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 misconveying of Process is ayded by 32 H. 8. 30. The want of any Writ Originall or Judiciall Jeofailes defaults in their form and insufficient Returns thereupon are ayded 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 Parties names mistaken in a Venire facias or the Issue as if the Issue be ne unques Executor and the Venire facias be in placito debiti c. this is a Mistryall Mistryall Cro. 2. part 528. So it is if the Venire facias be in placito transgressionis where the Action is in placito transgressionis ejectionis firme This in sawarding of Process is not ayded by any of the Statutes and better it was that there had béen no Venire facias at all in such a Case No Venire facias holpen for then the Statutes would have holpen it Cro. 3. part 622. In some Cases a Venire facias shall be awarded to make an Enquest betwixt a stranger to the Writ and Issue and the party Venire facias between a party and a stranger 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 Vouchée denieth the Déed 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 betwéen the Tenant and Vouchée Inquest at whose request Inquests in Pleas of Land shall be as well taken at the Request of the Tenant as of the Demandant 2 E. 3. cap. 16. If the Plaintiff or Demandant defisteth in prosecuting his Action Venire facias by Proviso and bringeth it not to Tryall then the Defendant or Tenant may sue forth a Veni 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 Defendant unless when he is actor as well as the Plaintiff or unless there be a default and Laches in the Plaintiff therefore there can be no Tryall by Proviso against the King unless with the Attorney Generall 's consent because no dedefault or Laches can be imputed to the King But an avowant in Replevin Proof presently after Issue joyned may have a Venire facias with a Proviso immediately after Issue joyned because he is actor and in nature of the Plaintiff But note the Nota in Stamford's Pleas del Coron fol. 155. How the Plaintiff may stop the Defendants Proviso That if by negligence of the Plaintiff the Defendant sues a Venire Facias with a Proviso yet the Plaintiff may at his pleasure stay the Defendant that he shall not procéed in his Process in praying a Tales upon the Defendants Proces as it appeares T. 15 H. 7. fol. 9. And the Defendant shall nevet be received to persue this Process with a Proviso so long as the Plaintiff persues or is ready to persue as appears Mich. 14 H. 7. fol. 7. And séeing the Tales men Tales men offer themselves to us we will tell them upon what accompt t ey come before they thrust themselves into the Inquest commonly for the love of eight pence but it may be to do some of their Neighbours a shrewd turn CAP. V. Why the Venire facias runs to have the Jury appear at Westminster though the Tryall be in the Country Of the Writ of Nisi prius when first given when granâ—able when not and in what Writs Of the Tales at Common Law and by Statute When the Transscript of the Record of the Nisi prius differs from the Roll whereby the Plaintiff is non-suited he may have a Distringas de novo BVt to observe the Method of the Writ the next words are Coram Justiciariis nostris de Banco apud Westminst tali die And here first of all you may ask me to what purpose the Sheriff is commanded to cause the Iury to come to Westminster when they are to try the Cause in the Country and in truth are not to come to Westminster I must confess the resolution of this question is not unnecessary wherefore we must know that originally before the Writ of Nisi prius was given the purpose for which the 12. Why the Venire facias is to have the Jury appear at Westminster men were to be summoned upon the Writ of Venire facias to come to Westminster was that contained in the Writ videl Ad faciend quandam Juratam for then was the Tryall â—ntended to be there if a full Iury appeared if not then a Hab. Corpora with a Tales sometimes annexed to it the form whereof you may sée in the Register and if they did not appear at the Return in the Hab. Corpora then went out the Distringas Hab. Corpus This I speak of the Common Pleas Distringas But the course of the Kings Bench and Exchequer is after the Venire facias to have a Distringas leaving out the Hab. Corpora Tryals then were all at the Barr. I speak not of Assizes But now because Iurors did not use to appear upon the Venire facias it being without penalty Tryals at the Barr Tryals at Bar. are appointed upon the Hab. Corpora and Distringas because the Iury will more certainly appear at the day in the Distringas through fear of forfeiting Issues which the Sheriff returns on the Distringas not on the Venire facias By the Statute of 18 Eliz. cap. 5. No Iury shall be compelled to appear at Westminster for the Tryal of an offence upon any penall Law committed above 30. Where a Jury is noâ— compellable to appear at Westminster miles from Westminster except the Attorny Generall can shew reasonable cause for a Tryal at Barr. Thus it was at Common Law before the giving of the Writ of Nisi prius when all Iurors together with the parties came uâ— to the Kings higher Courts of Iustice where the Cause depended which when Suits multiplyed was to the intolerable burthen of the Country 27 E. 1. cap. 4. wherefore by the Statute of Westminst 2 cap. 30. A Writ of Nisi prius Nisi prius when first given and wherefore wâ—s first given And that in the Venire facias as we may sée in the form of the Writ there mentioned Scil. Praecipimus tibi quod Venire facias coram Justiciariis nostris apud Westmon in octabis Sancti
have the better and more certain knowledge of the fact And if the fact be alledged in quadam platea vocat Kingstreet in parochia sanctae Margaretae in Com. Midd. In this Case the Visne cannot come out of Platea Parish because it is neither Town Parish Hamlet nor place out of the Neighbour-hood whereof a Jury may come by Law but in this Case it shall not come out of Westminst but out of the Parish of St. Margaret because that is the most certain But therein also it is to be noted that if it had béen alledged in Kingstreet in the Parish of St. Margaret in the County of Middlesex then should it have came out of Kingstreet for then should Kingstreet have béen estéemed in Law a Town For whensoever a place is alledged generally in pleading without some addition to declare the contrary as in this Case it is it shall be taken for a Town Town And albeit parochia Parochia generally alledgeâ— is a place incertain and and may as we sée by experieâ—ce include divers Towns yet if a matter be alledged in parochia it shall be intended in Law that it containeth no more Towns than one unless the party do shew the contrary More 55â— But when a Parish is alledged within a City there without question the Visne shall come out of the Parish for that is more certain than the City If a Trespass be alledged in D. and nul tiel ville is pleaded the Jury shall come de Corpore Comitatus De Corpora Comitatus But if it be alledged in S. D. and nul tiel ville de D. is pleaded The Jury shall come out de vicineto de S. For that is the more certain so if a matter be alledgd within a Mannor Manner the Jury shall come de vicineto Manerii But if the Mannor be alledged within a Town it shall come out of the Town because that is most certain for the Mannor may extend into divers Towns And all these points were resolved by all the Judges of England upon Conference betwéen them in the Case of John Arundell Esq indicted for the death of William Parker De Corpore Com. Where there may be a speciall Visne the Tryal shall never be de Corpore Comitatus Leon. 1 part 109. In a reall Action where the Demandant demands Land in one County Heir tryed where the Land lies where not as Heir to his Father and alledges his Birth in another County if it be denyed that he is Heir it shall not be tryed where the Birth is alledged but where the Land lyeth For there the Law presumes it shall be best known who is Heir But if the Defendant make himself Heir to a Woman for that is the surer and more certain side and the Mother is certain when perhaps the Father is incertain and therefore there it shall be tryed where the Birth is alledged Cro. 3. part 818. Cro. 2. part 303. because they have more certain Conusance then where the Land lyeth And so it is where Bastardy Bastardy is alledged the Tryal shall be in like Case Mutatis Mutandis