and payments were in another County The Tryal shall be where the Land and payments are 44 E. 3. 42. In Debt upon a Lease in one County and the payment of the Rent upon the Lease limited there also but the Land was in another County and the payment upon the Land this shall be tryed where the Land and payment was for he was bound to pay this there upon the distress ib. But the Tryal should have been where the Writ was brought if the payment had not been alledged to be where the Land was ib. If Debt be brought for Rent upon a Lease Where the Land and Writ c. for years and the Action is brought where the Land is but the Deed of the Lease bears Date in another County the Tryal shall be where the Land and Writ is brought 45 E. 3. 8. The issue being whether the Lessor had a conditional estate or not so a lawful eviction If the issue be in an Assise whether the Where the Land lies and where not Tenant be the eldest Son of J. S. and his birth is alledged in another County yet this shall be tryed where the Land is 46. Ass 5. If an infant bring an Assise and a release of his Ancestor is pleaded against him dated in another County this must be tryed where the Release is dated and not by the Assise although the Plaintiff be an Infant and the circumstances are to be inquired 21 E. 3. 20. See Rolls ib. 611. In case if the Plaintiff declare upon a trust Where from two places in one County and where not Vide hic cap. 10. at D. and of a wrong at S. upon not guilty if it appear the trust is not material the Venue shall only come from S. and not from both places one not being material In case for stopping a way from such a place to such a place and that the obstruction was at D. upon not guilty the Venue shall not come from D. only for all the way is put in issue In Trespass in one Vill and a release pleaded dated in another Vill within the same County upon non est factum this shall be tryed per ambideux Rolls ib. 624. vide hic ante See Rolls ib. 615. many cases about this Where the Venue cannot be from a Vill De Corpore Com. Hamlet or lieu conus there it may be de Corpore Comitatus for if it might not be so the cause could not be tryed A lieu conus is a Castle Mannor or other notorious place well known and generally taken notice of by those who dwell about it and not a Close or Pasture of ground or such like place of no repute A Custom of a County is to be tryed de Corpore Comitatus for the Custom runs thorough the whole County Where the Parish is named by way of Parish denotation or explanation of the place where the Fact is alledged to be done as at the Parish Church of Hauk Huckâ—nol there the Venire facias shall be of the Town not of the Parish Bulstr 1 part 60 61. If the Fact be alledged in Kingstreet in Town the Parish of St. Margarets in Com. Mid. You have already heard that the Visne shall be from Kingstreet because it is intended to be a Town but where it is alledged to be done at Grays-Inn-Hall or Lincolns-Inn-Hall c. in Holborn the Visne shall be from Holborn which is the Town for as Yelverton said it was never heard of any Inns of Court Venire facias to be had of any of the Inns of Court Bulstr 2. part 120. especially of the Not from house or hall Hall because it cannot be of a House much less of a Hall In Ejectment upon a Demise made at Denham of Lands in parochia de Denham praedict The Visne may be of Denham or of the Parish of Denham because Denham and Parochia de Denham prâ—dict are all one by intendment of Law Bulstr 2. part 209. More 709. Hob. 6. But when it appears by the Record or is intended that the Parish Parish is more spacious than the Town as the case in More 837. where in Ejectment the Lease was alledged to be made at Bredon of Tythes in W. and W. Hamlets within the Parish of Bredon there the Venire facias must not be of Bredon but of the Parish because it appears that the Parish extends further than the Town Hob. 326. Where an Action of Debt for Rent is For Rent where the Land lies and when not brought upon the privity of the Contract by the Lessor as against the Lessee or his Executors for Arrearages due in the life-time of the Testator the Visne may be laid in any place but where the Action is brought upon the privity in Estate as against the Assignee of the Lessee or his Executors for Rent due after the Testators death the Visne must be where the Lands lie Lach. misprinted 197. 262. 271. v. li. 3. 24. And so it was adj in case of Hall and Arnold Mich. 1656. B. R. and it was further adj there the Case being of a Lease made at London of Lands in Monmouthshire rendring Rent payable at the Old Exchange for which action is brought by the Heir If there had been no place of payment the Heir must have brought his Action where the Lands lie but the place of payment being in another County he has his Election as on a Lease for years of Lands in two Counties Walkers Case in Debt upon a Lease of Debt for rent of Land in another County Land in another County Nihil debet shall be tryed where the action is brought Br. tit Visne 119. Vide pag. 93. In Replevin brought by Strede against Hartly for taking a Distress at Baildon the Defendant made Conusance as Bayliff because that locus in quo c. was holden of W. H. as of his Mannor of Baildon and upon issue hors de son fee the Venire facias was de vicineto de Baildon and upon motion that the Venire facias ought to have been as well from the Mannor as the Town The Court adjudged it to be well enough for that the Court shall not intend Mannor the Mannor was larger than the Town because it doth not appear so to be though possibly it might as like the Case of Town and Parish Hob. 305. 326. If the Sheriff return that there are no Visne next adjoyning in what Cases Freeholders of that Visne or if the Visne be where the Kings Writ runs not as in the Cinque Ports c. or in a place where Cinque Ports the men are priviledged from serving on Juries out of that place as the Isle of Ely c. the Plaintiff may pray a Venire facias of the Visne next adjoyning and if the Visne be in Wales ou briefe le Roy ne Court the Venire Wales facias shall be directed to the Sheriff of the next
the Lands were parcel of the possessions of the Priory of Christs Church in Canterbury and the said Prior and his Predecessors had held it discharged of Tythes tempore dissolutionis and pleaded the Statute of 31 H. 8. The Defendant pleads that the Prior and A non decimando his Predecessors did not hold them discharged and upon issue joyned thereon the evidence was that the Prior or his Predecessors time out of mind c never paid Tythes but no cause was shewn either by unity of possession real composition or other cause to shew it discharged In nil debet upon the Statute for tythes a Lay person cannot give a Non decimando in evidence so may the King and any other spiritual persons li. 2 B. of Winchesters Case Cook said it was no evidence for it is a prescription in non decimando Curia contra For a spiritual man may prescribe in non decimando and by the Statute of 31 H. 8. he shall hold it discharged as the Prior held it and if he held it discharged non refeit by what means for it shall be intended by lawful means and the Jury afterwards found for the Plaintiff Cro. 3. part 2. 6. Vpon non assumpsit in a general Indebitatus Indebitatus assumsit assumpsit the Defendant may give in evidence payment at any time before the Action brought but upon a special promise to pay money c. it is otherwise Causa patet for in the first case if there be no Debt the Law will infer no promise If a Church-book or any thing else is given A Church-Book is no evidence Brownlow 1. part 207. Postea 26. Assise pl. 4. in evidence which ought not to be allowed the Court above cannot quash the Verdict except it be certified and returned with the Postea Brownlow 1 part 207. But the Court may order a new Tryal upon cause shewed as for excessive damages c. The Court will not permit the Jury to carry any Writings out with them but what are proved and under Seal But here I recollect my self and consider that this Chapter is of greatest use to our Circuit practiser and therefore I shall go no further in scatter'd instances but digest my further Collections into a method more beneficial which may be improved by any Practiser as other matter shall occur Quare defendens Crimen feloniae ei imposuit Action of tâ—e Câ—sâ— c. the Plaintiff cannot give in evidence words only but Acts as arresting charging or conventing him before Justice of Peace for felony Sanders vers Edwards Mich. 14 Car. 2. B. R. If any action arises on request as in Trover or special promise the Statute of limitation goes only to the request Juy's case Mich. 1652. C. B. v. 1 Cro. 139. Declaration for words spoken in the presence of A. B. and others in evidence it sufficeth that they were spoken in the presence of others only Wingfield and Coote Lent Assises Norf. 1662. per Hale Ch. Baron In Indebitatus for carrying of Herrings the evidence was he was a Porter at Yarmouth and when Herring-Ships came home he went of his own head and carried up to the Defendants house with other Porters so many Herrings and Good by Twisden Judge of Assise Norf. Summer 1662. Jermin vers Lucas In action for hindring to sit in a Pew claimed by prescription repaired c. ought to be given in evidence and one may prescribe to sit in the uppermost seat in a Pew Buckston and Bateman Mich. 14 Car. 2. B. R. In action for executing an illegal Warrant c. It 's good evidence to prove the Just of Peace acted as such without shewing his Commissâ—on so on the Statute of Hue and Cry Constables case Norf. Lent Assises per Hale Chief Baron Action for stopping up lights c. One had a piece of Ground and builds an house on part and Leases it then he sells the other part of the Ground to one who builds on it and stops up the lights of the first house the Lessee has a good action But if two owe two pieces of Ground and one builds the other may also build and stop up his lights Palmer vers Flesher Mich. 15 Car. 2. B. R. If a Master always gives his servant money to buy his Markets with it is good evidence to discharge the Master in an action brought against him for goods taken up on Trust by that servant Per Glyn Ch. Just Mich. 1658. at Guild-Hall Sr. Tho. Rouses case A water course runs through my Ground to the Grounds of J. S. where is a pit that time out of mind used to be filled with that water I may stop the water in my Ground and use it as I will so I do not turn the course another way but when I have done with it let it fall into its own course Per St. John Ch. Just C. B. Suff. Summer Assises 1657. Smart and Tystead Action for words You forswore your self in your answer in Chancery Defendant justifies Plaintiff replies de Injurià suà propriâ absque tali causa per Hale Summer Assise Suff. It 's a good replication and a small mistake in an answer shall not convict of perjury for the Councel may mistake or his Clerk Action for not scouring a Ditch by which the water overflowed his Land c. and declare quod quidam Rivus run there c. Vpon evidence it appeared only a Land-floud and good by name of Rivus though it be dry great part of the year and it was held the best pleading of the course of this River to put a place from whence it comes so to the Plaintiffs Land without mentioning mean places by which it passes which may be many and must be proved if laid per Whitfield 1641. York Clayton 96. Souldiers lying in an Inn 14 days are guests within the Custom of England Harlands Case per Whitfield 1647. The Plaintiff in action of the case intitles himself by prescription to a Fold course for Sheep upon all the Lands in such a Field on Mich. day and so to Lady day the Lands being unsown and for that the Defendant put on Sheep c. before Mich. day and after and thereby fed the grounds c. the Plantiff could not take so good feed actio inde 1. The owner may put on Sheep and feed his own grounds before Mich. unless a Custom be to the contrary which ought to be laid in the declaration Contrà of a stranger 2. It appearing that part of the Lands c. had been the Lands of the Plaintiff who was Lord of the Mannor and prescribed as such and there being no exception of those Lands in the prescription the Plaintiff was nonsuit for as to those Lands the prescription was gone by unity of possession Per Hale Ch. Baron Norf. Summer Assises 1668. Branthwait vers Hunt Assumpsit In Indebitatus covenant to pay is no evidence 2 Cro. 505. nor money due for rent by
per medietatem linguae he cannot challenge the Array for this cause at the Tryal if the Iury be all Denizens notwithstanding Stamford's Opinion to the contrary and the Books cited by him fol. 159. pl. Cor. For the Alien at his peril should pray a Venire facias per medietatem linguae Dyer 357. Vide Rolls tit Trial. 643. If the Plaintiff be an Alien he must suggest it before the awarding of the Venire facias but if the Defendant be an Alien the Plaintiff is allowed to surmise that before or after the Venire facias because the Defendants quality may not be known to him before 27 H. 7. 32. CHAP. XIII The Learning of General Verdicts Special Verdicts Privy Verdicts and Verdicts in open Court and where the Inquest shall be taken by default Inquests of Office c. Arrest of Judgment Variance betwixt the Nar. and the Verdict c. VErdit or Verdict In Latine Vere dictum Verdict quasi dictum veritatis As Judicium est quasi Juris dictum Is the Answer and Resolution of those 12 men concerning the matter of fact referred to them by the Court upon the Issue of the parties And this is the foundation upon which the Iudgment of the Court is built for â—x facto jus oritur the Law ariseth from â—he fact Wherefore it is no wonder that the Law hath ever béen so curious and cautelous as â—ot to believe the matter of fact until it is sworn by 12 sufficient men of the Neighbourhood where the fact was done whom the Law supposeth to have most cognisance of the truth or falsehood thereof which being sworn for the words are Juratores predict The Credit of Verdicts dicunt super sacruÌ„m suum c. is the Verdict whereof we now treat And such credit doth the Law give to Verdicts that no proof will be admitted to impeach the verity thereof so long as the Verdict stands not reversed by Attaint And therefore upon an Attaint no Supersedeas is grantable by Law Plo. Com. 496. And it is worth our observation that the Law seems to take more care of the fact than of her self for the Major part of the Iudges give the Iudgement of the Law though the other Iudges dissent But every one of the 12 Iurors must agrée together of the fact before there can be a Verdict which must be delivered by the first man of the Iury. 29 Assise pl. 27. And this Verdict is of two kinds viz. one General or special general and the other special or at large The general Verdict is positively either General Verdict in the Affirmative or Negative as in Trespass upon Not guilty pleaded The Iury find Guilty or Not guilty And so in an Assize of Novel disseisin brought by A. against B. The Plaintiff makes his plaint Quod B. disseisivit eum de 20 acris terrae cum pertinentiis The Tenant pleads Quod ipse nullam injuriam seu disseisinam prefato A. inde fecit c. The Recognitors of the Assize do find Quod predict B. in juste sinâ— judicio disseisivit predict A. de predict 20 acris terrae cum pertinentiis c. This is a general Verdict 1 Inst 228. A Special Verdict or Verdict at large is Special Verdict so called because it findeth the special matter at large and leaveth the Iudgment of the Law thereupon to the Court of which 1 Instit 226. kind of Verdict it is said Omnis Conclusio boni veri judicii sequitur ex bonis veris premissis dictis Juratorum And as a Special Verdict may be found in Common-Pleas so may it also be found in Pleas of the Crown or Criminal Causes that concern life or member And it is to be observed that the Court The Court cannot refuse it cannot refuse a Special Verdict if it be pertinent to the matter in Issue 1 Inst 228. It hath béen questioned whether the Iury A special Verdict may be found upon any Issue as upon an absque hoc c. could find a Special Verdict upon a special point in Issue or no as they might upon the general Issue But this question hath been fully resolved in many of our Books first in Plo. Com. 92. It is resolved That the Iury may give a special Vardict and find the matter at large en chescâ—n issue en le monde so that the matter found at large tend only to the Issue joyned and contain the certainty and verity thereof lib. 9. 