not be tryed where the Letters bear date for they cannot be denyed but where the Land lyeth Every Tryal must come out of the Neighbour-hood of a Castle Mannor Town Visne or Hamlet or place known out of a Castle Mannor Town or Hamlet as some Forests and the like as before Every Plea concerning the person Where the Writ is brought at Common-Law Plaintiff c. shall be tryed where the Writ is brought When the matter alledged extendeth into a place at the Common Law and a place within a Franchise it shall be tryed at the Common-Law Matters done beyond Sea may be tryed in England and therefore a Bond made beyond Sea may be alledged to be Matters done beyond Sea how tryable in England Vide cap. 10. made in any place in England if it bear date in no place But if there be a place as at Burdeaux in France then it shall be alledged to be made in quodam loco vocat Burdeaux in France in Islington in the County of Middlesex and from thence shall come the Jury 1 Inst 261. Lach. 4. and 5. So if the Tenant plead that the Demandant is an Alien born under the Obedience of the French King and out of the Legiance Alien of the King of England the Demandant may reply that he was born at such a place in England within the Kings Legiance and hereupon a Jury of 12. men shall be charged and if they have sufficient Evidence that he was born in France or in any other place out of the Realm then shall they find that he was born out of the Kings Legiance And if they have sufficient Evidence that he was born in England or Ireland or Guernsey or Jersey or elsewhere within the Kings Obedience they shall find that he was born within the Kings Legiance And this hath ever been the pleading and manner of Tryal in that Case So of other things done beyond Sea the adverse party may alledge them to be done at Things done beyond Sea such a place in England from whence the Jury shall come and in a Special Verdict they may find the things done beyond Sea Ib. lib. 7. 26. Lib. 7. 26. So when part of the act is done in England and part out of the Realm that part that is to be performed out of the Realm Part without the Realm and part within if issue be taken thereupon shall be tryed here by 12 men and they shall come out of the place where the Writ or Action is brought Ib. lib. 6. 48. Error for that Iudgment was given by default against the Defendant being an Infant Full age tryed where the Land lies issue was taken that he was of full age And Godfrey moved whether the Tryal should be in Norfolk where the Land was or in Middlesex where the Action was brought And the Court held that it should be tryed in the County where the Land lay and Tanfield said It was so adjudged in the Kings Bench between Throgmorton and Burfind Cro. 3. part 818. Questions of Title of Land except by Where the Land doth ly special order of the Judges in some cases are to be tryed in the County where the Land lies for the Law is that all real and mixt actions as Wast Ejectment c. must be brought in the County where the Land is But Debt Detinue Account Transitory Actions Actions of the Case Battery c. are of their own nature Transitory and yet they ought to be laid and tryed in their proper County where the fact was done unless the Court order the contrary for some Special reasons
Fine or common Recovery may be Fine given in Evidence though it be not under the great Seal or Seal of the Court and without vouching the Roll of the Recovery and the part indented is the usual Evidence that there is such a Fine though they which saw the Fine are also good Evidence Plow 410. Stiles 22. Depositions in the Ecclesiastical Court Depositions cannot be given in Evidence though parties be dead March 120. A Defendants answer in an English Court is good Evidence against him but not against others Godbolt 326. Where the evidence proves the effect and substance of the issue it is good By order of Court the Depositions taken of a Sick Witness may be given in evidence As upon plene administravit if it be proved Assets that the Executor hath goods of the Testators in his hands he may give in Evidence that he hath paid of his own money for the Testator to the value of those goods Co. Lit. 283. Dyer 2. So if a Lease be pleaded a Lease upon Lease Condition is good Evidence 1 H. 8. 20. because the Genus comprehends the Species So of a Feoffment pleaded a Feoffment upon Condition or a Fine which is a Feoffment of Record is good Evidence 44 E. 3. 39. A special agreement is evidence for an agreement Plo. 8. But if a Feoffment be pleaded in Fee Feoffment upon issue non feoffavit modo forma a Feoffment upon Condition is no Evidence because it doth not answer the issue and wheresoever Evidence is contrary to the issue and doth not maintain it the Evidence is not good 11 H. 4. 3. Feoffments 41. agreement in reversion is no evidence but a Lease and Release is 20 H. 7. 5. If the Indorsment be of a Livery by Attorney the Letter of Attorney must be shewed Vpon an Assumpsit to the Husband an Assumpsit Assumpsit to the Wife and his agreement is good evidence 27 H. 8. 29. upon non assumpsit to a special promise payment is no evidence per 3 Iudges In challenge to the array because made Challenge at the denomination of the Sheriffs Clerk evidence at his Bayliffs denomination is good because favourably made is the substance 38 H. 6. 9. If the issue be in a Suit against an Executor Assets Administrator or Heir Assets in London to prove Assets in another place is sufficient Li. 6. 47. Dyer 271. Accompt pleaded before two Accompt Accompt before one is good Evidence Hob. 55. because the accompt is the substance Vpon the general issue the Defendant may give any thing in Evidence which proves the Plaintiff hath no cause of action What Evidence upon the general issues or which doth intitle the Dâ—fendant to the thing in question But if he hath cause of justification or excuse it must be pleaded wherefore upon non detinet in detinue the Defendant may give in Evidence a gift from the Plaintiff for that proveth that he doth not detain the Plaintiffs goods but he cannot give in Evidence that the goods were pawned to Deâ—inue him for money and that it is not paid but he must plead it 1 Inst 283. For the property is in the pledger Vpon Not guilty in Battery Son assault In Battery demesne is no Evidence for thereby the Battery is confessed Ib. neither is Not Guilty good Evidence upon Son assault demesne Vpon Not Guilty in Trespass Insufficiency Trespass of the Plaintiffs mounds or to justifie for a Rent-Charge Common Licence Son assault demesne or the like is no good Evidence Ib. but to prove a Trespass before or after the day laid in the Declaration is good 1 Inst 283. So upon the Plea Nul Wast fait in an Wast Action of Wast he may give in Evidence any thing that proveth it no Wast as by Tempest by Lightning by Enemies c. But he cannot give in Evidence any justifiable Wast as to repair the House or the like nor a reparation of the Wast before the action brought Ib. Vpon non est factum 'T is no Evidence to Non est factum shew the Bond that was made upon an usurious Contract or that the Sheriffs name is mistaken c. in a Bail-Bond or that the Bond is joynt or several or delivered at another place or that it is void by Statute But it must be pleaded in abatement Ib. Hob. 72. But to prove that the Seal was broken off and put on again or to prove a Rasure of the Deed delivered as an Escrow c. this is good Evidence Li. 5. 119. 11. 27. If 't were done before the action brought but if the Seal was broke off c. by chance after issue joyned the Jury may find it specially To prove the Sealing and delivery of a Deed and not know the party that did it is not good evidence but if he knows the party upon sight of him it is good enough Kelw. 59. Vpon Not Guilty in Trover and Conversion Trover a Demand and denyal of the Goods is good Evidence Plo. 14. li. 10. 57. Cro. 1 part ult pub 495. Hob. 187. Vpon plenè Administravit the Executor Plenè Administravit cannot give a Iudgement in Evidence Kelw. 59. nor payment of Debts by Contract in Debt brought upon an Obligation A Cup pawned and redeemed with the Executors own money is good Evidence but a recovery ought to be pleaded upon nil debet in Debt for Rent That the Lessor entred into part of the Land is no good Evidence Golds 81. But non demisit iâ— 9 H. 7. 3. Vpon Not guilty in an Action upon the Parco fracto Statute de parco fracto That the Plaintiff hath no Park is good Evidence 19 H 8. 9. So upon Not Guilty in Trespass in the Warren Plaintiffs Warren Evidence that he hath no Warren is good 10 H. 6. 17. Kitchin 119. A Shop-book no evidence after a year Shop-books 7 Jac. cap. 12. In Debt for Arrerages of an accompt upon Accompt Nil debet modo forma No accompt is good Evidence 2 H. 6. 26. Vpon Not guilty in Trespass a Lease for years 12 H. 8. 2. or that locus in quo c. is the Freehold Trespass of another 4 E. 3. 45. is good Evidence but upon this he cannot justifie his entry upon the place by a strangers Licence or Command Br. general issue 81. because this is a justification by way of excuse Neither is a Lease at Will good Evidence in this case So upon Not guilty in Trespass for Not guilty in Trespass goods 't is good evidence that the goods were a strangers 9 H. 6. 11. But that they were a strangers and that he as Servant to the stranger or by his commandment took them from the Plaintiff is not good Br. general issue 81. because the Trespass is confessed But that the stranger gave them to the Defendant is good 9 H. 6.
