by the Mise of the parties by the same Inquest shall damages 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 Terme before and one of them made default Writ of Inquiry which was Recorded 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 bound 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 untill 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 Damages by the first Inquest who plead not guilty c. severally and severall 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 Verdict when to be supplyed by Writ of Inquiry c. Now let us sée when something is lest out of the Verdict which the Jury ought to have inquired of whether it may be supplyed by matter expost facto and how And for this know that if damages be left out of a Verdict this omission cannot be supplyed by Writ of Inquiry of damages for this would prevent the Defendant of his Remedy by Attaint which would be very mischievous for then such omission might be on purpose to deprive the Plaintiff of his Attaint li. 10. 119. And the Rule is that when the Court ex officio ought to inquire of any thing upon which no Attaint lies There the omission of this may be supplyed by a Writ of Inquiry of damages as in a Quare impedit if the Jury omit to enquire of these 4. things that is to say de plenitudine ex cujus presentatione si tempus semestre transierit and the value of the Church per annum there the Plaintiff may have a Writ to inquire of these points Dyer 241. 260. because of these no Attaint lies as it is holden in 11 H. 4. 80. because that as to these the Inquest is but of Office But in all cases where any â—oint is omitted whereof an Attaint lyeth there this shall not be supplyed by Writ of Inquiâ—y upon which no Attaint lyeth And tâ—erefore in Deâ—inuâ— if the Jury finde Damages and Cost and no value as they ought this shall not be supplyed by Writ of Inquiry of damages for the Reason aforesaid Ib. Et sic in similibus But how then What Verdict set aside because the damages not well assessed shall the Plaintiff loose the benefit of his Verdict because tâ—e Jury assessed no damages or did insufficiently assess them Cerres in such Cases where damages onely are to be recovered he must loose the whole benefit of his Verdict but where any thing else is to be recovered besides damages as in Debt Ejectment c. he may release his Damages and have Iudgement upon his Verdict as to the rest And so where damages are to be recovered if part of them are assessed insufficiently and part well he may have Iudgement for those damages well assessed And oftentimes the iâ—sufficiency of the Declaration shall set aside the Verdict Verdict set aside in part as if an Action upon the Case be brought upon two promises and one of them be insufficiently laid and the Verdict give intire Damages this is naught for the whole But if the Damages had béen severally assessed upon the severall premises then the Verdict as to the promise well laid should have stood In the 11th Report fo 56. Marsh brought a Writ of Annuity against Bentham and the parties discended to issue which was tryed for the Plaintiff and the Arrerages found c. But the Iurors did not assess any damages or Cost which Verdict was insufficient and could not be supplyed by Writ of Inquiry of damages wherefore the Plaintiff released his damages and costs Release of damages where none were assessed and upon this had Iudgement upon which the Defendant brought a Writ of Error and assigned the Error aforesaid scil the insufficiency of the Verdict sed Judicium affirmatur because the Plaintiff had released his damages and costs which is for the benefit of the Defendant In Dyer 22 Eliz. 369. 370. Release of dâ—mages where they were not well assessed In a Writ of Ejectione Custodiae terrae haeredis the Iurors assessed damages intirely which was insufficient for it lay not for the Heir yet the Plaintiff released his damages and had Iudgement for the Land And Note that insufficient assesment of damages and no assessing is all one Damages and Costs The Iury ought to assess no more damages pro injuria illata then the Plaintiff declares for But they may assess so much and moreover give cost which is called Expensae litis though in the proper and generall signification Dampnum also comprehends Costs of Suit as the Entry reciting both damages and costs well affirms scil Quae dampna intoto se attingunt cum c. More damages than the Plaintiff declares for But if the Iury do assess more damages than the Plaintiff declares for the Plaintiff may remit the overplus and pray Iudgement for the residue as in the 1â—th Report fol. 115. in Trespass the Plaintiff declared ad dampnum c. 40 l. at the tryall of the Iury assessed damages occasione transgressionis predict ad 49 l. and for costs of suit 20 s. upon which Verdict the Plaintiff at the day in Bank remitted 9 l. parcel of the said 49 l. assessed for damages and prayed Iudgement for 4â— l. to which damage he had counted with increase of Costs of suit Damages remitted and had 9 l. de Incremento added by the Court which in all amounted to â—0 l. and had his Iudgement acâ—ordingly upon which a Writ