If the man plead the Kings Letters Patents Non concessit where the Land lies and the other party plead non concessit it shall not be tryed where the Letters bear date for they cannot be denyed but where the Land lyeth Every Tryal must come out of the Neighbour-hood of a Castle Mannor Town or Hamlet Visne or place known out of a Castle Mannor Town or Hamlet as some Forrests and the like as before Every Plea concerning the person Plaintiff Where the Writ is brought at Common-Law c. shall be tryed where the Writ is brought When the matter alledged extendeth into a place at the Common Law and a place within a Franchise it shall be tryed at the Common-Law Matters done beyond Sea may be tryed in England and therefore a Bond made beyond Sea Matters done beyond Sea how tryable in England may be alleadged to be made in any place in England if it beat date in no place But if there be a place as at Burdeaux in France then it shall be alleadged to be made in quodam loco vocat Burdeaux in France in Islington in the County of Middlesex and from thence shall come the Jury 1 Inst 261. Lach 4. and 5. So if the Tenant plead that the Demandant is an Alien Alien born under the Obedience of the French King and out of the Legiance of the King of England the Demandant may reply that he was born at such a place in England within the Kings Legiance and hereupon a Jury of 12. men shall be charged and if they have sufficient Evidence that he was born in France or in any other place out of the Realm then shall they finde that he was born out of the Kings Allegiance And if they have sufficient Evidence that he was born in England or Ireland or Jernsey or Jersey or elsewhere within the Kings Obedience they shall finde that he was born within the Kings Legiance And this hath ever béen the pleading and manner of Tryal in that Case So of other things done beyond Sea Things done beyond Sea the adverse party may alledge them to be done at such a place in England from whence the Iury shall come and in a Speciall Verdict Lib. 7.26 they may finde the things done beyond Sea Ib. lib. 7.26 So when part of the act is done in England and part out of the Realm Part without the Realm and part within that part that is to be performed out of the Realm if Issue be taken thereupon shall be tryed here by 12. men and they shall come out of the place where the Writ or Action is brought Ib. lib. 6.48 Error Full age tryed where the Land lies for that Iudgment was given by default against the Defendant being an Infant Issue was taken that he was of full age And Godfrey moved whether the Tryal should be in Norfolk where the Land was or in Middlesex where the Action was brought And the Court held that it should be tryed in the County where the Land lay and Tanfield said It was so adjudged in the Kings Bench betwéen Throgmotton and Burfind Cro. 3. part 818. If the Venue arise in two Counties the Iury upon 2. Venire facias shall come from both This is called a Joynder of Counties Finch 410. 6. out of one County and 6. from the other Cro 3. part 646. but by consent of parties entred upon Record it may be by 5. out of one and 7. from the other Jury out of two Counties as appears Cro. 3. part 471. where in Replevin the Defendant avows for damage fesant The Plaintiff by his Replication claims common by prescription in loco quo c. being Broadway in the County of Worcester appurtenant to his Mannor of D. in the County of Gloucester and Issue
Visne Visne next adjoyning in what Cases or if the Visne be where the Kings Writ runs not as in the Cinque Ports c. or in a place where 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 Wales ou bâ—iefe le Royne Court the Venire facias shall be directed to the Sheriff of the next English County to cause the Jury to come De propinquiori Visne of his County to the Visne in Wales adjoyning Fitz. Abridg. tit Visne 8. Jurisdict 24. If the Visne is in some part misawarded Visne misawarded in part or sued out of more places or fewer places than it ought to be so as some place be right named this is ayded by the Statute of Jeofailes which hath ended the differences in many Cases reported in our Books concerning this point wherefore I purposely omit them Error Infamy where the Land lies for that the Iuâ—gment was given 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. CAP. IX Challenges YOu have already séen of what Visne the Jury ought to be The next thing to be considered is concerning Challenges And fâ—r this I shall present you with my Lord Cooks Collection 1 Inst 156. The rather because he hath taken more pains in the gathering and methodizing this Learning then any other one point whatsoever And I know no Reason wherefore I may not as well use his method for the perfection of this Treatise as he hath used other mens method and matter especially Perkins whom he seldom cites for the perfection of hiâ— Iudgment hath the preheminence of Invention and the Law hates nothing more then Innovation wherefore I shall follow his method in the description of a Challenge omitting the Book Cases and Authorities cited by him Challenge Challenge is a word common as well to the English as to the French and sometimes signifieth to claim and the Latine word is vendicate 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 séeing there is no proper Latin 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 verbe Calumnior 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 Calumniator to be a false accuser but it is derived of the old word Caloir or Chaloir which in one signification is to care for or foresée And for that to challenge Jurors is the mean to care for or foresée 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 Sommons 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 majo es and therefore I will handle this matter the more largely Challenge is twofold A Challenge to Jurors is twofold either to the Array or to the Polls to the array of the principall Pannell To the Array and to the array of the Tales And herein you shall 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 Verbe to array the Jury and so we say in common spéech Battail array Array for the order of the battail And this array we call Arraiamentum and to make the array Arrairare 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 Principall Challenges that there is a principal cause of challenge to the Array and a challenge to the favour principall 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 Atturney Officer in fée or of Robes or servant of either party Gossip or Arbitrator in the same 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 fame 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 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 Péer of the Realm Where there must be a Knight returned of the Jury or Lord of Parliament be demandant or Plaintiff Tenant or Defendant there must a Knight be returned of his Iury be he Lord Spiritual or Temporal or else the array may be quashed but if he be returned although he appear not yet the Iury may be taken
So you sée that where a thing is alledged to be done at the Capitall House * Rectoriae of D. there the Venire shall be of D. For that is intended to be all one with the Vill. but where it is at the Castle of Hartford c. Castell There the Venire facias shall not be de vicineto de Hartford but de Castro de Hartford for Castrum Hartford is intended a distinct place by it self and so of all Castles Cro. 2. part 239. More 862. 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 may be of the Mannor in the Vill. as de vicineto manerii de Stansted Hall in Windham Cro. 2. part 405. More 851. Arundels Case li. 6. 