12. And in 2 Inst 425. upon Collection of many Authors it is said That it hath béen resolved that in all Actions real personal and mixt and upon all Issues joyned general or special the Iury might find the special matter of fact pertinent and tending onely to the Issue joyned and thereupon pray the discretion of the Court for the Law And this the Iurors might do at Common Law not only in Cases between party and party but also in Pleas of the Crown at the Kings Suit which is a proof of the Common Law And the Statute of Westm the 2d cap. 30. is but an affirmative of the Common Law And as this spetial Verdict is the safest for A Free-hold upon Condition without Deed may be found by Verdict though it cannot be pleaded the Iury 1 Inst 228. so in many Cases it is most advantagious to the party and helps him where his own pleading cannot As for example saith Littleton Sect. 366 367 368. Albeit a man cannot in any Action plead a Condition which toucheth and concerns a Freehold without shewing writing of this yet a man may be ayded upon such a Condition by the Verdict of 12 men taken at large in an Assize of Novel dissâ—isin or in any other Action where the Iustices will take the Verdict of 12 Iurors at large As put the case a man seized of certain Land in Fée letteth the same Land to another for term of life without Deed upon Condition to render to the Lessor a certain Rent and for default of payment a Re-entry c. By force whereof the Lessee is seised as of Fréehold and after the Rent is behind by which the Lessor entreth into the Land and after the Lessée arraign an Assize of Novel disseisin of the Land against the Lessor who pleads that he did no wrong nor Dissesin And upon this an Assize is taken In this case the Recognitors of the Assize may say and render to the Iustices their Verdict at large upon the whole matter as to say that the Defendant was seized of the Land in his Demesne as of Fée and so seized let the same Land to the Plaintiff for term of his life rendring to the Lessor such a yearly Rent payable at such a Feast c. Vpon such Condition that if the Rent were behind at any such Feast at which it ought to be paid then it should be lawful for the Lessor to enter c. By force of which Lease
And all these points were resolved by all the Judges of England upon Conference between them in the Case of John Arundel Esq indicted for the death of William Parker Where there may be a special Visne the De Corpore Com. Tryal shall never be de Corpore Comitatus Leon. 1 part 109. If a Venire facias ought to be of one or more Vills in certain in a County and this is awarded de Corpore Comitatus This seems to be aided by the Statute of 21 Jac. of Jeofailes for this comes from the Vills out of which it ought to come and from others in as much as it comes de Copore Comitatus Rolls tit Tryal 618. and many other cases touching this matter But in Ejectment of Land called S. and no place is named where the Land lyes and a Venire is awarded de Corpore Com. this is erroneous and too large because there is a place certain where the Land lyes and yet it is not named in the Nar. as it ought to be Hob. 121. But if the issue be taken upon a title of dignity as whether Chivaler or not this may come de Corpore Comitatus because that the lieu lou c. is not material ib If A. by the name of A. of the County of Hamshire bring a Scire facias upon a Recognisance in Chancery in the Countie of Mid. against B. And the Defendant plead that the Plaintiff is Outlawed by the name of A. of the County of Chester to which the Plaintiff replies that he is not una eadem persona this may be by the body of the County of Mid. where the Writ is brought ibidem In a quare impedit for the Church de Uselbee and the Defendant pleads that there is no such Church the Venue shall not come de Corpore Comitatus but de vicineto de Uselbee for this is a place known and it is intended the Church of Uselbee is within the Ville of Uselbee Hob. 325. IN a prohibition if the parties be at issue Wild. upon a custom de non decimando of wood in the Wild of Sussex the Venire facias shall be de Corpore Com. for the Wild is not such a place whereof the Court may have conusance to be sufficient to have a Jury to come stom this for the Wild is a wood by intendment Hob. 348. In a real Action where the Demandant Heir tryed where the Land lies where not demands Land in one County as Heir to his Father and alledges his Birth in another County if it be denyed that he is Heir it shall not be tryed where the Birth is alledged but where the Land lyeth For there the Law presumes it shall be best known who is Heir But if the Defendant make himself Heir to a Woman for that is the surer and more certain side and the Mother is certain when perhaps the Father is incertain and therefore there it shall be tryed where the Birth is alledged because they have more Cro. 3. part 818. Cro. 2. part 303. certain Conusance than where the Land lyeth And so it is where Bastardy is alledged Bastardy the Tryal shall be in like Case Mutatis mutandis If the man plead the Kings Letters Patents Non concessit where the Land lies and the other party plead non concessit it shall not be tryed where the Letters bear date for they cannot be denyed but where the Land lyeth Every Tryal must come out of the Neighbour-hood of a Castle Mannor Town Visne or Hamlet or place known out of a Castle Mannor Town or Hamlet as some Forests and the like as before Every Plea concerning the person Where the Writ is brought at Common-Law Plaintiff c. shall be tryed where the Writ is brought When the matter alledged extendeth into a place at the Common Law and a place within a Franchise it shall be tryed at the Common-Law Matters done beyond Sea may be tryed in England and therefore a Bond made beyond Sea may be alledged to be Matters done beyond Sea how tryable in England Vide cap. 10. made in any place in England if it bear date in no place But if there be a place as at Burdeaux in France then it shall be alledged to be made in quodam loco vocat Burdeaux in France in Islington in the County of Middlesex and from thence shall come the Jury 1 Inst 261. Lach. 4. and 5. So if the Tenant plead that the Demandant is an Alien born under the Obedience of the French King and out of the Legiance Alien of the King of England the Demandant may reply that he was born at such a place in England within the Kings Legiance and hereupon a Jury of 12. men shall be charged and if they have sufficient Evidence that he was born in France or in any other place out of the Realm then shall they find that he was born out of the Kings Legiance And if they have sufficient Evidence that he was born in England or Ireland or Guernsey or Jersey or elsewhere within the Kings Obedience they shall find that he was born within the Kings Legiance And this hath ever been the pleading and manner of Tryal in that Case So of other things done beyond Sea the adverse party may alledge them to be done at Things done beyond Sea such a place in England from whence the Jury shall come and in a Special Verdict they may find the things done beyond Sea Ib. lib. 7. 26. Lib. 7. 26. So when part of the act is done in England and part out of the Realm that part that is to be performed out of the Realm Part without the Realm and part within if issue be taken thereupon shall be tryed here by 12 men and they shall come out of the place where the Writ or Action is brought Ib. lib. 6. 48. Error for that Iudgment was given by default against the Defendant being an Infant Full age tryed where the Land lies issue was taken that he was of full age And Godfrey moved whether the Tryal should be in Norfolk where the Land was or in Middlesex where the Action was brought And the Court held that it should be tryed in the County where the Land lay and Tanfield said It was so adjudged in the Kings Bench between Throgmorton and Burfind Cro. 3. part 818. Questions of Title of Land except by Where the Land doth ly special order of the Judges in some cases are to be tryed in the County where the Land lies for the Law is that all real and mixt actions as Wast Ejectment c. must be brought in the County where the Land is But Debt Detinue Account Transitory Actions Actions of the Case Battery c. are of their own nature Transitory and yet they ought to be laid and tryed in their proper County where the fact was done unless the Court order the contrary for some Special reasons
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
that the Land was held in Socage yet this is good for this shall be intended this being a Collateral thing and this being the most common Tenure If they find that he was seised and made his Will in haec verba c. although they Will. do not find that he Devised the Land as in the former yet this is good by intendment But if a thing is left out and cannot be intended the Verdict is not good If the Issue be whether the Sheriff took J. S. and kept him in Prison in Execution for certain Debt and Damages by force of a Cap. ad Sa. and the Iury find that he took him by force of an alias Cap. ad Sa c. although they do not find that he kept him in Execution for the Debt and Damages aforesaid according to the Issue yet this is a good Special Verdict for it shall be intended for the Consequence is necessary from this which is found for he could not take him but that he must be in Execution Vide several instances of this Roll. tit Tryal 697 c. If the Iury find that J. S. was seised in Fée and made his Will in haec verba and that he afterwards died although they do not find that he died seised yet it shall be Will. intended that he died seised and so good If they find that A. did Bargain and Bargain and Sale Sell c. although they do not find any consideration yet this shall be intended So if they find that such persons Authorizati Letters Patents virtute literarum patentium dominae Elizabethae c. and do not find that the Letters Patents were under the Great Seal yet this shall be intended Verdicts of Lay-men shall be taken according to their intent and néed not so precise a form as in Pleadings lib. 4. 65. Hob. 76. Therefore if the Iury find a Recognizance in nature of a Statute Staple in this manner That the Conusor came before R. O. Recorder of London and T. O. Maior of the Staple Et recognovit se debere to B. 200 l. and do not say Secundum formam statuti c. nor Prescriptum Obligatorium c. although the Statute of 23 H. 8. provide That it shall be by Bill Obligatory sealed with three seals and here it doth not appear that there was any Bond or Seal nor that it was according to the Statute yet these things shall be intended they having found a Recognizance before the Maior and Recorder A Special Verdict may be amended by Notes the Notes If the Iury find a Special Verdict and Where a special Conclusion of a special Verdict shall aid the Imperfections of it refer the Law upon that special Matter to the Court although they do not find any title for the Defendant which is a Collateral thing to the point which they refer to the Court yet the Verdict is good enough for all other things shall be intended except this which is referred to the Court lib. 5. 97. In Ejectment If the Plaintiff declare upon a Lease made by A. and the Iury find a Special Verdict and Matter in Law upon a power of Revocation of Vses by an Indenture and limitation of new Vses and then a Lease for years made to the Plaintiff by the Lessor in the Declaration and another in which there is an apparent Variance but they conclude the Verdict and refer to the Court whether the grant of a new Estate found in the Verdict be a revocation of the first Indenture or not The special Conclusion shall aid the Verdict so that the Court cannot take notice of the variance betwéen the Lease in the Declaration and Verdict because the doubt touching the Revocation is only referred to the Court. And although they refer to the Court whether this be a Revocation of the first Indenture and not of the former Vses and limitation of new Vses as it ought to be yet in a Verdict this is good for their intention appears So Note a difference between a special Conclusion and Reference to the Court and a general Conclusion and Reference to the Court Vide hic apres In Debt for 40 s. for a Horse sold and For whom the Verdict shall be said to be found the Iury find 40 s. Debt for two Horses sold this is found against the Plaintiff for this is not the same Contract So in Debt for 20 l. if the Iury find 40 l. Debt this is against the Plaintiff In Debt for 20 l. for Wood sold and the Iury find the Bargain was for 20 Marks the Plaintiff shall not have Iudgment for this Variance So in Debt for Rent upon a Demise of two Acres and the Iury find it upon the Demise of one Acre the Plaintiff shall not have Iudgment But in Debt for 24 l. 8 s. received for the Plaintiffs use if the Iury fiâ—â— the Defendant owes 24 l. but not the 8 s. the Plaintiff shall have Iudgment for perhaps he had paid the 8 s. In an Action upon the Case against A. if the Plaintiff declares That by Custom c. amongst Merchants c. If two are found in Arrearages upon Accompt and they assume to pay this at certain Days that any one of them may be charged for the whole by himself and then shews the Accompt of A. and B. who were found in Arrear in so much c. and promised to pay this at certain days but paid it not and now he brings his Action against A. although upon non Assumpsit pleaded it be found that the days of payment are mistaken yet the days being past the Action lyes because the Law makes the Duty upon the Accompt for which after the days an Action lyes Where all is to be given in Damages Damages the Iury are Chancellors and may give so much as the Case requires in Equity In Detinue of a Bond of 100 l. if the Detinue Iury find that he received a Bond of a greater or less Sum the Verdict is for the Defendant So in a promise to do two things if the Promise Iury find but one of them 't is for the Defendant Otherwise in Ejectment upon a Demise Ejectment of 10 Acres if the Iury find a Demise of less the Plaintiff shall have Iudgment If the Issue be upon a Prescription for Prescription Common belonging to a Messuage and 200 Acres of Land 50 of Meadow and 50 of Pastuâ—e if the Iury find Common belonging to the House 20 Acres of Meadow and 20 of Pasture in two of the Vills and not in the rest the Prescription is not found If part of the Trespass or wrong be found Trespass Case 't is sufficient in Trespass or an Action of the Case upon a Tort as by a Commoner for putting and depasturing Cattel in the Common If the Issue be whether all the Lands in Audita Quaerela Execution were the Estate of the Father in Tail or in