Castle but that there was a Goal this was for the Plaintiff because Goal is the Substance If the Issue be whether the Defendant had Accompted before R. and W. Auditors Accompt assigned by the Plaintiff and the Iury find an Accompt before R. only the Issue is found for the Defendant for the Accompt is the effect of the Issue Vide Rolls tit Trial. 707. c. If 11 agrée and the 12th will not the Verdict of the 11 cannot be taken but the Court Jury agree may carry the Iurors with them in Carts until they are agréed 41 Ass 11. A privy Verdict may be altered in open Verdict altered Court In an Extendi fac upon a Statute if the Iury deliver their Verdict in Writing they may afterwards make it more formal but they cannot alter it in substance for it is a compleat Verdict by the delivery So of Presentments c. A Fine pleaded in Barr and that after Fine and Non-claim the death of A. scil 1 August 3. Car. B. Father of the Plaintiff was alive in plena vita remansit infra hoc Regnum infra quatuor Maria c. apud W. in Com. D. and no Entry or Claim within five years after and the Plaintiff replies and takes Issue què Modo forma il non fuit remansit infra hoc Regnum Angliae modo forma c. And the Iury find quod non fuit remansit infra hoc Regnum Angliae 1 August 3 Car. but that he was there 1 Maii 4. Car. and remained there a Month and refer to the Court Au fuit remansit infra hoc Regnum modo forma c. This Issue is found for the Defendant for the matter and substance of the Plea is whether he was within the Realm after the death of A. and five years before Entry or Claim per him or the Plaintiff and modo forma shall not make the day material Roll. tit Trial. 713. Iudgment upon a Demurrer and a Writ Judgment Arrest at what time of Inquiry executed at the return the party may shew any thing in Arrest of Iudgment for Iudgment is not compleat until the last Iudgment The first is but an Award A man may plead any thing in Arrest of Iudgment after a Verdict which will make Error if the Iudgment be given In Debt upon a simple Contract against an Executor if he will not plead in Abatement but other Matter which is found against him he shall not afterwards alledge that he is not chargeable in Arrest of Iudgment So in Debt against Executors upon Arrearages of Accompt where they are not chargeable That which appears ill upon the same Record What may be alledged but not a maâ—â—er of Fact which doth not appear upon the Record because the parties cannot by the Issue As that a Iuror was challenged and yet served on the Tales for this cannot appear without alledging matter of Fact Nor that the Defendants Attorney had no Warrant But if there be any irregular or foul practice this may be offered to set aside a Iudgment If any thing be omitted in the Declaration Variance between the Verdict and the Declaration or if more be put into the Declaration than is found by the Iury if it make a material Variance betwixt the Nar. and the Verdict the Action shall abate These following are adjudged material Variances If the Declaration be for these words Thou procuredst eight or Ten of thy Neighbours Words to Perjure themselves and the Iury find that he said Thou hast caused eight or 10 c. for he might be a remote Cause scilicet causa sine qua non without Procurement Nar. He is a Bankrupt Verdict He will be a Bankrupt within two days Nar. He is a Thief Ver. He stole a Horse Nar. Thou art a Murderer Ver. He is c. Nar. I know him to be a Thief Ver. I think him to be a Thief So it is a material Variance if a special Promise be laid to be upon Request and the Verdict find it without Request So if the Promise Declaration be upon a Lease made by two or by Baron and feme and the Iury find that one of them had nothing in the Land or that the Baron only made the Lease or that the two were Tenants in Common and so several Leases otherwise if they were Coparteners So in Case that the Testator was indebted to the Plaintiff in 55 l. and the Defendant being Administrator in consideratione c. Promise to pay this upon non Assumpsit if the Verdict find the Promise to be to pay 30 l. part of the 55 l. So in Ejectment If the Nar. be of a Lease Eje ment of thrée Acres a Lease of a Moiety will not maintain the Nar. So in Wast for Cutting Trees and the Wast Verdict find that he eradicated the Trées but did not cut them A Prescription in modo decimandi That Prescription every one who hath seven Lambs or under seven shall pay to the person ob for every Lamb and the Iury find that and further That if he had more than seven Lambs he should pay a Lamb and that the Parson should pay the Parishioner ob This is not the same Prescription but makes a Variance But if there be a Variance between the Variance Verdict and the Nar. either by way of Surplus or Defect but if this matter of Variance be not material in the extenuation of the Action or Damages the Action shall lye notwithstanding the Variance These ensuing are adjudged not to be material Nar. Strong Thief Verdict Thief Nar. I say c. Ver. I affirm or I doubt not Nar. The Plaintiff will do such a thing Ver. I think in my Conscience he will c. Nar. Of a Lease by a Parson for five years if he tam diu should be Parson tam diu viveret And the Verdict find the Lease to be for five years if he tam diu viveret without the words and should continue Parson for the Law implyeth That if he be deprived or resign that the Lease Determines Nar. He is a Murderer Ver. He was a Murderer for when he says He is a Murderer 't is not intended that he did the Act in presenti but before So in Trespasses or Actions upon Torts and wrongs which are several If the Verdict find part 't is no material Variance and the Plaintiff in these Cases shall have Iudgment Roll. tit Tryal 720. A Jury of Middlesâ—x was demanded in Enquest by default the Common-Pleas the first day of the Term and some appeared and some not so that there was not a full Jury and neither the Defendant nor his Attorney did appear and therefore the Plaintiff prayed that the Inquest might be awarded by default and by the opinion of Welsh and Dyer his prayer shall be granted and the Custos Brevium and all the Prothonotaries said the
the principal Pannel and two of the Tales notwithstanding Maynards Opinion to the contrary and Cro. 3. part 587. The Sheriffs used to summon above 24. scil effraenatam multitudinem but Must not return above 24. now they are prohibited by Statute to summon above 24. Westm 2. cap. 38. In what cases the Inquest shall remain for default of Jurors If the issue be to be tryed by 2 Counties if but one of one County appear although a full Inquest appear of the other yet this shall remain for default because they cannot try that whith is in another County 2 Counties There ought to be six of each County And so of one Inquest out of a Franchise and another out of the Guildable and so of 2 Pannels returned in an Assise by several Bayliffs of Franchises to try one issue and one Pannel makes default the issue shall not be tryed by the other Pannel for the Jurors in one Franchise cannot make the view in another Franchise Roll tit Tryal 673. If the Jury be of 2 Counties or 2 Pannels The manner of swearing the Jurors of the Guildable and Franchise c. they shall be sworn interchangeably first one of one then another of the other If the Jury go at large until another day after they are sworn and the Roll of the entry be not in Court they may be sworn anew Roll. tit Trial 674. To make a Jury in a Writ of Right Where there must be 16. and 24. in a Jury which is called the Grand Assise there must be 16. scil four Knights and 12. others the Jury in an Attaint called the Grand Jury must be 24. Finch 412. 485. But if the issue be upon a matter out of the point of the Attaint as upon a Plea of non-tenure the Tryal shall be by 12 Juratores 21 E. 3. 10. There may be more than 16 in a Writ of right Rolls tit Tryal 674. When Process used to be made out Where Witnesses joyn with the Jury the number is uncertain against the Witnesses in Carta nominat to joyn with the Jury in Tryal of the Deed as was used before the Statute of 12 E. 3. C. 2. his Testibus being then part of the Deed then the number was uncertain according as the number of Witnesses were in the Deed wherefore no Attaint lay if the Deed were affirmed because more than 12 joyned in the Verdict But otherwise Cannot prove a Negative if the Deed was not found because Witnesses cannot prove a Negative F. N. Br. 106. h. 1 Inst 6. 2 Inst 130. c. If 12 are sworn and one of them depart Juror departs and another sworn by consent by consent another of the Pannel may be sworn and joyn with the other 11. in the Verdict 11 H. 6. 13. In Error upon a Iudgment in Cornwal A Jury of 6. because the Tryal was but by 6. adjudged that it was erroneous though it was returned secundum consuetudinem ibidem ante c. for such Customs are against Law unless in Wales which are permitted by Act of Parliament Cro. 1. part 259. If the record be pleaded in Bar of the Per primer Jurors See hic cap. 4. Assise and the Party that pleads says the same Tenements were put in view to the former Jurors If the Plaintiff saith nient comprise This shall be tryed per primer Jurors auters 13 H. 4. 10. So if the Tenant saith that these Lands are not the same Lands before recovered this shall be tryed per primer Jurors auters 22. Assise 16. and so in a Redisseisin So in an Assise if the Defendant plead a Recovery per view de Jurors in another Assise this shall not be tryed by the Assise but per primer Jurors 13 H. 4. 10. And if at the return of the former Jurors and others all the former Jurors appear the Tryal shall be by them only but if any do not appear they shall be supplied by the others 40. Assise 4. In such cases where the Plaintiff is not to recover the Land nor to defeate the former Iudgement if nient comprise be pleaded upon a Recovery pleaded this may be tryed by other than the former Jurors 1 H. 6. 5. As in Trespass for Trees cut the Defendant pleads that he recovered before in an Assise the same Land where c. and cut c. the Plaintiff says this Land where c. was not put in view and so nient comprise This shall not be tryed by the first Jurors but by others because this action doth not defeat the former Iudgement nor recover any thing but Damages Note the difference 1 H. 6. 5. Where the Tryal shall be per primer Jurors Certificate of Assise what and where by them and auters and where only per auters see Rolls tit Tryal 593. This is where the Bayliff of a Tenant in an Assise pleadeth c. and loseth by the Assise and the Tenant himself hath a release or some other discharge to plead then he may by this means have the parties and first Jurors to appear again and if it be found he that before recovered shall lose the Land and yield double Damages Terms of Law CAP. VII Who may be Jurors who not who exempted and of their Quality and Sufficiency SO much for their Number next their Jurors must be Liberi Quality is to be considered And for this the Writ informs you who they ought to be 1. Liberos that is Freemen not Villains or Aliens and that not only Freemen and not bond but also those that have such freedom of mind that they stand indifferent without any Obligation of Affinity Interest or any other Relation whatsoever to either party sometimes the word Probos instead of Liberos is attributed Fortescue cap. 25. to them they are both good Epithetes for a Juror but I esteem the first most significant 2. They ought to be Legales not outlawed Legales not such as have lost Liberam legem or become infamous as Recreants persons attainted of Felony false Verdict Conspiracy Perjury Praemunire or Forgery upon the Statute of 5 Eliz. cap. 14. and not upon the Statute of 1 H. 5. 3. Not such as have had Iudgement to lose their Ears stand on the Pillory or Tumbrel or have been stigmatized or branded nor Infidels neither can any such be Witnesses 1 Inst 6. 3. Homines they ought to be men yet A Jury of Women there shall be a Jury of Women to try if a Women be Enseint upon the Writ de ventre inspiciendo But what kind of men these ought to be is worthy to be known And for this some men are exempted from serving in Juries in respect of their Dignity as Barons and all above them in degree Many are exempted by the Writ de non Exemption of Juries ponendis in Assisis F. N. B. 166. as aged persons 70. years old and many others are exempted as Clerks Tenants in