14. In the Common Bench in Trespas for taking away a Bag of Pepper the Defendant justified as Servant of the Maior and Commonalty of London for Wharfage due to them by the Custom of London which the Plaintiff refused to pay The Plaintiff replyed that the Custom did not extend to him London because he was a Frée-man of the City and ought not to pay Wharfage to which the Defendant re-ioyned that the Custom extended to him as well as to strangers upon which Issue was joyned Resolved 1. That the Issue should be tryed per Pais not by the mouth of the Recorder Recorder because he certifies nothing but what the Maior 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 Fréemen Where the tryal shall be by the County next adjoyning But it shall be to the County 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. Where a Man lends a Horse to another to till his Land Where a man lends his horse in one place and he is spoiled in another Visne where he is spoiled 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. Promise in one place and breach in another Visne guided by the Issue Where a promise is laid in oâ—â— place and the breach in another t 〈◊〉 Visne must be according to the evâ—â— of the Issue whether it be takeâ— upon the promise or breach Bâ—â— if no place be alledged for thâ— breach Issue be taken upon it tâ—â— Visne must be from the place of the promise which shall be intendeâ— right where the contrary appeares not sée Godbolt 274. Easter 39 Eliz. In the Kings Bench Trespass Assault and Battery 〈◊〉 Wilts continuing the Assault iâ— Middlesex and adjudged that the Jurors shall come out of both Counties More 538. Misnomer The name of a Mannor or Land or other locall thing shall be tryed where it lies because it is locall but the name or aâ—dition of a person shall be tryed where the Action is brought because this is transitory Bro. ut 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 had good Power and Authority to demise Where the Land lies The Indenâ—â—re was alledged to be made at London and the Venire facias was awarded to the Sheriff of Oxon and this being assigned for Error Iudgment was affirmed and this adjudged to be good More 710. because the Rectory was in Com. Oxon. Vide pag. 45. Where the Parish Parish is named by way of denotation or explanation of the place where the Fact is alledged to be done as at the Parish-Church of Hauk-hucknol there the Venire facias shall be of the Town not of the Parish Bulstr 1 part 60. 61. If the Fact be alledged in King-street Town in the Parish of St. Margarâ—â— 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 the Grays-Inn Hall or Lincolns-Inn-Hall c. Holborn the Visne shall be froâ— Holborn which is the Town iâ— as Yelverton said Inns of Court it was never heaâ—â— of any Venire facias to be had of 〈◊〉 of the Inns of Court Bulstr 2. pâ—â— 120. Not from house or hall especially of the Hall becaâ—â—â— it cannot be of a House much leâ—â— of a Hall In Ejectment upon a Demisâ—â— made at Denham of Lands in parâ—chia de Denham predîct The Visne may be of Denham or of the Pariâ—â— of Denham because Denham Parochia de Denham predict are all 〈◊〉 by intendment of Law Bulstr 2. part 209. More 709. Hob. 6. Bâ—â— when it appears by the Record oâ— is intended that the Parish Parish is moâ—â— 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 unâ—â— not be of Bredon but of the Parish because it appeares that the Parish extends further than the Town Hob. 326. Where an Action of Debt for Rent For Rent where the Land lies and when not is 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. li. 3. 24. Walkers Case Debt for rent of Land in another County in Debt upon a Lease of 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 Iocus 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 béen as well from the Mannor as the Town The Court adjudged it to be well enough for that the Court shall not intend the Mannor 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 Fréeholders of that
such cases Trespass another day If the trespass were in truth done the 4th of May and the Plaintiff alledgeth the same to be done the â—th of May or the first of May when no trespas 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 Iury by Witnesses that there was such a Déed Deed. which they have séen or read or prove the Déed by a Copy because the Déed may be upon Condition limitation or power of Revocation and if this should be permitted the whole Reason of the Common Law in shewing Déeds to the Court would be subverted for the Déed might be imperfect and void which the Witnesses could not perceive yet in cases of extremity as where the Déed was burned or lost by some other notorious accident the Iudges may at their discretion allow them to be proved by Witnesses li. 10. 92. In Case against an Executor Executor whereas the Testator was indebted to the Plaintiff the 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 Evidence Evidence shall never be pleaded but the matter of fact shall be pleaded and if it be denied the evidence shall be given to the Iury 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 her Husbands death because though durante viduitate imports an Estate for life Estate for life yet an Estate durante vita is more large beneficiall li. 4. 30. What may be given in Evidence Things done before the memory of man in another County or in another Kingdom may be given in Evidence to a Iury as Assets in another County c. More 47. Sée li. 4. 22. 9. 27. 28. 34. li. 6. 46 47. Vpon Issue payment Payment at the day 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 Covin may be given in Evidence by the other but not if the Issue be infeoffed or not infeoffed for it is a Feoffment â—iel quel though made by Covin li. 5. 60. Hob. 72. Doomesdâ—ybook The Book of Doomesday brought in Court is good Evidence to prove the Land to be ancient Demesne Hob. 188. In Attaint Attaint the Plaintiff shall not give more evidence nor examine more Witnesses than was before but the Defendant may Dyer 212. Copies of the Court-Rolls Court-Rolls for Copy-holders are the onely evidence for Copy-holders for as Littleton Sect. 75. tells you They are called Tenants by Copy of Court-Roll because they haue no other Evidence concerning their Tenements but only the Copies of Court-Rolls But Coke explains the Text and sayes This is to be understood of Evidences of Alienation for a Release of a right by Déed A Copy-holder that cometh in by way of admittance may have and that is sufficient to extinguish the right of the Copy-holder which he that maketh the Release had In Actions upon the Case trespass battery or false im risonment against any Iustice of Peace Maior or Bayliff of City or Town Corporate Headborough Portreve Special Evidence upon the generall Issue by whom Constable Tythingman Collector of Subsidy or Fiftéen 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 generall Issue anâ— give the speciall matter of their excuse or justification in Evidence 7 Jac. cap. 5. Generall Acts of Parliament may be given in Evidence Statutes and néed not be pleaded and so may general Pardons given by Parliament if t ey be without Exceptions But commonly advantage of the Act is given by the Act it self to the offender Pardons without pleading it as by the late most truly so called generall act of Indempnity every person thereby pardoned may plâ—ad the generall Issue and give the Act in evidence for his discharge which are generall and which particular Statutes see lib. 4. 76. Vpon not guilty in Trover Trover the Defendant 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. If there be two Batteries between Plaintiff and Defendant If there be two Trespasses and the Defendant pleads 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. at divers times the 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 betwéen the parties Littleton Sect. 485. Prohibition for suing for Tythes in Bocking Paâ—k in Essex and furmised that the Lands were parcel of the possessions of the Pryory of Christs Church in Canterbury and that the said Pryor his Predecessors had held it discharged of Tythes tempore dissolutionis and pleaded the Statute of 31 H. 8. A non Decimando The Defendant pleads that the Pryor and his Predecessors did not hold them discharged and upon Issue joyned thereon the Evidence was that the Pryor or his Predecessors time out of minde c. never paid Tythes but no cause was shewn In nil debet upon the Statute for tyâ—hes a Lay person cannot give