of Error was brought and the Iudgeâ—ent affirmed For as in reall actioâ—s the Demandant shall not count to Damages c. because it is incertain to what sum the damages will amount by reason he is to recover damages pendant le briefe so in the case of Costs he shall recover for the expences depenâ—ing the suit which being uncertain cannot be comprehended in the Count because the Count extends to damages past Damages in reall and personall actions and not to expences of suit For in personall actions he counts to damages because he shall recover damages onely for the wrong done before the Writ brought and shall not recover damages for any thing pendant le briefe But in reall actions the Demandant never counts to damages because he is to recover damages also pendant le briefe which are incertain The Iury may if they will assess the damages and costs intirely together Damages and Costs intirely assessed without making any distinction 18 E. 4. 23. But then they must not assess more damages and costs then the damages are which the Plaintiff counts to for if they do the Plaintiff shall recover onely so much as he hath declared for without any increase of cost because the Court cannot distinguish how much they intended for cost and how much for damages As in 1â— H. 7. 16. 17. One Darrel brought a Writ of Trespass and counted to his damage 20. marks the Defendant pleaded not guilty and the Iury taxed the damages and costs of suit joyntly to 22. marks and the Verdict was held to be good for 20. marks and void for the residue because it doth not appear how much was intended for damages and how much for costs so that there may be more damages then the Plaintiff declared for or lesse and so the Court knowes not 〈◊〉 to increase the cost whereâ—â—e he shall have Iudgement but â—20 marks by reason of the inâ—â—â—tainty Where a special Verdict is not â—â—tred according to the Notes Verdict amended by the notes the â—â—cord may be amended and made â—grée with the notes at any time â—â—ugh it be 3 or 4 c. Termes afâ—â—r it is entred lib. 4. 52. lib. 8. 162. â—â—o 1 part 145. If the matter Form Hob. 54. and substance of â—â—e Issue be found it is sufficient â—â—r precise forms are not required â—â—y Law in special Verdicts which â—â—e the finding of Lay-men as in Pleadings which are made by men â—urned in the Law and therefore â—tendment in many cases shall â—â—lp a special Verdict as much as 〈◊〉 Testament Arbitrament c. And therefore he which makes a Deputy ought to do it by Escript but when the Iury finde generally that A. was Deputy to B. all necessary incidents are found by this and upon the matter they finde that he was made Deputy by Déed because it doth tantamount lib. 9.51 And in the 5th Report Goodales 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. III conclusion In all Cases where the Iury finde the matter committed to their charge at large and over more conclude against Law the Verdict is good More 105. 269. and the conclusion ill li. 4. 42. and the Iudges of the Law will give Iudgement upon the speciall 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. Where the Dâ—claration in Trespas is Cum aliquibus averiis As generall as the Narr of a number uncertain and the Verdict is as generall as the Declaration cum aliquibus averiis there the Verdict is good Cro. 2. part 662. In Ejectione â—irme 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 non ina 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 Quoad Residuum incertain For when the Iury finde 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 finde quoad residuum the 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 113. Ejectione firmae of 30 Acres of Land in D. and S. The Defendant was found guilty of 10. acres and Quoad Residuum Quod Residâ—um not guilty 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 Circumstances upon an Evidence given to incite them to finde 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 maâ— finde Circumstances and presumâ—tions upon which the Court ought to judge As to finde that the Husband delivered Goods devised by the Wife Vpon this the Court adjudged that the Husband assented to the devise at first More 192. Where a Verdict is certainly â—iven at the Tryall Postea amended how and uncertainly returned by the Clerk of the Asâ—izes c. The Postea may be amended upon the Iudges certifyâ—ng the truth how the Verdict was given Cro. 1. part 338. In many Cases a Verdict may â—ake an ill Plea or Issue good Ill Plea made good by Verdict As 〈◊〉 an action for words Thou wast â—erjured and hast much to answer for 〈◊〉 before God Exception after Verdict for the Plaintiff in arrest â—f Iudgement For that it is not â—nd in the Declaration that he â—pake the words in auditu compluriâ—orum or of any one according to â—he usuall form sed non allocatur for â—â—ing found by the Verdict that he â—pake them it is not materiall alâ—hough he doth not say in auditu â—urimorum whereupon it was adâ—udged for the Plaintiff Cro. 1. part 199. Sée Cro. last part 116. Where the Barr was ill because no place â—f payment was alledged yet the â—ayment 