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
that the Sow was with Pigg when she was taken and afterwards cast her Piggs in the Custody of the defendant and the Plaintiff recovered Damages for says Bro. Aridg tit General Issue 88. This is a special taking in Law Dower of rent Hill ne unque seisie que Dower la poit Dower Horton J S. granted the rent to the Husband payable at Michaelmas next and the Husband dyed before the day and so he was seised in Law and demanded judgment Thirm You shall say generally quod seisie que Dower la poit and give your Case in evidence Et sic bene notwithstanding the doubt of the lay Gents for they ought to credit the Law and evidence is not to be pleaded 11 H. 4. 88. Tenant for life leaseth for years who is ousted and the Tenant for life is disseised The disseisor leaseth for years who sows the Land The Tenant for Life dies he in remainder in Fee brings Trespass against the Defendants claiming the Emblements Emblements Knivets Case lib. 5. 85. by the Lessee of the Disseisor Adjudged that they had not the meer right but in respect of their possession they should barr the Plaintiff who had no right and that the meer right was in the Lessee of the Tenant for Life and that he might bring Trespass against the Lessee of the Disseisor and recover all the mean profits But as to the entry into the Land to take the Emblements this was good matter of justificaâ—ion but in regard it was not pleaded it could not be given in evidence upon Not Guilty and therefore the Plaintiff had judgment for the entry and was barred for the residue Note that the Lessee of Tenant for Life had right to the Land and by consequence to the Emblements as things annexed to the Land and the death of the Tenant for Life determins his interest to the Land but his right to the Emblements remains It sufficeth to prove the substance without any precise Regula Substance Circumstance regard to the Circumstance As if an Indictment be that with a Dagger the offender gave another a mortal wound c. and in evidence it is proved to be done with a Sword Rapier Club Bill or any other Weapon the offender upon this evidence ought to be found guilty For the mortal wound is the substance and the manner of the Weapon is but the Circumstance yet some Weapon ought to be mentioned in the Indictment And so if A. B. and C. be indicted for killing of J. S. and that A. stroke and the other were Abettors To prove that B. stroke is sufficient c. Manslaughter upon an Indictment must be found if proved because the killing is substance upon which judgment shall be given Indictments for â—urther of Ministers of Justice in execution of their Office may be general viz. that the prisoners felonice voluntarie ex malitia sua praecogitata c. percusserunt c. without alledging the special matter which may be given in evidence for the Law implyes malice prepensed So if a Thief in robbing kills the man that resists him or a man is killed without any provocation or without malice prepensed that can be actually proved the Law adjudges this murder and implyes the malice and in these Cases the offenders may be indicted generally that they killed of malice prepense for the malice implyed by Law given in evidence is sufficient to maintain the general Indictment lib. 9. 67. Machallyes Case So of an Indictment as accessary to 2. to prove accessary to 1. is sufficient lib. 9. 119. In Cromwels Case lib. 4. 12. Although it was objected that in an Action of slander If the Defendant will justifie he must justifie the same words in the same sense as it is laid in the Nar. or else he must plead Not Guilty and give the special matter that is the variance in evidence Yet the Court held that the Defendant should not be put to the general Issue but might justifie although he varied from the Plaintiff in the sense and Copyhold In Pilkintons Case Stiles 450. Rolls said If Copies of Court Roll be shewed to prove a Customary Estate the enjoyment of such Estates must also be proved otherwise the proof is not good Forger Totum pars quality of the words and might set forth the coherent words As for calling the Plaintiff Murderer the Defendant may shew that they were speaking of Hares and the words were spoken in reference to killing of Hares Upon the Issue if the Lord of the Mannor granted the Lands per copiam rotulorum Curiae manerii pred secundum consuetudinem manerii pred To prove that there were customary Lands in the Mannor and that the Lord of late granted the Land c. per Copiam rotul Curiae where it was never granted by Copy before is no good evidence to find the Custom or that the Lands c. were grantable or demiseable by Custom Leon. 55. Kemp and Carters Case Forger of a Deed in which is contained a demise of the site of the Mannor of R. and terras dominicales c. A Deed of the site and all the Demesnes of the said Mannor Exceptis duabus clausuris c. is good evidence for it is not necessary to construe terras dominicales c. omnes terras dominicales c. for Lands not excepted are terrae dominicales and so the Count is satisfied by that evidence Leon 139. Atkins and Hales Case Debt against an Executor upon plene administravit it