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
judgement of more knowing Judges of fact when they become litigious and this was by an Act of 16 17 Car. 2. cap. 3. which being but a probationer and to continue but for 3 years and from thence to the end of the next Session of Parliament it is expired but for that it may be revived as I humbly judge it expedient I have thought fit to hint thus much concerning it Such a man who hath Land Rent Office or other profit Apprendre out of ancient Demesn to the clear yearly value of 4. li. of which he may have an Assise he hath sufficient Freehold to be a Juror Vide the said reading Where you may know what Estate is sufficient to make a man a Juror See hic in the Chapter of Challenges Et qui nec D. E. nec F. G. aliqua affinitate Jurors mus not be of affinity to the parties attingunt the Law is very cautelous in not leading men into temptation Therefore lest kindred and Affinity should wrong the Conscience to help a freind our Jurors must not be related to any of the parties And for this Reason likewise the Statutes provide that no man of Law shall ride Judge of Assise or Gaol-delivery in his own Country 8 R. 2. 2. 33 H. 8. cap. 24. yet the contrary hereof is often done by a non obstante but how consistent with integrity or prudence they know best who procure it to be done But because most things concerning the Quality and sufficiency of Jurors will come more properly under the Title Challenge I will refer you thither And first observe more particularly De quo vicinet the Jury ought to come CAP. VIII Concerning the Visne from what place the Jury shall come c. VIcinetum is derived of this word Vicinus Visne and signifieth Neighbour-hood or a place near at hand or a Neighbour place where the question about the fact is moved And the most general Rule saith Coke 1 Inst 125. is That every Tryal shall be out of that Town Parish or Hamblet or place known out of the Town c. within the Record within which the matter of fact issuable is alledged which is most certain and nearest thereunto the Inhabitants whereof may have the better and more certain knowledge of the fact And if a thing be alledged in D. the Venue must not be of D. but de vicineto de D. for otherwise the Neighbourhood would be excluded Roll. tit Tryal 622. And if the fact be alledged in quadam plaâ—ea vocat Kingstreet in parochia sanctae Margaretae in Civitate Westm in Com. Midd. In this Case the Visne cannot come out Parish of Platea 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 been alledged in Kingstreet in the Parish of St. Margaret in the County of Middlesex then should it have come out of Kingstreet for then should Kingstreet have been esteemed 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 Town taken for a Town And albeit parochia generally alledged is a Parochia place incertain and may as we see by experience 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 But when a Parish is alledged within a More 559. City there without question the Visne shall come out of the Parish for that is more certain than the City If a matter be pleaded done apud Bradford in Forfeild in parochia de Belbroughton the Venue shall be of Belbroughton and not of Bradford for Belbroughton shall be intended to be a Town and one Town shall not be intended to be in another Town and therefore Bradford shall not be intended to be a Town Rolls tit Tryal 619. The Venue shall ever be of the most certain place In a Quo warranto for using a Warren in D. if the Defendant say the Ville D. is parcel of the Manner of S. and prescribes to have a Warren within the said Mannor and Demesnes thereof the Venire facias shall be of the Mannor for the Mannor by intendment is more large than the Vill. If the Visne be de D. and S. and the Venire facias be de D. S. and V. this is not good because it is too large If apud Burgum de Plimouth the Venue may be de Plimouth generally If apud Villam de Cambridge in Warda Fori and the Venire facias is de Villa Warda praedict this is helpt by the Statute of Jeofailes If the place be out of a Town the Venue shall not be of the next Town but from the place it self but the Sheriff ought to return the Jury de pluis prochein vill In Ejectment of Land in Foresta de Kevennon in Com. the Venue may be de vicineto Forestae for this is a place known and by intendment because the Defendant hath not pleaded in abatement This is out of any Parish or Vill. In inferior Courts within Boroughs the Venire facias is Quod Venire facias 12. liberos Burgenses Burgi parochiae de B. although there may be 12 Burgesses which are not inhabitants Rolls tit Tryal 622. c. The Venue shall follow the issue vide hic postea In Trespass and Battery in London if the Defendant justifie in Mid. by Process out of the Marshalls Court that he arrested him and because the Plaintiff would not go with him he beat him c. Absque hoc that he is guilty in London vel alibi out of the Iurisdiction of the Court. To which the Plaintiff replies and acknowledges the arrest but says that he beat him at London de injuria sua propria absque tali causa and issue upon this This shall be tryed in London and the words absque tali causa are void the issue being joyned upon a place certain scil London affirmed in a Writ of Error Rolls ib. 624. But the Court said that he might have Demurred upon this Plea If a Trespass be alledged in D. and nul De Corpore Comitatus tiel ville is pleaded the Jury shall come de Corpore 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 alledged within a Mannor the Mannor 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 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
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
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