joyn although they be not nearest nay though 20 Counties be between them Finch French 59. 1 Inst 154. But if it be of a Lease at Ickford of Land in Bury in Suff. the Venue must be of Bury not of Ickford ib. 619 If the issue be taken upon the name or Where the Writ is brought condition of the person this shall be tryed in the County where the Writ is brought 21 E. 4. 8. for this may be well known there Rolls ib. 615. Where the issue is to be tryed upon a point which shall be tryed by two Counties and one cannot joyn with the other this shall be tryed where the Writ is brought 21 E. 4. 8. but for this see before where the Counties cannot joyn In Debt in London against I. S. of D. in Where in other County than where the writ is brought Essex if the Defendant saith that he was at S. in Essex at the time of purchasing the Writ and not at D. this shall be tryed in Essex and not where the Writ is brought for none can know where he dwelt so well as the County of Essex 12 H. 6. 5. Vide many cases in Rolls ib. 605. c. about this matter In an Action of the Case against a Sheriff upon an escape in London and the Arrest laid Where the escape was and not where the Arrest was to be in Southampton adjudged that the Visne shall be where the escape was because that is the ground of the Action and not where the Arrest was Cro. 3. part 271. In Debt upon an Obligation payment was pleaded apud domum mansionalem Rectoriae de Much-Hadam and the Venire facias was de vicineto de Much-Hadham where it ought to have been de vicinet Rectoriae de Much-Hadam but it was adjudged good because Much-hadam is here intended a Vill. ib. 804. So you see that where a thing is alledged to be done at the Capital House * Rectoriae of D. there the Venire shall be of D. For that is intended to be all one with the Vill. Castle But where it is at the Castle of Hertford c. there the Venire facias shall not be de Rolls tit Tryal 621. vicineto de Hertford but de Castro de Hertford for Castrum Hertford is intended a distinct place by it self and so of all Castles Cro. 2. part 239. More 862. A Venire facias may be awarded of a Castle Rolls 618. Where the issue is not parcel of the Mannor Mannor of D. or the Custom of a Mannor is in question the Venire ought to be of the Mannor Hob. 284. Cro. 2. part 327. If the Mannor be laid to be in a Vill the Venire facias Rolls tit Tryal 621. may be of the Mannor in the Vill as de vicineto maneâ—ii de Stansted-Hall in Windham Cro. 2. part 405. More 851. Arundels Case li. 6. 14. The Venue cannot be of a scite of a Mannor Rolls tit Tryal 618. In the Common Bench in Trespass for taking away a Bag of Pepper the Defendant justified as Servant of the Mayor and Commonalty of London for Wharfage due to them by the Custome of London which the Plaintiff refused to pay The Plaintiff replyed that the Custome did not extend to him London because he was a Free-man of the City and ought not to pay Wharfage to which the Defendant re-joyned that the Custom extended to him as well as to strangers upon which issue was joyned Resolved 1. That the issue should be tryed Reâ—order per Pais not by the mouth of the Recorder because he certifies nothing but what the Mayor and Aldermen direct who are concerned in the cause 2. That the Venire facias should not be awarded to the Sheriffs of London nor Middlesex because the Tryals there are by Free-men But it shall be to the County Where the Tryal shall be by the County next adjoyning next adjoyning viz. to the Sheriff of Surry So where any City is concerned the Venire facias shall not be directed to the Officers of the City but to the County next adjoyning Hob. 85. Stiles 137. More 871. vide hic cap. 2. If the issue concern the Mayor and Commonalty of a Town the Array shall be made all of Foreigners 31. Assise 19. vide Rolls tit Tryal 597. So if the issue concern the Mayor and Commonalty c. although they are not parties yet the Venire facias shall be directed to the Sheriff of the next County 15 E. 4. 18. Where a man lends a Horse to another Where a man lends his horse in one place and he is spoiled in another Visne where he is spoiled to till his Land and the Horse dies with excessive Labour the Visne shall be from the place where the excessive labour was and not where the delivery was More 887. vide Hob. 188. Rolls tit Tryal 615. pasch 22 Car. 2. B. R. Horsley versus Potter An action of the case was brought for misusing an Horse in Itinere the Contract was laid at Swafham in Norf. and the riding to Peterborough in Northampton-shire where the Horse died it was tryed in Norf. and the Court seemed that it ought to have been tryed in Northampton-shire where the damage was done and not where the contract was made but it was aided by the Stat. of Jeofailes 17 Car. 2. cap. 17. after Verdict that Statute being then in force Where a promise is laid in one place and Promise in one place and breach in another Visne guided by the issue the breach in another the Visne must be according to the event of the issue whether it be taken upon the promise or breach But if no place be alledged for the breach and issue be taken upon it the Visne must be from the place of the promise which shall be intended right where the contrary appears not see Godbolt 274. Easter 39 Eliz. In the Kings Bench Trespass Assault and Battery en Wilts continuing the Assault in Middlesex and adjudged that the Jurors shall come out of both Counties More 538. The name of a Mannor or Land or Misnomer other local thing shall be tryed where it lies because it is local but the name or addition of a person shall be tryed where the Action is brought because this is transitory Bro. tit Visne 7. lib. 6. 65. In Covenant upon an Indenture of Demise of the Rectory of Stoken Church in the County of Oxford That the Defendant Where the Land lies had good Power and Authority to demise The Indenture was alledged to be made at London and the Venire facias was awarded to the Sheriff of Oxon and this being assigned for Error Iudgement was affirmed and this adjudged to be good More 710. because the Rectory was in Com. Oxon. vide pag. 45. In Debt upon an Obligation in one Where the Land lies and not where the Writ c. County to perform Covenants in a Lease and the Land
evidence In a special promise to pay 20 l. if the Plaintiff would pay 10 l. c. and an averment Non assumpsi◠that he paid the 10 l. upon non assumpsit the Defendant shall not give in evidence that the Plaintiff did not pay the 10 l. neither is the Plaintiff bound to prove it for the issue is upon the assumpsit and not upon the payment of the 10 l. which might have been traversed And although 't was said that in all actions there is a general issue to be taken which shall put all the declaration in issue and that must in this be non assumpsit or nothing yet by the advice of all the Iustices of Serjeants Inn in Fleetstreet it was ruled as abovesaid Mich. 16 Car. B. R. between Holditch and Brodrig I have been the more particular in this because I have known Plaintiffs nonsuited in such cases at the Assisses for want of proving rhe averment although I must confess I never agreed with the Iudge herein that did it For it is a mistake to say The Plaintiff must in all cases prove his whole Declaration if he proves the matter in issue he ought not to be nonsuited Rolls tit Tryal 1681. If an Advowson be pleaded to be granted Grant per fait Where it is sufficient to prove the effect of the Issue Per fait and this issue is taken by a stranger to the fait if it be found granted sans fait or by another fait it is good for the Deed is surplus and the effect of the issue is upon the grant not upon the fait If an Imprisonment by dures at D. Dures be in Issue 't is not material whether he was ever at D. or not for the effect of the Issue is if the Deed was made by dure◠So of a Feoffment pleaded by Deed a Feoffment without Deed or another Feoffment Deed is good for the effect of the Issue is upon the Feoffment not upon the Fait In escape of a Prisoner and the Issue Fresh Suit is if the Gaoler immediately after the escape made fresh suit if the Prisoner hath escaped a day and night before the Goaler knew it and then he makes fresh suit it is sufficient to prove the effect of the issue for convenient pursuit is immediate fresh suit in Law If in pleading an Indenture of demise Non demisit modo forma you mistake the recital and the issue is non demisit modo forma The mistake shall not hurt for the effect of the Issue is upon the demise If a man plead not guilty he cannot give What thing may be given in evidence upon the general Issue Trespass Battery in evidence a matter justifiable which shall be a confession of the act for this is contrary to the issue As son assault demesn in Battery upon Not guilty but upon Not guilty in Trespass for beating ones Servant per quod servitium amisit you may give in evidence that the Plaintiff did not lose his service by the Battery Nor upon nul wast fait can he say suficientment repair devant le brief purchase Wast If my servant without my consent put my Cattle in the Land of another I may Servant plead Not guilty and give this matter in evidence for by puting the Cattle in the servant has gained a property Vpon Not guilty he may give in evidence Information a discharge by a Proviso in the same Stat. for thereby he is Not guilty Contra formam Statuti but not a discharge by another Statute Vpon non habuit seu tenuit ad firmam contr formam Statuti the Parson may say he took the Farm for maintenance of his house according to the Proviso in debt upon the Stat. 21. H. 8. But upon the Stat. 5 E. 6. for ingrossing upon Not guilty 't is said that the Defendant cannot give in evidence a licence according to the Proviso of the Stat. sed quaere rationem Vpon ne unque son Receivor c. the Accompt Defendant cannot say that he paid the money according to directions c. In a Scire facias against Terrtenants Seisin Feoffment and a Feoffment pleaded before the judgement absque hoc that he was seised tempore Judicii and issue upon the seisin that the Feoffment was fraudulent to defraud the judgement may be given in evidence but otherwise if the issue had been upon the Feoffment So upon reins per discent by an Heir Riens per discent in debt upon an obligation that the Defendant aliened the Assets by fraud and covin and so void by the Stat. of 13 El. may be given in evidence because these are the general issues In Trespass for taking a stack of Corn Parcel the evidence may be of part and the Verdict as to 4 Combs or Bushels Guilty and as to the rest Not Guilty Vpon this plea the Executor may give in evidence a retainer for a debt due to himself Plenè administravit of as high a nature or paiment of debts with his own mony and that he kept goods of the Testator in lieu for this alters the property They can have nothing but what is delivered to them in Court and given in evidence What evidence the Jury may have with them Exemplifications by the party in Court if an exemplification come out of Chancery of witnesses examined there upon Oath who are dead the Jury shall have this with them but if the exemplification comprehend some Witnesses alive and some dead they shall not have it with them Neither shall they have any Pedegree drawn by a Herauld at Arms for it is no evidence Pedegree but only information for direction What Evidence the Jury may have with them see the 14. Chapter If a man makes a Feoffment and afterwards Who may be witnesses Not persons interested makes another with covenants that he was seised c. and afterwards an issue is taken upon the first Feoffment the Feoffee shall not be a Witness In an information for Vsury the Usury party shall not be a Witness because he would thereby avoid his own Bonds c. and be testis in propria causa Three men swear an Arbitrement in Perjury three several actions against them upon the Statute 5 Eliz. of perjury each of them may be a Witness for the other but in an Indictment of perjury upon 5 Eliz. the party grieved shall not be a Witness for he is to have 20. l. Common experience tells us upon an Indictment for Battery c. the party grieved may be a Witness because 't is only for the King In an action against the Hundred upon Hundred the Statute of Winton c. the Lessor living out of the Hundred may be a Witness for 't is not reason that he and his Lessee being an inhabitant should be both charged If the Servant be robbed of the Masters money the Master may be
was intended for damages and how much for costs so that there may be more damages than the Plaintiff declared for or less and so the Court knows not how to increase the cost wherefore he shall have Iudgment but for 20 marks by reason of the incertainty Where a special Verdict is not entred according Verdict amended by the Notes to the Notes the Record may be amended and made agrée with the Notes at any time though it be 3 or 4 c. Terms after it is entred lib. 4. 52. lib. 8. 162. Cro. 1 part 145. In the Case of Turnor and Thalgate Mich. 1658. B. R. It was said per Cur ' That special Verdicts may be amended by the Notes but the Notes cannot be amended or inlarged by any Averment or Affidavit for that were to fâ—â—d a Verdict by the Court. Yet in that Case where the Notes were that the Iudgment c. was vacated pro ut per Rule the Verdict was amended vacated per Cur ' pro ut per Rule for so is implied in the Notes See a Verdict amended by the Notes after Iudgment and Error brought Rolls 1 part Reports 82. If the matter and substance of the Issue Form Hob. 54. be found it is sufficient for precise forms are not required by Law in special Verdicts which are the finding of Lay-men as in Pleadings which are made by men learned in the Law and therefore intendment in many Cases shall help a special Verdict as much as a Testament Arbitrament c. And therefore he which makes a Deputy ought to do it by Escript but when the Iury find generally that A. was Deputy to B. all necessary incidents are found by this and upon the matter they find that he was made Deputy by Déed because it doth tantamount lib. 9. 51. And in the 5th Report Goodale's Case It was resolved That all matters in a special Verdict shall be intended and supplyed but only that which the Iury refer to the Consideration of the Court. In all Cases where the Iury find the matter Ill conclusion committed to their charge at large and over more conclude against Law the Verdict is good and the conclusion ill li. 4 42. and More 105. 269. the Iudges of the Law will give â—udgment upon the special matter according to the Law without having regard to the conclusion of the Iury who ought not to take upon them Iudgment of the Law li. 11. 