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
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
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
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
if that be Album breve and no return if the Venire facias be Right Rolls tit 204. In Cases where there are several Defendants who plead several Pleas the Plaintiff Several Venire facias may chuse either to have one Venire facias for all or several for every one of the Defendants But if you will be ruled by Stamford the surest way is to have a Venire facias against every one and then one cannot have benefit of the others Challenge neither shall the death of one abate the Venire facias against the other This he speaks of in Appeals But if the Court once award a joynt Venire facias you cannot have several Venires afterwards though there be nothing done upon the first except it be upon matter de puisne Temps as the death of one of the Defendants c. lib. 8. 66. lib. 11. 5 6. Stamf. 155. Bro. tit Venire facias 2. 35. But now it is the usual course to have but one Venire facias upon several issues though against several Defendants Cro. 3. One Venire facias in several issues Vide Rolls tit Trial 596. 620. 667. Hob. 88. 51. part 866. Hob. 36. 64. And so usual that the Court declared Cro. 2. part 550. That there never shall be several Venire facias to try several Issues in one County For what need the Plaintiff trouble himself and the Country with several when one Iury will serve his turn Et frustra fit per plura quod fieri potest per pauciora But otherwise if it be in two Counties Cro. 3. part 866. After issue joyned by two Defendants Venire facias between the Plaintiff and 2 Defendants where one is dead if one of them die and then a Venire facias is awarded betwixt the Plaintff and both the Defendants and so in the Hab. Corpora and Distringas yet this shall not Vitiate the Venire facias c. to make Error because though one of the Defendants be dead yet the other being alive it is sufficient And there needs be no surmise in Iudicial Writs that one of the Defendants No surmise in Judicial Writs of death in one of the parties is dead It is time enough to shew it to the Court at the day in bank Cro. 1 part 4. 26. But if there be two Defendants and the Venire facias be but against one of them 't is Error 7 H. 4. 13. and Bro. tit Ven. fac 11. Cro. 1. part 426. If the Venire facias bears date before Venire facias dated before the Action brought the Action brought or varies from the Roll yet it is aided by the Statutes of Jeofailes Cro. 1. part 38. 90 91. 203 204. Miscontinuance or discontinuance or Jeofailes misconveying of Process is aided by 32 H. 8. 30. The want of any Writ Original or Judâ—cial defaults in their form and insufficient Returns thereupon are aided by 18. Eliz. 14. Cro. 3. part 259. But you must have a care the Venire facias be not faulty in any other matters of Substance for if the parties names be mistaken or the issue Parties names mistaken in a Venire facias as if the issue be ne unques Execuor and the Venire facias be in placito debiti c. this is a Mistrial Cro. 2. part 528. So it is if the Venire facias be in placito transgressioniâ— Mis-tryal where the Action is in placito transgressionis ejectionis firmae This misawarding of Process is not aided by any of the Statutes and better it were that there had been no Venâ—re facias at all in No Venire facias holpen such a Case for then the Statutes would have holpen it Cro. 3. part 622. If a Venire facias be directed to the Coroners Return of Process all the Coroners ought to joyn in the return they being Ministers not Judges and so both of the Sheriffs of London ought to joyn or else the Return is not good Hob. 97. Note the Principal Statutes of Jeofailes are 8 H. 6. cap. 12. and cap. 15. 32 H. 8. cap. 30. 18 Eliz. cap. 14. 21 Jac. cap. 13. and 16 and 17 Car. 2. 8. Intituled an Act to prevent Arrests of Judgements and superseding Executions And the three first of these Statutes do not extend to Appeals nor to Pleas of the Crown or to any proceedings upon them for these are excepted nor to the amendment of any Exigent to make any one Outlawed As you may see at large lib. 8. 