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 cannot refuse a Special Verdict The Court cannot refuse it if it be pertinent to the matter in Issue 1 Inst 228. It hath béen questioned A special Verd ct may be found upon any Issue as upon an eisque hoc c. whether the Iury could finde a Special Verdict upon a special point in Issue or no as they might upon the generall Issue But this question hath béen fully resolved in many of our Books first in Plo. Com. 92. It is resolved That the Iury may give a special Verdict and finde the matter at large en chescun issue en le monde so that the matteâ— 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 reall personall and mixt and upon all Issues joyned generall or speciall the Iury might finde 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 onely in Cases betwéen 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 affirmitive of the Common Law And as this special Verdict is the safest for the Iury A Free-hold upon Condition without Deed may be sound by Verdict though it cannot be pleaded 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 concernes a Fréehold 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 disseisin or in any other Action where the Iustice 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 terme of life without Déed upon Condition to tender to the Lessor a certain Rent and for default of payment a Re-entry c. By force whereof the Lessée is seised as of Fréehold and after the Rent is behinde 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 Disseisin 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 terme 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 behinde at any such Feast at which it ought to be paid then it should be lawfull for the Lessor to enter c. By force of which Lease the Plaintiff was seized in his Demesne as of Frée-hold and that afterwards the Rent was behinde 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 Iudgement 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 mannor 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 Also in such case Generall Verdict where the Enquest may 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 finde Estoppel Estoppels which cannot be pleaded as in the 2d Report fol. 4. it well appeares 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 Déed 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 Noverint univeâ—si 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 Déed And it was adjudged by Anderson Chief Justice Windham Periam and Walmesley that this was his Déed And the Reason of the Iudgement was That although the Obligée in pleading cannot alledge the delivery before the date Note that a Deed may be pleaded to be delivered after the date but not before because it shall not be intended written before the date which may be after the date 12 H. 6. 1. â— 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 Déed yet the Jurors who are sworn ad veritatem dicend 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 As in Wast supposed in A. to plead that A is a hamlet in B. and not a Town of it self admâ—â—teth the Wast c.
thereupon and 2. Venire facias awarded to the Sheriffs of the several Counties and now 7. of the County of Worcester appeared and 5. of Gloucester And although there ought to have béen 6. sworn of each County to try that Issue as appears 49 Ed. 3. 1. 31 H. 8. 46. yet by the assent of the parties those 12. who appeared by advice of all the Iustices were sworn and tryed the Issue And it was commanded that this Assent should be entred upon Record for otherwise it would be a strange President In an Action of Trover apud Paxton in Com. Hunt the Defendant pleads a Bargain and Sale apud Royston in Com. Hertford Covenant in P. to sell at â— tryed at P. in the Market there whereby he after converted them apud P. in Com. Hunt The Plaintiff saith that he was possessed of those Goods apud P. in Com. Hunt and that J. S. there stole them from him and by Covenant betwixt him and the Defendant at P. in Com. H. he sold them to the Defendant as he hath pleaded The Issue was upon the sale made by Covenant c. And it was tryed in the County of Hunt and found for the Plaintiff And it was moved to be a mis-tryal for it ought to have béen by a Iury of the County of Hâ—rtford or at leastwise by a Iury of both Counties But it was adjudged to be well tryed because the sale is confessed and the Issue is upon the Covenant alledged in Hertford Cro. 3. part 511. Usurous Contract in another County In Debt upon a Bond in London the Defendant pleaded an usurious Contract in the County of Warwick the Plaintiff replyed that the Bond was made upon good consideration Absque hoc that it was made for such usurious Contract the Tryal shall be in the County of Warwick A Dures shall be tryed there not where the Action is brought for the Bond is confessed and the usury in Warwick is only in question so if the Issue be whether the Déed were made by Dures the Tryal shall be where the Dures and not where the Déed is supposed to be made Cro. 3. part 195. Where Issue is taken upon a surrender Surrender it shall be tryed where it was alleadged to be done and not where the Mannor is of which the Copy-hold is holden Ib. fo 260. Br. tit Visne 114. In an Assumpsit laid at London in Warda de Cheape Ward or Hundred no good Visue the Venire was De parochia de Arcubus in Warda de Cheape whereas no Parish was mentioned before in the Count and adjudgad that the Venire was ill laid in the Count for a Venire facias may be of a Town Parish Mannor or other place known but not of a Hundred or Ward ib. and so it is adjudged ib. Cro. 1. part 165. for the Ward in a City is but as the Hundred in a County Where the Visne is laid to be at a City City in an Action brought in a superior Court or within the City though it be both a City and County the Venire facias may be de vicinet Civitatis Lach. 258. Though it hath béen held not good but that the Venire facias must be de Civitate leaving out Vicinet as you may read in Stamf. 155. But now the Case in Cro. 2. part 308. and Bulstr 1. part 129. say that all Venire fac are awarded de vicinet Civitatis which is intended as well de Civitate it self as de vicinet infra Jurisdictionem of the City And so it is Stiles 2. March 125. de vicinet Civitatis or de vicinet or de Civitate Coventry Eborum Norwich Sarum Bristow Exon and all other Cities which are Counties in themselves In all places besides London London no mention is made of the Parish or Ward Ib. 493. But in London the Parish and Ward is mentioned And therefore it was adjudged Cro. 2. part 150. That it was not good to alleadge any thing done in London generally But it must be in what Parish from which a Venire may be But where a thing is laid in a City in alta Warda there and the Venire facias is from the City City only it is well because it shall be intended there be no more Wards in the same City Cro. 3. part 282. A Venire facias was awarded from T. and not de vicinet de T. and for this cause resolved to be ill De vicinet out ill and not amendable Cro. 2. part 399. Bro. tit Ven. fa. 8. If the Issue be Si rex Concessit per literas patentes Where the Land lies The Tryall shall be as hath béen said where the Land lies and not where the Patent was made because the Patent is of Record and if it be traversed it shall be tryed by the Record and therefore the Issue being upon non Concessit the Issue is not upon the Patent but where the Issue is upon non Concessit or non dimisit of a thing which passeth by Deed the Tryal shall be where the Grant or Demise is alleadged But of a Feoffment or Lease for life pleaded the Issue being non Feoffavit or non diâ—isit Livery ought to be made and therefore the Tryal shall be where the Land lies Cro. 2. part 376. 3. part 259. Where the offence is laid in the Count to be in one County and the Iustification in another County and the Plaintiff replies Where the Action is laid in one County and the Justification in another the Tryal shall be where the Justification is de injuriâ— sua propria c. The Visne shall be where the Iustification is alledged As one Example for all to illustrate In an Action upon the Case for words supposed to be spoken at Bridg-North in the County of Salop thâ— Defenâ—ant pleads that he spake them as a Witness upon his Oath upon an Issue tryed at Chard in the County of Somerset The Plâ—intiff replies de son tort demesne c. And thereupon it was tryed by a Venire facias of Bridg-north And Error thereof assigned because it ought to have béen by a Visne of Chard where the Iustification arose and it was held clearly to be a mis-tryall and not ayded by the Stat. of Jeofailes wherefore the Iudgment was reversed Cro. 3. part 468. 261. 870. More 410. In an Action of the Case against a Sheriff upon an escape in London and the Arrest laid to be in South-hampton adjudged Where the escape was and not where the Arrest was 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 béen de vicinet Rectoriae de Much-Hadam but it was adjudged good because Much-Hadam is here intended a Vill. Ib. 804.