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
and the Judges of the Kings Bench in an Appeal of Felony It séems they seldom or never killed one another in this tryal of Battel for their Weapons were but Batoons and he that was vanquished was presently upon Proclamation made to acknowledge his fault in the Audience of the people or else to cry Cravent in the name of Recreantise c. and upon this Iudgement was to be given and after this the Recreant should amittere liberam legem that is should become infamous c. 2 Institutes 247. Finch 421. lib. 9. 31. Mirror of Justice 161 162 c. 1 Inst 294. Glanvil saith the tryal by Grand Assise Grand Assise came by the Clemency of the Prince Est autem saith he Magna Assiza Regale quoddam beneficium Clementia Principis de consilio Procerum populis indultum For the Tryal of Treason Murther and Felony as well upon Appeals as upon Indictments see Stamford's Pleas of the Crown By Glanvil cap. 1. lib. 14. it appeareth the tryal of these Crimes by the old Law was this If there were no direct proof nor accuser or if there was any accuser or direct proof yet if the party denyed the same then the tryal was by Wager of Battel if the party accused was not 60 years old and of sound Limbs but if he was older or not sound then he Per judicium Dei was to be tryed per judicium Dei namely per calidum ferrum vel aquam that is if he was a Freeholder he was to run bare foot and bare legg'd over a row of hot Iron Barrs and if he passed three times without stop or fall he was acquitted And if he was a meaner person called Rusticus he was to run through vessels filled with scalding water 20. In a Writ of Disceit upon a Recovery Recovery by default Summoners pernors veiors by default the Tryal shall be if the Iudgment was given upon the Petit Cape by the Summoners if upon the Grand Cape by the Summoners pernors or veiors and not per pais So if a Recovery by default in a real Action be pleaded to which the other saith Nient comprise this shall Nient Comprise not be tryed per pais but by the Summoners and Veiors lib. 9. 32. En Assise if the issue be whether the Land was extended in an Elegit c. This shall be tryed by the extendors joyned with the Assise 31. Ass 6. vide Rolls tit Tryal 581 582. Of Tryals per L'escheator per Examination vide ib. In an Appeal if the Exigent be awarded Escheator Sheriff and the party pray a Writ to inquire of the goods and Chattles and to seise them this may be awarded to the Escheator or Sheriff at the Election of the Court. 41. Ass 13. vide hic cap. 24 27. 21. In debt upon a simple Contract Detinue Wager of Law c. The tryal may be by Wager of Law or per pais at the Defendants Election But when the Defendant wageth his Law he ought to bring with him Eleven of his Neighbours who will avow upon their Oath that in their Consciences he saith true so as he himself must be sworn de fidelitate and the Eleven de credulitate Ib. Finch 423. and 1 Inst 295. you may read excellent Learning concerning this Tryal 22. If Profession be denyed it shall be Profession tryed by the Court Christian But if the time of the Profession be in issue this shall be tryed by the Country lib. 4. 71. So though an Inrollment or other matter of Inrollment Record cannot be tryed per pais yet the time when the Inrollment was made may be tryed per pais So whether the party Appearance appeared in such a Court or on such a day c. shall be tryed per pais Cro. 3. part 13. So whether one was Sheriff Sheriff Admission c. Plenarty such a day or not Cro. 1. part 421. Admission Institution Plenarty and Ability of the Parson shall be tryed by the Bishop But Induction shall be tryed by the Country and so shall Avoydance by resignation Dyer 229. Moor 61. And voyd or not voyd shall be tryed per pais 1 Inst 344. And Plenarty if the Clerk be dead Mirror of Justice 324. li. 6. 49. The cause of refusal of a Clerk by the Bishop shall by tryed by the Metropolitanâ— if the Clerk be living but per pais if he be dead l. 5. 58. Ability shall be tryed by the Ordinary if Per spiritual Law Vide hic cap. 16. the Clerk be alive but if dead then per pais Institution resignation full or not full Professâ—on unless alledged in a Stranger Prior removeable at will or perpetual general Bastardy the Right of Espousals Divorce c. shall be tryed by the Bishops but in many cases these matters being mixed with other circumstances shall be tryed per pais As if the Church be void by Resignation Per pais For although Institution resignation c. are Spiritual yet avoidance induction c. are notorious to the Country or void or not void Induction Institution and Induction together because the Common Law shall be preferred Prior or not Prior. Bastardy alledged in a stranger to the Writ or in one dead or Abatement of the Writ Whether a feme be a feme covert in possession c. in trespass by Baron and feme Nient Son feme shall be tryed per pais And see in Rolls tit Tryal 584. c. Many cases where Bastardy Marriage c. shall be tryed per ley spiritual or per pais The time c. of Consecration of a Bishop and of other spiritual matters shall be tryed per pais By what spiritual person the tryal shall be and for what cause vide ib. 23. An Ideot found so from his Nativity Ideoty by Office may come in person in the Chancery before the Chancellor and pray that before him and such Iustices or Sages of the Law which he shall call to him who are called the Council of the King he may be examined whether he be an Ideot or no or by his friends he may sue a Writ out of Chancery retornable there to bring him into the Chancery Ibidem Coram nobis concilio nostro examinand lib. 9. 31. 24. If it be in question whether the Sheriff Sheriff made such a retorn or not It shall be tryed by the Sheriff If whether the Undersheriff made such a Retorn or not it shall be tryed by the Undersheriff If Retorn the question be whether such a one be Sheriff or not he is made by Letters Patents of Record and therefore it shall be tryed by the Record ib. Cro. 1. part 421. 25. If an Approver say that he Commenced Dures his Appeal before the Coroner per dures this shall be tryed by the Record of the Coroner and if it be found that he did it without dures he shall be hanged ib. Corone br 75. 26. The Tryal
if that be Album breve and no return if the Venire facias be Right Rolls tit 204. In Cases where there are several Defendants who plead several Pleas the Plaintiff Several Venire facias may chuse either to have one Venire facias for all or several for every one of the Defendants But if you will be ruled by Stamford the surest way is to have a Venire facias against every one and then one cannot have benefit of the others Challenge neither shall the death of one abate the Venire facias against the other This he speaks of in Appeals But if the Court once award a joynt Venire facias you cannot have several Venires afterwards though there be nothing done upon the first except it be upon matter de puisne Temps as the death of one of the Defendants c. lib. 8. 66. lib. 11. 5 6. Stamf. 155. Bro. tit Venire facias 2. 35. But now it is the usual course to have but one Venire facias upon several issues though against several Defendants Cro. 3. One Venire facias in several issues Vide Rolls tit Trial 596. 620. 667. Hob. 88. 51. part 866. Hob. 36. 64. And so usual that the Court declared Cro. 2. part 550. That there never shall be several Venire facias to try several Issues in one County For what need the Plaintiff trouble himself and the Country with several when one Iury will serve his turn Et frustra fit per plura quod fieri potest per pauciora But otherwise if it be in two Counties Cro. 3. part 866. After issue joyned by two Defendants Venire facias between the Plaintiff and 2 Defendants where one is dead if one of them die and then a Venire facias is awarded betwixt the Plaintff and both the Defendants and so in the Hab. Corpora and Distringas yet this shall not Vitiate the Venire facias c. to make Error because though one of the Defendants be dead yet the other being alive it is sufficient And there needs be no surmise in Iudicial Writs that one of the Defendants No surmise in Judicial Writs of death in one of the parties is dead It is time enough to shew it to the Court at the day in bank Cro. 1 part 4. 26. But if there be two Defendants and the Venire facias be but against one of them 't is Error 7 H. 4. 13. and Bro. tit Ven. fac 11. Cro. 1. part 426. If the Venire facias bears date before Venire facias dated before the Action brought the Action brought or varies from the Roll yet it is aided by the Statutes of Jeofailes Cro. 1. part 38. 90 91. 203 204. Miscontinuance or discontinuance or Jeofailes misconveying of Process is aided by 32 H. 8. 30. The want of any Writ Original or Judâ—cial defaults in their form and insufficient Returns thereupon are aided by 18. Eliz. 14. Cro. 3. part 259. But you must have a care the Venire facias be not faulty in any other matters of Substance for if the parties names be mistaken or the issue Parties names mistaken in a Venire facias as if the issue be ne unques Execuor and the Venire facias be in placito debiti c. this is a Mistrial Cro. 2. part 528. So it is if the Venire facias be in placito transgressioniâ— Mis-tryal where the Action is in placito transgressionis ejectionis firmae This misawarding of Process is not aided by any of the Statutes and better it were that there had been no Venâ—re facias at all in No Venire facias holpen such a Case for then the Statutes would have holpen it Cro. 3. part 622. If a Venire facias be directed to the Coroners Return of Process all the Coroners ought to joyn in the return they being Ministers not Judges and so both of the Sheriffs of London ought to joyn or else the Return is not good Hob. 97. Note the Principal Statutes of Jeofailes are 8 H. 6. cap. 12. and cap. 15. 32 H. 8. cap. 30. 18 Eliz. cap. 14. 21 Jac. cap. 13. and 16 and 17 Car. 2. 8. Intituled an Act to prevent Arrests of Judgements and superseding Executions And the three first of these Statutes do not extend to Appeals nor to Pleas of the Crown or to any proceedings upon them for these are excepted nor to the amendment of any Exigent to make any one Outlawed As you may see at large lib. 8. 162. Blackamors Case And the four last of the said Statutes do neither extend to them nor to Actions or informations upon Penal Laws Only in the last of them viz. 16 17 Car. 2. there is a limitation in the negation of the Extent scil Other than concerning Customs Subsidies of Tonnage and Poundage to which it doth extend If the Venire facias be directed Vicecomiti London Salutem c. praecipimus tibi and not vobis after Verdict this is Amendable 39 Eliz. B. R. Adjudge Rolls 200. And so it is if after habeas ibi hoc breve Nomina Juratorum be left out ib. and 204. But if the date of the Teste be after the return this was held not amendable 32 33 Eliz. B. R. ib. sed vide hic ante But if the Award of the Ven. fac upon the Roll be right and the Writ wrong it may be amended by the Roll as the Misprision of the Clerk ib. 201. If the words quorum quilibet habeat be left out or duodecim or qui nulla affinitate attingunt or Vicecomiti be left out these are amendable as mistakes of the Clerk Rolls 204 205. In some Cases a Venire facias shall be Venire facias between a party and a stranger awarded to make an Enquest betwixt a stranger to the Writ and issue and the party I will instance but in one and that is upon the Statute of Westm 2. cap. 6. If a Tenant being impleaded vouch to warranty and the Vouchee denieth the Deed or other cause of the Warranty c. That the Demandant may not hereby be delayed he may sue out a Venire facias to try the issue between the Tenant and Vouchée Inquests in Pleas of Land shall be as Inquest at whose request well taken at the request of the Tenant as of the Demandant 2 Edw. 3. cap. 16. If the Plaintiff or Demandant desisteth in prosecuting his Action and bringeth it Venire facias by Proviso not to Tryal then the Defendant or Tenant may sue forth a Venire facias with a Proviso which is to no other end but that the Sheriff should summon but one Iury if the Plaintiff also should have brought him another Writ to the same purpose And although as my Lord Dyer saith fol. 215. the granting of this Venire facias c. with a Proviso depends much upon the discretion of the Court yet for the greater part it is not grantable for the
