but by one of the Coroners or for affinity in one c. Yet the Process shall still go to the Coroners Ita quod the Coroner se non intromittat If Default be in the Sheriff and To whom Process shall be directed for default in the Sheriff and Coroners Coroners the Court may choose two Esliors and if the parties can say nothing against them they shall make the Pannel But the Distringas shall not be directed to Esliers for the Court cannot make Officers to distreyn the Kings Liege people but the King may 8 H. 6. 12. dubitatur Process may be directed to the Justices of Assise by assent of parties not without When a Pannel is made by the Esliors they shall afterwards serve all Process that comes upon this as the Sheriff should 15 E. 4. 24. 18 E. 4. 3 8. Rolls tit Tryal 670. For it may be the Sheriff will distreyn only those who are his friends and be partial When the Process is once awarded Venire facias once directed to the Coroners shall not be to the Sheriff afterwards to the Coroners for a default in the Sheriff if there be a new Sheriff made afterwards who is indifferent yet the Process shall not revert but continue to the Coroners pendant le plea. 14 H. 7. 31. Bro. tit Venire facias 17. So the Entry is Ita quod Vicecomes se non intromittat 18 E. 4. 3. 8 H. 6. 12. And therefore where the Sheriff ought Sheriff shall not return the Tales where he cannot the Venire facias not to retorn the Venire he cannot retorn the Tales For in Error in the Exchequer Chamber of a Iudgement in the Queen's Bench the Error assigned was because the Venire facias was awarded to the Coroners for Consanguinity in the Sheriff and it was retorned by the Coroner and afterwards a Tales was awarded and it was retorned by the Sheriff and it was tryed and a Verdict given and Iudgement And for this cause held to be Erroneous and not aided by the Statute of 32 H. 8. or 18 Eliz. Wherefore the Iudgement was reversed Cro. 3. par 574. Bro. tit Octo. Tales 9. I will instance one Case more in the same Reports fo 586. because it is very full in the point After issue in Trespass the Plaintiff for his expedition surmised that he was Servant to the Sheriff which being confessed by the Defendant the process was awarded to the Coroners and Where the Coroner returns the Venire facias he ought to return the Tales after Verdict it was moved in Arrest of Iudgement that the Tales de Circumstantibus was awarded and returned by the Sheriff which was held by the whole Court to be good cause for Staying the Iudgement For it is a mis-tryal not aided by any of the Statutes for process being once awarded to the Coroners the Sheriff afterwards is not the Officer to return the Jury no more than any other man And process ought always to be returned by him who is an Officer by Law to return it otherwise it is meerly void But afterwards upon view of the Record it appeared that the Tales was returned by the Coroners and their names annexed thereto wherefore it was without further question But the Court said if their names had not been annexed No name to the Return to the Tales yet it had been well enough for they be annexed to the first Pannel And it shall be intended that the right Officer return'd it and the usual course is That to such Tales there is not any officers name subscribed and yet it is good enough for it is not within the Statute of York which appoints that the name of the Sheriff should be subscribed but it was moved that the Record of the Postea is that the Tales were returned by the Sheriff But the Court held that it was amendable and it was done accordingly and the Plaintiff had Iudgement But if the Venire be awarded to the Coroners Venire facias to the Sheriff after one awarded to the Coroners for default in the Sheriff and they do nothing upon the Writ then I suppose upon a default discovered in the Coroners de puisne temps the party may shew this to the Court and have a Venire awarded to the Sheriff if there be an indifferent one made in the mean time or else to Esliors sice converso In Error of a Iudgement in Chester Venire facias to the Coroners after one to the Sheriff the parties being at issue a Venire was awarded to the Sheriff And at the day of the Return it was entred Quod Vicecomes non misit breve And then the Plaintiff prayed a Venire facias to the Coroners for Cozenage betwixt him and the Sheriff which was awarded accordingly and at the day of tryal the Defendant made default and there upon Iudgement Error was assigned because that after the Plaintiff had admitted the Sheriff to execute the Writ he could not pray a Venire facias to the Coroners without some cause de puisne Temps sed non allocatur because there was nothing done upon the first Writ And the Defendant having made default it was not material Cro. 3. part 853. But the Defendant might have demurred No Venire facias to the Coroners after one to the Sheriff to this prayer For if the Plaintiff pray a Venire facias to the Sheriff he shall not challenge the Array nor have a Venire afterwards to the Coroners because the Sheriff is his Cousin or for any other principal challenge whereof he might by common intendment have Conusance when he so prayed the Venire facias for upon shewing this Cause at first he might have prayed Process to the Coroners but for a principal challenge of which by common intendment the Plaintiff could not know at the first as that the Defendant is of kindred to the Sheriff c. he may afterwards challenge the Array when they appear or if the Sheriff doth nothing upon the Writ he may pray a new Venire to the Coroners 15 H. 7. 9. If the Plaintiff prayes a Venire facias to If the Defendant denies the Planitiffs suggestion he shall have no benefit of it by Challenge the Coroner because he is of kindred to the Sheriff if the Defendant will not confess this but denies it this shall be entred and the Defendant shall not challenge the Array for this cause afterwards Br. tit Venire facias 21. and 23. If a Venire facias be awarded to the Coroners By Consent the Venire facias may be directed to a wrong Officer where it ought to be to the Sheriff or the Visne cometh out of a wrong place yet if it be per assensum partium and so entred of Record it shall stand for omnis consensus tollit errorem 1 Inst 126. li. 5. Mistryal without such consent 36. But if it be directed to the Coroners where it ought to be to the Sheriff
if it be alledged in a Ward in the City of Bristol c. the Venue shall be of the Ward not de Civitate A Venire facias was awarded from T. Ward and not de vicinet de T. and for this cause resolved to be ill and not amendable Cro. 2. part 399. Bro. tit Ven. fa. 8. If the issue be Si rex concessit per literas De vicinet left out ill patentes The Tryal shall be as hath been said where the Land lies and not where the Patent was made because the Patent is of Record and if it be traversed Where the Land lies it shall be tryed by the Record and therefore the issue being upon non concessit the issue is not upon the Patent but where the issue is upon non concessit or non dimisit of a thing which passeth by Deed the Tryal shall be where the Grant or Demise is alledged But of a Feoffment or Lease for life pleaded the issue being non Feoffavit or non dimisit Livery ought to be made and therefore the Tryal shall be where the Land lies Cro. 2. part 376. 3. part 259. Where the offence is laid in the Count Where the Action is laid in one County and the Justification in another the Tryal shall be where the Justification is to be in one County and the Iustification in another County and the Plaintiff replies de injuria sua propria c. The Visne shall be where the Iustification is alledged As one Example for all to illustrate In an Action upon the Case for words supposed to be spoken at Bridg-North in the County of Salop the Defendant pleads that he spake them as a Witness upon his Oath upon an issue tryed at Chard in the County of Somerset The Plaintiff replies de son tort demesne c And thereupon it was tryed by a Venire facias of Bridg-North And Error thereof assigned because it ought to have been by a Visne of Chard where the Iustification arose and it was held clearly to be a mis-tryal and not aided by the Stat. of Jeofailes wherefore the Iudgment was reversed Cro. 3. part 468. 261. 870. More 410. Replevin taking 2 Horses at such a place in Denford in Com. Northampton the Defendant makes Conâ—sans as Bayliff to the Lord Mountague of his Mannor of S. which Mannor is holden of the Honour of Gloucester and that the place in which c. is within the said Honour and alledges a Custome within the said Honour on which Custome the parties were at issue and the Venire facias was from Denford the place of taking which was moved after Verdict for that the Venue was not so large as the issue which was the Honour and of this opinion was the whole Court of C. B. Pasch 13 Car. 2. Hull vers Bâ—nning But the great question was whence the Venue should arise in this Case and per Bridgman Ch. Just and Just Hide in no Case can a Venue arise from an Honour and Ch. Just said he had caused the Prothonotaries to search for Precedents and they Honours could not find that ever a Venue did arise from an Honour which is but a bundle of services and an incorporeal thing from which no Venue can come and yet an Honour may have demesns as the Honours of Grafton and Hampton have but Gloucester not Ch. Just and Just Hide seemed that the Venue should be de Corpore Comitat. Hob. 266. 