And in Iudgement of Law any of the said degrées of Nobility are Péers to another As if an Earl Marquess or Duke be to be tryed for Treason or Felony a Baron or any other degrée of Nobility is his Péer In like manner a Knight Esq 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 Commonsis to have a Tryal either at the Kings Suit or betwéen party and party a Péer 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 Fréeman 3. Annui sensus i. liberi tenementi First See before Quorum quilibet habeat 4 l. c. what yearly Fréehold a Inter ought to have that passeth upon Tryal of the life of a man or in a Plea reall or in a Plea personal where the debt or damage in the Declaration amounteth to 40. Marks Vide Littleton Sect. 464. Secondly this Fréehold must be in his own right in Fée-simple Fée tail for terme 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 Fréehold within ancient Demesne will not serve but the debt or damage amounteth not to 40. Marks any Fréehold sufficeth Thirdly he must have Fréehold in that County where the cause of the Action ariseth and though he 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 Fréehold be determined he may be challenged for insufficiency of Fréehold 4. Hundredorum First by the common Law in a Plea reall mixt and personal Challenges propter defectum hundredocum 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 Iury is double yet the Hundredors are not double Secondly If he hath either Fréehold in the Hundred though it be to the value but of half an Acre or if he dwell there though he hath no Fréehold in it it sufficeth Thirdly if the cause of the Action riseth in divers Hundreds yet the number shall suffice as if it had come out of one and not severall Hundredors Hundredors out of each Hundred Fourthly if there be divers hundreds within one Léet or Rape if he hath any Fréehold 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 No Hundredors whâ—re the one party is Lord of the Hundred or the like there néed be 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 this notice remains otherwise as hath béeâ— said for his insufficiency of Fréehold 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 Eightly 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 but remain praeter H. that is besides for the Hundred and albeit he dwelleth or have Land in the Hundred yet must he have sufficient Fréehold Challenges propter affectum 3. Propter affectum And this is of two sorts either working a principall Challenge or to the favour And again a principal Challenge is of two sorts either by Iudgement of Law without any Act of his or by Iudgment of Law upon his own Act. And it is said that a principal Challenge Principall Challenge is when there is express favour or express malice First without any Act of his as if the Iuror be of blood or kindred to either party Consanguineus which is compounded ex Con sanguine quasi eodem sanguine natus Kindred as it were issued from the same blood and this is a principal challenge for that the Law presumeth that one Kinsman doth favour another before a stranger and how far remote so ever he is of kindred yet the Challenge is good And if the Plaintiff challenge a Juror for kindred to the Defendant it is no Counterplea to say that he is of kindred also to the Plaintiff though he be in a néerer degrée For the words of the Venire facias forbiddeth the Juror to be of kindred to either party If a body politick or incorporate Bodies Politick sole or aggregate of many bring any Action that concerns their body politick or incorporate if the Juror be of kindred to any that is of that body although the body politick or incorporate can have no kindred yet for that those bodies consist of natural persons it is a principal challenge A Bastard cannot be of kindred to any and therefore it can be no principal challenge And here it is to be known that Affinitas Affinity Affinity hath in Law two senses In his proper sense it is taken for that néerness that is gotten by mariage Cum duae cognationes inter se divisae per nuptias copulantur altera ad alterius fines accedit inde dicitur Affinis In a larger sense Affinitas is taken also for Consanguinity and Kindred as in the Writ of Venire facias and other where Affinity or Alliance by Mariage is a principal Challenge and equiâ—alent for Consanguinity when it is betwéen either of the parties as if the Plaintiff or Defendant marry the Daughter or Cousin of the Juror or the Juror marry the Daughter or Cousin of the Plaintiff or Defendant and the same continues or Issue be had But if the Son of the Juror hath maried the daughter of the Plaintiff this is no principal Challenge but to the favour because it is not betwéen the parties Much more may be said hereof sed summa sequor fastigia rerum If there be a Challenge for Cosinage Cosinage he that taketh the Challenge must shew how the Juror is Cousin But yet if the Cosinage that is the effect and substance be found it sufficeth for the Law preferreth that which is material before that which is formall If the Juror have part of the Land that dependeth upon the same Title Depending on the same Title If a Juror be within the Hundred Leet or any way wiâ—hin the Seigniory immediately or mediately or any other distress
the Statutes of W. 2. and Artic. supra cartas what persons the Sheriff ought to return on Iuries Who ought to be on Juries And sée F.N.B. breve de non ponendis in Assesis juratis and the Register in the same Writ And sée there what remedy the party hath that is returned against Law It is necessary to be known the time when the challenge is to be taken At what time Challenges must be taken First he that hath divers challenges must take tâ—em all at once and the Law so requireth indifferent trials and divers challenges are not accounted double Secondly if one be challenged by one party if after he be tried indifferent it is time enough for the other party to challenge him Thirdly after chalâ—â—nge to the Array and tryal duly returned if the same party take a challenge to the Polls he must â—â—w cause presently Fourthly so if a Iuror be formerly sworn if he be challenged he must shew cause presently and that cause must rise â—â—â—ce he was sworn Fifthly when the King is party or in an appeal of Felony the Defendant that challengeth for cause must shew his cause presently Sixthly If a man in case of Treason or Felony challenge for cause and he be tryed indifferent yet he may challenge him peremptorily Seventhly a challenge for the Hundred must be taken before so many be sworn as will serve for Hundredors Hundredors or else he lâ—seth the advantage thereof In a Writ of Right Writ of Right the grand Iury must be challenged before the four Knights before they be returned in Court for after they be returned in Court there cannot any challenge be taken unto them Nota. The Array of the Tales shall not be challenged by any one party The Array of the Tales until the Array of the principall be tryed but if the Plaintiff challenge the Array of the principall the Defendant may challenge the Array of the Tales After one hath taken a challenge to the Poll he cannot challenge the Array Now it is to be séen how challenge to the Array of the principall Pannel or of the Tales or of the Polls