the principal Pannel and two of the Tales notwithstanding Maynards Opinion to the contrary and Cro. 3. part 587. The Sheriffs used to summon above 24. scil effraenatam multitudinem but Must not return above 24. now they are prohibited by Statute to summon above 24. Westm 2. cap. 38. In what cases the Inquest shall remain for default of Jurors If the issue be to be tryed by 2 Counties if but one of one County appear although a full Inquest appear of the other yet this shall remain for default because they cannot try that whith is in another County 2 Counties There ought to be six of each County And so of one Inquest out of a Franchise and another out of the Guildable and so of 2 Pannels returned in an Assise by several Bayliffs of Franchises to try one issue and one Pannel makes default the issue shall not be tryed by the other Pannel for the Jurors in one Franchise cannot make the view in another Franchise Roll tit Tryal 673. If the Jury be of 2 Counties or 2 Pannels The manner of swearing the Jurors of the Guildable and Franchise c. they shall be sworn interchangeably first one of one then another of the other If the Jury go at large until another day after they are sworn and the Roll of the entry be not in Court they may be sworn anew Roll. tit Trial 674. To make a Jury in a Writ of Right Where there must be 16. and 24. in a Jury which is called the Grand Assise there must be 16. scil four Knights and 12. others the Jury in an Attaint called the Grand Jury must be 24. Finch 412. 485. But if the issue be upon a matter out of the point of the Attaint as upon a Plea of non-tenure the Tryal shall be by 12 Juratores 21 E. 3. 10. There may be more than 16 in a Writ of right Rolls tit Tryal 674. When Process used to be made out Where Witnesses joyn with the Jury the number is uncertain against the Witnesses in Carta nominat to joyn with the Jury in Tryal of the Deed as was used before the Statute of 12 E. 3. C. 2. his Testibus being then part of the Deed then the number was uncertain according as the number of Witnesses were in the Deed wherefore no Attaint lay if the Deed were affirmed because more than 12 joyned in the Verdict But otherwise Cannot prove a Negative if the Deed was not found because Witnesses cannot prove a Negative F. N. Br. 106. h. 1 Inst 6. 2 Inst 130. c. If 12 are sworn and one of them depart Juror departs and another sworn by consent by consent another of the Pannel may be sworn and joyn with the other 11. in the Verdict 11 H. 6. 13. In Error upon a Iudgment in Cornwal A Jury of 6. because the Tryal was but by 6. adjudged that it was erroneous though it was returned secundum consuetudinem ibidem ante c. for such Customs are against Law unless in Wales which are permitted by Act of Parliament Cro. 1. part 259. If the record be pleaded in Bar of the Per primer Jurors See hic cap. 4. Assise and the Party that pleads says the same Tenements were put in view to the former Jurors If the Plaintiff saith nient comprise This shall be tryed per primer Jurors auters 13 H. 4. 10. So if the Tenant saith that these Lands are not the same Lands before recovered this shall be tryed per primer Jurors auters 22. Assise 16. and so in a Redisseisin So in an Assise if the Defendant plead a Recovery per view de Jurors in another Assise this shall not be tryed by the Assise but per primer Jurors 13 H. 4. 10. And if at the return of the former Jurors and others all the former Jurors appear the Tryal shall be by them only but if any do not appear they shall be supplied by the others 40. Assise 4. In such cases where the Plaintiff is not to recover the Land nor to defeate the former Iudgement if nient comprise be pleaded upon a Recovery pleaded this may be tryed by other than the former Jurors 1 H. 6. 5. As in Trespass for Trees cut the Defendant pleads that he recovered before in an Assise the same Land where c. and cut c. the Plaintiff says this Land where c. was not put in view and so nient comprise This shall not be tryed by the first Jurors but by others because this action doth not defeat the former Iudgement nor recover any thing but Damages Note the difference 1 H. 6. 5. Where the Tryal shall be per primer Jurors Certificate of Assise what and where by them and auters and where only per auters see Rolls tit Tryal 593. This is where the Bayliff of a Tenant in an Assise pleadeth c. and loseth by the Assise and the Tenant himself hath a release or some other discharge to plead then he may by this means have the parties and first Jurors to appear again and if it be found he that before recovered shall lose the Land and yield double Damages Terms of Law CAP. VII Who may be Jurors who not who exempted and of their Quality and Sufficiency SO much for their Number next their Jurors must be Liberi Quality is to be considered And for this the Writ informs you who they ought to be 1. Liberos that is Freemen not Villains or Aliens and that not only Freemen and not bond but also those that have such freedom of mind that they stand indifferent without any Obligation of Affinity Interest or any other Relation whatsoever to either party sometimes the word Probos instead of Liberos is attributed Fortescue cap. 25. to them they are both good Epithetes for a Juror but I esteem the first most significant 2. They ought to be Legales not outlawed Legales not such as have lost Liberam legem or become infamous as Recreants persons attainted of Felony false Verdict Conspiracy Perjury Praemunire or Forgery upon the Statute of 5 Eliz. cap. 14. and not upon the Statute of 1 H. 5. 3. Not such as have had Iudgement to lose their Ears stand on the Pillory or Tumbrel or have been stigmatized or branded nor Infidels neither can any such be Witnesses 1 Inst 6. 3. Homines they ought to be men yet A Jury of Women there shall be a Jury of Women to try if a Women be Enseint upon the Writ de ventre inspiciendo But what kind of men these ought to be is worthy to be known And for this some men are exempted from serving in Juries in respect of their Dignity as Barons and all above them in degree Many are exempted by the Writ de non Exemption of Juries ponendis in Assisis F. N. B. 166. as aged persons 70. years old and many others are exempted as Clerks Tenants in
joyn although they be not nearest nay though 20 Counties be between them Finch French 59. 1 Inst 154. But if it be of a Lease at Ickford of Land in Bury in Suff. the Venue must be of Bury not of Ickford ib. 619 If the issue be taken upon the name or Where the Writ is brought condition of the person this shall be tryed in the County where the Writ is brought 21 E. 4. 8. for this may be well known there Rolls ib. 615. Where the issue is to be tryed upon a point which shall be tryed by two Counties and one cannot joyn with the other this shall be tryed where the Writ is brought 21 E. 4. 8. but for this see before where the Counties cannot joyn In Debt in London against I. S. of D. in Where in other County than where the writ is brought Essex if the Defendant saith that he was at S. in Essex at the time of purchasing the Writ and not at D. this shall be tryed in Essex and not where the Writ is brought for none can know where he dwelt so well as the County of Essex 12 H. 6. 5. Vide many cases in Rolls ib. 605. c. about this matter In an Action of the Case against a Sheriff upon an escape in London and the Arrest laid Where the escape was and not where the Arrest was to be in Southampton adjudged that the Visne shall be where the escape was because that is the ground of the Action and not where the Arrest was Cro. 3. part 271. In Debt upon an Obligation payment was pleaded apud domum mansionalem Rectoriae de Much-Hadam and the Venire facias was de vicineto de Much-Hadham where it ought to have been de vicinet Rectoriae de Much-Hadam but it was adjudged good because Much-hadam is here intended a Vill. ib. 804. So you see that where a thing is alledged to be done at the Capital House * Rectoriae of D. there the Venire shall be of D. For that is intended to be all one with the Vill. Castle But where it is at the Castle of Hertford c. there the Venire facias shall not be de Rolls tit Tryal 621. vicineto de Hertford but de Castro de Hertford for Castrum Hertford is intended a distinct place by it self and so of all Castles Cro. 2. part 239. More 862. A Venire facias may be awarded of a Castle Rolls 618. Where the issue is not parcel of the Mannor Mannor of D. or the Custom of a Mannor is in question the Venire ought to be of the Mannor Hob. 284. Cro. 2. part 327. If the Mannor be laid to be in a Vill the Venire facias Rolls tit Tryal 621. may be of the Mannor in the Vill as de vicineto maneâ—ii de Stansted-Hall in Windham Cro. 2. part 405. More 851. Arundels Case li. 6. 14. The Venue cannot be of a scite of a Mannor Rolls tit Tryal 618. In the Common Bench in Trespass for taking away a Bag of Pepper the Defendant justified as Servant of the Mayor and Commonalty of London for Wharfage due to them by the Custome of London which the Plaintiff refused to pay The Plaintiff replyed that the Custome did not extend to him London because he was a Free-man of the City and ought not to pay Wharfage to which the Defendant re-joyned that the Custom extended to him as well as to strangers upon which issue was joyned Resolved 1. That the issue should be tryed Reâ—order per Pais not by the mouth of the Recorder because he certifies nothing but what the Mayor and Aldermen direct who are concerned in the cause 2. That the Venire facias should not be awarded to the Sheriffs of London nor Middlesex because the Tryals there are by Free-men But it shall be to the County Where the Tryal shall be by the County next adjoyning next adjoyning viz. to the Sheriff of Surry So where any City is concerned the Venire facias shall not be directed to the Officers of the City but to the County next adjoyning Hob. 85. Stiles 137. More 871. vide hic cap. 2. If the issue concern the Mayor and Commonalty of a Town the Array shall be made all of Foreigners 31. Assise 19. vide Rolls tit Tryal 597. So if the issue concern the Mayor and Commonalty c. although they are not parties yet the Venire facias shall be directed to the Sheriff of the next County 15 E. 4. 18. Where a man lends a Horse to another Where a man lends his horse in one place and he is spoiled in another Visne where he is spoiled to till his Land and the Horse dies with excessive Labour the Visne shall be from the place where the excessive labour was and not where the delivery was More 887. vide Hob. 188. Rolls tit Tryal 615. pasch 22 Car. 2. B. R. Horsley versus Potter An action of the case was brought for misusing an Horse in Itinere the Contract was laid at Swafham in Norf. and the riding to Peterborough in Northampton-shire where the Horse died it was tryed in Norf. and the Court seemed that it ought to have been tryed in Northampton-shire where the damage was done and not where the contract was made but it was aided by the Stat. of Jeofailes 17 Car. 2. cap. 17. after Verdict that Statute being then in force Where a promise is laid in one place and Promise in one place and breach in another Visne guided by the issue the breach in another the Visne must be according to the event of the issue whether it be taken upon the promise or breach But if no place be alledged for the breach and issue be taken upon it the Visne must be from the place of the promise which shall be intended right where the contrary appears not see Godbolt 274. Easter 39 Eliz. In the Kings Bench Trespass Assault and Battery en Wilts continuing the Assault in Middlesex and adjudged that the Jurors shall come out of both Counties More 538. The name of a Mannor or Land or Misnomer other local thing shall be tryed where it lies because it is local but the name or addition of a person shall be tryed where the Action is brought because this is transitory Bro. tit Visne 7. lib. 6. 65. In Covenant upon an Indenture of Demise of the Rectory of Stoken Church in the County of Oxford That the Defendant Where the Land lies had good Power and Authority to demise The Indenture was alledged to be made at London and the Venire facias was awarded to the Sheriff of Oxon and this being assigned for Error Iudgement was affirmed and this adjudged to be good More 710. because the Rectory was in Com. Oxon. vide pag. 45. In Debt upon an Obligation in one Where the Land lies and not where the Writ c. County to perform Covenants in a Lease and the Land
matter and treated thereof And where a subject may challenge the Array for unindifferency there the King being a party may also challenge for the same cause as for Kindred or that he hath part of the Land or the like and where the Array shall be challenged against the King you shall read in our Books In Ejectment the Plaintiff suggesteth that his Lessor the Sheriff and Coroners were Tenants to a Dean and Chapter whose Interest was concerned and prayed the Venire facias to Elisors and had it being confessed by the Defendant and the Court took it a principal challenge v. Hut 24. More 470. Roll. rep 328. Duncomb and Ingleby Trin. 15 Car. 2. B. R. A prayer to Elisors in Tryals at Bar may be at the suit of the Defendant or Plaintiff but in Nisi prius at the prayer of the Plaintiff only and per Cur. it is a principal challenge that the Plaintiffs Lessor is Sheriff or kindred and if the Plaintiff doth not pray c. the Defendant may challenge the Array at the Assises Lord Brookes Case Trin. 1657. B. R. 'T is a good challenge to the Array that the Array is made and returned by 2 Coroners only when there are four in the County and that the Writ is returned by one of the Sheriffs of London only So if a Bayliff return them that are out of his Franchise or if an Array be to be of persons out of a Franchise Guildable and the Bayliff return them for the Sheriff ought to make it and that some of the Pannel were returned by the Bayliff of a Franchise where the whole Pannel is returned as Array by the Sheriff this is a good challenge to the Array for otherwise the parties would lose their challenge to the Array made by the Bayliff Rolls tit Tryal 636. If the Defendant sue the Writ of Hab. By what person Corpus by Proviso at the return the Plaintiff may challenge the Array for Kindred between the Defendant and the Sheriff D. 15 El. 319. 