162. Blackamors Case And the four last of the said Statutes do neither extend to them nor to Actions or informations upon Penal Laws Only in the last of them viz. 16 17 Car. 2. there is a limitation in the negation of the Extent scil Other than concerning Customs Subsidies of Tonnage and Poundage to which it doth extend If the Venire facias be directed Vicecomiti London Salutem c. praecipimus tibi and not vobis after Verdict this is Amendable 39 Eliz. B. R. Adjudge Rolls 200. And so it is if after habeas ibi hoc breve Nomina Juratorum be left out ib. and 204. But if the date of the Teste be after the return this was held not amendable 32 33 Eliz. B. R. ib. sed vide hic ante But if the Award of the Ven. fac upon the Roll be right and the Writ wrong it may be amended by the Roll as the Misprision of the Clerk ib. 201. If the words quorum quilibet habeat be left out or duodecim or qui nulla affinitate attingunt or Vicecomiti be left out these are amendable as mistakes of the Clerk Rolls 204 205. In some Cases a Venire facias shall be Venire facias between a party and a stranger awarded to make an Enquest betwixt a stranger to the Writ and issue and the party I will instance but in one and that is upon the Statute of Westm 2. cap. 6. If a Tenant being impleaded vouch to warranty and the Vouchee denieth the Deed or other cause of the Warranty c. That the Demandant may not hereby be delayed he may sue out a Venire facias to try the issue between the Tenant and Vouchée Inquests in Pleas of Land shall be as Inquest at whose request well taken at the request of the Tenant as of the Demandant 2 Edw. 3. cap. 16. If the Plaintiff or Demandant desisteth in prosecuting his Action and bringeth it Venire facias by Proviso not to Tryal then the Defendant or Tenant may sue forth a Venire facias with a Proviso which is to no other end but that the Sheriff should summon but one Iury if the Plaintiff also should have brought him another Writ to the same purpose And although as my Lord Dyer saith fol. 215. the granting of this Venire facias c. with a Proviso depends much upon the discretion of the Court yet for the greater part it is not grantable for the
matter and treated thereof And where a subject may challenge the Array for unindifferency there the King being a party may also challenge for the same cause as for Kindred or that he hath part of the Land or the like and where the Array shall be challenged against the King you shall read in our Books In Ejectment the Plaintiff suggesteth that his Lessor the Sheriff and Coroners were Tenants to a Dean and Chapter whose Interest was concerned and prayed the Venire facias to Elisors and had it being confessed by the Defendant and the Court took it a principal challenge v. Hut 24. More 470. Roll. rep 328. Duncomb and Ingleby Trin. 15 Car. 2. B. R. A prayer to Elisors in Tryals at Bar may be at the suit of the Defendant or Plaintiff but in Nisi prius at the prayer of the Plaintiff only and per Cur. it is a principal challenge that the Plaintiffs Lessor is Sheriff or kindred and if the Plaintiff doth not pray c. the Defendant may challenge the Array at the Assises Lord Brookes Case Trin. 1657. B. R. 'T is a good challenge to the Array that the Array is made and returned by 2 Coroners only when there are four in the County and that the Writ is returned by one of the Sheriffs of London only So if a Bayliff return them that are out of his Franchise or if an Array be to be of persons out of a Franchise Guildable and the Bayliff return them for the Sheriff ought to make it and that some of the Pannel were returned by the Bayliff of a Franchise where the whole Pannel is returned as Array by the Sheriff this is a good challenge to the Array for otherwise the parties would lose their challenge to the Array made by the Bayliff Rolls tit Tryal 636. If the Defendant sue the Writ of Hab. By what person Corpus by Proviso at the return the Plaintiff may challenge the Array for Kindred between the Defendant and the Sheriff D. 15 El. 319. 13. D. 15 El. 319. The Array was quashed although the Sheriff was the Naufe in What Consangunity is sufficient descent and the Tenant in the 7. descent from the Ancestor of whom both descended Cousin to the parties Wife although herself no party So if the Wife be dead if issue be alive These are good challenges to the Array Alliance to one party is a good challenge For affinity If the Sheriff be allied at the making At what time of the Pannel and be dead at the challenge yet this is a good challenge 'T is no challenge that the Sheriff became of kin after making the Pannel 'T is no challenge to the Array if all the Jurors be of affinity It may be after a Tales prayed for