249. But when the Court was after moved for their opinion they bad them take a Venire facias at their peril and would give no opinion An action of Debt was brought on a Bond to perform Covenants in an Indenture wherely the Defendant had granted to the Plaintiff a walk called shrob-walk in the Forest of in Com Northampton and Covenanted for peaceable in joyment c. and he was ousted per Earl of Northampton who had right on which Right issue was joyned and the Venire facias was from Shrob-walk Per Cur. It 's not good for it appears by the Record that Shrob-walk is not a Vill but if the Obligation had been laid to be made at Shrob-walk the Venue should arise from thence as a Vill. Inter. Stirt Bales Pasch 19 Car. 2. B. R. The Venue shall follow and be according Out of what County to the issue As for words in Warwick-shire Thou art a Vide â—ic ante postea Thief and stolest my Iron The Defendant justifies says the Plaintiff stole the Iron in Leicester-shire and brought it into Warwick-shire and therefore he spake the words in Warwick-shire If the Plaintiff replies de injuria sua propria absque tali causa the Jury shall come from Leicestershire to which the absque tali causa refers for the words are acknowledged See Rolls tit Tryal 598. 623. When part of the matter to be inquired of is in one County or place and part in another the Tryal shall be there where the best Conusans of the matter may be As in an action upon the Case the Plaintiff declares that the Defendant took the From the place best known Horse of A. at S. and sold him at D. to the Plaintiff as his proper Horse and afterwards A. retook the Horse If the Defendant plead that the property was in him at the sale upon which issue is ioyned The Venue shall be de S. where the taking is supposed for there the property may be best known which is only in question 42. Ass 8. see several cases in Rolls ib. 603. under this head If the issue be whether L. did ride from London to York and from York to London Where the Counties cannot joyn 5 times in six days this may be tryed by London only Although part of the matter to be inquired of was done in each County In an action of Battery in London if the Defendant justifies in defence of his possesâ—on in D. in Essex and the Plaintiff says de son tort demesn sâ—ns tiel cause this ought to be tryed by both Counties if they might joyn because he may be found guilty at another day and therefore because they may not joyn this may be tryed in Essex Of Assises in confinio Com. See 1 Inst 154. In case for words in one County if the Defendant justifie in another County and the Plaintiff reply de son tort demesn c. although the Counties ought to joyn if they could and the Iustification is principally put in issue yet the Tryal may be in either County at the Election of the Plaintiff In Ejectment in London upon a Lease Rolls tit Tryal 620. made there of Land in Mid. if the Defendant plead not guilty this may be tryed in London because the Counties cannot joyn although London cannot joyn with another County 49 E. 3. 20. the Jury ought to enquire of the Ejectment in Mid. and judgement affirmed in a Writ of Error See Rolls tit Tryal 602. Two Counties may
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
it may be supplied by matter ex post facto and how And for this know that if damages be left out of a Vide hic cap. 6. Verdict this omission cannot be supplied 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 â— Writ of Inquiry of damages as in a Quar 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 point is omitted whereof on Attaint lyeth there this shall not be supplyed by Writ of Inquiry upon which no Attaint lyeth And therefore in Detinue if the Jury find 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 shall the Plaintiff Verdict set aside because the damages not well assessed loose the benefit of his Verdict because the Jury assessed no damages or did insufficiently assess them Certes in such Cases where damages only 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 Iudgment Release Damages 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 Iudgment for those damages well assessed And oftentimes the insufficiencâ— Verdict set aside in part of the Declaration shall set aside the Verdict as if an Action upon the Case be brought upon two promises and one of For insufficiency in the Declaration them be insufficiently laid and the Verdict give intire damages this is naught for the whole But if the Damages had been severally assessed upon the several promises 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 Release of damages where none were assessed the Plaintiff released his damages and costs and upon this had Iudgment upon which the Defendant brought a Writ of Error and assigned the Error aforesaid scil the insufficiency of the Verdict fed Judicium affirmatur because the Plaintiff had released his damages and costs which is for the benefit of the Defendant In Detinue of Charters or non detinet Verdict for the Plaintiff and Damages but the Iury did not find the value of the Déeds and a Writ of Inquiry was awarded to that purpose and returned and ruled good and by Twisden Just Debt against Executor who pleads plenè c. and it 's fouâ—d against him and the Iury give no damages that can't be aided by Writ of Inquiry Burton versus Robinson Pasch 17 Car. 2. B. R. In Dyer 22 Eliz. 369. 370. In a Wri Release of damages where they were not well assessed 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 Iudgment for the Land And Note that insufficient assessment of damages and no assessing is all one The Iury ought to assess no more damages Damages and Costs pro injdria illata than the Plaintiff declares for But they may assess so much and moreover give cost which is called Expensae litis though in the proper and general signification Dampnum also comprehends Costs of Suit as the Entry reciting both damages and costs well affirms scil Quae dampna in toto se attingunt cum c. But if the Iury do assess more damages More damages than the Plaintiff declares for then the Plaintiff declares for the Plaintiff may remit the overplus and pray Iudgment for the residue as in the 10th Report fol. 115. in Trespass the Plaintiff declared ad dampnum c. 40 l. at the tryal the Iury assessed damages occasione transgressionis prâ—dict 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 40 l. Damages remitted to which damage he had counted with increase of costs of suit and had 9 l. de Incremento added by the Court which in all amounted to 50 l. and had his Iudgment accordingly upon which a Writ of Error was brought and the Iudgment affirmed For as in real Actions 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 ease of Costs he shall recover for the expences depending the suit which being uncertain cannot be comprehended in the Count because the Count extends to damages past and not to expences of Suit For in personal Actions he counts Damages in real and personal Actions to damages because he shall recover damages only for the wrong done before the Writ brought and shall not recover damages for any thing pendant le briefe But in real 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 Damages and Costs intirely assessed and costs intirely together without making any distinction 18 E. 4. 23. But then they must not assess more damages and costs than the damages are which the Plaintiff counts to for if they do the Plaintiff shall recover only 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 13 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
commanded and may do it after Iudgment If the party grieved be dead his Heirs or Executors c. according to the Case may have a Writ of Error upon this Bill of Exceptions And no diminution can be alledged for the parties are confined to the matter in the Bill If the Iustice dye before he acknowledgeth his Seal according to the Act a Scire sac shall go to his Executor or Administrator for the Death of the Iudge is the act of God which shall not prejudice the party As in the case of a Certificate of the Marshal of the King's Host that the person outlawed was in the King's Service beyond Sea in a Writ of Error a Scire fac shall go to the Marshals Executor or Administrator upon shewing the Certificate If the Iudge denyeth his Seal the party may prove it by Witnesses ib. Error of a Iudgment at the Grand Sessions in the County of Pembrok in an Assise of darrein Presentment by Henry Cort against the Bishop of St. Davids Dorothy Owen al. for the Church of Stackpoole The fourth Error assigned was because the Issue being whether H. Cort did last present one R. D. the last Incumbent who was instituted and inducted upon his Presentation The Plaintiff offered in Evidence Letters of Institution which appeared to be and so mentions that they were sealed with the Seal of the Bishop of London because the Bishop of St. Davids had not his Seal of Office there And those Letters were made out of the Diocess And the Defendant had demurred thereupon That those Letters were insufficient and the Demurrer was denyed which Jones said was an Error because they ought to have permitted the Demurrer and should have adjudged upon it But it was held that the not admitting of the Demurrer ought not co be assigned for Error for when upon the Evidence the matter was over-ruled by the Iustices of Assize That was a proper cause of a Bill of Exceptions and the remedy which the Statute appoints in that Case And for the matter of the Letters of Institution sealed with another Seal and made out of the Dioâ—ess it was held they were good enough for the Seal is not material it being an Act made of the Institution the writing and sealing is but a testimonial thereof which may be under any Seal or in any place But of that point they would advise Croke 1. part 340. Note This Bill is to prevent the precipitancy of the Judges and ought to be allowed in all Courts and in all places of Pleadings and may be put in at any time before the Jury have given their