13. D. 15 El. 319. The Array was quashed although the Sheriff was the Naufe in What Consangunity is sufficient descent and the Tenant in the 7. descent from the Ancestor of whom both descended Cousin to the parties Wife although herself no party So if the Wife be dead if issue be alive These are good challenges to the Array Alliance to one party is a good challenge For affinity If the Sheriff be allied at the making At what time of the Pannel and be dead at the challenge yet this is a good challenge 'T is no challenge that the Sheriff became of kin after making the Pannel 'T is no challenge to the Array if all the Jurors be of affinity It may be after a Tales prayed for no challenge can be until the Jury is full If the suggestion of Cousinage to have the Venire facias to the Coroners be denyed and the Venire facias is awarded to the Sheriff the same challenge shall not be allowed to the Array but any other cause may be alledged than what was before denyed Favourably made by the Sheriff or his For favour Bayliff or the Bayliff of a Franchise is a good challenge That the Sheriff is within the Distress of a party or servant to the Plaintiff Of the Robes of the Plaintiff was Arbitrator for a party is procurator and maintainer of a party That the Sheriff purchased part of the Land in question That the Pannel was made by the Bayliff of the Franchise of the other party These are good challenges to the Array 'T is no principal challenge that one party is Tenant or servant to the Sheriff but it is a good challenge for favour It is a good challenge to the Array That Denomination the Sheriff made the Array or put a Juror into the Pannel at the denomination of any of the parties in favour to them or of their servants or of one interessed or of a maintainer or of the Counsel or of a procurator Not if strangers by the Sheriffs leave make the Pannel or it be made at the request of both parties 'T is a good challenge to the Array that For malice one of the parties has brought an action of Debt against the Officer that returns the Pannel or that there is a difference betwixt the Officer and the party that the Officer killed his servant But not that the Officer has Debt against the party for he may demand his Debt without malice The Challenge ought to be quod tempore How and in what manner the Challenge is to be made Pannelli praedict Arraiati the Sheriff was Cousin to the Wife of the Defendant c. not afterwards nor before unless you aver that she was alive or had issue at the making the Pannel If the Challenge be taken for Cousinage it ought to be shewn coment Cousin but in such a challenge to be a Juror 't is not necessary to shew coment Cousin What Counterplea of a Challenge is good and how to be pleaded The mannor and conveiance of the Cousinage alledged in a challenge is not traversable You may traverse the Cousinage prout without modo forma If the Challenge be that the Sheriff was Cousin to the Plaintiff or within his distress 't is no Counterplea to say he is likewise of kin to the Defendant or within his distress also Where the King is party to the issue no Where the King is party challenge shall be to the array for favour 38 Ass 19. Otherwise if the Sheriff be Vadelect of the Kings Crown or such menial servant If it be presented that I. S. hath made a nusance to London and le gents 't is no challenge to the array to say the Sheriff of Middlesex is deputed and removable by the Commonalty of London because this is the suit of the King The King may make his challenge that the Sheriff is within the parties distress although every subject owes greater favour and obedienue to the King by reason of his Allegiance than to any Lord by reason of Tenure In a writ of Right or any other writ a What persons may be impannelled Baron of the Realm may excuse himself In a writ of Right the Inquest ought to be all Knights A Banneret may be impannelled in this writ so may a Serjeant if there be not Chivalers covenable In an attaint upon a recovery by false verdict in an Assise some Knights ought to be returned and if there be not any in the Hundred where the Land lies they shall be returned out of the County By default of the Sheriff as when the array of a Pannel is returned by a Bayliff of a Franchise and the Sheriff return it as of himself this shall be quashed because the party shall lose his challenges But if a Sheriff return a Iury within a Liberty this is good and the Lord of the Franchise is driven to his remedy against him If a
Lord of Parliament as a Baron Viscount Earl Marquess and Duke for these in respect of Honour and Nobility are not to be sworn on Juries and if neither party will challenge him he Propter honoris respectum may challenge himself for by Magna Charta it is provided Quod nec super eum ibimus nec super cum mittemus nisi per legale judicium parium suorum aut per legem terrae Now A Peer may challenge himself the Common Law hath divided all the subjects into Lords of Parliament and into the Commons of the Realm The Peers Peers and Commons of the Realm are divided into Barons Viscounts Earls Marquesses and Dukes The Commons are divided into Knights Esquires Gentlemen Citizens Yeomen and Burgesses And in Iudgement of Law any of the said degrees of Nobility are Peers to another As if an Earl Marquess or Duke be to be tryed for Treason or Felony a Baron or any other degree of Nobility is his Peer In like manner a Knight Esquire c. shall be tryed per Pares and that is by any of the Commons as Gentlemen Citizens Yeomen or Burgesses so as when any of the Commons is to have a Tryal either at the Kings Suit or between party and party a Peer of the Realm shall not be impannelled in any Case Secondly Propter Defectum Challenge Propter defectum 1. Patriae as Aliens born 2. Libertatis as Villains or Bondmen and so a Champion must be a Freeman 3. Annui sensus i. e. liberi tenementi First what yearly Freehold a Iuror ought to have that passeth upon Tryal of the life See before cap. 7. Quorum quilibet habeat 4. l. c. of a man or in a Plea real or in a Plea personal where the Debt or damage in the Declaration amounteth to 40. Marks Vide Littleton Sect. 464. Secondly this Free-hold must be in his own right in Fee-simple Fee-tail for term of his own life or for another mans life although it be upon condition or in the right of his Wife out of antient Demesne for Freehold within ancient Demesn will not serve but if the debt or Damage amounteth not to 40. Marks any Freehold sufficeth Thirdly he must have Freehold in that County where the cause of the action ariseth and though be hath in another it sufficeth not Fourthly if after his return he selleth away his Land or if Cesty que vie or his Wife dyeth or an entry be made for the condition broken so as his Freehold be determined he may be challenged for sufficiency of Freehold It seems before the Statute 2 H. 5. free-hold of any value was sufficient for there Freehold of 5. s. was sufficient 3. H. 4. 4. by that Statute in all Pleas real and personal where the Debt or damage or both together amount to 40 marks the Juror must have 40. s. Freehold In an Attaint they must be able to expend 20. l. per annum In an accompt upon the Receipt of 100. s. if he count to his damage 200. s. if the Juror hath but 20. s. or under 40. s. 't is sufficient because he shall not recover damages and so this is not within the Statuts 10 H. 6. 18. for the sufficiency of Jurors See Rolls tit Tryal 648. A man seised of the Mannor of Dale enfeoffs a stranger upon condition to pay yearly to J. S. and his Heirs 40. s. Rent J. S. dies seised of this Rent and then his Heir takes it Yet the Heir hath not sufficient Freehold Land to the value of 40. s. is given to Husband and Wife and the Heirs of their two bodies begotten who have issue a son the Husband gives the Land by fine to an estranger and his Heirs and dies the Wife enters and dies seised the son hath not sufficient Freehold to be a Juror A man seised of Land to the value of 40. s. within the County of Mid. and of Land to the value of 12. within the County of Sussex and grants a Rent-charge of 40. s. issuing out of all the said Land to a stranger in fee the Grantee hath sufficient Freehold to be a Juror in both Counties See many speculative cases upon this subject in Williams his Reading upon the Statute 35 H. 8. cap. 6. 4. Hundredorum First by the common Challenges propter defectum hundrrdorum Law in a Plea real mixt and personal there ought to be four of the Hundred where the cause of action ariseth returned for their better notice of the cause for Vicini vicinorum facta praesumuntur scire And now since Littleton wrote in a Plea personal if two Hundredors appear it sufficeth and in an Attaint although the Jury is double yet the Hundredors are not double Secondly If he hath either Freehold in the Hundred though it be to the value but of half an Acre or if he dwell there though he hath no Freehold in it it sufficeth Thirdly if the cause of the action riseth in Hundredors divers Hundreds yet the number shall suffice as if it had come out of one and not several Hundredors out of each Hundred Fourthly if there be divers Hundreds within one Leet or Rape if he hath any Freehold or dwell in any of those Hundreds though not in the proper hundred it sufficeth Fifthly if the Jury come de Corpore Comitatus or de proximo Hundredo where the one party is Lord of the No Hundredors Hundred or the like there need no Hundredors be returned at all Sixthly if a Hundredor after he be returned sell away his Land within that Hundred yet shall he not be challenged for the Hundred for that his notice remains otherwise as hath been said for his insufficiency of Freehold for his fear to offend and to have Lands wasted c. which is one of the Reasons of Law is taken away Seventhly he that challengeth for the Hundred must shew in what Hundred it is and not drive the other party to shew it Eighthly his Challenge for the Hundred is not simpliciter but secundum quid for though it be found that he hath nothing in the Hundred yet shall not he be drawn butremain praeter H. that is besides for the Hundred and albeit he dwelleth or have Land in the Hundred yet must he have sufficient Freehold Note This challenge for want of Hundredors must be given in writing presently and the other party is to demurr thereto if opposed If a challenge be that there is not any Hundredor returned it may be averred to the Court that there is not any sufficient within the Hundred which is not within the Fee of the Plaintiff although this be not returned by the Sheriff and this be found true by Tryors the Array shall be affirmed 45. Ass 1. If the King be made party by aid prayer and sufficient Hundredors do not appear nor are returned yet the Pannel shall not be quashed but a Tales of Hundredors shall be returned But
one challenged by the Plaintiff and the other by the Defendant When the Tryal is to be had by two Counties the manner of the tryal is worthy of observation and apparent in our Books If the four Knights in the Writ of Right be challenged they shall try themselves and they shall choose the grand Assise and try the challenges of the parties If the cause of challenges touch the dishonour or discredit of the Juror he shall not be examined upon his Oath but in other cases he Juror examined shall be examined upon his Oath to inform the tryors If an Inquest be awarded by default the Defendant hath lost his challenge but the Plaintiff may challenge for just cause and that shall be examined and tryed Wheresoever the Plaintiff is to recover View per visum juratorum there ought to be six of the Jury that have had the view or known the Land in question so as he be able to put the Plaintiff in possession if he recover In Proprietate probanda and a Writ Challenges to inquire for waste the parties have been received to take their challenges But passing over many things touching this matter I will conclude with the saying of Bracton Plures autem aliae sunt causae recusandi juratores de quibus ad praesens non recolo sed quae jam enumeratae sunt sufficiant exempli causa 1 Inst 157 158. Treat doth signifie as taken out or withdrawn Treat what and is applied to a Juror that is withdrawn by consent or removed and discharged by challenge A Juror sick was withdrawn and another sworn Palmers Reports 411. If the Defendant do not appear at the tryal Challenge lost when he is called he loseth his challenge to the Jurors although he doth afterwards appear 'T is a good challenge to a Juror to say he A wrong name is returned by another name in the Pannel A Juror appeared and said he had no No Freehold Freehold and prayed that he might not serve yet the Judge would not spare him for he may have an action against the Sheriff for returning him Rolls 2 part Reports 483. CAP. The Challenge pro defect Hundred must be written in Parchment and tâ—e Council must arraign it in French upon which the Defendant may take issue or demur The Clerk or Associate in Court must call the Jury over and ask if they have any Lands within the Hundred or had at the time of the Array of the Pannel and whether they dwell or did dwell in the same And upon examination if it appear clearly that they have no Lands or Tenements nor dwell in the Hundred then the Clerk is to mark them by the side of every of their names thus prâ—ter Hundred but if he find there be two Hundredors he is to resort back to the praeâ—er Hundred and swear them in order So that you see the Tryal whether Hundredors or not is determined by the Courts examination by the Poll severally But if the Council demur and the other side joyn in demurrer the Iudge of Assises may affirm the Challenge and over-rule the Demurrer or allow the Demurrer good and proceed to the Tryal of the Cause or if the Iudge doubt it may be determined in Bank but this is great delay If the challenge be adjudged good the Court awards Que le pannel il soit casse At Common Law there ought to have been In Cities Corporations Burroughs and Towns and Counties this Challenge cannot be 4 Hundredors returned and appeared in all actions pro meliori notitia causae in controversia for vicini vicinorum facta scire praesumuntur But by the Statute 35 H. 8. ca. 6. six are to be returned and appear But since by the Statute 27 Eliz ca. 6. if two Hundredors be returned and appear it is sufficient in all personal actions But in real actions there must be six or else Remanet pro defectu Jur. The Court shall appoint two Tryors in a challenge to the Poll and if they find two indifferent the first Tryors shall be discharged and the two that are found indifferent being sworn to try the Issue shall also be sworn to try the rest of their Fellows At Common Law there used to be returned 24 upon the Venire and afterwards a Habeas corpora with a Decem Tales and if a full Jury did not appear or were challenged then a Distringas with an Octo Tales and so to the Duo Tales if there was not a Tales de circumdantibus may be in the case of Aliens full Jury And this was the course until the Statute 35 H. 8. which gives the Tales de circumstantibus at the Assises c. and by the Stat. 5 Phil. Marie ca 7. where the King Queen or Informer c. are parties A Challenge may be taken to those of the Tales de circumstantibus By the Statute 33 Ed. 1. The King and those who prosecute for him must shew their cause of Challenge as betwixt party and party and left to the discretion of the Iustices The King or any one authorised for him may release his challenge Where the party may challenge the King may challenge 'T is no challenge to say the Juror is the Kings Tenant or that he is favourable to the King but 't is good to say the Sheriff or Juror bears grudge or malice to the Defendant where the King is party If the Juror hath any Freehold 't is sufficient although not to 40 s. a year For the Statute which injoyns that speaks only betwixt party and party The first who challenges be he Plaintiff or Defendant shall have the preference and advantage of his challenge If a Juror be once challenged and withdrawn upon the principal he cannot serve upon the Tales if he doth 't is Error and Iudgement may be stayed And so if he be challenged and a Jury remain pro defect Juratorum if he be sworn upon a new Distringas 't is Error not helped by any Statute of Jeofailes and a mis-tryal and a Venire facias de novo may be awarded Cro. Eliz. fol. 429. Whitbys Case Elisors may be sworn in some cases to return and impannel all Juries as should upon any Venire facias Habeas Corpora or Distringas Jur. come to their hands impartially indifferently and without favour or affection or at the denomination of any person The Record of Attainder Conviction Excommunication Outlawry c. or a Copy thereof ought to be produced to prove the cause of challenge thereupon Where bodies politick or Corporate are concerned a challenge may be taken which arises from the individuals as Brother to one of the Prebendaries is a good challenge where the Dean and Chapter are parties c. Hob. 87. so a Parishioner where the right of the Church comes in question at the Suit of the Parson 17. Ass 15. In High-Treason the prisoner may peremptorily challenge to the number of 35. which is under the