appeared that the Executor medled and administred Plene administravit and then refused in Court and administration was granted to another and that several summs were recovered against the Administrator it was said by Periam Justice 1. That if an Administrator who is a stranger administer without the Commandment of the Executor the Executor cannot give such administration in evidence to prove his Issue 2. That in the principal Case the Executor having administred he could not refuse and so the administration is granted without cause and what he did was without warrant and no administration Ieon 134. Hawkins and Lawse Case At Bury Assises 1682. before Judge Windham The Executor gave the administration of the Administrator in evidence and allowed but there what the Administrator did was by the Executors consent in Mr. Lun and his Mothers Case An Executor de son tort cannot give in evidence Plene administravit An Executor pleads plene administravit praeter a judgment replication and Issue that the judgment was fraudulent The Obligee who had the judgment was denyed to have evidence about his Debt for he sweareth to have Assets for himself and is interested in the thing Before Judge Windham at Bedford Assises 1682. his retaining of goods to pay himself for he cannot retain but if he takes out letters of Administration although pendente lite he may retain for a Debt of as high a Nature and plead this in Barr for
Elegit and of Hab. Corp. from a Mayor c. But if the retorn is not definitive as upon a Rescous c. an averment doth ly and upon this it may go to Tryal So if it be a return to indanger a mans Life or his Inheritance an averment may be had against it Dyer 348. 177. So it lyeth against the returns of Bayliffs of Franchises so that the Lords be not prejudiced in their Franchises thereby Goldsb 139. 129. pl. 23. An action for a false return an averment doth ly against the Sheriff return Winch 100. and so it doth Upon or against a Will or Administration it lyeth although they be under Seal of the Court. in any other action than in that the retorn was in Any averment may be upon a Will or any part of it that may help to expound it and of such a thing that may stand with the Will and may be collected out of the words As which Son he meant c. lib. 8. 31. 41. But no averment against or besides that which is expressed in the Will or which cannot be gathered to be the mind from the words nor of any thing that doth not cohere with the Will especially if it be about Lands As in the Lord Cheyneys Case lib. 5. 68. A devise to A. and the Heirs of his body the remainder to B. and the Heirs Males of his Body on condition that he or they or any of them shall not align c. no averment shall be taken to prove by Witnesses or other evidence that the Devisor intended to include A. within this condition by the words â—e or they for the construction of Wills ought to be collected out of the words of the Will in wriing and not by any averment or proof out of it It lyes against the Rolls or Records of County Against Court Rolls or upon them Courts Hundred Courts Courts Baron As that there is no such Record or it is not as it is certified 34 H. 6. 42. 9 E. 4. 4. No Averment or proof is to be admitted against Against common presumption or reason common presumption as that there was more Rent behind when the acquittance of the last Rent was made 1. Inst 373. Nor against common reason as that Land doth belong to Land or to a messuage Plo. 170. lib. 437. If the matter contained in an award and the matter Upon an award in the submission do not agree it will hardly be supplied by an averment Dyer 242. 52. If the Defeasance of a Recognisance be dated before Date the Recognisance it may be averred to be delivered at or before the time of the Recog entred into Perkins Case 147. Things apparent or necessarily intendable by Law need not be averred manifesta non probatione indigent Quod constat clare non debet verificari lib. 11. 25. Plo. 8. Chief Justice Anderson held Godbolt 131. that if Devise one devise Lands to the Heirs of J. S. and the Clerk writes it to J. S. and his Heir that the same may be holpen by averment because the intent of the Devisor is written and more and it shall be naught for that which was against his Will and good for the residue But if a Devise be to J. S. and his Heirs and it is written but to the Heirs of J. S. there an averment shall not make it good to J. S. because it is not in writing which the Law requires And so an averment to take away any surplusage is good but not to increase that which is defective in the Will of the Testator But with submission if the Law should admit of such averments it would be as mischievous one way as the other and no man could know by the words of the Will what construction to make nor what advice to give but this shall be controlled by collateral averments out of the Will and instead of proving the Testators Will it would be the destroying of it If the partition be by Writ although it be unequal Partition yet it shall not be avoided by averment but shall bind the Feme Coverts And such averment against the retorn of the Sheriff shall not be good 1. Inst 