no challenge can be until the Jury is full If the suggestion of Cousinage to have the Venire facias to the Coroners be denyed and the Venire facias is awarded to the Sheriff the same challenge shall not be allowed to the Array but any other cause may be alledged than what was before denyed Favourably made by the Sheriff or his For favour Bayliff or the Bayliff of a Franchise is a good challenge That the Sheriff is within the Distress of a party or servant to the Plaintiff Of the Robes of the Plaintiff was Arbitrator for a party is procurator and maintainer of a party That the Sheriff purchased part of the Land in question That the Pannel was made by the Bayliff of the Franchise of the other party These are good challenges to the Array 'T is no principal challenge that one party is Tenant or servant to the Sheriff but it is a good challenge for favour It is a good challenge to the Array That Denomination the Sheriff made the Array or put a Juror into the Pannel at the denomination of any of the parties in favour to them or of their servants or of one interessed or of a maintainer or of the Counsel or of a procurator Not if strangers by the Sheriffs leave make the Pannel or it be made at the request of both parties 'T is a good challenge to the Array that For malice one of the parties has brought an action of Debt against the Officer that returns the Pannel or that there is a difference betwixt the Officer and the party that the Officer killed his servant But not that the Officer has Debt against the party for he may demand his Debt without malice The Challenge ought to be quod tempore How and in what manner the Challenge is to be made Pannelli praedict Arraiati the Sheriff was Cousin to the Wife of the Defendant c. not afterwards nor before unless you aver that she was alive or had issue at the making the Pannel If the Challenge be taken for Cousinage it ought to be shewn coment Cousin but in such a challenge to be a Juror 't is not necessary to shew coment Cousin What Counterplea of a Challenge is good and how to be pleaded The mannor and conveiance of the Cousinage alledged in a challenge is not traversable You may traverse the Cousinage prout without modo forma If the Challenge be that the Sheriff was Cousin to the Plaintiff or within his distress 't is no Counterplea to say he is likewise of kin to the Defendant or within his distress also Where the King is party to the issue no Where the King is party challenge shall be to the array for favour 38 Ass 19. Otherwise if the Sheriff be Vadelect of the Kings Crown or such menial servant If it be presented that I. S. hath made a nusance to London and le gents 't is no challenge to the array to say the Sheriff of Middlesex is deputed and removable by the Commonalty of London because this is the suit of the King The King may make his challenge that the Sheriff is within the parties distress although every subject owes greater favour and obedienue to the King by reason of his Allegiance than to any Lord by reason of Tenure In a writ of Right or any other writ a What persons may be impannelled Baron of the Realm may excuse himself In a writ of Right the Inquest ought to be all Knights A Banneret may be impannelled in this writ so may a Serjeant if there be not Chivalers covenable In an attaint upon a recovery by false verdict in an Assise some Knights ought to be returned and if there be not any in the Hundred where the Land lies they shall be returned out of the County By default of the Sheriff as when the array of a Pannel is returned by a Bayliff of a Franchise and the Sheriff return it as of himself this shall be quashed because the party shall lose his challenges But if a Sheriff return a Iury within a Liberty this is good and the Lord of the Franchise is driven to his remedy against him If a