Fine or common Recovery may be Fine given in Evidence though it be not under the great Seal or Seal of the Court and without vouching the Roll of the Recovery and the part indented is the usual Evidence that there is such a Fine though they which saw the Fine are also good Evidence Plow 410. Stiles 22. Depositions in the Ecclesiastical Court Depositions cannot be given in Evidence though parties be dead March 120. A Defendants answer in an English Court is good Evidence against him but not against others Godbolt 326. Where the evidence proves the effect and substance of the issue it is good By order of Court the Depositions taken of a Sick Witness may be given in evidence As upon plene administravit if it be proved Assets that the Executor hath goods of the Testators in his hands he may give in Evidence that he hath paid of his own money for the Testator to the value of those goods Co. Lit. 283. Dyer 2. So if a Lease be pleaded a Lease upon Lease Condition is good Evidence 1 H. 8. 20. because the Genus comprehends the Species So of a Feoffment pleaded a Feoffment upon Condition or a Fine which is a Feoffment of Record is good Evidence 44 E. 3. 39. A special agreement is evidence for an agreement Plo. 8. But if a Feoffment be pleaded in Fee Feoffment upon issue non feoffavit modo forma a Feoffment upon Condition is no Evidence because it doth not answer the issue and wheresoever Evidence is contrary to the issue and doth not maintain it the Evidence is not good 11 H. 4. 3. Feoffments 41. agreement in reversion is no evidence but a Lease and Release is 20 H. 7. 5. If the Indorsment be of a Livery by Attorney the Letter of Attorney must be shewed Vpon an Assumpsit to the Husband an Assumpsit Assumpsit to the Wife and his agreement is good evidence 27 H. 8. 29. upon non assumpsit to a special promise payment is no evidence per 3 Iudges In challenge to the array because made Challenge at the denomination of the Sheriffs Clerk evidence at his Bayliffs denomination is good because favourably made is the substance 38 H. 6. 9. If the issue be in a Suit against an Executor Assets Administrator or Heir Assets in London to prove Assets in another place is sufficient Li. 6. 47. Dyer 271. Accompt pleaded before two Accompt Accompt before one is good Evidence Hob. 55. because the accompt is the substance Vpon the general issue the Defendant may give any thing in Evidence which proves the Plaintiff hath no cause of action What Evidence upon the general issues or which doth intitle the Dâ—fendant to the thing in question But if he hath cause of justification or excuse it must be pleaded wherefore upon non detinet in detinue the Defendant may give in Evidence a gift from the Plaintiff for that proveth that he doth not detain the Plaintiffs goods but he cannot give in Evidence that the goods were pawned to Deâ—inue him for money and that it is not paid but he must plead it 1 Inst 283. For the property is in the pledger Vpon Not guilty in Battery Son assault In Battery demesne is no Evidence for thereby the Battery is confessed Ib. neither is Not Guilty good Evidence upon Son assault demesne Vpon Not Guilty in Trespass Insufficiency Trespass of the Plaintiffs mounds or to justifie for a Rent-Charge Common Licence Son assault demesne or the like is no good Evidence Ib. but to prove a Trespass before or after the day laid in the Declaration is good 1 Inst 283. So upon the Plea Nul Wast fait in an Wast Action of Wast he may give in Evidence any thing that proveth it no Wast as by Tempest by Lightning by Enemies c. But he cannot give in Evidence any justifiable Wast as to repair the House or the like nor a reparation of the Wast before the action brought Ib. Vpon non est factum 'T is no Evidence to Non est factum shew the Bond that was made upon an usurious Contract or that the Sheriffs name is mistaken c. in a Bail-Bond or that the Bond is joynt or several or delivered at another place or that it is void by Statute But it must be pleaded in abatement Ib. Hob. 72. But to prove that the Seal was broken off and put on again or to prove a Rasure of the Deed delivered as an Escrow c. this is good Evidence Li. 5. 119. 11. 27. If 't were done before the action brought but if the Seal was broke off c. by chance after issue joyned the Jury may find it specially To prove the Sealing and delivery of a Deed and not know the party that did it is not good evidence but if he knows the party upon sight of him it is good enough Kelw. 59. Vpon Not Guilty in Trover and Conversion Trover a Demand and denyal of the Goods is good Evidence Plo. 14. li. 10. 57. Cro. 1 part ult pub 495. Hob. 187. Vpon plenè Administravit the Executor Plenè Administravit cannot give a Iudgement in Evidence Kelw. 59. nor payment of Debts by Contract in Debt brought upon an Obligation A Cup pawned and redeemed with the Executors own money is good Evidence but a recovery ought to be pleaded upon nil debet in Debt for Rent That the Lessor entred into part of the Land is no good Evidence Golds 81. But non demisit iâ— 9 H. 7. 3. Vpon Not guilty in an Action upon the Parco fracto Statute de parco fracto That the Plaintiff hath no Park is good Evidence 19 H 8. 9. So upon Not Guilty in Trespass in the Warren Plaintiffs Warren Evidence that he hath no Warren is good 10 H. 6. 17. Kitchin 119. A Shop-book no evidence after a year Shop-books 7 Jac. cap. 12. In Debt for Arrerages of an accompt upon Accompt Nil debet modo forma No accompt is good Evidence 2 H. 6. 26. Vpon Not guilty in Trespass a Lease for years 12 H. 8. 2. or that locus in quo c. is the Freehold Trespass of another 4 E. 3. 45. is good Evidence but upon this he cannot justifie his entry upon the place by a strangers Licence or Command Br. general issue 81. because this is a justification by way of excuse Neither is a Lease at Will good Evidence in this case So upon Not guilty in Trespass for Not guilty in Trespass goods 't is good evidence that the goods were a strangers 9 H. 6. 11. But that they were a strangers and that he as Servant to the stranger or by his commandment took them from the Plaintiff is not good Br. general issue 81. because the Trespass is confessed But that the stranger gave them to the Defendant is good 9 H. 6.
11. In Trespass the Buttals must be proved as they are laid If the Defendant plead payment to a Bond Payment by presumption or Bill and it appears the Debt is very old and it hath not been demanded nor any use paid for it many years common presumption is good evidence that the money is paid and the Juries use to find for the Defendants in such cases If the Trespass were in truth done the 4th Trespass another day of May and the Plaintiff alledgeth the same to be done the 5th of May or the first of May when no Trespass was done yet if upon evidence it falleth out that the Trespass was done before the Action brought it sufficeth 1 Inst 283. 'T is dangerous to permit evidence to a Deed. Jury by Witnesses that there was such a Deed which they have seen or read or prove the Deed by a Copy because the Deed may be upon Condition Limitation or power of Revocation and if this should be permitted the whole Reason of the Common Law in shewing Deeds to the Court would be subverted for the Deed might be imperfect and void which the Witnesses could not perceive yet in cases of extremity as where the Deed was burned or lost by some other notorious accident the Judges may at their discretion allow them to be proved by Witnesses li. 10. 92. and so of a Record In Case against an Executor whereas Executor the Testator was indebted to the Plaintiff thâ— Executor promised to pay the debt in consideration the Plaintiff would forbear to sue him the Executor may give in evidence upon Non assumpsit that there was no Debt or that he had no Assets tempore promissionis for then there would be no Consideration li. 9. 94. William Banes Case upon the issue neunques Executor to prove an Administration granted to him is good evidence Dyer 305. Evidence shall never be pleaded but the Evidence matter of fact shall be pleaded and if it be denied the evidence shall be given to the Jury not to the Court lib. 9. 9. Evidence that the Wife of every Copy-holder shall have the Land durante viduitate will not maintain the issue that the Custom of a Mannor is that she shall have the Land during her life after Estate for life her Husbands death because though durante viduitate imports an Estate for life yet an Estate durante vita is more large and beneficial li. 4. 30. Things done before the memory of man What may be given in Evidence in another County or in another Kingdom may be given in Evidence to a Jury as Assets in another County c. More 47. See li. 4. 22. 9. 27. 28. 34. li. 6. 46 47. Vpon issue payment at the day payment Payment before or after the day is no Evidence More 47. but upon Nil debet it is good Evidence because it proves the issue Vpon issue Assets or no Assets or seised or not seised if one give a Feoffment c. in Evidence Covin may be given in Evidence Covin by the other but not if the issue be infeoffed or not infeoffed for it is a Feoffment tiel quel though made by Covin li. 5. 60. Hob. 72. The Book of Doomesday brought in Doomesday-book Court is good Evidence to prove the Land to be ancient Demesne Hob. 188. In Attaint the Plaintiff shall not Attaint give more evidence nor examine more Witnesses than was before but the Defendant may Dyer 212. Copies of the Court-Rolls are the only Court-Rolls for Copy-holders evidence for Copy-holders for as Littleton Sect. 75. tells you they are called Tenants by Copy of Court-Roll because they have no other Evidence concerning their Tenements but only the Copies of Court-Rolls But Cook explains the Text and says This is to be understood of Evidences of Alienation for a Release of a Right by Deed. A Copy-holder that cometh in by way of admittance may have and that is sufficient to extingish the Right of the Copy-holder which he that maketh the Release had In Actions upon the Case Trespass Battery or false imprisonment against any Iustice of Peace Mayor or Bayliff of City or Town Corporate Headborough Portreve Special Evidence upon the general issue by whom Constable Tythingman Collector of Subsidy or Fifteen in any of his Majesties Courts at Westminst or elsewhere concerning any thing done by any of them by reason of any of their Offices aforesaid and all other in their ayd or assistance or by their Commandment c. They may plead the general issue and give the special matter of their excuse or Iustification in Evidence 7 Jac. cap. 5. General acts of Parliament may be given Statutes in Evidence and need not be pleaded and so may general Pardons given by Parliament if they be without Exceptions But commonly advantage of the Act is given by the Act it self to the offnder without pleading it as by the late most truly Pardons so called general act of Indempnity every person thereby pardoned may plead the general issue and give the act in evidence for his discharge which are general and which particular Statutes see lib. 4. 76. Vpon not guilty in Trover the Defendant Trover may give in Evidence that the goods were pawned to him for 10 l. That he distrained them for Rent or damage feasant That as Sheriff he levied them upon Execution or that he took them as Tythes severed Cro. 1. part 157. 3 part 435. Hob. 187. A demand and denial of the goods is evidence of a conversion If there be two Batteries between Plaintiff and Defendant at divers times the If there be two Trespasses and the Defendant peads a Justification if the Plaintiff replies de injuria sua propria c. he cannot give in Evidence a Trespass at another time But he should have replyed that at another time in the same day of his Count the Defendant did the other Trespass c. to which the Defendant may plead another Justification but the Plaintiff cannot then plead a Trespass at another time but must conclude Sans tiel cause c. vide Apres Plaintiff is bound to prove the Battery made the same day in the Declaration and shall not be admitted to give another day in evidence as the case may be As in Battery the Defendant pleaded Son assault Demesne and the Plaintiff replyed de injuria sua propria absque tali sua and in evidence the Defendant maintained that the Plaintiff beat him the day mentioned in the Declaration and in the same place which the Plaintiff perceiving he gave in evidence that the battery was made another day and place to which the Defendant demurred upon the difference aforesaid Brownlow 1 part 233. 19 H. 6. 47. But upon not guilty it is otherwise though there be never so many Batteries between the parties Littleton Sect. 485. Prohibition for suing for Tythes in Booking Park in Essex and surmised that