Verdict But this Bill is rarely used there being impar congressus betwixt the Judge and the Councel and the Prudence of the Judges induce them to find special Verdicts in Cases of doubt and difficulty A Release Pleaded at the Assises after Issue joyned Et pred Def. in propria persona sua ven dic quod pred Justic Dom. Regis hic ad caption Jur. ss pred inter ipsum Def. prefat Quer. procedere non debent quia dic ' quod post xii diem F. ult preterit de quo die Jurat pred inter partes pred continuat fuit ante hunc diem scilt diem de Assise scilt primo die M. Anno c. apud c. pred Quer. per nomen c. remisit relaxavit c. Et hoc c. unde pet quod Justic pred ad captionem Jur. pred ulterius procedere nolunt The Death of one of the Defendants Pleaded after the last Continuance Et pred Def. per A. B. Attorn suum ven pred T. non ven super hoc pred Def. dic quod post ult concinuationem placiti pred scilt post xv Pasche ult preterit de quo die loquela pred ult continuat fuit hic usq ad hunc diem scilt in Cro. sce Trin. tunc prox ' sequen ' ante eundem diem scilt decimo die Maii ult preterit pred T. apud A. pred obiit Et pet quod null process ' nec aliquid aliud in placito pred ulterius versus prefat T. fiat Et quia pred J. K. hoc non dedic Ideo null process nec aliquiâ— aliud in placito pred versus prefat T. fiat c. A Baron Challenges the Pannel because no Knight was retorned of the same Et sup hoc idem T. calumpniat arraiament panelli pred quia dic quod ipse est tempore arraiament panelli ilâ—ius fuit Baro hujus Regni Angliae locum vocem habens in quol Parliamento hujus Reg. Quodque in eodem panâ—llo nullus Miles nominat retorn existit Et hoo paratus est verificare unde petit Judicium quod panellum illud cassetur c. Evidence and demurrer upon Evidence Middleton against Baker Cro. Eliz. 42. fol. 751. In Eject It was held by all the Court upon evidence to a Jury That if the Plaintiff give in evidence any matter in writing or Record or a sentence in the Spiritual Court as it was in this case and the Defendant offers to demurr thereupon the Plaintiff ought to joyn in the demurrer or wave the Evidence because the Desendant shall not be compelled to put matter of difficulty to lay Gens and because there cannot be any variance of a matter in writing But if either party offer to demurr upon any evidence given by Witness the other unless he pleaseth shall not be compelled to joyn because the Credit of the testimony is to be examined by a Jury and the Evidence is incertain and may be enforced more or less But both parties may agree to joyn in demurrer upon such evidence And in the Queens Case The other party may not demurr upon evidence shewn in Writing or Record for the Queen unless the Queens Councel will thereto assent But the Court in such case shall charge the Jury to find the matter specially as appears 34 H. 8. Dyer 53. But this is by Prerogative vide lib. 4. 104. the same case and 1. Inst 72. where my Lord Cook says If the Plaintiff in evidence shew any matter of Record or Deeds or Writings or any sentence in the Ecclesiastical Court or other matter of evidence by Testimony of Witnesses or otherwise whereupon doubt in Law ariseth and the Defendant offer to Demurr in Law thereupon the Plantiff cannot refuse to joyn in demurrer no more than in a Demurrer upon a Count Replication c. and so è converso may the Plaintiff Demurr in Law upon the evidence of the Defendant but the Kings Councel shall not be enforced to joyn in Demurrer but in that Case the Court may direct the Jury to find the special matter So that the several sorts of evidence make no difference as to the joyning in Demurrer 1. part Leon. 206. Darrose against Newbott Cro. 4. Car. fol. 143. In Error of a Judgment in Bridgewater The Error assigned was for 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
whether a Statute shewed Statute before be the true Statute or not shall be by the examination of the Mayor and Clerk of the Statutes which took the Statute and not per pais ib. Whether a Statute hath two Seals or not shall be tryed per pais Leon. part 228 229. 27. In Assise the Tenant said that the Escheator Lands were taken into the Kings hands this shall be tryed by the Examination of the Escheator 28. If one in avoidance of an Out ' awry Certificate alledge that he was in Prison at Burdeaux ultra mare in servitio Majoris de Burdeaux this shall be tryed by the Mayor's Certificate and in such like Cases other Tryals shall be by the Certificate of the Marshal of the Messenger Host and by the Captain of Calice and also by Messenger of a thing done beyond Sea Ib. 29. At the Petit Cape the Tenant said Petit Cape that he was imprisoned 3. days before the default and 3. days after this shall be tryed by the Examination of the Attorney Nient Attach per 15. Jours in Assize shall Bayley not be tryed per pais but by examination of the Bayley ib. 30. It seems an Almanack is so infallible Almanack that it hath countervailed the Verdict of a Jury For in Error of a Iudgment given in Lynne the Error assigned was that the Iudgment was given at a Court held there on the 16th day of February 26 Eliz. and that this day was Sunday and it was so found by Examination of the Almanacks of that year upon which it was ruled that this Examination was a sufficient Tryal and that a Tryal per pais was not necessary although it were an Error in Fact and so the Iudgment was reversed Cro. 3. part so 227. 1 Leon. 242. the same Case and there it was said it was twice so ruled before 31. In ancient times there was a tryal in Criminal Causes called Ordalium for Orde al. upon Not Guilty pleaded the Defendant might put himself upon God and the Country as is the use at this day or else upon God only and then if he was a Fréeman he was to be tryed per ignem that is he was to pass over Novem vemeres ignitos nudis pedibus and if he was not hurt by this then he was to be acquitted otherwise condemned and this was called Judicium Dei But if he was a slave then his tryal was to be per aquam and that divers ways which all appear in Lambard verbo Ordalium From which kind of tryal I presume we still retain this expression of an innocent person That he need not fear fire or water this manner of tryal was first prohibited by the Canons then by Parliament The tryal by Battel is likewise prohibited by Battel the Canons but not by Parliament as you may read in the ninth Report fo 32. and in the authorities there cited which I therefore omit to recite here though I have the Books by me and so in this whole Treatise where I refer you to a Book I shall not set down the authorities cited in that Book which will avoid prolixity 32. When the matter alledged extendeth Which Tryal shall be first to a place at the Common Law and a place within a Franchise it shall be tryed at the Common Law 1 Inst 125. 4. Inst 221. In what Cases a Tryal in one issue shall Tryal in one issue binds in another bind the same party in another issue upon the same matter In Debt against two per several Precipes if one plead a release and they are at issue upon the Deed and the other plead the same issue if it be found the Deed of the Plaintiff in the former issue this shall bind him in the second issue 12 H. 4. 8. In trespass if the Defendant Plead villenage in the Plaintiff if this be found against the Defendant this shall bind him in the same issue in another action in the same Court betwixt the same parties 44. Ass 5. If a man be found guilty of a Conspiracy upon an Indictment at the Kings suit this shall not bind in a Writ of conspiracy at the suit of the Party but he may plead not guilty 27. Ass 13. If a man upon an Indictment of extortion confess it and put himself in the Kings grace and makes fine c. this shall bind him and he shall not plead not guilty to the suit of the party for a confession is stronger than a Verdict 27. Ass 57. per Sharde vide Rolls tit Tryal 625. He which is not party to the issue nor In what Cases tryal against one shall be against others can have attaint or challenge the Inquest shall not be bound by the Tryal 11. H. 4. 30. And therefore in Trespass against two and one pleads a Release and the other justifies as his Servant If the issue be found against the Master it shall not conclude the Servant 11 H. 4. 30. Rolls ib. 625. One shall not be compelled to try a traverse At what time the Tryal shall be the same Sessions he makes it for a man shall have time to make his defence and is not supposed to be ready to answer sudden objections and for this reason many Iudgments upon Indictments have been reversed Iustices of Oyer and Terminer nor Iustices of Peace cannot inquire and determine the same day But Iustices of Gaol Delivery and Iustices in Eyre may Justices of Peace cannot proceed to the delivery of a person indicted of Felony before them the same day he is arraigned 22 E. 4. Coron 44. Declared by all the Iustices of England to be observed as a Law In an Indictment in B. R. or in the same County and removed thither the Defendant may be arraigned and tryed the same day For the Kings Bench is a Court of Eyre for all Offences in that County Otherwise of an Indictment removed out of another County Vide Rolls tit Tryal 626. many Cases de ceo 33. All matters done out of the Realm of Marshal Affairs England concerning War Combate or Deeds of Arms shall be tryed and termined before the Constable and Marshall of England before whom the Tryal is by Witnesses or Witnesses or Combate by Combat and their proceeding is according to the Civil Law and not by the Oath of Twelve men 1 Inst 74. 261. Wherefore if the Kings Subject be killed by another of his Subjects in any Foreign Country the Wife or Heir of the Dead may have an Appeal before the Constable and Marshall who sentence upon the testimony of Witnesses or Combat ib. So if a man be wounded in France and dye thereof in England ib. 4. Inst 140. It is worthy our observation to take What Issue shall be first tryed notice when there are several issues which of them shall be first tryed And for this you have already heard that where issue is joyned for part and a Demurrer for