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 de clauso fracto of the Barons Baron Feme which ought not to be But for the Battery of the feme they may joyn whereto all the Court agreed 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. Trespas by Baron and Feme for the battery of both The Defendant pleaded Not guilty and found guilty and damages assessed 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 battery of the feme the Writ abated for the residue And of that opinion was Lea Chief Justice Doderidge al. contra And the same Law I conceive if the Iury had found the Defendant Not guilty of the battery to the Husband but guilty to the Wife Cro. 2. part 655. Rochel and his Wife Rochel and his Wife against Steel brought an action of trespass and assault in the Exchequer Hill 16. 59. against Steel and others who pleaded Not guilty and the Verdict found Steel guilty of the Battery to the Wife but â—â—und 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 Of what a Verdict may be The Iury may finde any thing that may be given in Evidence to them as Records either Patent Statute or Iudgment Things done in another County Plo. Com. 411. or Country for which sée Evidence before Hob. 227. And of these things they ought to have Conusance they are to have Conusance also of all Incidents Incidents and dependants thereupon for an Incident is a thing necessarily depending upon another Co. Littleton 227. b. The Verdict may be against the Letter of the Issue so the substance is found If the matter and substance of the Issue 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 minde for Tythes of Lambs And thereupon Issue ioyned And the Iury found that before twenty years then last past there was such a prescription Prescription and that for these twenty 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 generall 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 custome But it was adjudged for the Plaintiff for albeit the modus decimandi had not béen payd by the space of twenty years yet the prescription being found the substance of the Issue is found for the Plaintiff In Assise of Darrein Presentment if the Plaintiff alledge the avoydance of the Church by privation Avoydance and the Jury finde the voydance by death the Plaintiff shall have judgement 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 Hospitall bring an Assise against the Ordinary Deprivation he pleadeth that 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 judgement for the deprivation is the substance of the matter Ib. The Lessée 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 Lessée cut down 10. Breach of 20. Trees cut down for 10. Trées the Lessor bringeth an action of debt upon the Bond and assigneth a breach that the Lessée cut down 20. Trées whereupon Issue is joyned and the Jury finde that the Lessée cut down ten Judgment shall be given for the Plaintiff for sufficient matter of the Issue is found for the Plaintiff to forfeit the Bond. Ib. And this Rule holds in Criminall 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 Indictment of Murder and Verdict findes Manslaughter yet the Jury may finde the Defendant guilty of Man-slaughter without malice prepensed because the killing of J. is the matter and malice prepensed is but a Circumstance Plo. Com. 101. And generally where modo forma Modo forma are not of the substance of the Issue but words of form there it sufficeth though the Verdict doth not finde the precise Issue As if a man bring a Writ of Entry in casu proviso of the Alienation made by the Tenant in Dower to his disinheritance and counteth of the alienation made in Fée 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 terme 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 Tenant the Tenant hold of the Lord by fealty onely the Lord distrain the Tenant for Rent and the Tenant bringeth a Writ of Trespas against his Lord Trespass by the Tenant against the Lord. for his Cattel so taken and the Lord plead that the Tenant holds of him by fealty and certain Rent and for that Rent behinde he came to distrain c. And demand Iudgement 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 Verdict that he holdeth of him by fealty onely in this case the Writ shall abate and yet he â—oth 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
that was meant to be returned or if no Return be upon any of the said Writs so as a Pannel of the names of the Jurors be returned or annexed to the said Writ or if the Sheriff or Officers name having the Return thereof is not set to the Return of any such Writ so as upon Examination it be proved that the said Writ was returned by the Sheriff or Under-Sheriff or such other Officer In all these Cases the Iudgment shall not be stayed nor reversed for these defects But this Act doth not extend to any Writ Declaration or Suit of Appeal of Felony or Murther nor to any Indictment or Presentment of Felony or Murther or Treason nor to any Process upon any of them nor to any Writ Bill Action Popular Actions c. or Information upon any popular or penall Statute Wherefore since Informations and popular Actions are grown so