shall be tryed and who shall be tryors of the same and to whom process shall be awarded If the Plaintiff alledge a cause of challenge against the Sheriff the process shall be directed to the Coroners Coroners if any cause against any of the Coroners process shall be awarded to the rest if against all of them then the Court shall appoint certain Elisors Elisors or Esliors so named ab eligendo because they are named by tâ—e Court against whose return no challenge shall be taken to the Array because they were appointed by the Court but he may have his challenge to the Polls Note if process be once awarded for the partiality of the Sheriff though there be a new Sheriff yet process shall never be awarded to him for the entry is Ita quod vicecomes se non intromittar But otherwise it is for that he was Tenant to either party or the like If the Array Array be challenged in Court it shall be tryed by two of them that be impannelled to be appointed by the Court for the tryors in that case shall not excéed the number of two Two Tryors unless it be by consent But when the Court names two for some special cause alledged by either party the Court may name others if the Array be quashed then process shall be awarded ut supra If there be a demur to a challenge Demur to a Challenge how determinable the Iudge before whom the cause is to be tryed may determine it or adjourn it to be heard another time Stiles 464. Vide Bulstr 1. part 114. Array of the Principall and Tales If a Pannel upon a Venire facias be returned and a Tales and the Array of the principall is challenged the tryors which try and quash the Array shall not try the Array of the Tales for now it is as if there had béen no appearance of the principall Pannel but if the tryors affirm the Array of the principal then they shall try the Array of the Tales If the Plaintiff challenge the Array of the principall and the Defendant the Array of the Tales there the one of the principall and the other of the Tales shall try both Arrayes For other matter concerning the Tales sée in Cokes Reports matters worthy of observation When any challenge is made to the Polls two tryors shall be appointed by the Court and if they try one indifferent Two Tryors and he be sworn then be and the two tryors shall try another anâ— if another be tryed inâ—iffâ—â—ent and â—e be sworn tâ—en the two tryors cease and the two that be sworn on the Iury shall try the rest If the Plaintiff challenge ten Tryall of Challenges and the Defendant one and the twelfth is sworn because one cannot try alone there shall be added to him one câ—allenged by the Plaintiff and the other by the Defendant When the tryall is â—o be had by two Counties the manner of the tryall 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 Assize and try the challenges of the parties If the cause of challenges touch the dishonor or discredit of the Iuror Juror examined he shall not be examined upon his Oath but in other cases he 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 per visum juratorum View there ought to be sir of the Jury tâ—aâ— have had the view or known the Land in question so as he be able to put the Plaintiff in possession if he recover Challenges In Proprietate probanda and a Writ to inquire for waste the parties have béen 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 CAP. X. Of what things a Jury may inquire when of espirituall when of things done in another County or in another Kingdom when of Estoppels and when not when of a mans intent THe next words in the Writ which have not yet béen taken notice of are these perquos rei veritas melius sciri poterit And this is the chief end of their méeting together Ex facta jaâ— oritur No Court can give a right Iudgment unless the truth of the fact be certainly known and to finde out this truth no way is like to this of Iuries fâ—r they do not onely
charges or lesse if he accept it do not appear to give his testimony he forfeits 10 l. to the party dampnified and must recompence his dammages 5 Eliz. 9. If a Witness commit wilful perjury he looseth 20 l. shall be imprisoned 6. months without bail stand in the Pillory and be disabled to be a Witness so shall the suborner who procures the perjury 5 Eliz. 9. Records Records prove themselves and cannot be proved by Witnesses but Copies of them must and are good Evidence and so may any thing done in the County-Court Court-Baron or Hundred-Court c. be proved by Witnesses A Fine Fine or common Recovery may be 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 usuall Evidence that there is such a Fine though they which saw the Fine are also good Evidence Plow 410. Stiles 22. Depositions Depositions in the Ecclesiastical Court 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 As upon plene administravit if it be proved that the Execution hath goods of the Testators in his hands Assets 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. So if a Lease Lease be pleaded a Lease upon Condition is good Evidence H. 8. 20. because the Genus comâ—rehends the Species So of a Feoffment pleaded a Feoffment upon Condition or a Fine which is Feoffment of Record is good Eâ—â—dence 44 E. 3. 39. A speciall Agréement is evidence for an agréement Plo. 8. But if a Feoffment Feoffment be pleaded in Fée upon Issue non feoffavit modo forma a Feoffment upon Condition is no Evidence because it â—oth not answer the Issue and â—heresoever Evidence is contrary to the Issue and doth not maintain it the Evidence is not good 11 H. 4 3. Feoffments 41. Vpon an Assumpsit to the Husband an Assumpsit Assumpsit to the Wife and his agreement is good Evidence 27 H. 8. 29. In Challenge Challenge to the Array because made 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 a Suit against an Executor Administrator â—r Heir Assets Assets in London to prove Assets in any other place is sufficient li. 6. 47. Dyer 271. Accompt Accompt pleaded before two 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 What Evidence upon the generall Issue which proves the Plaintiff hath no cause of Action or which doth intitle the Defendant 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 Detinue but he cannot give in Evidence that the Goods were vawned to him for money and that it is not paid but he must plead it 1 Inst 283. Vpon Not guilty in Battery In Battery Son assault demesne is no Evidence for thereby the Battery is confessed Ib. neither is Not guilty good Evidence â—pon Son assault demesne Vpon Not guilty in Trespass Trespass Insufficiency of the Plaintiffs mounds or to justifie for a Rent-Charge Common or the like is no good Evidence Ib. So upon the Plea Nul wast fait in 〈◊〉 Action of Wast Wast he may give in evidence any thing that proveth it 〈◊〉 Wast as by Tempest by Lightâ—ing 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 Non est factum 'T is no Evidence to shew that the Bond 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 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 Déed 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 Iury may finde it specially Vpon Not guilty in Trover Trover and Conversion a Demand and denyall of the Goods is good Evidence Plo. 14. li. 10. 