eadem c. The Plaintiff replies de injuriâ suâ propriâ c. The evidence was that the Plaintiff as Lady of the Mannor took the Horse as an Estray and it was Cryed and Marked c. that the Defendants refused to pay for the meat and took him away before the year and a day was out 1. Per Wadh. Wyndham Just d'assize A Lord may detain an Estray for meat yet no Trespass lies if the owner takes him but an action of the Case lies for the meat 2. If the action had been brought against the servant only he must justifie c. But being brought against Master and Servant this joynt-justification is good Cambr. Summer Assises 1667. Lady Hatton against Cotes and al. In Trespass the evidence for the Defendant was that the Defendant had a Barn and purschased a way over the Plaintiffs Land to that Barn after the Defendant bought other Lands lying contiguous to that Barn on the one side and to a Haven on the other side and carried Carriages by that way to the Barn and through it over his own new purchased Land to the Haven Per Hale Ch. Baron If I purchase a general way to such a place I may go from thence on my own ground whither I please though I purchase the ground after the way purchased Summer Assises Norf. 1665. Heynsworth vers Bird. Trespass was brought against many by a School-mistress for taking away a child her Scholar with a Scarfe of the Mistresses per Keeling Ch. Just In Trespass for taking things all are principals that are present and consenting Contra in taking persons and this action lies not by the Mistress for the child but for the Scarfe only Lent Norf. Ass 1663. Mary Coopers case Trespass lies for Lessee in Ejectment on a fictitious Lease to recover mean profits during the continuance of that Lease mentioned on Record And the Recovery shall maintain it Otherwise if brought by the Lessor for he is no party to the action Trespass lies not for pulling down a Pew in a Church fastned to a pillar with a Chain Contra had it been fixed by nails driven into the pillar per Glyn Ch. Just Trevors case Trespass quare fregit liberam Warrenam suam and took his Conies In evidence it appeared that the Plaintiff had liberty of chase in the place which though it includes Warren yet a general Trespass lies not but an action of the case E. of Arundels case Pasch 1658. B. R. Per Earl Sergeant if Beasts be impounded and the Key lost the Officer by Replevin may break the pound and deliver the Cattle per Stat. Marlebridge 52 H. 3. 21. Tenants in Common must joyn in Trespass done against them so Avowry Lead and Lamsteads case 7 Car. B. R. cited by Finch in Argument Or Tenant in Common surviving shall have Trespass In Trespass the Defendant sets forth a conditional Feoffment for payment of money at such a day and place and that he paid it accordingly issue joyned on the payment at the day and place evidence of payment before the day is not good Contra had the special matter been pleaded with acceptance More 47. In Trespass with Continuando to recover mean profits an Entry and possession of the Land before the Trespass must be proved and also another Entry after the Trespass In Trespass the Defendant prescribes to dig in the Common for Clay to repair antient houses holden of that Mannor and good Berney vers Stafford Norf. Lent Assises 1667. In Trespass they were at issue on Not Guilty and at the Assises the Defendant left his former plea and pleaded an accord with satisfaction the Iudge would have had it replied to and tryed presently but the Councel refused whereupon the Jury was sworn and the Plaintiff nonsuited Bedford Assises Lent 1667. Green vers Reynolds But this was contrary to the opinion of Sir Orlando Bridgeman at the same Assises and Contr. to 10 H. 7. 21. and 1 Bul. 92. Trespass lies by Recoveror in Erroneous Iudgement for a mean Trespass because the Plaintiff in Writ of Error recovers all mean profits and the Law by fiction of relation will not make a wrong doer dispunishable 13. rep Co. 22. but Contra where Act of Parliament restores c. Trespass for assault and wounding in Suff. the Defendant as to vi armis non Cul. As to the other justification of molliter Manus c. in Norf. and several Tryals Per Hale Ch. Baron Suff. Ass Summer 1668. the vi armis can't be tryed till the other be tryed Contr. If the first issue of non Cul. was as to the wounding and by him evidence of Livery of seisin generally shall be intended for life only The Hogs of B. were put into the yard of A. and broke into the Land of C. and did Trespass action lies against A. though the servant of B. did look to them and serve them by which the owner had the special possession of them So if Agisted Cattle do Trespass the Agistor shall answer Dawtry vers Huggins Clayton 33. per Barkley 11 Car. York A. by Indent of uses raised an Estate to B. in Fee who regrants Turbary to A. by another Deed and after A. levies a fine to confirm the Estate and uses abovesaid declared this doth not touch the Turbary per Vernon 11 Car. York Clayton 42. Any one imployed by an Officer is an Officer within 7 Jac. 5. to plead general issue and give the special matter in evidence Clayton 54. Prescription to tether Equos Boves upon such a balk c. Mares and Cowes good evidence within that prescription Per Barkley Clayton 54. Per Hale A Corporation may bargain and sell though it has been thought an use upon use they being seised to the use of their house But I think it rather a trust than an use If a Just of P. send his Warrant to I. S. who is no Officer to bring one before him if I. S. be no Officer he is not bound to execute it yet if he does execute it it 's good and he may execute it in any part of the County And so a Constable of one Town may execute a Warrant in any other Town in the same County and any such Warrant is as large as the Justices Commission is per Hale Norf. Summer Assises 1668. Wrongries case In Trespass against one for Gleaning on his ground per Hale Norf. Sum. Assises 1668. The Law gives licence to the poor to glean c. by the general Custom of England but the licence must be pleaded specially and can't be given in evidence on non Cul. Trover The Citizens of London gave in evidence their Custom to take Toll Jones 240. In Trover for an Horse proved of 15 l. value the Jury gave but 3 l. damages upon mistake they thinking that the Plaintiff had his Horse again Per Wadh. Wyndham if the Jury had not been gone they should have mended their Verdict but a new action of
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
assisas in ComÌ„ N. Capiend assignÌ„ ê‘ formam statuti c. venÌ„tam infra nominatÌ„ J. A. quaÌ„ infra scriptÌ„ H. C. ê‘ atturnatÌ„ suos infra ContentÌ„ IurÌ„ Iure unde infra fit mentio ExactÌ„ similitÌ„ venerÌ„ Qui ad veritatem de infra ContentÌ„ dicend electi triati Iurati fuerÌ„ Super quo pÌ„d H. ê‘ quendam J. B. de Consilio ipsius H. C. manutentione exitus interius IunetÌ„ Coram pÌ„fatÌ„ IustÌ„ IurÌ„ pÌ„d in Evidentijs oftend dicÌ„ quod c. Here recite the Evidence truely unde petitÌ„ IudiciuÌ„ qd IurÌ„ pÌ„d veredictÌ„ suum de suê‘ infra ContentÌ„ pro ipso H. reddant c. Et pd J. A. ê‘ quendaÌ„ C. J. de Consilio suo Demurrer dicÌ„ qd materia ê‘d ê‘ pÌ„fatÌ„ H. C. IurÌ„ pred suê‘ius in Evidentiis ostentÌ„ minus in lege existic ad pro band exitum interius IunctÌ„ pro parte ejusdem H. quodque ipse ad materiam illam in forma pÌ„d in EvidentÌ„ ostentÌ„ necesse necesse non habet nec ê‘ legem terrÌ„ tenetÌ„ respondere hoc paratus est verificare unde pro defectu sufficientÌ„ materÌ„ IurÌ„ pÌ„d in hac parte ostens Idem I. petitÌ„ IudicÌ„ quod IurÌ„ de VeridictÌ„ suo suê‘ Exit pÌ„d reddend exoneretur debitum suum infra specÌ„ una cum dampnÌ„ suis occasione de tentÌ„ debiti illius sibi addiundi cari c. Et pÌ„d H. C. Ex quo ipse sufficÌ„ materÌ„ in Joynde lege ad manutenen exitÌ„ infra ContentÌ„ pro parte ipsius H. IurÌ„ pred suê‘ius in EvidentÌ„ ostens qd ipse ê‘atÌ„ est verificare quaÌ„ quidem materiaÌ„ pÌ„d J. non dedicit nec ad eam aliqualiter respond sed verificationem illam admittere omnino recusat petÌ„ IudicÌ„ qd pred J. ab actione sua pred versus Eum habend precludatur ac qd IurÌ„ pred de VeredictÌ„ suo suê‘ exitÌ„ pred reddend onerentur c. A Precedent of a Demurrer upon the Evidence And now at this day the said Plaintiff and Defendant by their Attornies did appear and the Iury likewise did appear and were sworn c. upon which Sir T. W. Serjeant at Law of Councel with the Plaintiff gave in Evidence so and so and repeat it truely and did require the Iurors to find for the Plaintiff upon which J. C. of Councel with the Defendant saith That the Evidence and Allegations aforesaid alledged were not sufficient in Law to maintain the Issue joyned for the Plaintiff to which the Defendant néedeth not nor by the Laws of the Land is not holden to give any Answer wherefore for default of sufficient Evidence in this behalf the Defendant demands Iudgment that the Iurors aforesaid of giving their Verdict be discharged c. and that the Plaintiff be barr'd from having a Verdict c. Then the Plaintiff joyns and says That he hath given sufficient matter in Evidence to which the Defendant hath given no Answer c. and demands Iudgment and that the Iury be discharged and that the Defendant be Convicted then the Iury may give Damages if Iudgment shall happen to be for the Plaintiff c. A Bill of Exception Memorand That the First day of August Ebor. sc An. 1650. before T. P. and W. Iustices of our said Lord the King for taking of Assizes in the said County assigned in a Plea of Trespass and Ejectment which J. S. in the Court of our said Lord the King before himself by Bill doth Prosecute against E. B. supposing by the said Bill that the aforesaid T. B. c. and recite the substance of the Declaration or what it is c. and the Issue and then what the Evidence to prove the Defendant guilty was c. which here was a Surrender of a Copyhold out of Court c. and that he desired the Iury aforesaid to give their Verdict for the said T. B. of and upon the Premisses and that he likewise desired the Iudges aforesaid that they would inform the Iury aforesaid that the Surrender aforesaid out of Court made was good and effectual in Law and the aforesaid Iustices the aforesaid Surrender of the Land aforesaid with the Appurtenances made out of Court of the Mannour aforesaid in form aforesaid did affirm to the said Iurors was not good in Law by which the said Thomas for that the aforesaid matter to the said Iurors in Evidence shewed doth not appear c. did request of the said Iustices according to the form of the Statute in such case provided this present Bill which doth contain in it the matter aforesaid above by him to the Iurors aforesaid shewed by which the said Clayton's Reports Iustices at the request of the said Thomas this Bill have sealed at D. aforesaid 1. Westm 2. 