171. A valuable consideration in a Bargain and Sale Consideration not expressed may be averred 2. Inst 672. A consideration which consists with the Deed and not repugnant may be averred as in a Bargain and Sale if a particular consideration be expressed and the general clause of other good causes and considerations or without that general clause yet other considerations may be shewed so if the particular consideration be love and affection yet payment of money may be shewed so a precedent intent of uses and Uses to levy a fine may be shewed to guide the use of the fine Rolls tit uses 790. As if I covenant by Deed to purchase Land and then to levy a fine or make a Feoffment thereof to the use of another and afterwards purchase and levy a fine or make a Feoffment this use shall rise For the Deed is an evidence of the precedent intent and the uses of a fine or Feoffment may be directed by the precedent intent and yet such intent is countermandable But a covenant to purchase and stand seised of Lands to uses shall not raise the use after the purchase because the use is to rise by the Deed and at the time when the Deed was made there was no Estate in the Land ibidem So if one joyntenant covenant to stand seised of his Companions part if he survive yet no use shall rise if he did survive because at the time of the Covenant he could not grant nor charge the Land ibid. 'T is true that a fine sur grant and render unless it Fine sur grant and render use be in special cases cannot be averred by parol to be to any other use or intent than what is expressed in the fine Feoffment or other conveyance But there is a diversity betwixt a use and consideration for when a fine Feoffment or other conveyance import an express consideration a man may aver by word another consideration which may stand with the consideration expressed but the parties cannot by parol aver any other use than is contained in the same coveyance Also no averment shall be against the consideration expressed But yet in some cases a fine Sur grant and render may be ruled and directed in part by averment per parol and this is when the original Bargain and Contract betwixt the parties is by Indenture or other Deed As where it is agreed by Indenture that a Fine shall be levyed of certain Lands by the name of a certain number of Acres to divers persons and that they shall grant and render the Land again in fee simple which shall be to certain uses the Fine is levyed of the Land but there is some variance betwixt the number of Acres comprised in the Fine or the Fine is levyed
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
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
Fine be given in Evidence with five years non clayme c. the fine must be shewed with the Proclamations under Seal and the Chirograph will not serve The confession of a party must be taken whole and not by parts As if to prove a debt it be sworn that the Defendant confessed it but withal he said at the same time That he paid it his confession shall be valid as to the payment as well as that he owed it Per Hale Ch. Just And so is common practice A deed cancelled by practice was allowed to be read in Evidence in action under that Deed the practice being proved Hetly 138. Against a Purchasor bona fide recital in a Deed of money paid is not sufficient nor acquittance for the money unless it be of antient standing and then it shall be presumed The Deed to lead the uses of a Fine sur concessit need not be proved per Testes If a deed of Feoffment be shown but no Livery possession going with the Deed is Evidence to a Jury to find Livery At Guild Hall Trin. 23 Car. 2. Hale Ch. Just cited the Case of Sir Paul Pindar A Levari c. was proved by a recital of it in another Record and Hale and Mainard demurred on the Evidence and adjudged against them for this Cause viz. That it was proved there was such a Record that it was filed that it was taken off the file But by him generally without such proof the evidence is not good because one Record may recite one that never was The Jury are to decide the fact and evidence is not given but to inform them in their consciences of the truth for although no evidence is given of either side yet they may give their verdict of one side or the other 14 H. 7. 29. And therefore although two witnesses are necessary where the tryal is by witnesses as in the Civil Law Yet they are not of necessity where the tryal is by Jury And where witnesses are joyned Office of the Jury with the Jury yet they may be rejected if they will not agree with the twelve and the twelve may give their Verdict The Jury after they are departed from the Barr may return to hear their evidence of any thing they doubt before the Verdict Sur Travers de done in tayle the witnesses Done in Tayle prove That another made the Done this doth not warrant the issue In an action against the Sheriff upon Extortion vers Vic. the Statute of Extortion That he took it for Barretée of one who was acquit is good evidence Possession is an evidence of right and he that hath possession may distrain the Cattle Possession of him that hath no title for the taking is in respect of the