10. Vide Devant Where the Declaration in Trespass is As general as the Narr Cum aliquibus averiis of a number uncertain and the Verdict is as general as the Declaration cum aliquibus averiis there the Verdict is good Cro. 2. part 662. In Ejectione firme where the Plaintiff declared of a Messuage and 300 Acres of Pasture in D. per nomina of the Mannor of Monkhall and five Closes per nomina c. upon Not guilty the Iury gave a special Verdict viz. quoad four Closes of Pasture containing by Estimation 2000 Acres of Pasture that the Defendant was Not guilty Quoad residuum they found matter in Law And it was moved by Yelverton That this Verdict was imperfect in all For when the Quoad Residuum incertain Iury find that the Defendant was Not guilty of four Closes of Pasture containing by estimation 2000 Acres of Pasture it is incertain and doth not appear of how much they acquit him And then when they find quoad residuum tne special matter it is incertain what that Residue is so there cannot be any Iudgment given and of that Opinion was all the Court wherefore they awarded a Venire facias de novo to try that Issue Cro. 2 part 1â—3 Ejectione firmae of 30 Acres of Land in D. and S. The Defendant was found guilty of 10 Acres and Quoad Residuum not guilty Quoad Resisiduum and it was moved in arrest of Iudgment That it is uncertain in which of the Vills this Land lay and therefore no Iudgment can be given sed non allocatur and it was adjudged for the Plaintiff for the Sheriff shall take his Information from the party for what ten Acres the Verdict was Cro. last part 465. diversitas apparet Where the Iury find Circumstances upon Circumstances an Evidence given to incite them to find fraud c. yet the same is not sufficient matter upon which the Court can judge the same to be fraud c. Brownlow 2. part 187. Yet in many Cases the Iury may find Circumstances and presumptions upon which the Court ought to judge As to find that the Husband delivered Goods devised by the Wife Vpon this the Court adjudged that More 192. the Husband assented to the devise at first Where a Verdict is certainly given at the Postea amended how Tryal and uncertainly returned by the Clerk of the Assizes c. The Postea may be amended upon the Iudges certifying the truth how the Verdict was given Cro. 1. pâ—rt 338. In many Cases a Verdict may make an ill Ill Plea made good by Verdict Plea or Issue good As in an Action for words Thou wast perjured and hast much to answer for it before God Exception after Verdict for the Plaintiff in arrest of Iudgment For that it is not laid in the Declaration that he spake the words in auditu complurimorum or of any one according to the usual form sed non allocatur for being found by the Verdict that he spake them it is not material although he doth not say in auditu plurimorum whereupon it was adjudged for the Plaintiff Cro. 1. part 199. Sée Cro. last part 116. Where the Barr was ill because no place of payment was alledged yet the payment being found by Verdict it was adjudged well enough for a payment in one place is a payment in all places Trespass by Baron and feme de clauso fracto of the Barons And for the battery of the feme ad dampnum ipsorum the Defendant Quoad the Clausum fregit pleaded Not guilty Quoad the Battery justifies And for the first Issue it was found for the Defendant And for the second for the Plaintiff and now moved in arrest of Iudgment that the Declaration is not good because the Baron joyns the feme with him in Trespass Baron Feme de clauso fracto of the Barons which ought not to be But for the Battery of the feme they may joyn whereto all the Court agréed But it was moved That in regard it was found against the Plaintiffs for this Issue in which they ought not to joyn and the Defendant is thereof acquitted and the Issue is found against the Defendant for that part wherein they ought to joyn This Verdict hath discharged the Declaration for that part which is ill and is good for the residue As in 9 E. 4. 51. Trespass by Baron and Feme for the Battery of both The Defendant pleaded Not guilty and found guilty and damages assessed
that the Land was held in Socage yet this is good for this shall be intended this being a Collateral thing and this being the most common Tenure If they find that he was seised and made his Will in haec verba c. although they Will. do not find that he Devised the Land as in the former yet this is good by intendment But if a thing is left out and cannot be intended the Verdict is not good If the Issue be whether the Sheriff took J. S. and kept him in Prison in Execution for certain Debt and Damages by force of a Cap. ad Sa. and the Iury find that he took him by force of an alias Cap. ad Sa c. although they do not find that he kept him in Execution for the Debt and Damages aforesaid according to the Issue yet this is a good Special Verdict for it shall be intended for the Consequence is necessary from this which is found for he could not take him but that he must be in Execution Vide several instances of this Roll. tit Tryal 697 c. If the Iury find that J. S. was seised in Fée and made his Will in haec verba and that he afterwards died although they do not find that he died seised yet it shall be Will. intended that he died seised and so good If they find that A. did Bargain and Bargain and Sale Sell c. although they do not find any consideration yet this shall be intended So if they find that such persons Authorizati Letters Patents virtute literarum patentium dominae Elizabethae c. and do not find that the Letters Patents were under the Great Seal yet this shall be intended Verdicts of Lay-men shall be taken according to their intent and néed not so precise a form as in Pleadings lib. 4. 65. Hob. 76. Therefore if the Iury find a Recognizance in nature of a Statute Staple in this manner That the Conusor came before R. O. Recorder of London and T. O. Maior of the Staple Et recognovit se debere to B. 200 l. and do not say Secundum formam statuti c. nor Prescriptum Obligatorium c. although the Statute of 23 H. 8. provide That it shall be by Bill Obligatory sealed with three seals and here it doth not appear that there was any Bond or Seal nor that it was according to the Statute yet these things shall be intended they having found a Recognizance before the Maior and Recorder A Special Verdict may be amended by Notes the Notes If the Iury find a Special Verdict and Where a special Conclusion of a special Verdict shall aid the Imperfections of it refer the Law upon that special Matter to the Court although they do not find any title for the Defendant which is a Collateral thing to the point which they refer to the Court yet the Verdict is good enough for all other things shall be intended except this which is referred to the Court lib. 5. 97. In Ejectment If the Plaintiff declare upon a Lease made by A. and the Iury find a Special Verdict and Matter in Law upon a power of Revocation of Vses by an Indenture and limitation of new Vses and then a Lease for years made to the Plaintiff by the Lessor in the Declaration and another in which there is an apparent Variance but they conclude the Verdict and refer to the Court whether the grant of a new Estate found in the Verdict be a revocation of the first Indenture or not The special Conclusion shall aid the Verdict so that the Court cannot take notice of the variance betwéen the Lease in the Declaration and Verdict because the doubt touching the Revocation is only referred to the Court. And although they refer to the Court whether this be a Revocation of the first Indenture and not of the former Vses and limitation of new Vses as it ought to be yet in a Verdict this is good for their intention appears So Note a difference between a special Conclusion and Reference to the Court and a general Conclusion and Reference to the Court Vide hic apres In Debt for 40 s. for a Horse sold and For whom the Verdict shall be said to be found the Iury find 40 s. Debt for two Horses sold this is found against the Plaintiff for this is not the same Contract So in Debt for 20 l. if the Iury find 40 l. Debt this is against the Plaintiff In Debt for 20 l. for Wood sold and the Iury find the Bargain was for 20 Marks the Plaintiff shall not have Iudgment for this Variance So in Debt for Rent upon a Demise of two Acres and the Iury find it upon the Demise of one Acre the Plaintiff shall not have Iudgment But in Debt for 24 l. 8 s. received for the Plaintiffs use if the Iury fiâ—â— the Defendant owes 24 l. but not the 8 s. the Plaintiff shall have Iudgment for perhaps he had paid the 8 s. In an Action upon the Case against A. if the Plaintiff declares That by Custom c. amongst Merchants c. If two are found in Arrearages upon Accompt and they assume to pay this at certain Days that any one of them may be charged for the whole by himself and then shews the Accompt of A. and B. who were found in Arrear in so much c. and promised to pay this at certain days but paid it not and now he brings his Action against A. although upon non Assumpsit pleaded it be found that the days of payment are mistaken yet the days being past the Action lyes because the Law makes the Duty upon the Accompt for which after the days an Action lyes Where all is to be given in Damages Damages the Iury are Chancellors and may give so much as the Case requires in Equity In Detinue of a Bond of 100 l. if the Detinue Iury find that he received a Bond of a greater or less Sum the Verdict is for the Defendant So in a promise to do two things if the Promise Iury find but one of them 't is for the Defendant Otherwise in Ejectment upon a Demise Ejectment of 10 Acres if the Iury find a Demise of less the Plaintiff shall have Iudgment If the Issue be upon a Prescription for Prescription Common belonging to a Messuage and 200 Acres of Land 50 of Meadow and 50 of Pastuâ—e if the Iury find Common belonging to the House 20 Acres of Meadow and 20 of Pasture in two of the Vills and not in the rest the Prescription is not found If part of the Trespass or wrong be found Trespass Case 't is sufficient in Trespass or an Action of the Case upon a Tort as by a Commoner for putting and depasturing Cattel in the Common If the Issue be whether all the Lands in Audita Quaerela Execution were the Estate of the Father in Tail or in
Fee and part is found in Tail and part in Fée Iudgment shall be given for the Defendant who pleaded the Seisin in Fée If the Plaintiff declares upon a Demise Ejectment made the first of May to Commence at Michaelmas next if the Iury find a Lease made at any other day before the Feast 't is found for the Plaintiff for the day of making is not material Otherwise of a Lease for years â—n Possession As of a Lease made the 5th of May Habend for thrée years from Lady-day before and the Iury find a Lease made the 15th day of May for three years from the same Lady-day for this is a Lease in Possession In false Imprisonment in Middlesex and Imprisonment the Defendant justifie in London to which the Plaintiff saith the Defendant took him in Middlesex de son Tort demesn and Issue upon this and the Iury find the Defendant took him in Middlesâ—x lawfully upon a Writ yet this is for the Plaintiff for the Issue is upon the place and not upon the Tort for that is confessed by the Pleading if the taking was in Middlesex In Debt for 20 l. and the Iury find 40 l. the Debt Plaintiff shall not have Iudgment the reason séems to be because it cannot be the same Debt which is intire but upon another Contract which is mislaid If the Issue be Payment afâ—er Execution Audita Quaerela and the Iury find payment before yet the Issue is proved for payment before is payment after In Debt upon a Bond bearing date the 25 Obligation of June upon Non est factum if the Iury find it his Déed but that it was delivered 8 days after the â—ate this is found for the Plaintiff If the Issue be that two made the Feoffment Joynt and several or two were Churchwardens c. and the Iury find but one c. the Issue is not found If the breach of Covenant or Wast be Obligation Covenant Wast assigned in cutting 20 Trees and the Iury find but 10 yet the Plaintiff shall have Iudgment If in Replevin c. the Iury find that Totum Pars. part of the Cattel were Levant and Couchâ—nt and part not and the Issue is upon all the Issue is not found In Ejectment for him who pleaded all Ejectment Void in part of 14 Acres and the Iury find guilty of 20 the Plaintiff shall have Iudgment for the 14 and the Verdict is void for the residue In an Information upon an usurious Contract Information Usury by two 't is not sufficient to find a Contract by one Otherwise where the Tort and offence is several as against two upon the Statute 4 E. 6. Pâ—o emptione butiri and selling it by Retail c. and so in an Action upon the Case in Nature of Conspiracy and for words laid twice in one Declaration This will put in Issue the manner as well Modo forma as the matter where the manner is material as the time of the Fact and other Circumstances The Plaintiff replies That W. made a Replevin Lease Lease to him 30 Martii Habend from Lady-day last and Issue Modo foâ—ma and the Iury find a Lease made the 25 Marâ—ii Habâ—ndum Exâ—unc for a year this is good although the time of making and Commencement of the Lease are mistaken inasmuch as Extunc includes the Feast Yet because a sufficient Title and Lease is found for the Plaintiff to put in his Cattel this is sufficient this being the substance and the Modo forma shall not put the Circumstances in Issue So in Trespass if the Defendant justifie the putting in his Cattel for Common which he Claims from Pentecost to a certain time every year which is traversed Modo forma and the Iury find that he had Common in Vigilia Pentecostis in festo and the day next to this to the time this is found for the Defendant But otherwise in these Cases id an Assise of Common because there he ought to recover his Title In Debt for Rent if the Defendant plead an Entry by the Plaintiff before the Rent was due scilicet such a day which was after and Issue upon the Entry Modo forma and the Iury find for the Defendant he shall have Iudgment for the scilicet is void and the Modo forma go to the matter Sée after In Debt upon a Bond and the Defendant Non est factum plead Non est factum and the Iury find the Bond made joyntly by another with the Defendant the Plaintiff shall have Iudgment for the Defendant should have pleaded this If a Devise be pleaded Absolute if the Devise Iury find a Devise upon a Condition Precedent 't is not good In Debt against A. as Daughter and Riens per Discent Heir to B. and the Defendant plead Riens per discent of B. and the Iury find that B. was seised in Fée and dyed having Issue the Defendant his Daughter and his Wife with Child of a Boy who was afterwards born alive and dyed one hour after this Issue is found against the Plaintiff because the Defendant had the Land as Heir to her Brother who was last seised and not to the Father and so the Defendant had not the Land by Discent from the Father but from the Brother and yet this is Asseâ—s in her hands if it had béen specially pleaded In a Writ of Error brought by him in remainder Error in Tail to reverse a Fine if the Defendant plead in Barr of the Writ of Error a Common recovery by the Tenant in Tail to which the Plaintiff replies That at the time of the Recovery suffered he himself was Tenant to the Praecipe and so the Recovery void Vpon which Issue is joyned Part. and the Iury find that he was Tenant of part but not of other part This Issue is partly found for the Plaintiff and partly for the Defendant so the Court shall procéed to the Examination of the Error for that whereof he was found no Tenant but 't is a good bar of the Writ of Error for that whereof he is found Tenant to the Praecipe In Assumpsit to pay Money upon request Promise and issue upon this if the Iury find the Plaintiff promised to pay the Money but do not say upon request nor Modo forma 't is not found for the Plaintiff In Ejectment of a Manner if the Iury If the Substance of the Issue be found 't is sufficient Manner find that there were no Fréeholders and so 't is no Manner in Law yet being a Manner by Reputation and so the Tenements pass by the Lease Therefore this Verdict is found for him who pleads the Lease of the Manner for the substance is whether any thing was demised or not In an Information of Extortion against Goal the Gaoler of the Goal a Prison of the Castle of Maidston the Iury found there was no