Fine be given in Evidence with five years non clayme c. the fine must be shewed with the Proclamations under Seal and the Chirograph will not serve The confession of a party must be taken whole and not by parts As if to prove a debt it be sworn that the Defendant confessed it but withal he said at the same time That he paid it his confession shall be valid as to the payment as well as that he owed it Per Hale Ch. Just And so is common practice A deed cancelled by practice was allowed to be read in Evidence in action under that Deed the practice being proved Hetly 138. Against a Purchasor bona fide recital in a Deed of money paid is not sufficient nor acquittance for the money unless it be of antient standing and then it shall be presumed The Deed to lead the uses of a Fine sur concessit need not be proved per Testes If a deed of Feoffment be shown but no Livery possession going with the Deed is Evidence to a Jury to find Livery At Guild Hall Trin. 23 Car. 2. Hale Ch. Just cited the Case of Sir Paul Pindar A Levari c. was proved by a recital of it in another Record and Hale and Mainard demurred on the Evidence and adjudged against them for this Cause viz. That it was proved there was such a Record that it was filed that it was taken off the file But by him generally without such proof the evidence is not good because one Record may recite one that never was The Jury are to decide the fact and evidence is not given but to inform them in their consciences of the truth for although no evidence is given of either side yet they may give their verdict of one side or the other 14 H. 7. 29. And therefore although two witnesses are necessary where the tryal is by witnesses as in the Civil Law Yet they are not of necessity where the tryal is by Jury And where witnesses are joyned Office of the Jury with the Jury yet they may be rejected if they will not agree with the twelve and the twelve may give their Verdict The Jury after they are departed from the Barr may return to hear their evidence of any thing they doubt before the Verdict Sur Travers de done in tayle the witnesses Done in Tayle prove That another made the Done this doth not warrant the issue In an action against the Sheriff upon Extortion vers Vic. the Statute of Extortion That he took it for Barretée of one who was acquit is good evidence Possession is an evidence of right and he that hath possession may distrain the Cattle Possession of him that hath no title for the taking is in respect of the possession more than of the title In debt for Rent upon a Lease and nil Debt for Rent debet pleaded ne unques seisie de terre is good evidence otherwise upon the plea of riens arrere or levy per distresse Parson or not Parson in such issue Parson you may give in evidence a resignation although it be in another County and Spiritual In riens passe per le fait Not his Fait deed may be given in evidence In Trespass quare claus fregit with What ought to be proved in evidence abuttals all the abuttals and descriptions must be proved But if the abuttal be laid North c. and it incline North though not directly it is sufficient sic de caeteris Vpon this Issue the account given Plene administravit to the Ordinary shall not be given in evidence nor any respect had to it Will The probat is good for the personal What shall be given in evidence and what is good evidence estate but not to prove a Will in writing of Land by the Statute Recital of other Grants by Letters Patents Recital in Letters Patents in Letters Patents are some evidence but not fit to be allowed without shewing the former Letters Patents or a copy But the Jury may find them Surmise in a Prohibition The proof of this surmise in any Court of Record shall not be given in evidence in another action upon the same custome because the Defendant in the prohibition cannot cross examine Depositions Depositions in the Court Christian in the Court of the Councel of York touching the title of Land of which they have not conusance or in another Suit against him who claimeth not under those parties by the Commissioners upon a Commission of Bankrupt because the party could not cross examine shall not be allowed in evidence But a sentence given in the spiritual Court touching Tithes may be given in Evidence in an Action at Common-Law for this is a judicial act After evidence given and the Jury ready Former Tryal to give their Verdict and then the Atturney General will not proceed but draws a Juror and brings another information none of the former Jurors shall be admitted to give in evidence that the Jury were ready to give their Verdict against the King in the first information for this ought not to be discovered for so no benefit would accrue to the King by his Prerogative to draw a Juror But this may be given in evidence in another What may be given in evidence upon a special Issue action where the King is not concerned In debt for rent upon non demisit that Debt for rent the lessor riens avoit in the land at the time of the demise may be given in evidence Vpon an Issue of Common appendant c. Common common per cause de vicinage cannot be given in evidence If the Defendant plead son assault demesne Son Assaule demesne in Battery in Battery and the Plaintiff reply de injuria sua propria absque tali causa And so issue is joyned if there was a battery at another day than what the Plaintiff and Defendent have assigned upon the Plaintiff and another upon the Defendant by the Plaintiff The Verdict ought to be for the Defendant for if the Defendant prove any assault made upon him by the Plaintiff this ought to be found for him although it was at another day than what he hath alledged for the day is not material But upon such speciall justification the Defendant hath liberty to prove his Plea at any time and the Plaintiff might have made a new assignment at another time for peradventure there might be several trespasses at several times to which the Defendant may have several Pleas and therefore if such manner of pleading should not be allowed and such evidence the Defendant could not tell how to help himself nor could know for what Trespass the action is brought Vide devant hic appres cap. 13. If the Issue be whether the Kings Surrender Tenant by Letters surrendred to the King or not the accepting of new Letters Patents which is a surrender in Law is good
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
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
was intended for damages and how much for costs so that there may be more damages than the Plaintiff declared for or less and so the Court knows not how to increase the cost wherefore he shall have Iudgment but for 20 marks by reason of the incertainty Where a special Verdict is not entred according Verdict amended by the Notes to the Notes the Record may be amended and made agrée with the Notes at any time though it be 3 or 4 c. Terms after it is entred lib. 4. 52. lib. 8. 162. Cro. 1 part 145. In the Case of Turnor and Thalgate Mich. 1658. B. R. It was said per Cur ' That special Verdicts may be amended by the Notes but the Notes cannot be amended or inlarged by any Averment or Affidavit for that were to fâ—â—d a Verdict by the Court. Yet in that Case where the Notes were that the Iudgment c. was vacated pro ut per Rule the Verdict was amended vacated per Cur ' pro ut per Rule for so is implied in the Notes See a Verdict amended by the Notes after Iudgment and Error brought Rolls 1 part Reports 82. If the matter and substance of the Issue Form Hob. 54. be found it is sufficient for precise forms are not required by Law in special Verdicts which are the finding of Lay-men as in Pleadings which are made by men learned in the Law and therefore intendment in many Cases shall help a special Verdict as much as a Testament Arbitrament c. And therefore he which makes a Deputy ought to do it by Escript but when the Iury find generally that A. was Deputy to B. all necessary incidents are found by this and upon the matter they find that he was made Deputy by Déed because it doth tantamount lib. 9. 51. And in the 5th Report Goodale's Case It was resolved That all matters in a special Verdict shall be intended and supplyed but only that which the Iury refer to the Consideration of the Court. In all Cases where the Iury find the matter Ill conclusion committed to their charge at large and over more conclude against Law the Verdict is good and the conclusion ill li. 4 42. and More 105. 269. the Iudges of the Law will give â—udgment upon the special matter according to the Law without having regard to the conclusion of the Iury who ought not to take upon them Iudgment of the Law li. 11. 10. Vide Devant Where the Declaration in Trespass is As general as the Narr Cum aliquibus averiis of a number uncertain and the Verdict is as general as the Declaration cum aliquibus averiis there the Verdict is good Cro. 2. part 662. In Ejectione firme where the Plaintiff declared of a Messuage and 300 Acres of Pasture in D. per nomina of the Mannor of Monkhall and five Closes per nomina c. upon Not guilty the Iury gave a special Verdict viz. quoad four Closes of Pasture containing by Estimation 2000 Acres of Pasture that the Defendant was Not guilty Quoad residuum they found matter in Law And it was moved by Yelverton That this Verdict was imperfect in all For when the Quoad Residuum incertain Iury find that the Defendant was Not guilty of four Closes of Pasture containing by estimation 2000 Acres of Pasture it is incertain and doth not appear of how much they acquit him And then when they find quoad residuum tne special matter it is incertain what that Residue is so there cannot be any Iudgment given and of that Opinion was all the Court wherefore they awarded a Venire facias de novo to try that Issue Cro. 2 part 1â—3 Ejectione firmae of 30 Acres of Land in D. and S. The Defendant was found guilty of 10 Acres and Quoad Residuum not guilty Quoad Resisiduum and it was moved in arrest of Iudgment That it is uncertain in which of the Vills this Land lay and therefore no Iudgment can be given sed non allocatur and it was adjudged for the Plaintiff for the Sheriff shall take his Information from the party for what ten Acres the Verdict was Cro. last part 465. diversitas apparet Where the Iury find Circumstances upon Circumstances an Evidence given to incite them to find fraud c. yet the same is not sufficient matter upon which the Court can judge the same to be fraud c. Brownlow 2. part 187. Yet in many Cases the Iury may find Circumstances and presumptions upon which the Court ought to judge As to find that the Husband delivered Goods devised by the Wife Vpon this the Court adjudged that More 192. the Husband assented to the devise at first Where a Verdict is certainly given at the Postea amended how Tryal and uncertainly returned by the Clerk of the Assizes c. The Postea may be amended upon the Iudges certifying the truth how the Verdict was given Cro. 1. pâ—rt 338. In many Cases a Verdict may make an ill Ill Plea made good by Verdict Plea or Issue good As in an Action for words Thou wast perjured and hast much to answer for it before God Exception after Verdict for the Plaintiff in arrest of Iudgment For that it is not laid in the Declaration that he spake the words in auditu complurimorum or of any one according to the usual form sed non allocatur for being found by the Verdict that he spake them it is not material although he doth not say in auditu plurimorum whereupon it was adjudged for the Plaintiff Cro. 1. part 199. Sée Cro. last part 116. Where the Barr was ill because no place of payment was alledged yet the payment being found by Verdict it was adjudged well enough for a payment in one place is a payment in all places Trespass by Baron and feme de clauso fracto of the Barons And for the battery of the feme ad dampnum ipsorum the Defendant Quoad the Clausum fregit pleaded Not guilty Quoad the Battery justifies And for the first Issue it was found for the Defendant And for the second for the Plaintiff and now moved in arrest of Iudgment that the Declaration is not good because the Baron joyns the feme with him in Trespass Baron Feme de clauso fracto of the Barons which ought not to be But for the Battery of the feme they may joyn whereto all the Court agréed But it was moved That in regard it was found against the Plaintiffs for this Issue in which they ought not to joyn and the Defendant is thereof acquitted and the Issue is found against the Defendant for that part wherein they ought to joyn This Verdict hath discharged the Declaration for that part which is ill and is good for the residue As in 9 E. 4. 51. Trespass by Baron and Feme for the Battery of both The Defendant pleaded Not guilty and found guilty and damages assessed
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
sufficien in lege existunt tam ad manutenend proband exit pred pro parte dicti A. F. superius ad patriam junct quam ad excludend Domin Regem de aliqua forisfactura bonor pred habend Ad quas pred Attorn Domini Regis pro ipso Domino Rege minus sufficienter respondit nec aliquod pro ipso Rege allegavit unde idem A. pet judicium ac quod pred bona in dicta informatione spec ei reliberentur quodque ipse quoad premissa ab hac Curia dimittatur Ideo ad judicium Note In this Case the agreement according to the Statute was put in Issue generally and yet the special agreement maintained the Issue And wheresoever the Evidence doâ—h not warrant prove Regula and maintain the vâ—ny same thing that is in Issue that Evidence is defective and may be Demurred upon Upon non est factum to a Bond dated at York It Non â—st factum was said in this case that to prove the Bond made in another place doth not prove the Bond nor Warrant the Issue because the delivery is intended to be where the Dare is but the Witnesses prove the contrary and so the Issue is not proved But surely if this be found the Plaintiff shall have Judgment as well as upon a Bond delivered before the date 31 H. 6. Plo. 7. Rolls 677. But infancy or made by Dures cannot be given in evidence upon non est factum lib. 5. Whelpdales Case 119. because thereby the Bond is not void but only voidable Otherwise of the Bond of a Feme Covert or Monk for there the Bond is void and so non est factum and so of a Bond made to a Feme Covert and the Husband disagree to it or by Husband and Feme Non est factum of the Wife In an Assise if the Tenant plead Nul tort nul disseisin he cannot give in evidence a release after the disseisin but a release before the Disseisin he may for Release then there is no Disseisin upon the matter In a Writ of Right if the Tenant joyn the Mise Warranty upon the meer Right he cannot give in evidence a Collateral Warranty for he hath not any right by it and therefore it ought to have been pleaded 1. Inst 283. Regularly whatsoever is done by force of a Warrant or Authority ought to be pleaded Regula But Note in all Cases where one cannot have advantage of the special matter by way of Plea there he may have advantage of it in evidence as for example The rule of Law is That one cannot justifie the Death or Killing of a man and therefore if one kill another in his own defence he cannot plead this specially but he may give it in evidence and so in defence of his House against Thieves and Robbers c. By the Statute 23 H. 8. cap. 5. any thing done by Sewers the authority of the Commission of Sewers may be given in evidence upon the general Issue After taking the General Issue the Defendant cannot give in evidence any thing that goes in discharge Regula of the Action as in Debt upon nil Debet he cannot give in evidence a Release nor a grant to cut Trees Release to repair upon nul wast fait nor making of a Ditch to amend the Meadow but that he only lopped the Wast Trees he may if wast be Assigned in succidendo Arbores c. Neither if a Statute was made that all Statute Tenants for life should be dispunishable of wast could he give in evidence this Statute 28 H. 8. Dyer 28. for the discharge ought to be pleaded because it admits a Cause of Action without it In Debt against Executors and Assets inter marus Assets in Issue 'T is good evidence that they sold Land by the Will of the Testator c. and that they had the money And so that they recovered Damages in Trespass for goods taken in the life of the Testator c. 3 H. 6. 3. In an Issue upon Villenage regardant to a Mannor Villenage a Villain in gross is no evidence Dyer 48. In wast by the Grantee of a Reversion by Montague Attornment and Fitz. The Lessee may plead that he in reversion ne grant a pas per le fait and give in evidence that he never attorned or he may Traverse the Attornment at his election Dyer 31. In Trespass Quare clausum fregit the Defendant Trespass says that locus in quo c. is 6 Acres in D. which is his Freehold the Plaintiff replies that it is his Freehold and not the Defendants The Defendant cannot give in evidence other 6. Acres in D. which are his Freehold because the plea shall be intended to refer to the 6 Acres of the Plaintiffs Dyer 23. In Rescous by the Lord upon not guilty the Rescous Defendant shall not give in evidence that he doth not hold by Vavasour and Bryan and so if he said nothing is behind in avowry he shall not give in evidence that he doth not hold of him T. 9 H. 7. 3. Avowry In Assise Feoffment pleaded the Plaintiff said he Feoffment did not enfeoff modo forma upon the Deed and Letter of Attorney to Infeoff upon condition found if the Attorny made it without condition this well proves the Issue for the Plaintiff 13 E. 4. 4. If one plead a Feoffment of a Jointment to his Companion or of a Feme Covert the other may say ne enfeoffa pas and give the matter in evidence and the Court shall instruct the Jury of the Law 18 E. 4. 29. Upon the general Issue any thing may be given in evidence Regula which proves the Plaintiff had no cause of Action Trespass by the Warden of the Fleet upon not Trespass Guilty you may give in evidence that he is not Warden 4 E. 4. 7. So in Trespass of a House that he had no house there or the Freehold of another and not of the Plaintiff is good evidence upon not Guilty but in Trespass of Goods 't is no good Plea to say the property was in another although it is in a Replevin and therefore it seems to be no good evidence in Trespass because possession maintains the Action against all but the owner but that the property was in a stranger and he gave them to the Defendant is good See before cap. Evidence 27 H. 8. 25. But in Trover Trover that they were not the Goods of the Plaintiff is good evidence 5 H. 7. 3. Cessavit 〈◊〉 Count that of diverse Lands held by Cessavit entire service upon non tenuit modo forma held by several services is good evidence for he had no such cause of Action 10 H. 7. 24. Upon the general Issue for the Defendant by evidence to Regula convey to himself the same Interest and Title â— good evidence As in Trespass of Goshauks Not Guilty