57. Cro. 1 part ult pub 495. Hob. 187. Vpon plene administravit Plene Administravit the Executor cannot give a Iudgement in Evidence Kelw. 59. nor payment of Debts by Contract in debt brought upon an Obligation upon nil debet in Debt for Rent That the Lessor entred into part of the Land is no good Evidence Goldf 81. But non demisit is 9 H. 7. 3. Vpon Not guilty in an Action upon the Statute de parco fracto Parco fracto That the Plaintiff hath no Park is good Evidence 19 H. 8. 9. So upon Not guilty in Trespas in the Plaintiffs Warren Warren Evidence that he hath no Warren is good 10 H. 6. 17. Kitchin 119. A Shop-book Shop-books no evidence after a year 7 Jac. cap. 12. In debt for Arrerages of an accompt Accompt upon Nil debot modo forâ—â— No accompt is good Evidence 1 H. 6. 26. Vpon Not guilty in trespas a Loase for years 12 H. 8. 2. or that locus in quo Trespass c. is the Freehold of another 4 E. 4. 5. is good evidence but upon this he cannot â—â—â—tifie his entry upon the place by a strangers Licence or Command be generall Issue 81. because this is a Iustification by way of excuse â—either is a Lease at Will good evidence in this case So upon not guilty in trespass Not guilty in Trespass for 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 generall Issue 81. because the trespass is confessed But that the stranger gave them to the Defendant is good 9 H. 6. 11. If the Defendant plead payment to a Bond or Bill Payment by presumption and it appeares the debt is very old and it hath not â—éen demanded nor any use paid for it many years common presumption is good evidence that the money is paid and the Juries use to finde for the Defendants in
by the Mise of the parties by the same Inquest shall damages Damages be taxed for all And in Mich. 39 H. 6. fo 1. In an Action of Trespass against many who pleaded in Barr the Terme before and one of them made default Writ of Inquiry which was Recorded There it is Resolved by all the Court that for saving of a Discontinuance a Writ of Enquiry of Damages shall be awarded but none shall issue out because he shall be contributory to the damages taxed by the Inquest at the Mise of the parties if it be bound for the Plaintiff and if it be found against the Plaintiff then the Writ of Enquiry shall issue forth And the Reason wherefore no Writ shall issue out at first to inquire of damages untill c. is because that if a Writ should issue out and be executed this is nothing but an Inquest of Office and not at the Mise of the parties and yet this Inquiry if it might be allowed ought to serve for all the damages For inquiry of damages shall not be twice and the others which have pleaded to Inquest if the Issue be found against them shall be chargeable to those damages which are found by the Inquest of Office and if they be excessive they shall have no remedy although there be no default in them for they cannot have an Attaint because it is but an Inquest of Office But in trespass against two Damages by the first Inquest who plead not guilty c. severally and severall Venire fac awarded The Inquest which first passes shall assess damages for all and the second Inquest ought not to assess damages at all but that Defendant shall be contributory to the damages assessed by the first Jury notwithstanding he is not party to it yet if these damages be excessive he shall have an Attaint because though he is a stranger to the Issue yet in Law he is privy in Charge And so no damage or mischief can accrue to him in this Case Verdict when to be supplyed by Writ of Inquiry c. Now let us sée when something is lest out of the Verdict which the Jury ought to have inquired of whether it may be supplyed by matter expost facto and how And for this know that if damages be left out of a Verdict this omission cannot be supplyed by Writ of Inquiry of damages for this would prevent the Defendant of his Remedy by Attaint which would be very mischievous for then such omission might be on purpose to deprive the Plaintiff of his Attaint li. 10. 119. And the Rule is that when the Court ex officio ought to inquire of any thing upon which no Attaint lies There the omission of this may be supplyed by a Writ of Inquiry of damages as in a Quare impedit if the Jury omit to enquire of these 4. things that is to say de plenitudine ex cujus presentatione si tempus semestre transierit and the value of the Church per annum there the Plaintiff may have a Writ to inquire of these points Dyer 241. 260. because of these no Attaint lies as it is holden in 11 H. 4. 80. because that as to these the Inquest is but of Office But in all cases where any â—oint is omitted whereof an Attaint lyeth there this shall not be supplyed by Writ of Inquiâ—y upon which no Attaint lyeth And tâ—erefore in Deâ—inuâ— if the Jury finde Damages and Cost and no value as they ought this shall not be supplyed by Writ of Inquiry of damages for the Reason aforesaid Ib. Et sic in similibus But how then What Verdict set aside because the damages not well assessed shall the Plaintiff loose the benefit of his Verdict because tâ—e Jury assessed no damages or did insufficiently assess them Cerres in such Cases where damages onely are to be recovered he must loose the whole benefit of his Verdict but where any thing else is to be recovered besides damages as in Debt Ejectment c. he may release his Damages and have Iudgement upon his Verdict as to the rest And so where damages are to be recovered if part of them are assessed insufficiently and part well he may have Iudgement for those damages well assessed And oftentimes the iâ—sufficiency of the Declaration shall set aside the Verdict Verdict set aside in part as if an Action upon the Case be brought upon two promises and one of them be insufficiently laid and the Verdict give intire Damages this is naught for the whole But if the Damages had béen severally assessed upon the severall premises then the Verdict as to the promise well laid should have stood In the 11th Report fo 56. Marsh brought a Writ of Annuity against Bentham and the parties discended to issue which was tryed for the Plaintiff and the Arrerages found c. But the Iurors did not assess any damages or Cost which Verdict was insufficient and could not be supplyed by Writ of Inquiry of damages wherefore the Plaintiff released his damages and costs Release of damages where none were assessed and upon this had Iudgement upon which the Defendant brought a Writ of Error and assigned the Error aforesaid scil the insufficiency of the Verdict sed Judicium affirmatur because the Plaintiff had released his damages and costs which is for the benefit of the Defendant In Dyer 22 Eliz. 369. 370. Release of dâ—mages where they were not well assessed In a Writ of Ejectione Custodiae terrae haeredis the Iurors assessed damages intirely which was insufficient for it lay not for the Heir yet the Plaintiff released his damages and had Iudgement for the Land And Note that insufficient assesment of damages and no assessing is all one Damages and Costs The Iury ought to assess no more damages pro injuria illata then the Plaintiff declares for But they may assess so much and moreover give cost which is called Expensae litis though in the proper and generall signification Dampnum also comprehends Costs of Suit as the Entry reciting both damages and costs well affirms scil Quae dampna intoto se attingunt cum c. More damages than the Plaintiff declares for But if the Iury do assess more damages than the Plaintiff declares for the Plaintiff may remit the overplus and pray Iudgement for the residue as in the 1â—th Report fol. 115. in Trespass the Plaintiff declared ad dampnum c. 40 l. at the tryall of the Iury assessed damages occasione transgressionis predict ad 49 l. and for costs of suit 20 s. upon which Verdict the Plaintiff at the day in Bank remitted 9 l. parcel of the said 49 l. assessed for damages and prayed Iudgement for 4â— l. to which damage he had counted with increase of Costs of suit Damages remitted and had 9 l. de Incremento added by the Court which in all amounted to â—0 l. and had his Iudgement acâ—ordingly upon which a Writ