31. 13 E. 1. When the Iustices will not allow a Bill of Exception upon Prayer if the Party impleaded tender the same unto them in Writing and requires their Seals thereunto they or one of them shall do it 2. If the Exception sealed be not put into the Roll upon Complaint thereof to the King the Iustice shall be sent for and if he cannot deny the Seal the Court shall procéed to Iudgment according to the Exception This Bill of Exception is given by the Statute Westm 2. cap. 31. before which Statute a man might have had a Writ of Error for Error in Law either in redditione Judicii in redditione Executionis or in Processu c. which Error in Law must be apparent in the Record or for Error in sait by alledging matter out of the Record as the death of either party c. before Iudgment But the mischief was if either party did offer any exception praying the Iustices to allow it and the Iustices over-ruling it so as it was never entred of Record this the party could not assign for Error because it neither appeared within the Record nor was any Error in fait but in Law and so the party grieved was without remedy until this Statute was made This Act extendeth to all Courts to all Actions and to both parties and to those who come in their places as to the vouchee c. who comes in loco tenentis It extendeth not only to all Pleas Dilatory and Peremptory c. to Prayers to be received Oier of any Record or Déed and the like but also â—o all Challenges of Iurors and any material Evidence given to any Iury which by the Court is Over-ruled 2 Inst fo 427. All the Iustices ought to Seal the Bill of Exceptions yet if one doth it it is sufficient if all refuse it is a contempt in them all And the party grieved may have a Writ grounded upon this Statute commanding them to put their Seals Juxta formam Statuti hoc sub periculo quod incumbit nullatenus omittatis The party must pray the Iustices to put their Seals but if they deny it they may be
conclusion of a Verdict shall aid the Imperfections of it 400. For whom the Verdict shall be said to be found 401 402 403 404. 407 408. 501. Variance betwixt the Verdict and the Nar. 501 502 503. Verdict by defauit 504. Venire fac of this Cap. 3. per tot and Cap. 4. per tot To whom to be directed 38 c. what faults in it shall vitiat the Tryal 50 60 c. 129. De novo 54 55 56 57. By Proviso 62 63 64. Visne Cap. 8. per tot from what places ibid. The Venue shall follow the Issue 101. 113. 115. 120. 109. 121. De Corpore Com. 101 102. 124. from two Counties 116 117. 107. where the Writ is brought 117. 105. from the next adjoyning County 120. 127 128. where of Matters done beyond Sea 105. where the Land lyes 107. 122. 125 126. 128. from two places in one County 123. out of a wrong place by consent 129. Suburbs of a City 129. View 271. Use 223. Usury 243. W. WItnesses Tryals by them 16. 31. Who may be Witnesses who not 183. 185 186. 188. 243 2424. 247 48. One Witness sufficient 215. 233. Their Priviledges 186. Detained 187. Witnesses joyned with the Jury 233. A Witness is to have his Charges 246. Witnesses against the King 247. Wills 18. 215 216. Wager of Law 23. Wales 127. Warranty 367. 179. Way 219. Warren 220. FINIS Books Printed for and Sold by George Dawes at his Shop over against Lincolns-Inn Gate in Chancery-Lane THE History of the World in Five Books I. Intreating of the Beginning and first Ages of the same from the Creation unto Abraham II. Of the Times from the Birth of Abraham to the Destruction of the Temple of Solomon III. From the Destruction of Jerusalem to the Time of Philip of Macedon IV. From the Reign of Philip of Macedon to the Establishing of that Kingdom in the Race of Antigonus V. From the setled Rule of Alexander's Successors in the East until the Romans prevailing over all made Conquest of Asia and Macedon Written by Sir Walter Raleigh Knight with his Life and Tryal added to it in Folio Brief Animadversions on Amendments of and Additional Explanatory Records to the Fourth Part of the Institutes of the Laws of England concerning the Jurisdiction of Courts By William Pryn Esq in Folio A Book of Judgments in real personal and mixt Actions and upon the Statutes all or most of them upon Writs of Error collected out of the choice Manuscripts of Mr. Brownloe and Mr. Moyle sometimes Protonotaries of the Common Pleas as also of Mr. Smither formerly Secondary of the same Court. Perused transcribed corrected and tabled with Addition of Notes by George Townsend Esq second Protonotary of the Common Pleas Very useful and necessary for all Protonotaries Secondaries Students Clerks of Judgments Attorneys and all Practicers of Laws in Quarto Modus Intrandi Placita Generalia The Entring Clerks Introduction being a Collection of such Precedents of Declarations and other Pleadings which Process as well Mesne as Judicial as are generally used in every days practice with Notes and Observations thereupon Composed for the benefit of the Students of the Common Law of England as also of the Attorneys Entring Clerks and Sollicitors of the Courts of Common-Pleas and King's Bench acquainting them with Rudiments of Clerkship and such general Pleadings and Processes as are used at this day in the Courts of Records at Westminster By William Brown Gent. Author of Formulae bene Placitandi in large Octavo De Jure Maritimo Navali or a Treatise of Affairs and of Commerce in Three Books The Third Edition Corrected and inlarged with many useful Additions through the whole Book by Charles Molly Esq in large Octavo Jus Imaginis apud Anglos Or the Law of England relating to Nobrlity and Gentry faithfully collected and methodically digested for common benefit By John Brydal of Lincolns-Inn Esq in large Octavo Jura Coronae His Majestie 's Royal Rights and Prerogatives asserted against Papal Usurpations and all other Anti-Monarchical Attempts and Practices Collected out of the Body of the Municipal Laws of England in large Octavo Parsons Law or a View of Advowsons wherein is contained the Right of Patrons Ordinaries and Incumbents to Advowsons of Churches Collected by William Hughes of Greys-Inn Esq The third Edition reviewed and much enlarged by the Author in his life-time in large Octavo Mounsieur Scarron's Letters to Persons of greatest Eminency and Quality Rendred English by John Daves of Kidwelly in large Octavo Of the Office of the Clerk of the Market of Weights and Measures and of the Laws of Provision for Man and Beast for Bread Wine Beer Meal c. By William Shepard Esq in Octavo Hughes Quaeries or choice Cases for Moots containing several Points of Law not resolved in the Books being very useful for the Students of the Common Law Collected by William Hughes Esq late of the Honourable Society of Grayes-Inn in Twelves Decus Tutamen Or a Prospect of the Laws of England purposely framed for the Safeguard of the King's Majesty his Sacred Person Crown and Dignity against all traiterous Speeches Designs and Conspiracies To which are added peculiar Notes upon the Judgment in High Treason fit for all His Majestie 's Subjects and Leige-People to be acquainted withal By John Brydal of the Honourable Society of Lincolns-Inn Esq in Twelves There may be had several sorts of Blank Bonds very Vseful and Necessary for Attorneys and all other Persons relating to the Law SIngle Bonds for Payment of Money Double Bonds for Payment of Money Bonds for Performance of Covenants either Single or Double Single or Double Bonds for Arbitration with an Umpire Single or Double Bonds for Arbitration without an Umpire Single or Double Bonds to save Sureties harmless General Releases Letters of Attorney to Receive Money Warrants of Attorney to Confess Judgments Bail Bonds Single Bonds without Conditions Double Bonds without Conditions Sheriffs Warrants upon mean Process for any County or City Blank Warrants for a Justice of Peace Licenses for Ale-house Keepers Indentures Ruled and Text. And the best Ink for Records