possession more than of the title In debt for Rent upon a Lease and nil Debt for Rent debet pleaded ne unques seisie de terre is good evidence otherwise upon the plea of riens arrere or levy per distresse Parson or not Parson in such issue Parson you may give in evidence a resignation although it be in another County and Spiritual In riens passe per le fait Not his Fait deed may be given in evidence In Trespass quare claus fregit with What ought to be proved in evidence abuttals all the abuttals and descriptions must be proved But if the abuttal be laid North c. and it incline North though not directly it is sufficient sic de caeteris Vpon this Issue the account given Plene administravit to the Ordinary shall not be given in evidence nor any respect had to it Will The probat is good for the personal What shall be given in evidence and what is good evidence estate but not to prove a Will in writing of Land by the Statute Recital of other Grants by Letters Patents Recital in Letters Patents in Letters Patents are some evidence but not fit to be allowed without shewing the former Letters Patents or a copy But the Jury may find them Surmise in a Prohibition The proof of this surmise in any Court of Record shall not be given in evidence in another action upon the same custome because the Defendant in the prohibition cannot cross examine Depositions Depositions in the Court Christian in the Court of the Councel of York touching the title of Land of which they have not conusance or in another Suit against him who claimeth not under those parties by the Commissioners upon a Commission of Bankrupt because the party could not cross examine shall not be allowed in evidence But a sentence given in the spiritual Court touching Tithes may be given in Evidence in an Action at Common-Law for this is a judicial act After evidence given and the Jury ready Former Tryal to give their Verdict and then the Atturney General will not proceed but draws a Juror and brings another information none of the former Jurors shall be admitted to give in evidence that the Jury were ready to give their Verdict against the King in the first information for this ought not to be discovered for so no benefit would accrue to the King by his Prerogative to draw a Juror But this may be given in evidence in another What may be given in evidence upon a special Issue action where the King is not concerned In debt for rent upon non demisit that Debt for rent the lessor riens avoit in the land at the time of the demise may be given in evidence Vpon an Issue of Common appendant c. Common common per cause de vicinage cannot be given in evidence If the Defendant plead son assault demesne Son Assaule demesne in Battery in Battery and the Plaintiff reply de injuria sua propria absque tali causa And so issue is joyned if there was a battery at another day than what the Plaintiff and Defendent have assigned upon the Plaintiff and another upon the Defendant by the Plaintiff The Verdict ought to be for the Defendant for if the Defendant prove any assault made upon him by the Plaintiff this ought to be found for him although it was at another day than what he hath alledged for the day is not material But upon such speciall justification the Defendant hath liberty to prove his Plea at any time and the Plaintiff might have made a new assignment at another time for peradventure there might be several trespasses at several times to which the Defendant may have several Pleas and therefore if such manner of pleading should not be allowed and such evidence the Defendant could not tell how to help himself nor could know for what Trespass the action is brought Vide devant hic appres cap. 13. If the Issue be whether the Kings Surrender Tenant by Letters surrendred to the King or not the accepting of new Letters Patents which is a surrender in Law is good
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
may be averred Or what or who was meant where there are two of a name c. lib. 8. 155. The Heir in tail cannot aver against a fine levied by his Ancestors That partes finis nihil habuerint lib. 3. 84 85. Leon 75 76. c. But when Tenant in tayl accepts of a fine and grants and renders the Land by the same fine which is Executory there if no execution be sued in the life of Tenant in tayl his Issue may aver continuance of possession c. in his Father for this stands with the fine and the acceptance of the fine alters not the Estate If a man and his Wife sell her Land for money and after levy a fine to the Vendee and his Heirs it may be averred it was for money and so carry the use to the Vendee without any declaraâ—ion of use which otherwise would result to the Woman and her Heirs and â—o other uses may be proved than what are in an Indenture of uses subsequent to the conveyance c. lib. 9. 8. 5. 