of Error was brought and the Iudgeâ—ent affirmed For as in reall actioâ—s the Demandant shall not count to Damages c. because it is incertain to what sum the damages will amount by reason he is to recover damages pendant le briefe so in the case of Costs he shall recover for the expences depenâ—ing the suit which being uncertain cannot be comprehended in the Count because the Count extends to damages past Damages in reall and personall actions and not to expences of suit For in personall actions he counts to damages because he shall recover damages onely for the wrong done before the Writ brought and shall not recover damages for any thing pendant le briefe But in reall actions the Demandant never counts to damages because he is to recover damages also pendant le briefe which are incertain The Iury may if they will assess the damages and costs intirely together Damages and Costs intirely assessed without making any distinction 18 E. 4. 23. But then they must not assess more damages and costs then the damages are which the Plaintiff counts to for if they do the Plaintiff shall recover onely so much as he hath declared for without any increase of cost because the Court cannot distinguish how much they intended for cost and how much for damages As in 1â— H. 7. 16. 17. One Darrel brought a Writ of Trespass and counted to his damage 20. marks the Defendant pleaded not guilty and the Iury taxed the damages and costs of suit joyntly to 22. marks and the Verdict was held to be good for 20. marks and void for the residue because it doth not appear how much was intended for damages and how much for costs so that there may be more damages then the Plaintiff declared for or lesse and so the Court knowes not 〈◊〉 to increase the cost whereâ—â—e he shall have Iudgement but â—20 marks by reason of the inâ—â—â—tainty Where a special Verdict is not â—â—tred according to the Notes Verdict amended by the notes the â—â—cord may be amended and made â—grée with the notes at any time â—â—ugh it be 3 or 4 c. Termes afâ—â—r it is entred lib. 4. 52. lib. 8. 162. â—â—o 1 part 145. If the matter Form Hob. 54. and substance of â—â—e Issue be found it is sufficient â—â—r precise forms are not required â—â—y Law in special Verdicts which â—â—e the finding of Lay-men as in Pleadings which are made by men â—urned in the Law and therefore â—tendment in many cases shall â—â—lp a special Verdict as much as 〈◊〉 Testament Arbitrament c. And therefore he which makes a Deputy ought to do it by Escript but when the Iury finde generally that A. was Deputy to B. all necessary incidents are found by this and upon the matter they finde that he was made Deputy by Déed because it doth tantamount lib. 9.51 And in the 5th Report Goodales Case It was resolved That all matters in a special Verdict shall be intended and supplyed but only that which the Iury refer to the Consideration of the Court. III conclusion In all Cases where the Iury finde the matter committed to their charge at large and over more conclude against Law the Verdict is good More 105. 269. and the conclusion ill li. 4. 42. and the Iudges of the Law will give Iudgement upon the speciall matter according to the Law without having regard to the conclusion of the Iury who ought not to take upon them Iudgment of the Law li. 11. 10. Where the Dâ—claration in Trespas is Cum aliquibus averiis As generall as the Narr of a number uncertain and the Verdict is as generall as the Declaration cum aliquibus averiis there the Verdict is good Cro. 2. part 662. In Ejectione â—irme where the Plaintiff declared of a Messuage and 300 Acres of Pasture in D. per nomina of the Mannor of Monkhall and five Closes per non ina c. upon Not guilty the Iury gave a special Verdict viz. quoad four Closes of Pasture containing by Estimation 2000 Acres of Pasture that the Defendant was Not guilty Quoad residuum they found matter in Law And it was moved by Yelverton that this Verdict was imperfect in all Quoad Residuum incertain For when the Iury finde that the Defendant was Not guilty of four Closes of Pasture containing by estimation 2000 acres of Pasture it is incertain and doth not appear of how much they acquit him And then when they finde quoad residuum the special matter it is incertain what that Residue is so there cannot be any Iudgment given and of that opinion was all the Court wherefore they awarded a Venire facias de novo to try that Issue Cro. 2. part 113. Ejectione firmae of 30 Acres of Land in D. and S. The Defendant was found guilty of 10. acres and Quoad Residuum Quod Residâ—um not guilty and it was moved in arrest of Iudgment That it is uncertain in which of the Vills this Land lay and therefore no Iudgment can be given sed non allocatur and it was adjudged for the Plaintiff for the Sheriff shall take his Information from the party for what ten acres the Verdict was Cro. last part 465. diversitas apparet Where the Iury find Circumstances Circumstances upon an Evidence given to incite them to finde fraud c. yet the same is not sufficient matter upon which the Court can judge the same to be fraud c. Brownlow 2. part 187. Yet in many Cases the Iury maâ— finde Circumstances and presumâ—tions upon which the Court ought to judge As to finde that the Husband delivered Goods devised by the Wife Vpon this the Court adjudged that the Husband assented to the devise at first More 192. Where a Verdict is certainly â—iven at the Tryall Postea amended how and uncertainly returned by the Clerk of the Asâ—izes c. The Postea may be amended upon the Iudges certifyâ—ng the truth how the Verdict was given Cro. 1. part 338. In many Cases a Verdict may â—ake an ill Plea or Issue good Ill Plea made good by Verdict As 〈◊〉 an action for words Thou wast â—erjured and hast much to answer for 〈◊〉 before God Exception after Verdict for the Plaintiff in arrest â—f Iudgement For that it is not â—nd in the Declaration that he â—pake the words in auditu compluriâ—orum or of any one according to â—he usuall form sed non allocatur for â—â—ing found by the Verdict that he â—pake them it is not materiall alâ—hough he doth not say in auditu â—urimorum whereupon it was adâ—udged for the Plaintiff Cro. 1. part 199. Sée Cro. last part 116. Where the Barr was ill because no place â—f payment was alledged yet the â—ayment being found by Verdict it was adjudged well enough for a payment in one place is a payment in all places Trespass by Baron and feme de clauso fracto of the Barons And for the