without such consent of parties This is an insufficient Tryal not remedied by any Statute except it be upon an insuffâ—ient suggestion and then the Statute of 21 Jac. 13. helps it Vpon suggestion that the Plaintiff and Venire facias to some of the Coroners the Sheriff and one of the Coroners are of kindred to the Plaintiff or Defendant or upon any other suggestion which contains a Principal challenge the Venire facias may be directed to the other Coroners Dier 367. Error of a Iudgement in Northampton Bayliffs because in Northampton the Court being held before the Mayor and two Bayliffs the Venire facias upon the Issue was awarded to the two Bayliffs to return a Jury before the Mayor and Bayliffs secundum Consuetudinem which being returned and Iudgement given the Error assigned was because the Bayliffs being Iudges of the Court could not also be Officers to whom Process should be directed there being no Custome that can maintain any to be both Officer and Iudge But all the Court absente Hide conceived it might be good by Custome And that it is not any Error for the Iudges be not the Bayliffs only but the Mayor and Bayliffs and it is a common course in many of the Antient Corporations where the Bayliffs are Judge and Officer to return Writs Judges or the Mayor and they be Judges yet in respect of executing Process they be the Officers also And one may be Iudge and Officer diversis respectibus as in Redisseisin the Sheriff is Judge and Officer Whereupon Iudgement was affirmed Cro. 1 part 138. In Trespass and Assault laid in the Venire facias to the Garden of the Palace of Westminster Rolls tit Tryal 667. Court to be at the Palace of Westminster It was adjudged that the Venire facias shall issue al Garden del Palace and not to the Sheriff of Middlesex Bro. tit Ven. fac 31. In Trespass against two if one plead Award of Venire facias and two issues are joyned upon his Plea and two other issues are also joyned and the Court award a Venire ad triandum extitum illum quam praedictum alium exitum inter the Plaintiff and the other Defendant c. This is a good award although there be several issues betwixt the Plaintiff and both Defendants because that this word Exitus may be for all reddendo singula singulis Hob. 91. If an Inquest remain for default of Rapers and a Decem Tales is awarded and the Defendant saith for his deliverance that he is Lord of the Rape where c. and that all there are within his distress and prays a Writ to the next Hundred The Court may try this by Prochein Hundred Tryors presently without a return of the Sheriff and if it be true may award to the next Hundred otherwise if it be false 3 H. 6. 39. CAP. IV. What faults in the Venire facias shall vitiate the Tryal what not When a Venire facias de novo shall be awarded when several Venire facias's When the Venire facias shall be betwixt the party and a stranger to the Issue Who may have a Venire facias by Proviso and when WE have now shewed you to what Officer the Venire facias shall be directed The next step in the Writ is Praecipimus tibi quod Venire facias Which words Venire facias are Venire facias why the Writ so called the most effectual words in the Writ and therefore they give the denomination to the whole Writ And here opportunity is offered us to speak something of a Venire facias in general I am not ignorant how our Books swarm with Cases which arise from the defects in this Process and how that Verdicts have been set aside Iudgements stayed and reversed for want of sufficicient Returns misawarding disagreement with the Rolls discontinuance and many other faults in this Writ But the Statutes of Jeofailes especially the Statute 21 Jacob. cap. 13. have pardoned as I Statute of Jeofailes 21 Jac. 13. may so say these enormities As the awarding this Writ hab Corpora or Distringas to a wrong Officer upon any insufficient suggestion or by reason the Visne is in some part misawarded or sued out of more places or of fewer places than it ouhgt to be so as some place be right named The misnaming of any of the Jury either in Sir-name or addition in any of the said Writs or in any return thereupon so that upon examination it be proved to be the same man 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 Undersheriff 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 or Information upon any popular or penal Statute Wherefore since Informations and popular Actions are grown so frequent Popular Action c. 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 only helps the mis-naming of a Juror in Sir-name or addition and saith nothing of his Christian name wherefore I conceive the Law in Christian name mistaken in the Venire facias incurable Codwels 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 so 203. doubted thereof I may well put the Christian name right in the Venine facias wrong in the Distringas 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 of 21 Jacob. for that only helps the Sir-name But with Reverence to the Courts doubt I conceive clearly it is holpen 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 Codwels Case aforesaid where in the Pannel 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 Iudgement was arrested But it is there adjudged that if he had been well named upon the Venire and misnamed on the Distringas or Postea then upon Examination it should be amended But the Countess of Rutlands Case lib. 5. 42. is express in the point and so is Cro. 3. part 860. Rolls 196. Teppet in the Venire and Tipper in the Distring Amended And so if the mistake be in the Pannel Jurata the Sheriff may come in Court and amend it And so if Samuel be in the Venire and Distringas and Daniel in the Nomina Juratorum upon examination this may be amended And so if the name be right in the Ven. and mistaken in the Christian name in the Distringas or Postea it is amendable Rolls 197. And so if he be De A in the Venire and Distringas and De B. in the Nomina Juratorum this is amendable 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 fatal in the Venire that it causes a mis-tryal as in the mistake of a Jurors Christian Name or where a Juror not returned is sworn c. then the Verdict Venire facias de novo is to be set aside and a 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 One Jury shall not try a cause twice and recorded by the Court 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 Iudgement 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. If upon an issue all the matter be not Venire facias de novo fully inquired a Venire facias de novo shall issue 18 E. 3. 50. In an Audita Querela if the parties go to issue upon payment according to the defeasans of the Statute and this is found for the plaintiff but the Jury do not assess Damages the Court shall award a Venire facias de novo to assess damages 22 E. 3. 5. vide hic cap. 6. and Rolls tit Tryal 593. 595. If the Record of the Nisi prius be unum modum tritici for modium and the Plaintiff is Nonsuit at the Aâ—â—â—se for this mistake if the Record in Court be right scil Modium this Nonsuit shall not be Recorded but a Venire facias de novo shall be awarded So for any other mistake as if the Record in Court be Grays-Inn Lane c. and the Nisi prius which is but a transcript be Graves-Inn Lane c. For this is a nonsuit upon another Record than what is in Court In Battery against Three who plead Three several Pleas and upon the Writ of Nisi prius two issues are found for the Plaintiff and Damages assessed but nothing is found for the third issue this is a mis-trial and a Venire facias de novo shall issue In Detinue if the Jury find Damages Detinue and Costs but no value as they ought this shall not be supplied by a Writ of Inquiry of Damages but a Venire facias de novo shall be granted And so of other defects in finding the full issue In a Quare impedit if the issue be found Quare impedit for the Plaintiff but by negligence the Jury do not inquire of the four points scil de plenitudine ex cujus prâ—sentatione si tempus semestre transierit and the value of the Church per annum This shall be supplied by a Writ of Inquiry without any Venire facias de novo because the Court ex officio ought to have charged the Jury with the four points of Inquiry and if the Jury had found them no Attaint lay for as to this they were but as an Inquest of Office In a Writ of Annuity if the issue Annuity be found for the Plaintiff but the Jury do not assess Damages or Costs this shall not be supplied by a Writ of Inquiry but a Venire facias de novo shall be granted In Ejectment against Baron and Feme and Ejectment the Jury find the Wife not guilty and find a special Verdict as to the Husband which special verdict is afterwards adjudged insufficient by the Court a Venire facias de novo shall be granted for both as well the Wife as the Husband and the Wife may be found guilty because the Record and issue is intire and the Verdict is insufficient and void in tout So if there be several issues and the Imperfect Verdict Jury find some well and directly and in others special Verdicts which are imperfect a Venire facias de novo shall be granted for all and the Jury may find contrary to their first finding In trespass of Assault and Battery and taking away of grain and the Defendant as to the Batery justifies in defence of his grain upon which the Plaintiff demurs and as to the grain he pleads not guilty which is found for the Plaintiff and the Jury do not tax Damages for the Battery depending in demurrer as they ought in this case if the demurrer be afterwards adjudged for the Plaintiff yet the Damages for this cannot be afterwards supplied and taxed by a Writ of Inquiry of Damages but a Venire facias de novo shall issue to Tryal because all is comprised in one Original Vide apres cap. 13. and devant cap. 2. Who shall grant it In a Scire facias upon a Recognisance in Chancery if the Parties be at issue upon which the Record is commanded into B. R. and there it appears that the Venire facias is not well awarded the Venire facias de novo shall be awarded in the Kings Bench and not in the Chancery Roll. â—it Tryal 723. In Yelvertons Reports fo 64. the Case Album breve the County left out in a Venire facias is That a Venire facias was made Vicecomiti leaving out Salop for which there was a blank left in the Writ But re vera it was returned by the Sheriff of Salop. In Arrest of Iudgement it was alledged that the Venire facias was Vicious 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 aided by the Statute of Jeofailes For it might rather be called a blank than a Writ because it was directed to no Officer If there be no return of the Sheriff indorsed upon the Venire facias it was held not amendable 35 Eliz. lib. 5. 4 Otherwise of the Distringas