26. Tenant in tail with remainder in tail to A. Reversion in see to himself bargains and sells Land c. and levies a fine to him with Proclamation with general warranty The Conusee infeoffs A. Resolved The Bargainee had an Estate determinable upon the death of the Tenant in Tail and also the reversion in fee which the Bargainor had and his Wife shall be endowed but this determines upon the death of the Tenant in Tail Resolved The fine doth not discontinue the remainder for this doth not pass any Estate but makes this Estate of the Bargainee durable c. so that it shall not determine untill the Tenant in Tail die without Issue aâ—d the conclusion may be confessed and avoided Resolved the Warranty doth not barr the remainder for this was annexed to the fee determinable c. and to the reversion in fee and doth not extend to the remainder for this was not displaced and the Feoffee of the Conusee cannot inlarge c. 'T is a Maxim that a Warranty barrs no Freehold which is in esse possession or remainder c. and not displaced before or at the time of the Warranty although it be devested before the descent Resolved A Warranty cannot inlarge the Estate Resolved the Feoffment of the Conusee was not a discontinuance of the remainder because he was not Tenant in Tail so of the Grantee of totum statum suum c. Resolved A Collateral Warranty may be given in evidence and found by the Jury The Chief Justice held that by the Feoffment of the Conusee the Remainder was not displaced nor put to a right for his Fee simple and his Fee determinate pass and the Feoffment which in it self is not tortious cannot be tortious to another Otherwise it is when Tenant for life or remainder in Tail c. makes a Feoffment for the Feoffment it â—elf is torâ—ious Note there are some titles to which a Warranty doth not extend as in the Case of an Eschange condition upon a Mortgage Mortmain consent to a Ravisher c. for in these Cases no action lies in which Voucher or Rebutter may be neither shall a descent take away Entry in these cases and cannot be displaced out of their Original essence Collateral Warranty shall barr dower and yet an action is given for this But a fine c. and five years barr these titles and dower also if an action be not brought in time Seymour's Case lib. 10. 96. Buckler and Harveys Case lib. 2. 55. Tenant for life leases for 4 years and afterwards grants the Tenements Hab. from P. for life after P. the Lessee attorns then the Grantee enters and leases at will to which Tenant at will the Tenant for life levies a fine Come ceo c. Rem in fee enters Resolved The Grant was void for an Estate of Freehold cannot commence in futuro and the Grant being void at the Commencement the Attornment afterwards cannot make it pass and that the Grantee was a Disseisor but if the Grant had been good at the Commencement and was only to have its perfection by a subsequent act as by livery upon a Charter of Feoffment c. and the Grantee enter before the perfection he is not a Disseisor but a Tenant at will Resolved also If the fine had been levyed to the Disseisor himself Come c c. he which had the right of remainder may enter for the forfeiture for it was agreed that the right of a particular Estate may be forfeited and entry given to him who had but a right As if Lessee for years be ousted or Tenant for life Disseised and the Lessee for years brings an assisse or the Lessee for life a Writ of right c. 'T is a forfeiture Resolved also That the fine being levied to the Tenant at will it is a forfeiture and he which had the right of remainder may enter and the Tenants for life and at will also shall be estopped to say quod partes finis nihil hab c. and of such estoppels which are by matter of Record and trench to the disherison of them in reversion c. they shall take advantage although they are strangers to the Record for they are privies in Estate Resolved also If the Disseisee levy a fine to an estranger the Disseisor shall retain for ever for the Disseisee against his own fine cannot claim the Land and the Conusee cannot enter for the right of the Conusor cannot be transferred to him but by the fine the right is extinct whereof the Disseisor shall have advantage But in Crok 1. part 482. 13 Car. it was moved if the Disseisee not knowing of the Desseism levied a fine to a stranger whether that should barr his right and move to the benefit of the Disseisor according to Bucklers Case and said if admitted would be of very mischievous consequence and by two Judges held that it should not enure to the benefit of the Disseisor but to the use of the Conusor himself for otherwise a Disseisin being secret may be the cause of disherison of any one who intends to levy a fine for his own benefit for assurance of his Lands upon his Wife and Children or otherwise 1. Inst 277. Not against such Certificates as are a definitive Against a Certificate Tryal of the thing certified As the Bishops Certificate of Excommunication Bastardy lawful Marriage c. so Certificates of the Marshal of the Host which is a Tryal but against Certificates only of information it may be As against Certificates upon Commission out of any Court or of the Commissioners that affirm a man a Bankrupt which are not Tryable in a course of Law but informations lib. 7. 14 lib. 8. 121. So of a return if it is a definitive Tryal of the Upon a Return thing returned no averment lyeth against it As the retorn of a Sheriff upon some Writs as a Writ of Partition
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