frequent the Attorneys c. herein had best beware of these Jeofailes By this Statute many defects are remedied which were not by the Statutes of 32 H. 8. Cap. 30. and 18 Eliz. Cap. 14. yet all are not for this Act onely helps the mis-naming of a Juror in Sur-name or addition Christian name mistaken in the Venire facias incurable and saith nothing of his Christian name wherefore I conceive the Law in Codwells Case in the fifth Report remains as it was then which is that if a Juror be mis-named in his Christian name on the Venire though he be named right in the Distringas and Postea yet this is ill and not amendable and with this agrées Goddards Case Cro. 2. part 458. And since the Court Cro. 1 part fo 203. doubted thereof Christian name right in the Venire facias and wrong in the Distringas I may well put the Question if a Juror be right named upon the Venire and mis-named in his Christian Name in the Distringas c. whether this is amendable or not without dispute it is not by the Statute 21 Jacob for that onely helps the Sur-name But with Reverence to the Courts doubt I conceive clearly it is hâ—lpen by the Statutes of 32 H. 8. and 18 Eliz. as a discontinuance of Process and I may with the more confidence believe it because in Codwells Case aforesaid where in the Pannell of the Venire a Juror was named Palus Cheale and in the Distringas c. he was right named Paulus Cheale and so because he was mis-named in his Christian Name in the Venire Iudgment was arrested But it is there adjudged that if he had béen well named on the Venire and mis-named upon the Distringas or Postea then upon Examination it should be amended But the Countess of Rutlands Case lib. 5. 42. is expresse in the point and so is Cro. 3. part 860. And it is to be known that in most Cases where the Venire facias Hab Corpora or Distringas be defective they are to be amended but if the Malady be so fatall in the Venire that it causes a Mistriall as in the mistake of a Jurors Christian Name or where a Juror not returned is sworn c. then the Verdict is to be set aside and a Venire facias de novo Venire facias de novo to be awarded and so was it to be upon those mistakes now amendable by the Statutes before the making thereof And where a Jury giveth a Verdict which is accepted and recorded by the Court One Jury shall not try a cause twice be the Verdict perfect or imperfect the Jurors are discharged and shall never try the same Issue again upon a new Nisi prius But if the Verdict be so imperfect that Iudgment cannot be given upon it then the Court shall award a Venire facias de novo to try the Issue by other Jurors li. 8. 65. Bulstr 2 part 32. In Yelvertons Reports fo 64. Album breve the County left out in a Veniâ—e facias the Case is That a Venire facias was made Vice-Comiti leaving out Salop for which there was a blanck leâ—t in the Writ But re vera it was returned by the Sheriff of Salop. In Arrest of Iudgment it was alleadged that the Venire facias was vitious for this cause But Gawdy said it should be amended And by Fenner and Williams It is as no Writ because it is not directed to any Officer And then it is ayded by the Stat. of Jeofailes For it might rather be called a blanck then a Writ because it was directed to no Officer Severall Venire facias In Cases where there are severall Defendants who plead several Pleas the Plaintiff may chuse either to have one Venire facias for all or severall for every one of the Defendants But if you will be ruled by Stamford the surest way is to have a Venire facias against every one and then one cannot have benefit of the others Challenge neither shall the death of one abate the Venire facias against the other This he speaks of in Appeals but if the Court once award a joint Venire facias you cannot have severall Venires afterwards though there be nothing done upon the first except it be upon matter de puisne Temps as the death of one of the Defendants c. li. 8. 66. li. 11. 5. 6. Stamf. 155. bro. tit Venire facias 2. 35. But now it is the usuall course to have but one Venire facias One Venire facias in severall Issues upon severall Issues though against severall Defendants Cro. 3. part 866. hob 36. 64. And so usuall that the Court declared Cro. 2. part 550. That there never shall be severall Venire facias to try severall Issues in one County For what néed the Plaintiff trouble himself and the Country with severall when one Iury will serve his turn Et frustra fit per plura quod fieri potest per pauciora But other wise if it be in two Counties Cro. 3. part 866. After Issue joyned by two Defendants if one of them die Venire facias between the Plaintiff and 2. Defendants where one is dead and then a Venire facias is awarded betwixt the Plaintiff and both the Defendants and so in the Hab Corpora and Distringas yet this shall not vitiate the Venire facias c. to make Error because though one of the Defendants be dead yet the other being alive it is sufficient And there néeds be no surmise in Iudiciall Writs No surmise in Judicial Writs of death in one of the parties that one of the Defendants is dead It is time enough to shew it to the Court at the day in banck Cro. 1 part 4. 26. But if there be two Defendants and the Venire facias be but against one of them 't is Error 7 H. 4. 13. and bro. tit ven fac 11. Cro. 1. part 426. Venire facias dated before the Action brought If the Venire facias beares date before the