course was so for the parties are demandable before the Jury and if the Plaintiff make default he shall be non-suited and if the Defendant make default the Jury shall be awarded by default whether they appear or not Dyer 265. Where an Inquest is taken by default What the Defendant looses by his default the Defendant shall loose his Challenges and by 28 Ass p. 42. tit Enquest in Fitz. he shall loose his Evidences also Bro. Enquest 10. quod non est lex Det. The Defendant pleaded a Release and the Plaintiff replyed non est factum and at the day of the Venire facias the Defendant made default and the Inquest was taken upon his default and found for the Defendant for which the Plaintiff took nothing by his When the Defendant may be condemned by default and when an Enquest must be taken upon the default Bill And yet if the Plaintiff had prayed it he might have had the Defendant condemned by his default before the taking of the Verdict Et sic â—ide folly in le Plaintiff Bro. Ib. 5. But upon such Release and default in Trespass the Enquest shall be taken by default and the Defendant shall not be condemned by default though the Plaintiff pray it and the reason is because the debt is certain and the damages are incertain in Trespass Bro. Ib. 3. And Finch fo 409. hath well collected out of Brook That always in an Action of Trespass whatsoever the Issue be Release Iustification c. and also in Debt Detinue Accompt and the rest which are for things in certainty if the Issue be taken upon a matter in fait only as payment or that an Acquittance pleaded in Barr by the Defendant was made by Dures c. The Inquest shall be taken by default if the Defendant makes default But in the last recited Actions of Debt c. If the Issue be upon the Acquittance it self Release or other matter in writing the Plaintiff may pray Iudgment upon the Defendants default if he will but if he do not pray it the Jury shall be taken by default as in an Action of Trespass The Jury may give a Verdict without testimony Verdict without or against testimony or against testimony when they themselves have Conuzans of the Fact Plo. Com. 86. CAP. XIV How the Jury ought to demean themselves whil'st they consider of their Verdict when they may eat and drink when not What Misdemeanor of theirs will make the Verdict voyd Evidence given them when they are gone from the Barr spoils their Verdict For what the Court may fine them and where the Justices may carry them in Carts till they agree of their Verdict An Amercement Assered by the Jury THere is a Maxime and an old Custom Jurors ought not to eat or drink in the Law that the Jury shall not eat nor drink after they be sworn till they have given their Verdict without the Assent and Licence of the Justices and that is ordained by the Law for eschewing of divers inconveniencies that might follow thereupon and that especially if they should eat or drink at the Costs of the parties and therefore if they do so it may be laid in Arrest of Indgment But with the assent of the Iustices they may both eat and drink as if any of the Jurors fall sick before they be agréed of their Verdict so soon that he may not commune of the Verdict then by the assent of the Iustices he may have meat or drink and also such other things as be necessary for him and his fellows also at their own costs or at For by assent of the parties they may eat and drink Br. Jurors the indifferent costs of the parties if they so agrée or by the assent of the Justices may both eat or drink and if the Case so happen that the Jury can in no wise agrée in their Verdict as if one of the Jurors knoweth in his own Conscience the thing to be false which the other Jurors affirm to be true and so he will not agrée with them in giving a false Verdict and this appeareth to the Iustices by Examination the Iustices may in such case suffer the Iury to have both meat and drink for a time to sée whether they will agrèe And if they will in no wise agrée the Iustices may take such order in the matter as shall séem to them by their discretion to stand with reason and conscience by awarding of a â—ew Inquest and by setting fine New Inquest when the Jury cannot agree upon them that they shall find in default or otherwise as they shall think beâ—â— by their discretion like as they may do if one of the Iury die before the Verdict c. D. aâ—â— Student 158. If the Iury after their Evidence given unto them at the Barr do at their own Charges eat or drink either before or after they Where if the Jury eat or drink it shall avoid the Verdict and where only fineable be agreed on their Verdict it is finable but it shall not avoid the Verdict But if before they be agréed on their Verdict they eat or drink at the charge of the Plaintiff if the Verdict be given for him it shall avoid the Verdict But if it be given for the Defendant it shall not avoid it Et sic è converso But if after they be agréed on cheir Verdict they eat or drink at the charge of him for whom they do pass it shall not avoid the Verdict 1 Inst 228. To give the Iury money makes their Verdict void by two Iustices Leon. 1 part 18. If the Plaintiff after Evidence given and What delivered to the Jury after Evidence shall avoid their Verdict the Jury departed from the Barr or any for him do deliver any Letter from the Plaintiff to any of the Jury concerning the matter in Issue or any Evidence or any escrowle touching the matter in Issue which was not given in Evidence it shall avoid the Verdict if it be found for the Plaintiff but not if it be found for the Defendant Et sic è converso But if the Jury carry away any Writing unsealed which was given in Evidence in open Court this shall not avoid their Verdict albeit they should not have carried it with them Ib. By the Law of England a Jury after How the Jury ought to be kept by the Bayliff their Evidence given upon the Issue ought to be kept together in some convenient place without meat or drink Fire or Candle which some Books call an Imprisonment and without spéech with any unless When they may eat and drink See Smith's Common-wealth 74. it be the Bayliff and with him only if they be agréed After they be agréed they may in causes betwéen party and party give a Verdict and if the Court be risen give a privy Verdict before any of the Judges of the Court and then they may eat and drink and the next
c. R. P. Esq late Sheriff of the said County of E. from the same Office of Sheriff of that County was duely amoved and the said King now by his Letters Patents haâ—h Committed unto one T. P. Knight the Custody of the said County of E. by pretence of which said Letters Patents the said J. P. now remaineth Sheriff of that County which said T. P. of A. at A. aforesaid took to his Wife Anne of the Blood of M. now the Wife of him the Plaintiff that is to say the Daughter of R. D. the Son of W. D. Knight Father of Anne Mother of the said M. now Wife of him the Plaintiff which said T. P. Knight and A. had Issue betwéen them A. P. yet alive and in full life remaining at A. aforesaid and this he is ready to prove c. And out of that cause he prayeth a Writ of the Lady the now Queen of Venire fac to try the said Issue in form aforesaid joyned to be directed to the Coroners of the said County and because the said Defendant doth gain-say and doth not grant that to be true therefore notwithstanding the same Challenge a Command Challenge gain-said is to the Sheriff that he make to come Twelve c. of the Visne of B. by whom c. Easter Term 38 H. 8. Rot. 558. And hereupon Challenge to the Array because the Coroners made the Pannel at the Denomination of the Plaintiff the Defendant doth Challenge the Array of the Pannel of the said Iury because he saith That that Pannel was made and arrayed by A. and C. Coroners of the said County at the Denomination and in favour of the Pannel of the said Plaintiff and this he is ready to verifie and requesteth that the same Pannel may be quashed And the said Plaintiff saith That the said Pannel by the said Coroners was well and equally made and not at the denomination nor in favour nor in promotion of the said Plaintiff whereupon the said Iustices by the consent of the said Parties did choose and assign D. and E. two of the said Iury now appearing to try the said Challenge which said Tryors being elected and tryed say upon their Oaths That the said Pannel was well and faithfully made and arrayed by the said Coroners and not at the denomination neither in favour nor in promotion of the said Plaintiff whereupon the Iurors of the said Iury being called tryed and sworn say c. A Precedent of Challenge to the Array May it please you Mr. Baron This Enquest you ought not to take for that Sir John Ramsden Knight Sheriff of the County of York who did retorn the Pannel betwéen the said A. Plaintiff and B. Defendant is Cosin to the Plaintiff c. and shew how of Kinn c. and so where the Challenge is for lack of Hundredors or other principal Challenge put it down c. and this he is ready to averr whereof he prays Iudgment and that the said Pannel be quashed Or thus And now at this day S. c. comes the aforesaid J. S. Plaintiff and J. B. Defendant by their Attorneys and the Iurors also impannelled and demanded did come and thereupon the said J. B. doth Challenge the Array of the Pannel aforesaid because c. This must be put in Writing but under Counsels hand where the Challenge is to the Poles it is in short way by a Verbal Challenge see the learning of this is excellent and copious in our Books A Precedent of a Plea after the last Continuance And now at this day c. comes such a one Defendant by J. C. his Councel and saith This Action the Plaintiff against the Defendant ought not to maintain for that after the Quindene of the Holy Trinity last past from which day until such a day in Michaelmas Term next unless the Iustices of Assizes before come such a day c. the Action aforesaid is continued c. the Plaintiff by his Déed dated c. did Release c. and shew the Matter what it is whether in abatement in Bar dilatory or peremptory as the Case is c. and this he is ready to averr Note Brook in his Abridgment tit Continuance 61. 83. says That after the Inquest is awarded to inquire of Damages The Defendant cannot plead a Plea Puis le darrein Continuance because he hath no day in Court to Plead The day of Nisi prius and day in Bank are all one so that a Release made betwixt these days cannot be pleaded in Bank but it seems that a Release made betwéen the day of the Venire facias retorned and the Writ of Nisi prius awarded and the day of the Nisi prius may be pleaded at the day of the Nisi prius but not after the Verdict 21 H. 6. fo 10. Bro. tit Jour c. 31 tit Continuance 76. 42. 27. 13. A man shall have but one Plea after the last Continuance for the Plaintiff shall not be delayed ad infinitum 16 H. 7. 11. Bro. tit Continuance 59. 41. 45 46. 5. 21. After the Inquest taken by default and before Iudgment the Defendant came and pleaded an Arbitrament made after the last Continuance And by the Opinion of the Court he had no day in Court to plead this Plea and 't was said That he could Plead no Plea in such Case but as Amicus Curiae and of matter apparent he shall be received otherwise he must resort to his Audita Quaerela 21 H. 7. 33. Broke ibid. 38. But if the Iury remain for default of Iurors the Defendant may plead a Release c. at the day in Bank Puis le darrein Continuance although he did not offer it at the Nisi prius otherwise if the Iury had béen taken at the Nisi prius 22 H. 6. 1. Broke ibid. 30. If it be pleaded at the Nisi prius the Court Record the Plea and discharge the Inquest and give day to the parties in Bank Bro. ibid. 34. 8. In Debt after Issue joyned the Defendant at the Nisi prius pleaded Payment of part after the latter Continuance in Abatement And the Iury being discharged and the Plea adjourned in Bank for that no place of Payment was pleaded the Plaintiff had Iudgment to recover his Debt because after Issue joyned no Respondes ouster can be awarded L. 5. E. 4. 139. Aleyn's Reports 66. in the Case of Beaton and Forrest Now although when difficulty arises in the Evidence the matter is most commonly of late found specially and Demurrers on the Evidence are seldom used yet in asmuch as it is sometimes done and that our Practicer may be prepared with an Authentick Precedent for that purpose I shall transcribe one out of Coke's Entries fo 134. viz. Postea die loco Infra ContentÌ„ Coram â—ss Postea Jacobo Dyer Milite Capitali IustitiatÌ„ DomÌ„ Regine de Banco Nicolao Barham uno servientÌ„ dictÌ„ DomÌ„ Regine ad legem IusticÌ„ ipsius DnÌ„e Regine ad