that the Sow was with Pigg when she was taken and afterwards cast her Piggs in the Custody of the defendant and the Plaintiff recovered Damages for says Bro. Aridg tit General Issue 88. This is a special taking in Law Dower of rent Hill ne unque seisie que Dower la poit Dower Horton J S. granted the rent to the Husband payable at Michaelmas next and the Husband dyed before the day and so he was seised in Law and demanded judgment Thirm You shall say generally quod seisie que Dower la poit and give your Case in evidence Et sic bene notwithstanding the doubt of the lay Gents for they ought to credit the Law and evidence is not to be pleaded 11 H. 4. 88. Tenant for life leaseth for years who is ousted and the Tenant for life is disseised The disseisor leaseth for years who sows the Land The Tenant for Life dies he in remainder in Fee brings Trespass against the Defendants claiming the Emblements Emblements Knivets Case lib. 5. 85. by the Lessee of the Disseisor Adjudged that they had not the meer right but in respect of their possession they should barr the Plaintiff who had no right and that the meer right was in the Lessee of the Tenant for Life and that he might bring Trespass against the Lessee of the Disseisor and recover all the mean profits But as to the entry into the Land to take the Emblements this was good matter of justificaâ—ion but in regard it was not pleaded it could not be given in evidence upon Not Guilty and therefore the Plaintiff had judgment for the entry and was barred for the residue Note that the Lessee of Tenant for Life had right to the Land and by consequence to the Emblements as things annexed to the Land and the death of the Tenant for Life determins his interest to the Land but his right to the Emblements remains It sufficeth to prove the substance without any precise Regula Substance Circumstance regard to the Circumstance As if an Indictment be that with a Dagger the offender gave another a mortal wound c. and in evidence it is proved to be done with a Sword Rapier Club Bill or any other Weapon the offender upon this evidence ought to be found guilty For the mortal wound is the substance and the manner of the Weapon is but the Circumstance yet some Weapon ought to be mentioned in the Indictment And so if A. B. and C. be indicted for killing of J. S. and that A. stroke and the other were Abettors To prove that B. stroke is sufficient c. Manslaughter upon an Indictment must be found if proved because the killing is substance upon which judgment shall be given Indictments for â—urther of Ministers of Justice in execution of their Office may be general viz. that the prisoners felonice voluntarie ex malitia sua praecogitata c. percusserunt c. without alledging the special matter which may be given in evidence for the Law implyes malice prepensed So if a Thief in robbing kills the man that resists him or a man is killed without any provocation or without malice prepensed that can be actually proved the Law adjudges this murder and implyes the malice and in these Cases the offenders may be indicted generally that they killed of malice prepense for the malice implyed by Law given in evidence is sufficient to maintain the general Indictment lib. 9. 67. Machallyes Case So of an Indictment as accessary to 2. to prove accessary to 1. is sufficient lib. 9. 119. In Cromwels Case lib. 4. 12. Although it was objected that in an Action of slander If the Defendant will justifie he must justifie the same words in the same sense as it is laid in the Nar. or else he must plead Not Guilty and give the special matter that is the variance in evidence Yet the Court held that the Defendant should not be put to the general Issue but might justifie although he varied from the Plaintiff in the sense and Copyhold In Pilkintons Case Stiles 450. Rolls said If Copies of Court Roll be shewed to prove a Customary Estate the enjoyment of such Estates must also be proved otherwise the proof is not good Forger Totum pars quality of the words and might set forth the coherent words As for calling the Plaintiff Murderer the Defendant may shew that they were speaking of Hares and the words were spoken in reference to killing of Hares Upon the Issue if the Lord of the Mannor granted the Lands per copiam rotulorum Curiae manerii pred secundum consuetudinem manerii pred To prove that there were customary Lands in the Mannor and that the Lord of late granted the Land c. per Copiam rotul Curiae where it was never granted by Copy before is no good evidence to find the Custom or that the Lands c. were grantable or demiseable by Custom Leon. 55. Kemp and Carters Case Forger of a Deed in which is contained a demise of the site of the Mannor of R. and terras dominicales c. A Deed of the site and all the Demesnes of the said Mannor Exceptis duabus clausuris c. is good evidence for it is not necessary to construe terras dominicales c. omnes terras dominicales c. for Lands not excepted are terrae dominicales and so the Count is satisfied by that evidence Leon 139. Atkins and Hales Case Debt against an Executor upon plene administravit it appeared that the Executor medled and administred Plene administravit and then refused in Court and administration was granted to another and that several summs were recovered against the Administrator it was said by Periam Justice 1. That if an Administrator who is a stranger administer without the Commandment of the Executor the Executor cannot give such administration in evidence to prove his Issue 2. That in the principal Case the Executor having administred he could not refuse and so the administration is granted without cause and what he did was without warrant and no administration Ieon 134. Hawkins and Lawse Case At Bury Assises 1682. before Judge Windham The Executor gave the administration of the Administrator in evidence and allowed but there what the Administrator did was by the Executors consent in Mr. Lun and his Mothers Case An Executor de son tort cannot give in evidence Plene administravit An Executor pleads plene administravit praeter a judgment replication and Issue that the judgment was fraudulent The Obligee who had the judgment was denyed to have evidence about his Debt for he sweareth to have Assets for himself and is interested in the thing Before Judge Windham at Bedford Assises 1682. his retaining of goods to pay himself for he cannot retain but if he takes out letters of Administration although pendente lite he may retain for a Debt of as high a Nature and plead this in Barr for
man fells all his Woods standing growing c. upon the prâ—misses to hold during the life of the Vendor rendring Rent The Vendee cuts down all Where Tenants in Common shall joyn in an action and where not what actions the one shall have against the other See 1. Inst 107 200. c. Woods Trover against a Carriers Copyholder Estray Continuâ—ndo the Trees if he cutts wood afterwards growing in the same place the Vendor may have Trespass Leon. 3. part 7. If a Carrier lose goods a special action of the Case lies against him but not Trover Roll. Abridg. 6. so of a common Carrier by Boat Noy 114. Trespass lies for a Copy-holder against the Lord for cuâ—ting down Trees that he the Tenant ought to have for repairs Godbâ—lt 173. By seisure of an Estray the Lord hath but the Custody and not the property and therefore if he works the Horse Trespass lies Yelverton 96 97. Trespass with a continuando cannot be for taking a Horse nor 10. Trees c. nor without a re-entry of the disâ—eisâ—d unless his re-entry be taken away by the act of God or the Estate be determined so that he cannâ—â— enter as if Tenant per auter vie be disseised and cestuivie que dâ— for there his entry is taken away by the act of God otherwise if it be taken away by his own act as if he release to the Disseisor c. 19 H. 6. 28. General Trespass for breaking his Park and taking Park Warren his Deer c. doth not ly at Common Law but a Writ is given by the Statute Westm 1. cap. 20. so if A. have a free Warren in the soil of B. A. shall not have Trespass but case for entring the Warren and stopping the holes c. A Commoner cannot have Trespass for the Grass Commoner False Imprisonment After a supersedeas shewed to the Bayliffs false imprisonment lies against them not against the Sheriff so against the Bayliff of a Franchise if he takes other mens goods in execution upon the Sheriffs warrant not against the Sheriff nor against the party unless he procure the Bayliff to take the wrong He that hath the Freehold in Law unless he hath Possession Entry Relation actual possession cannot have Trespass Therefore the Heir cannot have Trespass against the abater nor against Tenant at sufferance before he hath entred and only from that time but an Executor or Administrator shall by relation have Trespass from the death of the Intestate c. But a disseissee after entry shall have an action for all mean Trespasses from the disseism even against strangers for he is restored to the possession ab initio Trespasses cannot be maintained against him who comes to the goods lawfully as by the Plaintiffs delivery Trespass or under that or by act in Law c. but detinue But Trespass lies against Tenant at will or him that I lend my goods to who destroys them for thereby the privity is determined It lies against a Miller for taking Toll where none is due For taking my Servant out of my service for rescuing one taken at my suit out of the Bayliffs hands for the Bayliff is my servant For beating my Wife or Servant per quod c. Not against him that J. S. sells my Horse to or has my goods from the Sheriff although the Sheriff took them wrongfully It lies for hunting a â—ox c. in my ground Against Church-Wardens who act by the Justices of the Peace's Warrant if the Warrant be not good For digging so near my ground that it fell into the Defendants piâ—t But not that my house fell into the pitt for 't was my fâ—ult to build so near another mans ground for entring my ground to take out his Falcon which flew thither after Game For killing my Tumbler in his Warren Although I sell the goods it lies for a Trespass done Time before Tender of sufficient amends before the action brought is a good Bar for a negligent Trespass Bar. not for a voluntary one If a man enter into a place by authority of Law Ab initio and abuse this authority he is a Trespasser ab initio for his first 〈◊〉 shall be intended for this purpose As if the Lâ—ssor eâ—ter to view Wast and stays there all night If the Kings â—urveyor sells my goods If the searcher abusâ—â— mâ— stuffs If a man will stay in a Tavern all night 〈◊〉 he detains a distress after amends tendred befor◠〈◊〉 â—â—ounding If a Bayliff refuse Bail Trespass doth 〈◊〉 against him ab initio but case for the Sheriff or Undersheriff not he ought to take Bail not against â—he party nor Bayliff or person in aid if the Sheriff doth not return his Writ of Latitat or makes a false return but it doth against the Sheriff So of an Officer of an inferior Court If the Lord work an Estray Distress c. Or Executors find a Bond and cancel it thinking it was discharged and it was not They are Trespassers ab initio although they came lawfully to the possession at first Rolls tit Trespass 563. The Lunatick and not the person to whon he is Lunatick committed must bring the action in his name for a Trespass done in the Land Brownl 1. part 197. The knowledge of evidence is so beneficial and Note the Chapter of Verdicts gives much light to know what evidence is good and what not necessary for all Practicers in the Law That none can know too much be too well versed or too often conversant in it Therefore to compleat this Treatise especially in this particular I have drained the Law-books oâ— all or the most principal Cases relating to it and have added some observations very fit for the unlearned to know and I hope not fit for the learned to reject FINIS A Table to the Precedents c. A  AGreemenâ— 482 Attaint 480 Abattement of the writ for the residue 383. Asserts 192 Attornment 484 Avowry 484 Account 485. 494 Administrator 491. 504 Arrest 495 Action of the Case 495 Assumpsit 498 Acceptance 498 Averments of upon or against whaâ— 500 c. Award 505 Assault 518 B  Bâ—rron and Feme 175. 191 483 505 507 Bail-bond 487 C.  Common 406. 403 385 487 Cessavâ—t 485 Circumstance 489 Copyhold 490 510 Consimili casu 495 Condition Collateral 499 Consideration 500. 506 507 Certificate 503 Carrier 510 Commoner 511 Continuando 510 D.  Demurrer see Evidence  Deed. 482. 487 490 496 497 Damages 223. 487 Disseisin 483 Dower 488 Discontinuance 501 Date 505 Devise 505 E.  Evidence Demurrer upon evidence 476. 477 478 479 480 481 482 49â— 495 496 The Evidencer needs shew no more of a Will c. than what makes for him 479. 481 The fact is admitted by a Demuâ—rer 480 probable though not certain maâ—ter is good evidence 481. 483. Rules concerning evidence 482. 483 485 487 Non est factum 482. 487
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