have the better and more certain knowledge of the fact And if the fact be alledged in quadam platea vocat Kingstreet in parochia sanctae Margaretae in Com. Midd. In this Case the Visne cannot come out of Platea Parish because it is neither Town Parish Hamlet nor place out of the Neighbour-hood whereof a Jury may come by Law but in this Case it shall not come out of Westminst but out of the Parish of St. Margaret because that is the most certain But therein also it is to be noted that if it had béen alledged in Kingstreet in the Parish of St. Margaret in the County of Middlesex then should it have came out of Kingstreet for then should Kingstreet have béen estéemed in Law a Town For whensoever a place is alledged generally in pleading without some addition to declare the contrary as in this Case it is it shall be taken for a Town Town And albeit parochia Parochia generally alledgeâ— is a place incertain and and may as we sée by experieâ—ce include divers Towns yet if a matter be alledged in parochia it shall be intended in Law that it containeth no more Towns than one unless the party do shew the contrary More 55â— But when a Parish is alledged within a City there without question the Visne shall come out of the Parish for that is more certain than the City If a Trespass be alledged in D. and nul tiel ville is pleaded the Jury shall come de Corpore Comitatus De Corpora Comitatus But if it be alledged in S. D. and nul tiel ville de D. is pleaded The Jury shall come out de vicineto de S. For that is the more certain so if a matter be alledgd within a Mannor Manner the Jury shall come de vicineto Manerii But if the Mannor be alledged within a Town it shall come out of the Town because that is most certain for the Mannor may extend into divers Towns And all these points were resolved by all the Judges of England upon Conference betwéen them in the Case of John Arundell Esq indicted for the death of William Parker De Corpore Com. Where there may be a speciall Visne the Tryal shall never be de Corpore Comitatus Leon. 1 part 109. In a reall Action where the Demandant demands Land in one County Heir tryed where the Land lies where not 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 Cro. 3. part 818. Cro. 2. part 303. because they have more certain Conusance then where the Land lyeth And so it is where Bastardy Bastardy is alledged 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 or Hamlet Visne or place known out of a Castle Mannor Town or Hamlet as some Forrests and the like as before Every Plea concerning the person Plaintiff Where the Writ is brought at Common-Law 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 Matters done beyond Sea how tryable in England may be alleadged to be made in any place in England if it beat date in no place But if there be a place as at Burdeaux in France then it shall be alleadged 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 Alien born under the Obedience of the French King and out of the Legiance 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 finde that he was born out of the Kings Allegiance And if they have sufficient Evidence that he was born in England or Ireland or Jernsey or Jersey or elsewhere within the Kings Obedience they shall finde that he was born within the Kings Legiance And this hath ever béen the pleading and manner of Tryal in that Case So of other things done beyond Sea Things done beyond Sea the adverse party may alledge them to be done at such a place in England from whence the Iury shall come and in a Speciall Verdict Lib. 7.26 they may finde the things done beyond Sea Ib. lib. 7.26 So when part of the act is done in England and part out of the Realm Part without the Realm and part within that part that is to be performed out of the Realm 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 Full age tryed where the Land lies for that Iudgment was given by default against the Defendant being an Infant 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 betwéen Throgmotton and Burfind Cro. 3. part 818. If the Venue arise in two Counties the Iury upon 2. Venire facias shall come from both This is called a Joynder of Counties Finch 410. 6. out of one County and 6. from the other Cro 3. part 646. but by consent of parties entred upon Record it may be by 5. out of one and 7. from the other Jury out of two Counties as appears Cro. 3. part 471. where in Replevin the Defendant avows for damage fesant The Plaintiff by his Replication claims common by prescription in loco quo c. being Broadway in the County of Worcester appurtenant to his Mannor of D. in the County of Gloucester and Issue