that in an Action upon the Case far Asumpset the parties being at issue a demurrer was joyned upon the evidence and thereupon the Jury discharged and afterwards judgment was given for the Plaintiff and a Writ of Inquiry of damages awarded and damages found and Judgment thereupon where the Jurors which came to find the Issue although by the Demurrer they were discharged of the Issue yet ought to have assessed damages conditionally if judgment should be given for the Plaintiff And in proof thereof was cited Newis and Scholastica's Case in Plo. Com. fol. 408. and the old Books of Entries c. And it was said by the Court If these Precedents be good Law thâ—â— it may be inquired of by the same Jury conditionalâ—y But it may be as well inquired of by a Writ of Inquiry of damages when the Demurrer is determined And the most usual course is when there is a demurrer upon evidence to discharge the Jury without more inquiry But as My Lord Chief Baron Montague held at the Assises in Cambridgeshire 1682. it may be one way or other In the Assise by R. Newis and Scholastica his Wife against Lark and Hunt which was taken by default The Precedent in Plowd Com. as to this matter runs thus Recogn ' Assisae pred exacti venerunt qui ad veritatem de premissisdicend electi triati 8 â—â—rati fuerunt sup quo Willielmus Bendlows Serviens ad legem de consilio predictorum R. Scholasticae in manutentione Assisae pred coram Justic Dominae Reginae de Banco hic in evident Recognit Assisae pred dixit quod diu ante diem impetration is Assisae pred quidam H. Clark fuit seisitus â—c Et condidit testamentum ultimam voluntatem sua in scriptis inter alia unde pars inde in hiis Anglicis verbis sequitur videl Also this is the last Will and Testament of me the said Henry Clark for and concerning c. Et ulterius idem Serviens ad legem ex parte pred R. S. dedit in evident eisd Recognit quod c. Quorum pretextu idem jam Serviens ad legem exigit quod iidem Recogn Assisae pred Assisam pred de tenementis pred cum pertin ' in visu c. pro parte ipsorum R. S. triari comparere debeant c. Et veredictum suum dare debent quod pred W. Lark J. Hunt dictos R. S. de tenementis pred cum pertin ' in visu c. disseisiverant c. Et pred W. Lark J. H in propriis personis suis dic quod evidentiae allegationeâ— pred ex parte pred R. S. superius allegat minus sufficien in lege existunt ad manutenend Assisam pred ad quos ipsi necesse non habent nec per leg terrae tenentur respondere unde pro defectu sufficien evident in hac parte pet judicium quod juratores pred de veredicto suo in premissis dicend exonerentur c. Et quod pred R. N. S. ab Assisa sua pred habend precludantur c. Et pred R. S. dicunt quod ex quo ipsi sufficien materiam in manutentione Assisae pred in evident recognit pred ostend quam quidem materiam pred W. Lark J. Hunt non dedicunt nec ad eam aliqualit respond petunt judicium Et quod iidem Jurator inde exonerentur quod pred W. J. de Assisa illa convincantur c. Sup. quo dict est Recogn pred quod inquir quae dampna pred R. S. sustinuertam occasione disseisinae pred quam pro misis custagiis suis per ipsos circa sectam suam in hac parte apposit si conting judicium pro eisdem R. S. in placito pred sup evidentias pred reddi Qui quidem Recogn dicunt sup sacram suum quod si conting judicium in placito pred pro pred R. S. sup evidentias pred reddi iidem R. S. sustinuer dampna occasione disseisinae pred ad 13 s. 4 d. pro misis custagiis suis ad 20 s. Et quia Justitiarii hic se advisare volunt de sup premissis priuâ—quam judicium inde reddant dies datus est partibus predict c. Note several Exceptions were taken to the manner of giving the Evidence First for that the intire Will was not shewed but part and that this being the foundation of the Evidence the whole Will ought to have been shewed for there might be some oâ—her matter of substance as a Condition Limitation c. in the parts not shewed But all the Justices disallowed this Exception and said the party in any Title or Bar needs shew no more than what makes for him As in an Act of Parliament in which are divers branches 't is sufficient to shew that branch which serves ones purpose and not like the Case of a Fine or Recovery of 20 acres where I must shew the whole Record although I am concerned but in one acre because the Originial is intire and so is the Record grounded upon it See also Fulmerâ—ton and Stewards Case Plo. Com. 102. Another Exception was That the fine was not shewed under the Seal of the Court or the Great Seal but one part indented of the Chirograph was only shewn which the Jurors were not bound to believe because it wanted a Seal But all the Justices were against this and said the Jury might find the Fine of their own knowledge without the shewing of the parties or they might find it upon the Credit of any Witness that had seen it and the shewing the part indented is the usual evidence of a Fine Note a Fine indented and not exemplified under Seal c. shall not be delivered to the Jury 34 H. 6. 25. And they said because it is only the Inducement of the verity to the Jurors the party could not Demurr upon this for the effect of the matter is that therâ— is such a Fine which is amongst the Records And this is the substance of the matter and the part of the Chirograph is nothing but the Image of the verity and therefore suum coram Baronibus hic prestitum in premissis dicit quod c. here recite the Evidence Et pred Attorn Domini Regis pro eod Domino Rege dic quod evidentiae pred superius dat minus sufficien in lege existunt ad manutenend seu proband exit pred pro parte ipsius A. F. superius ad patriam junct unde ob insufficient earundem evident ac ex quo per evidentias illas non dedicitur forisfactura bonorum pred in informatione pred spec i em Attorn Domini Regis pro ipso Domino Rege petit judicium ac quod eadem bona remaneant Domino Regi forisfacta juxta formam statuti pred Et pred A. F. dic quod evidenciae pred superius ex parte ipsius A. F. dat
that the Sow was with Pigg when she was taken and afterwards cast her Piggs in the Custody of the defendant and the Plaintiff recovered Damages for says Bro. Aridg tit General Issue 88. This is a special taking in Law Dower of rent Hill ne unque seisie que Dower la poit Dower Horton J S. granted the rent to the Husband payable at Michaelmas next and the Husband dyed before the day and so he was seised in Law and demanded judgment Thirm You shall say generally quod seisie que Dower la poit and give your Case in evidence Et sic bene notwithstanding the doubt of the lay Gents for they ought to credit the Law and evidence is not to be pleaded 11 H. 4. 88. Tenant for life leaseth for years who is ousted and the Tenant for life is disseised The disseisor leaseth for years who sows the Land The Tenant for Life dies he in remainder in Fee brings Trespass against the Defendants claiming the Emblements Emblements Knivets Case lib. 5. 85. by the Lessee of the Disseisor Adjudged that they had not the meer right but in respect of their possession they should barr the Plaintiff who had no right and that the meer right was in the Lessee of the Tenant for Life and that he might bring Trespass against the Lessee of the Disseisor and recover all the mean profits But as to the entry into the Land to take the Emblements this was good matter of justificaâ—ion but in regard it was not pleaded it could not be given in evidence upon Not Guilty and therefore the Plaintiff had judgment for the entry and was barred for the residue Note that the Lessee of Tenant for Life had right to the Land and by consequence to the Emblements as things annexed to the Land and the death of the Tenant for Life determins his interest to the Land but his right to the Emblements remains It sufficeth to prove the substance without any precise Regula Substance Circumstance regard to the Circumstance As if an Indictment be that with a Dagger the offender gave another a mortal wound c. and in evidence it is proved to be done with a Sword Rapier Club Bill or any other Weapon the offender upon this evidence ought to be found guilty For the mortal wound is the substance and the manner of the Weapon is but the Circumstance yet some Weapon ought to be mentioned in the Indictment And so if A. B. and C. be indicted for killing of J. S. and that A. stroke and the other were Abettors To prove that B. stroke is sufficient c. Manslaughter upon an Indictment must be found if proved because the killing is substance upon which judgment shall be given Indictments for â—urther of Ministers of Justice in execution of their Office may be general viz. that the prisoners felonice voluntarie ex malitia sua praecogitata c. percusserunt c. without alledging the special matter which may be given in evidence for the Law implyes malice prepensed So if a Thief in robbing kills the man that resists him or a man is killed without any provocation or without malice prepensed that can be actually proved the Law adjudges this murder and implyes the malice and in these Cases the offenders may be indicted generally that they killed of malice prepense for the malice implyed by Law given in evidence is sufficient to maintain the general Indictment lib. 9. 67. Machallyes Case So of an Indictment as accessary to 2. to prove accessary to 1. is sufficient lib. 9. 119. In Cromwels Case lib. 4. 12. Although it was objected that in an Action of slander If the Defendant will justifie he must justifie the same words in the same sense as it is laid in the Nar. or else he must plead Not Guilty and give the special matter that is the variance in evidence Yet the Court held that the Defendant should not be put to the general Issue but might justifie although he varied from the Plaintiff in the sense and Copyhold In Pilkintons Case Stiles 450. Rolls said If Copies of Court Roll be shewed to prove a Customary Estate the enjoyment of such Estates must also be proved otherwise the proof is not good Forger Totum pars quality of the words and might set forth the coherent words As for calling the Plaintiff Murderer the Defendant may shew that they were speaking of Hares and the words were spoken in reference to killing of Hares Upon the Issue if the Lord of the Mannor granted the Lands per copiam rotulorum Curiae manerii pred secundum consuetudinem manerii pred To prove that there were customary Lands in the Mannor and that the Lord of late granted the Land c. per Copiam rotul Curiae where it was never granted by Copy before is no good evidence to find the Custom or that the Lands c. were grantable or demiseable by Custom Leon. 55. Kemp and Carters Case Forger of a Deed in which is contained a demise of the site of the Mannor of R. and terras dominicales c. A Deed of the site and all the Demesnes of the said Mannor Exceptis duabus clausuris c. is good evidence for it is not necessary to construe terras dominicales c. omnes terras dominicales c. for Lands not excepted are terrae dominicales and so the Count is satisfied by that evidence Leon 139. Atkins and Hales Case Debt against an Executor upon plene administravit it appeared that the Executor medled and administred Plene administravit and then refused in Court and administration was granted to another and that several summs were recovered against the Administrator it was said by Periam Justice 1. That if an Administrator who is a stranger administer without the Commandment of the Executor the Executor cannot give such administration in evidence to prove his Issue 2. That in the principal Case the Executor having administred he could not refuse and so the administration is granted without cause and what he did was without warrant and no administration Ieon 134. Hawkins and Lawse Case At Bury Assises 1682. before Judge Windham The Executor gave the administration of the Administrator in evidence and allowed but there what the Administrator did was by the Executors consent in Mr. Lun and his Mothers Case An Executor de son tort cannot give in evidence Plene administravit An Executor pleads plene administravit praeter a judgment replication and Issue that the judgment was fraudulent The Obligee who had the judgment was denyed to have evidence about his Debt for he sweareth to have Assets for himself and is interested in the thing Before Judge Windham at Bedford Assises 1682. his retaining of goods to pay himself for he cannot retain but if he takes out letters of Administration although pendente lite he may retain for a Debt of as high a Nature and plead this in Barr for
higher nature than the Bond the Rent being real and the other of Record But the Bond extinguishes the contract for the arrears upon an Insimul comput asset c. Acceptance of Rent due the last day and an Acceptance Rent acquittance thereof discharges all the arrerages due before lib. 3. 65. Unity of possession in as high an Estate destroys the prescription c. A seisure and condemnation in the Exchequer of forfeited Trover Trespass Vide Rolls 1. part 1. 2. A custom pleaded in Trover to take Corn to repair a bridge and Cro. Eliz. 433. 262. Promise Imperfect Issue goods may be given in evidence upon Not Guilty in Trover but it must be pleaded in Trespass In Trover of a Horse that he is a Common Hostler and that the Horse was put to him at Livery and dyed is good upon Not Guilty Rolls 1. part 22. Upon Assumpsit the Plaintiff declares upon two considerations and a simple promise If the Jury find but one or a conditional promise this doth not maintain the Issue for the Plaintiff Leon 173. Musted and Hoppers Case Where the Issue is not perfect no evidence can be applied neither can the Justices of Nisi prius proceed to the Tryal of such an Issue As whether the money was paid after the date of the Obligation and the date was left out and did not appear in the Record Brown 2. 47. In Debt upon a Bond conditioned to pay 20 s. at Payment the house of the Defendant the 7. day of May upon payment at the time and place The Jury found the payment before the 7. day and prayed the advice of the Court if this was a payment at the day The Court adjudged that the payment and acceptance before the day was as well as if it had been paid at the day Saviles Reports 96. Bond against Richardson And so saies Cook 1. Institutes 212. The time and place are but circumstances and if the Obligee or Feoffee receive the money at another place or before the day it is sufficient Or a lesser summ before the day But More 47. upon Issue of payment at the day and place and evidence of payment a month before and Demurrer upon the evidence Dyer Brown and Welsh said this evidence doth not maintain the Issue because before the day of payment there is no duty land the day and place are parcel of the Issue and the act on one day is not an act done on another day As if an Executor pleads payment at the day 't is not good evidence to shew that it was paid before the day by the Testator for this doth not prove the Issue and yet there was not any duty remaining at the day and therefore the pleading ought to have been specially according to the truth Vide devant 198. And 't is not like the Case where the circumstances of time and place are puâ— only for necessity of Tryal but in regard that payment is the substance why is it not sufficient to prove as well as to find the effect and substance of the Issue And 't is not the case of collateral conditions where the condition is not to pay money but to do some Collateral thing as to deliver a Horse a Robe or Ring c. or to pay money to a stranger such Collateral conditions are more strictly to be observed vide 1 Inst 212. Note if there be a Demurrer yet there may be a Plea puis darrein continuance plea puis darrein continuance and if the Plaintiff take Issue or demur to this plea yet the Court must also consider of the first Demurrer for if upon that standing confessed by the Demurrer the Plaintiff could not have his action the Court cannot give judgment for him howsoever the latter Issue or Demurrer pass But otherwise if the first had been an Issue for then nothing were confessed to his prejudice and then that had been utterly relinquished by a second Issue or Demurrer Hob. 81. with a Quaere c. When this plea is pleaded the Justices of Nisi prius cannot proceed to take the Inquest neither can the Plaintiff reply there but in Bank Bulst 92. 