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
Trover lies for damages for the Horse in which the Jury shall prove the 3 l. given was only for the conversion not the value of the Horse and by him Trover lies for goods in the Plaintiffs possession to recover damages for the conversion only Tyndal vers Jolliffe Norf. Lent Assises 1660. In Trover by Administrator where the conversion was in the time of the Intestate the Plaintiff must shew the Letters of Administration Contr. where the conversion was after his death Per Hale Norf. Sum. Ass 1660. If an Estray be claimed within the year and the day c. and the Lord refuses to deliver it Trover lies though the keeping is not paid for and the Lord sayes he detains for the same and the Lord can't detain for the meat c. but must bring his action Per Moreton Just Lent Norf. 1667. Bond vers Paston Quaere vide Dent tit Trespass per Wyndham Contr. and I think is Law At the same Assises Daniel vers Berney by Moreton Just Proclamation may be made of an Estray by any person and it is not necessary that it should be made by the Bell-man or any other Officer Vide Co. Entries 170. Barber vers Fawcet In Trover issue was joyned on tender of amends for keeping c. and Verdict pro Plaintiff and judgement Note I find precedents that in Trover the matter of an Estray may be pleaded specially or given in evidence on Not guilty Oats were taken from the owner and carried to a Miller to make into Oat-meal and before it was done the owner prohibits the Miller c. and demanded the Oats who notwithstanding made them into Oate-meal Per Barkely it 's a conversion in the Miller 1630. Clayton 57. Hollworth's case On non Cul. The Defendant gave in evidence a seisure for goods Foreign bought and Foreign sold Per Custom of Lynn Norf. good per Hale Norf. Sum. Ass 1668. Harwich vers Twells A man lends his Horse to a special purpose the Bailee abuses the Horse and over works him then the lender takes the Horse again Per Hugh Wyndham Just Lent Assises Bucks Trover lies not Constables case Dower In Dower the issue was ne unque seisie que Dower and for the Plaintiff a Feoffment in Fee was given in evidence to the Husband the Defendant would have given in evidence a seisin in tayle with a discontinuance and then the Feoffment c. and so a remitter but it ought to be pleaded per Cur. Dyer 41. If an Heir Mortgage for years and then assigne Dower legally i. e. a 3. part of the whole the assignment shall bind the Mortgagee Cont. if the assignment be illegal as of one whole Mannor when there were three Mannors that being not as the Law would have done it And if a disseisor assigne a legal Dower it 's good But if the Heir Mortgage in Fee and then assigne c. legally c. that is not good because the whole Freehold was out of him at the time of assignment Per Hugh Wyndham Just Bucks Lent Ass 1668. Account Against S. as receiver of two 30 ls and as Bayliff for receiving his Rents for several years not saying any certain sum of Rents Per Earl Sergeant the proper way is to find quod Computet as to what is certain in the declaration and so proved as the money was but not to the Rents and so he said was the opinion of Hale But per Moreton Just the Verdict shall be general and it may be both ways Saye's case Norf. Lent Assises 1667. Thus far I have made an Essay of a method to be further built upon by our Practiser and have given some cases not in Print and it may be useful I shall add some other cases not so proper for heads except that of Evidence with which I shall conclude this Chapter Evidence Inspection of a Deed Inrolled may be given in evidence Contr. of a bare Deed not Inrolled or of a Deed that needs no Inrollment Pasch 1655. B. R. Goodson's case A Deed to Lead the uses of a fine was Inrolled on the acknowledgement of but one of the parties to it was allowed by Glyn Ch. Just in evidence as Roll Ch. Just had done before him though no binding evidence Turber vers Maddison Pasch 1655. B. R. An office found at a death c. may be given in evidence A Verdict against one under whom either Plaintiff or Defendant claims may be given in evidence against the party so claiming cont If neither claim under it Duke and Ventres Mich. 1656. B. R. If an Action be brought on a Statute which has several provisoes in it the Defendant may plead not guilty and aid himself by any of the provisoes in evidence But if provisoes be made to that Statute of which the Defendant may take advantage he ought to plead it and not give it in evidence per Roll. Ch. Just Mich. 1650. B. R. Jones 320. accord Iointenancy in trespass cannot be given in evidence but must be pleaded in Abatement Jones versus Randal Hill 1652. C. B. Arrest and Imprisonment to prove a Bankrupt must be proved by Record Newby vers Bathurst Pasch 1659. B. R. In a Tryal at Barr. The custome of New-England to marry by the Magistrate in the presence of a Minister was allowed good by Hale Ch. Just B. R. Trin. 1663. at Guild-Hall in t Hall Hall The Certificate of the King under his sign Manual was allowed in Chancery for proof without exception Hob. 213. Records as Patents Statutes Judgments may be given in Evidence Hob. 227. contr to Dyer 129. When Records are pleaded they must be Sub pede Sigilli Contr. if given in Evidence Stiles 22. Whites case An answer in Chancery is Evidence against the Defendant himself but the Bill must he proved Godb. 326. Vpon a traverse of a Lease parol for years viz. Absque hoc quod A. demisit c. Nihil habuit in tenementis may be given in Evidence Dyer 122. Shewing a Grant to digg Turfs is no Evidence against a Prescription for the same but the Grant being the same with the Prescription shall be taken as a confirmation Crew Vernon Moore 819. Quaere tamen v. Moore 830. Where a Court of Pipowder is claimed by Prescription and Grant and good 2 Cro. 313. Acc. In Trespass for taking Goods after Iudgment per confession non sum informatus or nil dicit Property need not be proved to a Writ of inquiry for it would oppose the first Iudgment Quod quaerens recuperet and the Iudges might have Assessed damages if they would Yelv. 151. Yet quaere if the Defendant may not disprove property in mitigation of Damages for the Iury may find no Damages A Copy of a Deed is good Evidence where the Defendant has the deed and will not produce it Per Vernon just Clayton 15. A deed of Feoffment without Livery may be given in Evidence as a Release Per Berkly 11 Car. Clayton 32. If a
the Plaintiff was seized in his Demesn as of Fréehold and that afterwards the Rent was behind at such a Feast c. By which the Lessor entred into the Land upon the possession of the Lessée And pray the discretion of the Iustices if this be a Disseisin done to the Plaintiff or not Then for that it appeareth to the Iustices that this was no Disseisin to the Plaintiff insomuch as the Entry of the Lessor was congeable on him The Iustices ought to give Iudgment that the Plaintiff shall not take any thing by his Writ of Assize and so in such case the Lessor shall be ayded and yet no Writing was ever made of the Condition For as well as the Iurors may have Conusance of the Lease they also as well may have Conusance of the Condition which was declared and rehearsed upon the Lease In the same manner it is of a Feoffment in Fée or a guift in tail upon Condition although no Writing were ever made of it And as it is said of a Verdict at large in an Assize c. In the same manner it is of a Writ of Entry founded upon a Disseisin and in all other Actions where the Iustices will take the Verdict at large there where such Verdict at large is made the manner of the whole Entry is put in Issue But in Assise of Rent it cannot be found to be upon Condition unless they also find the Deed of the Condition So of a Confirmation in Fee to Lessée for years Per Hale Ch. Just Guild-hall Hill 1671. A Special Verdict may be found as to Damagâ—s in an Action of the Case as the Case was there viz. Pro Quer ' and if so c. then such Damages if so c. then Damages such and he said he had known it so done in Debt and the Damages three ways Also in such case where the Enquest may General Verdict give their Verdict at large if they will take upon them the knowledge of the Law upon the matter they may give their Verdict generally as is put in their charge as in the case aforesaid they may well say that the Lessor did not disseize the Lessée if they will c. The Iury may likewise find Estoppel Estoppels which cannot be pleaded as in the 2 d Report fol. 4. it well appears where one Goddard Administrator of James Newton brought an Action of debt against John Denton upon an Obligation made to the Intestate bearing date the 4th day of April Anno 24 Eliz. The Defendant pleaded that the Intestate dyed before the Date of the Obligation and so concluded that the said Escript was not his Deed upon which they were at Issue And the Iury found that the Defendant delivered it as his Déed 30 July Anno 23. Eliz. and found the Tenor of the Déed in haec verba Noveriat universi c. Dat. 4. Aprilis Anno 24 Eliz. And that the Defendant was alive 30 July Anno 23. Eliz. And that he dyed before the said date of the Obligation and prayed consideration of the Court if this was the Defendants Deed And it was adjudged by Anderson Chief Justice Windham Periam and Walmesley that this was his Deed And the Reason of the Iudgment was That although the Obligèe in Note that a Deed may be plâ—aded to be delivered after the dare but nor before because it shall not be intended written before the date which may be after the date 12 H. 6. 