9. H. 6. 66. and the Jury cannot finde no Wast for that would be against the Record be within the same Record in which the Issue is joyned upon which the Jurors give their Verdict there they cannot finde any thing against this which the parties have affirmed and admitted of Record although it be not true For the Court may give Iudgement upon a thing confessed by the parties aâ—d the Jurors are not to be charged with any such thing but onely with things in which the parties vary Ib. li. 5. 30. So Estoppels Estoppel which binde the Interest of the Land as the taking of a Lease of a mans own Land by Déed intended and the like being specially found by the Iury Cro. 1. paâ—t 110. Lib. 4 53. the Court ought to judge according to the speciall matter for albeit Estoppels regularly must be pleaded and relyed upon by apt conclusion and the Iury is sworn ad veritatem dicend yet when the finde veritatem facti they persue well their Oath and the Court ought to adjuâ—ge according to Law So may the Iury finde a Warranty being given in evidence though it be not pleaded because it bindeth the right Warranty not pleaded unless it be in a Writ of Right when the Mise is joyned upon the méer right 1 Inst 227. Verdicts ought to be such that the Court may go clearly to Iudgment thereon Uncertain Verdicts and therefore Verdicts finding matter incertainly or ambiguously are insufficient and voyd and no Iudgement shall be given thereupon As if an Executor plead Plene Administravit and Issue is joyned thereon and the Jury finde that the Defendant hath Goods within his hands to be administred but finde not to what value this is an uncertainty and therefore an insufficient Verdict li. 9. 74. 1 Inst 227. It is the Office of the Jurors to shew t e verity of the fact The Office of the Jury and leave the Iudgement of the Law to the Court. And therefore upon an Indictment of murder quod felonice per cussit c. If the Iury finde per cussit tantum yet the Verdict is good for the Iudges of the Court are to resolve upon the special matter whether it was felonice and so murder or not li. 9. 69. And if the Court adjudge it Murder then the Jurors in the conclusion of their Verdict finde the Felon guilty of the murther contained in the Indictment A Verdict that findes part of the Issue Verdict finding part of the Issue and finding nothing for the rest is insufficient for the whole because they have not tryed the whole Issue wherewith they are charged More 406. As if an Information of intrusion be brought against one for intruding into a Messuage and 100 Acres of Land upon the generall Issue the Iury finde against the Defendant for the Land but say nothing for the House this is insufficient for the whole Finding more than the Issue But if the Iury give a Verdict of the whole Issue and of more c. That which is more is surphisage and shall not stay Iudgement for Utile per inutile non vitiatur Leon. 1 part 66. Cro. 1 part 130. But necessary incidents required by Law the Iury may finde Where the Verdict ought to be of more than is in the Issue Yet in many Cases nay almost in all the Iury ought to finde 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 it be not part of the Issue in terminis li. 10. 119. So in Trespass against two one â—â—ines and pleads Not guilty Damages by the first Inquest and â—s found guilty In this case the â—rst Inquest shall assess damages â—n the whole Trespass by both Defendants and afterwards the â—ther comes and pleads Not guilty â—d is found guilty The finâ—ing â—f Damages by the first Inquest to which he was not party shall binde â—im and therefore if the Damaâ—es are outragious and excessive â—he Defendant in the last Enquest â—hall have an Attaint Attaint li. 10.119 So in Trespass Quare clausum â—egit if Issue be joyned upon a Feâ—â—ment and the Jury give outragiâ—â—s Damages An Attaint lies for â—e inquiry of Damages is conseâ—eat and dependant upon the Isâ—ae and parcâ—l of their charge ib. In the 11th Report fo 5. It was â—esolved Damages by the first Inquest that in Trespass against â—wo 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 afâ—erwards 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 finde the trespass to be done by all at one and the same time as the Plaintiff declared Severall damages So in Trespass against divers Defendants if they plead not guilty or severall Pleas and the Jury finde for the Plaintiff in all the Jurors cannot assess several Damages against the Defendants because all is but one Trespass and made ioynt 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 finde one guilty at one time and the other at another time there severall Damages may be taxed But if the Plaintiff bring an Action of Trespass against two and declare upon a several Trespas his Action shall abate And this is the diversity betwéen the finding 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 finde generally for the Plaintiff the Jurors cannot sever the Damages if they do their Verdict is vicious But in trespass against two Judgment de melioribus dampnis where one appeares 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 severall Damages assessed in judgement of the Law the severall 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 binde all but fiat nisi unica Executio It is a Maxim that in every case where an Inquest is taken