93. Per Doderige In Trover and conversion of goods Trover if the Defendant derive a title from a stranger this amounts to the general Issue otherwise if from the Plaintiff Latch 186. And baylment of the goods to deliver to another and delivery accordingly amounts to the general Issue and may be given in evidence upon it Bulst 3. part 209. In Trespass against two for entring into the Plaintiffs Trespass Freehold Land if one pleads his Freehold and the other that he entred by the commandment of him that pleads it is his Freehold here is to â—e but one Issue joyned viz. by him that claims the interest for upon that Issue all depends If it be found against him his servant has no colour And in regard what may be averred may be proved and given in evidence 't will not be Averments impertinent to draw a short scheme of Averments with which I will conclude To alter qualifie or abridge the operation of it if there be any apt words in the Deed whereupon Averment had upon or against a Deed. to ground it As a grant to A. the Son of B. and he hath two Sons of that name of the Mannor of S. and he hath two Mannors of that name which Son or Mannor was intended may be averred And so may a consideration of a Deed that is besides but Consideration not that is against the express consideration of the Deed nor can any thing against the words of the Deed either inlarge or restrain it Nor can a Use against or besides the express uses in the Deed but where no use is expressed or incertainly Use expressed it may and also to reconcile a fine and the Indentures to lead the uses of the fine lib. 2. 75. But when a Deed is utterly incertain no averment shall help it As a grant to one of the Sons of J. S To two haeredibus c. An estate to a Woman for her life may be averred to be made for her joynture Dyer 146. lib. 4. 4. Upon or against a Record And that the thing granted to me by a new name is all one thing with that which has another or an old name Dyer 37. 44. A thing that is against or besides a Record or any A fine taken by R. M. Esq and retorned by R. M. Militem upon the Ded. p. the Record not to be averred against in Error Yelverton 33. Cro. 2. part 11. thing that is within it shall not be averred Therefore the date of a Recognisance expressed to be taken at Dale cannot be averred to be taken at Sale But such an averment as may stand with the Record may be admitted As that the fine was before the Inrollment being both in one Term The uses of a fine or common Recovery
number of 3 Juries but in Petite Treason murder or Felony the number is reduced to 20. The prisoner may challenge any that are Witnesses against him Where the King is party the Defendant must shew the cause of his challenge instantly After a challenge for cause the prisoner may challenge the same person peremptorily CAP. X. Of what things a Jury may inquire when of spiritual when of things done in another County or in another Kingdom when of Estopples and when not when of a mans intent c. THe next words in the Writ which See more of this matter cap. 13. have not yet been taken notice of are these per quos rei veritas melius sciri poterit and this is the chief end of their meeting together No Court can give a right Iudgement Ex facto Jus oritur unless the truth of the fact be certainly known and to find out this truth no way is like to this of Juries for they do not only go upon their own knowledge though they are Neighbours to the place where the question is moved and so are presumed to have a better knowledge of the fact than any others For vicinus facta vicini praesumitur scire But lest this presumption should fail the Law allows other Evidence to be given to them by which they may more certainly and confidently give their Verdict of the issue which is meant by this word Rei And here it will not be amiss to give you a brief description de quibus rebus what the Inquest may inquire of and find Wherefore though it be true that a Jury shall not be charged nor meddle with Of the Law a matter of Law and if they do and find it their Verdict as to this shall be void yet daily experience as well as Littleton Sect. 368. tells us that they may take upon them the knowledge of the Law and give a general Verdict though to find the special matter is the safest way for them because if they mistake the Law they run into the danger of an Attaint In the Case of Manby and Scott adj Trin. 13 Car. 2. B. R. one question was if the Verdict was well found in an action of the case against the Husband for Wares bought by the Wife the Verdict finding that the Wares were necessaries and according to her degree whereas as was objected they ought to have found the degree of the party and the value of the Wares and left it to the Court to judge But it was answered and resolved that the Court i. e. the Judge before whom 't is tryed informs the Jury of the matter of Law and accordingly they find and so it belongs not to this Court Broughton a Reader of the Temple brought a Bill by Quo minus in the Chequer against Prince for maintaining a suit against the Stat. c. Prince pleads that he was admitted in the Inner Temple and student for many years there that he was Consiliarius in Lege eruditus and took his Fee in that cause B. replied de Injuriâ suâ propriâ absque hoc quod in lege eruditus c. hoc petit c. deus defendit similiter It was moved that the Defendant should demurr to the Replication Atkinson excepted to the Traverse and Conclusion for it can't be tryed by a Jury for says he if matter in Law be to be tryed by the Judges à fortiori the learning of the Law ought to be tryed by them Per Manwood Ch. Baron It shall be tryed by the Country 3 Leo. 237. Broughton vers Prince which case is cited 3 Cro. 728. to be otherwise ruled yet it was allowed there a good issue whether a Parson of a Parish could speak Welch Hut 20 21. Whether a plaint was levied according to the Custom was tryed by a Jury who are directed by the Court as to the plaint and whether it were pursuant to the Custom and are to find according to such directions In many cases the Jury are to inquire Of a mans intent of the knowledge and intent of a man as where the Nar. is that the Defendant kept a Dog which killed the Plaintiffs Sheep sâ—iens canem suum ad mordendos oves consuetum though sciens be not traversable yet the Jury upon Evidence must inquire of it lib. 4. 18. In some cases a Jury may try and find a spiritual thing as a Divorce Matrimony Of spiritual things c. and must take notice thereof upon pain of Attaint li. 4. 29. lib. 9. lib. 7. 43. vide hic cap. 2. The Jurors of one County may find any transitory thing done in another County Nay In Trespass Quare Clausum fregit in the County of D. where the Trespass was committed in the County of S. upon Not guilty if the Jury find the Defendant guilty in the County of S. their Verdict is void But if they find him Guilty generally an Attaint lyeth Finch 400. Because this Trespass is local and what is local cannot be inqured of by men of another County for they can have no conusans of it some times they must find local things in another County as if the Heir pleads riens per discent and the Plaintiff replies Assets in a Parish and Ward within London the Jury may find Assets in any County in the same case against an Executor who pleads plene administravit the Jury may likewise find Assets in any part of the world And the Reason is because the place is only named for necessity of tryal But where Of things done in another County or Country Vide cap. 8. the place is part of the issue it is otherwise And therefore if I promise in one place to do a thing in another and issue is upon the breach the Jury ought to come from the place of the breach But if I promise in London to do a thing at Burdeaux in France and issue upon the breach yet this shall be tryed in London for necessity because otherwise it would want tryal the Jury must inquire of the breach at Burdeaux But if I promise in France to do a thing in France so that both Contract and performance is Rolls tit Tryal fol. 571. 624. beyond Sea this wants tryal in our Law lib. 6. 47. li. 7. 23 26 27. In the Case of Drake and Beere Trin. 15 Car. 2. B. R. this difference was agreed by the Court viz. That a Jury in an Inferiour Court may inquire of things out of the Iurisdiction if they be but for encrease of Damages as is 1 Cro. 571. Ireland vers Blackwell but if they inquire of any thing issuable out of that Iurisdiction it is nought 1 Cro. 101. 2 Cro. 503. Error was brought to reverse a Iudgement given in the Palace Court in Indebitat for that the Defendant was indebtted to the Plaintiff Infrà Jurisdictionem for Nursing of a Child not saying the Nursing was Infra Jurisdictionem 〈◊〉 Windam Just held it
good for that it is a debt every where and not like a debt that ariseth by matter collateral But Twisden â—ust doubted Whitehead vers Browne Pasch 15 Car. 2. B. R. The Jury may find Estoppels as the taking Estoppels When the Estoppel is found the â—ourt may judge according to the eâ—pecial matter of a Lease of a man 's own Land by Deed indented or the delivery of a Deed before the date as in Debt by an Administrator upon a Bond dated 4 Aprilis 24 Eliz The Defendant pleaded that the Intestate dyed before the date of the Obligation and isint nient son fait upon which they were at Issue and adjudged that the Jury might find that the Bond was delivered the 3d of April because they are sworn ad veritatem dicenâ—um though the parties are estopped to plead a Deed was delivered before the date but they may plead a delivery after the date because it shall never be intended that a Deed was delivered before the date but after it may But if the Estoppel or admittance be Estoppels within the same Record in which Issue is joyned then the Jurors cannot find â—ny thing contrary to this which the parties have affirmed and admitted of Record though it be not true For the Court may give judgment upon matters confessed by the parties and the Jurors are not to be charged with any such thing but only with such in which the parties vary li. 2. 4. li. 4. 53. Co. Lit. 227. A Decree in Chancery shall be tryed by a Decree Jury and not by it self for it is not a Record but a Decree Recorded The Chancery as it is a Court of Equity is not a Court of Record But touching things agitated in the Petty Bag Office it is a Court of Record The Jury may find Deeds or matter of Records not shewed Record if they will though not shewed in Evidence Finch 400. They may inquire of things done before the memory of man lib. 9. 34. Null tiel Record is not to be tryed by a Jury but upon the general issue c. they may find a Record The Jury may find a Warranty being Warranty given in Evidence though it be not pleaded Nay the â—ury may find that which cannot be pleaded as in Trespass upon not guilty The Jury may find that the Defendant leased Lands for life upon Condition Condition and entred for the Condition broken Tho. this cannot be pleaded without Deed yet the Jury may find it Lit. Sect. 366. Where a Collateral Warranty binds this may well be given in Evidence For although it doth not give a right yet in Law this shall bar and bind a Right Lib. 10. 97. But this matter comes more properly under the Title Evidence wherefore we will proceed to that See also in Chap. 13. CAP. XI Evidence and Witnesses EVidence Evidentia This word in legal Evidence understanding saith Coke 1. Inst 283. doth not only contain matters of Record as Letters Patents Fines Recoveries Inrollments and the like and writings under Seal as Charters and Deeds and other Writings without Seal as Court-Rolls Accounts and the like which are called Evidences Instrumenta But in a larger sense it containeth also Testimonia the Testimony of Witnesses and other proofs to be produced and given to a Jury for the finding of any Issue joyned between the parties And it is called Evidence because thereby the point in Issue is to be made evident to the Jury Probationes debent esse evidentes id est perspicuè facile intelligitur And this Evidence with Bracton we may term probatio duplex viz. viva as Witnesses vivâ voce and Mortua as by Deeds Writings and Instruments and violenta praesumptio in many cases is plenâ— probatio and therefore if all the Witnesses to a Deed be dead then the Deed shall receive Credit per collationem sigillorum scripturae Presumption c. but especially if there hath been a continual and quiet possession which is a violent presumption 1 Inst 6. for no man can keep his Witnesses alive If a thing be generally referred to proof Proof this shall be intended proof by Jury but if other manner of proof be agreed upon that shall take away the proof which the Law generally intends by Jury Hob. 127. As if I promise to pay what mony you prove B. borrowed this may be proved in the same action brought upon the promise Vide Rolls tit tryal 594 595. Men that are so branded with Infamy Witnesses that they cannot be Jurors for which see before who may be Jurors cannot be Witnesses yet per Glyn Ch. Just and Newdigate Just Mich. 1657. B. R. Conviction of common Barretry hinders not from being a witness but Maynard Sergeant held strongly against it At Lent Assises Suff. 1657. St. John Ch. Just C. B. would not allow one who had been whipped for petty Larceny to be a Witness but Earl Sergeant said they ought to be stigmatici that are disabled from being Witnesses Yet per Roll. Ch. Just one burned in the hand for Felony may be a Witness for he is in capacity to purchase Lands and his fault is purged by his punishment Stiles 388. The Wife cannot be a Witness for or Who may be Witnesses against her Husband 1 Inst 6. that is in case of a common person between party and party but between the King and the party on an Indictment she may although it concerns the Feme her self as in the Lord Audley's Case Hutt 116. So she may have the Peace against her Husband And so it was resolved in John Browne's Case Trin. 25 Car. 2. B. R. on the Stat. of 3 H. 7. cap. 2. vid. 1 Cro. 492. The King cannot be a witness by his Letters under his Signet manual One attained of Piracy cannot be a witness to prove another guilty If he accused another before he was attainted and afterwards confesses he wronged him this confession shall be rejected because he is attainted A woman cannot be a witness to prove a man to be a Villain Co. Lit. 6. 8. Neither can the party to the usurious Contract be a Witness against the Vsurer in an Information upon the Statute of Vsury But Kinsmen never so near Tenants Servants Masters Counsellors and Attorneys c. may be Witnesses A Counsellor may be a Witness to the Agreement c. but not to validity of an assurance nor to the Counsel he gave March Rep. 43. If a Witness being served with Process and having money sufficient to bear his charges or less if he accept it do not appear to give his testimony he forfeits 10 l. to the party damnified and must recompence his damages 5 Eliz. 9. If a Witness commit wilful perjury he loseth 20 l. shall be imprisoned 6. months without bail stand in the Pillory and be disabled to be a Witness so shall the suborner who procures the perjury 5 Eliz 9. A party robbed is allowed a