1. pleading cannot alledge the delivery before the date as it is adjudged in 12 H. 6. 1. which case was affirmed to be good Law because he is estopped to take an averment against any thing expressed in the Deed yet the Jurors who are sworn ad veritatem dicâ—nd shall not be estopped For an Estoppel is to be concluded to speak the truth and therefore Jurors cannot be estopped because they are sworn to speak the truth But if the Estoppel or Admittance be As in Wast supposed in A. to plead that A is a hamlet in B. and not a Town of it self admitteth the Wast c. 9 H. 6. 66. and the Jury cannot find no Wast for that would be against the Record Estoppel within the same Record in which the Issue is joyned upon which the Jurors give their Verdict there they cannot find 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 and the Jurors are not to be charged with any such thing but only with things in which the parties vary Ib. li. 5. 30. So Estoppels which bind the Interest of the Land as the taking of a Lease of a mans own Laâ—d by Déed indented and the like Cro. 1. part 110. Lib. 4. 53. being specially found by the Iury the Court ought to judge according to the special matter for albeit Estoppels regularly must be pleaded and relyed upon by apt conclusion and the Iury is sworn ad veritatem dicend yet when they find veritatem facti they persue well their Oath and the Court ought to adjudge according to Law So may the Iury find a Warranty being given in Evidence though it be not pleaded because it bindeth the right unless it be in a Writ of Right Warranty not pleaded when the Mise is joyned upon the méer right 1 Inst 227. Verdicts ought to be such that the Court Uncertain Verdicts may go clearly to Indgment thereon and therefore Verdicts finding matter incertainly or ambiguously are insufficient and void and no Iudgment shall be given thereupon As if an Executor plead Plene Administravit and Issue is joyned thereon and the Jury find that the Defendant hath Goods within his hands to be administred but find 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 the The Office of the Jury verity of the fact and leave the Iudgment of the Law to the Court. And therefore upon an Indictment of Murder quod felonice per cussit c. If the Iury find per cussit tantum yet the Verdict is good for the Iudges of the Court are to resolve upon â—he 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 find the Felon guilty of the murther contained in the Indictment A Verdict that finds part of the Issue and Verdict finding part of the Issue finding nothing for the rest is insufficient for the whole because they have not tryed the whole Issue wherewith they are charged As if an Information of intrusion be brought More 406. against one for intruding into a Messuage and 100 Acres of Land upon the general Issue the Iury find against the Defendant for the Land but say nothing for the House this
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
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
Embraceors F. N. 6. Br. 171. So much doth the Law hate that Jurors Fined for taking Money after their Verdict should privately take Money for their Verdict That certain Jurors were fined for taking Money after their Verdict though there was no prâ—ingagement for it 39 Assise p. 19. The practice is otherwise at this day if it were not the Middlesex Iuries would not so Court the Bayliffs to return them especially to Tryals at Barr where 5 l. a man is frequent Gratuity sometimes more If a full Iury appear and some are challenged Issues off so that the Iury remains for default of Iurors the Defaulters shall loose their Issues 4 H. 6. 7. otherwise if a Iury be sworn and one is withdrawn by consent But if there be a joynder of Counties and a Iury of one County appear and not of the other The Defaulters of that County from which enough came shall not loose their Issues because the Inquest doth not remain for their default but for the default of them of the other County 48 Ass 5. Mes quaere If the Iurors at the return of Scire fac Amercement make default yet they shall not be amerced because the parties may be claimed at the first day but at the return of the Habeas Corpora they shall 10 E. 4. 19. 1 E. 3. 12. If any of the Iurors appear the Court Demand sur peine may charge them to inquire if any of the other Iurors were within the Town after the return and if they find they were they shall be demanded upon a Pein and if they come not they shall be amerced Rolls tit Trial. 632. A Juror was challenged and six other Jurors were sworn to try the Challenge who found him indifferent and thereupon the Juror fined for departing when he was challenged Jury was demanded but did not appear for which default he was fined the value of his Lands for a year and the other Jurors inquired of the value c. although the other party then would have challenged him when he was demanded so that he might have béen treit But the Court would not admit this because then the King would have lost his Fine 36 H. 6. 27. If a Juror appear and is adjourned upon Juror adjourned upon pain pain and makes default in this Case because he shall be fined to the value of his Land per annum this shall be inquired by his Companions of the Jury because the Court knows not the value of his Land li. 8. 41. A Verdict was taken from the Fore-man Fined for giving a Verdict before they were agreed of the Jury to which one of them did not assent and damages assessed to 20 s. in Trespass and Assault and afterwards every one of the 11. were fined for giving their Verdict before they were all agreed 40 Assise 10. Where a Iury are to be fined a Fine The fine must not be joynt jointly imposed on them is not legal but they must be severally fined because the offence of one is not the offence of another Et nemo debet puniri pro alieni delicto For then it might be said Rutilius fecit Aemilius plectitur lib. 11. 42. A man stroke a Juror at Westm sitting Punishment for striking a Juror in the Court who passed against him and he was thereof indicted and arraigned at the Kings Suit and attainted his judgment was that he should go to the Tower and stay there in prison all days of his life and that his right hand should be cuâ— off and his Lands seised into the Kings haâ—ds 41 Assise p. 25. and now our Juror sées what punishment it is to strike him in the face of the Court. Let him hold his hands from others least the same Iudgment light on him By the Statute of 27 Eliz. cap. 6. It is Enacted that upon every first Writ of Habeas Corpora or Distringas with a Nisi prius 10 s. shall be returned in Issues upon every person impannelled and upon the second Writ 20 s. and upon the third 30 s. Issues And upon every Writ that shall be further awarded to try any Issue to double the Issues last afore specified until a full Jury be sworn And these Issues being returned upon a Not summoned Tenement in Fée simple in tail or for life of another or himself or in the right of his Wife the Land he then hath will be chargeable for it and any mans Cattel upon this Land may be distrained for it But if the Under Sheriff c. return a Juror summoned who in truth was not legally summoned and therefore doth not appear and so looseth Issues the Vnder-Sheriff shall pay him double the value of the Issues lost Sée the Statutes of 35 H. 8. 6. and the 2 E. 6. 32. And note the Law hath béen so careful to punish all offenders who would endeavour to byass and corrupt the Iury and to punish the Juries themselves if they receive Money to give their Verdict or any otherwise pre-ingage themselves to any of the parties All which is to the end that a true and honest Verdict may be given What punishment shall that Jury have which gives a false Verdict Such a punishment that as I said before in civil Causes it is without example and surely if the Jurors did bear it in their minds their Verdicts would be always grounded upon their Evidence and not upon their own Interests or any partiality to either of the parties Wherefore if the Jurors give a false Verdict which is perjury of the highest degrée upon an Issue joyned betwéen the parties in any Court of Record and Iudgment thereupon The party grieved may bring his Writ of Attaint in the Kings-Bench or Attaint Common-Pleas upon which 24 of the best men in the County are to be the Jurors who are to hear the same Evidence which was given to the Petite Iury and as much as can be brought in affirmance of the Verdict but no other against it And if these 24. who are called the Grand Iuâ—y find it a false Verdict then followeth â—â—is terrible and heavy Iudgment at Common Law upon the Petite Iury. 1. That they shall loose liberam legem for Judgment in Attaint ever that is they shall be so infamous as they shall never be received to be a Witness or of any Jury 2. That they shall forfeit all their Goods and Chattels 3. That their Lands and Tenements shall be taken into the Kings hands 4. That their Wives and Children shall be thrown out of doors 5. That their Houses shall be rased and thrown down 6. That their Trées shall be rooted up 7. That their Meadow-grounds shall be ploughed up 8. That their Bodies shall be cast into the Goal and the party shall be restored to all that he lost by reason of the unjust Verdict So odious is Perjury in this Case in the eye of the Common-Law And the severity of this