specialty or on Record Hob. 284. Hutt 35. But an account stated for rent and other things is good Evidence In Indebitat for money c. delivery of Corn or other matter in satisfaction is good evidence Contr. in a special Action of the case on Assumpsit Indebit lies not for money won at Dice Wiche's Case Hill 14 15 Car. 2. B. R. If a promise be made to pay at a day certain and the day is past the Plaintiff may declare to pay on request so if he declare on payment at a day certain give in evidence a promise on request i. e. when it 's created on account which gives the duty for there the time is ex abundanti but where the action is founded on the Contract otherwise for there the evidence must pursue the Contract Hill 1650. B. R. Child's case Promise to restore a Horse hired for a Iourney if the Horse dies in the Iourney without the Riders default his promise binds not Lisle's case cited in Matraver's case Trin. 1651. B. R. One brings an Assumpsit for 20 l. and gives in evidence a promise if two would surrender to pay them 20 l. a piece good Mich. 1655. B. R. Thomas and Gerey Indebit for 50 l. brought by Edgar against Chetham Clerk The evidence was T. was indebted to Edgar in 50 l. Chetham desires Edgar to let him take the 50 l. of T. and he would give Edgar a Bill of Exchange to receive so much at London accordingly T. promises to pay Chetham the money which promise he accepted and gave a Bill of Exchange to Edgar after T. became insolvent then Chetham prohibits the payment of his Bill whereupon this action is brought Per Wadh. Wyndham Just Ass Norf. Summer 1663. the action lies for Chetham having accepted the promise of T. and given a Bill c. is now become a Debtor to Edgar until his Bill be paid though he never receives the money of Thompson In Indebitat It is good evidence against the Father that Physick was delivered to his Daughter at his request Stone-house vers Bodvill Hill 14 Car. 2. B. R. One promises a Bayliff that if he would let one arrested be in his house that night he would deliver him in the morning it 's a good promise and the Bayliff or the Plaintiff may bring the action Benson vers French Pasch 15 Car. 2. B. R. Indebitat The case was the Plaintiff sold 60 Comb of Rye to the Defendant at 14 s. per Comb to be delivered before Mich. the Plaintiff delivered 50 Comb before the time and brought this action for the money for it and good though it was agreed the money to be paid on the delivery of the last Rye per Hale Ch. Baron 1. Though the agreement is intire yet the several deliveries make several contracts 2. Though the payment was to be on the last delivery yet a time being set for delivery it 's intended to be paid when the delivery should have been 3. The time being past it 's now a duty and so Indebitatus lies 4. The Defendant has his remedy for not delivering the residue Baker vers Sutton Lent Assise Norf. 1662. Indebitat lies for a portion after the Ioynture setled so for 1000 l. on promise of so much for every Horse-shoo nail but the Jury may mitigate Damages ib. A promise to marry B. within 3 Months within a Fortnight after they meet and the party promises again to marry her within 3 Weeks this last promise is no discharge of the former being all within the time of 3 Months but had the last promise been to marry her within some other time after the 3 Months it had discharged the former Hite vers Chaplin Pasch 1658. B. R. Indebitatus by one Defendant give evidence that another was partner with the Plaintiff at the delivery of the Wares Plaintiff Nonsuit Franklin vers Walker Norf. Lent Assise 1667. per Moreton Contr. in Trespass for there Ioint-tenancy must be pleaded Indebitatus for 9 l. Defendant pleaded non assumpsit infra sex annos issue inde the Plaintiff proved a Debt of 9 l. due 10 years before and an acknowledgement of the Debt within 6 years and an offer to pay 5 l. for the whole Per Hale The Plaintiff nonsuit for the acknowledgement of the Debt is no more than is done by the Plea but there must be a new promise of the Debt within 6 years to make the action hold and here the promise or offer to pay 5 l. gives no action for the 9. l. Bass vers Smith Suff. Summer Assise 1668. Debt Debt on a Bond to perform Covenants to deliver possession at the Terms end to the Lessor or his Assignes breach was assign'd in not delivery to two purchasors demand being made by both and issue joyn'd thereon in evidence demand by one is good 2 Cro. 475. Debt on Bond to perform an award ita quod the award be delivered to the parties in evidence delivery proved to the Wife is sufficient for the Jury to presume the delivery to the party himself per Hale Norf. Summer Assise 1665. Trice and Prat. At the same Assises per Moreton Just delivery to the parties Son is good evidence Violet and Cook Debt against an Heir c. riens per descent c. a Feoffment given in evidence made before the action that it was fraudulent may be given in evidence though not pleaded 5 rep Co. Goathes case Hob. 72. Debt against Executor who pleaded ne unques c. Plaintiff replied that he Administred as Executor and gave in evidence Administration granted to him by which he Administred Good Dyer 305. In Debt against Executors and plenè Administravit pleaded the Defendant cannot give in evidence a Bond satisfied where the Executor and Testator were obligors per Coventry Lord Keeper 33 Eliz. Perkins vers Perkins In Debt for Tythes Modus to a Vicar is good against the Parson and so is a Modus to a Parish Clerk per Moreton Just Lent Cambr. 1667. Barber vers Cosier In Debt against Executor de son tort who pleads ne unques c. It is sufficient to charge him by proving he hath administred of never so little value Clayton 6. Against Executor de son tort who pleaded fully administred the evidence was the Intestate made a Bill of Sale of his goods to the Defendant who was bound with him in a Bond as surety for his Counter-security but the goods remained in the Intestates possession during his life for some few hours ruled a fraudulent Deed by Barkley Just at York 11 Car. Legard and Linley Clayton 39. quaere Debt against Administrator who pleaded If the Defendant pleads plenè c. pretor judgements c. The Plaintiff must prove Assets above the sum of those Judgements Huntington by Judge Windham 33 Car. 2. plene c. and gave in evidence Iudgements and good without pleading per Henden 1638. York Clayton 65. Quaere for if Iudgements be kept on
foot by fraud and given in evidence how can a Creditor who sues for a just Debt be prepared to detect this fraud And note in Scire facias against an Execuor on Iudgement per Testator the Defendant pleaded fully administred generally and the Plaintiff demurred specially and Sir William Jones Sollictor general moved to amend the Plea and Hale Ch. Just thought he ought to plead specially how fully administred Bradford vers Hutchinson H. 25 26 Car. 2. B. R. Debt for Rent on a Lease the evidence to prove the Lease was that the Plaintiff leased a House to the Defendant at a Rent but no time mention'd and it was agreed at the same time that the Lessee was not to leave it without half a years warning per Hale Norf. Summer Assise 1668. It 's a Lease at will the leaving on half a years warning is but a Collateral agreement and no part of the demise Ejectment The Plaintiff Counts of a joint Lease made by A. and B. in evidence it appeared that A. B. and C. were Ioynt-tenants that C. Leased to B. and that A. and D. Leased to the Plaintiff by 3. Just against two it 's good 2 Cro. Jurdanes case fo 83. Count of a joynt Lease made by two in evidence it appears they were Tenants in Common by 3 Just against one it 's not good 2 Cro. 166. Mantles Case Count of a Lease by Husband evidence was a Lease by Husband and Wife with Letter of Attorney to make livery and 't is made in name of both by 3 Just against one it 's good for Livery as to the Feme was void 2. Cro. Gardners case Of a Lease made 5. May 10. Regis habendum from Lady-day last past for 21 years Extunc prox sequent In evidence a Lease of 5 May 10. Regis habendum from Lady-day last past for 21 years next following the date of the said Indenture adjudged good and affirmed in Error Hob. 19. Ejectment of a Rectory evidence of the taking of Tythes only and not Entry into the Glebe the Plaintiff was nonsuit Latch 62. Hems and Stroud Ejectment of a Lease to A. of Lands in the possession of three Tenants for years delivered to I. S. as an Escrow with Letter of Attorney to enter into all and then to deliver his Deed c. evidence that the Attorney entred upon one Lessee in name of all and delivered the Deed c. Per Jones Just It 's good enough for where the Freehold is in one his Entry into one Lessee for years in name of all the rest is good Latch 71. Dame Argells case Where one declares on a fictitious Lease to A. for three years and within the same time declares of another fictitious Lease to B. of the same Lands the last is not good For Trespass for the mean profits must be brought in the first Lessees name ut dicitur Ejectment of Tythes a Lease for life of Tythes is good if there be Church or Church-yard to make Livery in resolved in Tryal at Bar Wheeler vers Hanchet Hill 14 15 Car. 2. B. R. v. Jones rep 321 322. Entry and Claym made upon the Land within 5 years after the death of the Baron of the Countess of Peterborough to avoid a fine she being issue in tayle proved by one Witness and allowed at a Tryal at Bar B. R. Mich. 15 Car. 2. Floyd and Pollard Custom of Copyholders in extream is to surrender into one Tenants hands in the presence of credible Witnesses A surrender was made accordingly but presented to be done to another Tenant yet being proved to be done to a Tenant it was holden by Wadh. Wyndham Just to be good and by him a Glove or a Turfe is a Rod to give seisin by Maye's case Norf. Summer Assises 1663. A Will under which Title to Land is made must be shown it self and the Probate is not sufficient Contr. if it were on a Circumstance or as inducement or that the Will remain in Chancery or other Court by special order of such Court. Eden vers Chalk-hill Mich. 13 Car. 2. B. R. Also Inrollment of a Deed which needs no Inrollment is no evidence ib. The issue was fine uncertain or certain 2 years Rent and no more the evidence was of admittances on surrenders uncertain but all under 2 years Rent Per Williams Just you ought to produce fines on descent and fines paid above two years Rent 2 Bulst 32. Allen vers Abraham A lease was made by parol and agreed to be put in Writing and Indentures bespoke but being held for Ten years and no Indentures executed it was ruled for a lease parol Per Barkley Just 13 Car. 1. York Clayton 53. By Just Berkley 1638. York Hedges cont-Clayton 57 a Will under Seal proved examined by the original was allowed good evidence Quaere I think the practice against it A Lease and Release were given in evidence to entitle the Plaintiff and they both were named haec Indentura but were not indented good per Hale Ch. Baron Norf. Summer Assises 1668. Briant vers Trendle After default in Ejectment the Defendant may confess Lease Entry and ouster and may give evidence and have all advantages except Challenges and if the Plaintiff becomes non suit any one for the Defendant may pray it be recorded Per H. Wyndham Just Bucks Lent 68 Dr. Crawle's case Deprivation in spiritual Court for Simony disables from bringing Ejectment because he can make no Lease yet quaere If Mortgagor continues in possession without provision for that purpose in the Deed he is Tenant at Will and if he levies a Fine it 's no disseisin by him continuing in possession still because after the Will determin'd he is Tenant at sufferance Per Hale Ch. Baron Bedford Summer Ass 1669. Declaration on a Lease made 14 Jan. 30. Eliz. evidence of a Lease Sealed 13 Jan. good for if it was a Lease 13. it was a Lease made 14. 4. Leon 14. Feoffments of 40 years standing and possession going accordingly you need not prove Livery it may be intended per Jury Roll. rep 132. The Common Rock on which so many have split is laying the Lease to be à die datus and the Entry the same day which is a disseisin not purged by the Commencement of the Lease for where an interest passes à is exclusive and so the entry the same day is before the Lease was to Commence is a disseisin but in cases of Obligation where no interest passes it is contra quod nota Trespass Count of Trespass done in one acre evidence of Trespass done but in half that acre good 2 Cro. Winkworths Case The Lady Hatton brought Trespass for breaking her Close and taking away her Horse c. against two Defendants they plead Not guilty as to the taking of Her Horse as to the rest they say that the Horse of one of the Defndants was in the Close c. and they took him out doing as little damage as they could quae est