foot by fraud and given in evidence how can a Creditor who sues for a just Debt be prepared to detect this fraud And note in Scire facias against an Execuor on Iudgement per Testator the Defendant pleaded fully administred generally and the Plaintiff demurred specially and Sir William Jones Sollictor general moved to amend the Plea and Hale Ch. Just thought he ought to plead specially how fully administred Bradford vers Hutchinson H. 25 26 Car. 2. B. R. Debt for Rent on a Lease the evidence to prove the Lease was that the Plaintiff leased a House to the Defendant at a Rent but no time mention'd and it was agreed at the same time that the Lessee was not to leave it without half a years warning per Hale Norf. Summer Assise 1668. It 's a Lease at will the leaving on half a years warning is but a Collateral agreement and no part of the demise Ejectment The Plaintiff Counts of a joint Lease made by A. and B. in evidence it appeared that A. B. and C. were Ioynt-tenants that C. Leased to B. and that A. and D. Leased to the Plaintiff by 3. Just against two it 's good 2 Cro. Jurdanes case fo 83. Count of a joynt Lease made by two in evidence it appears they were Tenants in Common by 3 Just against one it 's not good 2 Cro. 166. Mantles Case Count of a Lease by Husband evidence was a Lease by Husband and Wife with Letter of Attorney to make livery and 't is made in name of both by 3 Just against one it 's good for Livery as to the Feme was void 2. Cro. Gardners case Of a Lease made 5. May 10. Regis habendum from Lady-day last past for 21 years Extunc prox sequent In evidence a Lease of 5 May 10. Regis habendum from Lady-day last past for 21 years next following the date of the said Indenture adjudged good and affirmed in Error Hob. 19. Ejectment of a Rectory evidence of the taking of Tythes only and not Entry into the Glebe the Plaintiff was nonsuit Latch 62. Hems and Stroud Ejectment of a Lease to A. of Lands in the possession of three Tenants for years delivered to I. S. as an Escrow with Letter of Attorney to enter into all and then to deliver his Deed c. evidence that the Attorney entred upon one Lessee in name of all and delivered the Deed c. Per Jones Just It 's good enough for where the Freehold is in one his Entry into one Lessee for years in name of all the rest is good Latch 71. Dame Argells case Where one declares on a fictitious Lease to A. for three years and within the same time declares of another fictitious Lease to B. of the same Lands the last is not good For Trespass for the mean profits must be brought in the first Lessees name ut dicitur Ejectment of Tythes a Lease for life of Tythes is good if there be Church or Church-yard to make Livery in resolved in Tryal at Bar Wheeler vers Hanchet Hill 14 15 Car. 2. B. R. v. Jones rep 321 322. Entry and Claym made upon the Land within 5 years after the death of the Baron of the Countess of Peterborough to avoid a fine she being issue in tayle proved by one Witness and allowed at a Tryal at Bar B. R. Mich. 15 Car. 2. Floyd and Pollard Custom of Copyholders in extream is to surrender into one Tenants hands in the presence of credible Witnesses A surrender was made accordingly but presented to be done to another Tenant yet being proved to be done to a Tenant it was holden by Wadh. Wyndham Just to be good and by him a Glove or a Turfe is a Rod to give seisin by Maye's case Norf. Summer Assises 1663. A Will under which Title to Land is made must be shown it self and the Probate is not sufficient Contr. if it were on a Circumstance or as inducement or that the Will remain in Chancery or other Court by special order of such Court. Eden vers Chalk-hill Mich. 13 Car. 2. B. R. Also Inrollment of a Deed which needs no Inrollment is no evidence ib. The issue was fine uncertain or certain 2 years Rent and no more the evidence was of admittances on surrenders uncertain but all under 2 years Rent Per Williams Just you ought to produce fines on descent and fines paid above two years Rent 2 Bulst 32. Allen vers Abraham A lease was made by parol and agreed to be put in Writing and Indentures bespoke but being held for Ten years and no Indentures executed it was ruled for a lease parol Per Barkley Just 13 Car. 1. York Clayton 53. By Just Berkley 1638. York Hedges cont-Clayton 57 a Will under Seal proved examined by the original was allowed good evidence Quaere I think the practice against it A Lease and Release were given in evidence to entitle the Plaintiff and they both were named haec Indentura but were not indented good per Hale Ch. Baron Norf. Summer Assises 1668. Briant vers Trendle After default in Ejectment the Defendant may confess Lease Entry and ouster and may give evidence and have all advantages except Challenges and if the Plaintiff becomes non suit any one for the Defendant may pray it be recorded Per H. Wyndham Just Bucks Lent 68 Dr. Crawle's case Deprivation in spiritual Court for Simony disables from bringing Ejectment because he can make no Lease yet quaere If Mortgagor continues in possession without provision for that purpose in the Deed he is Tenant at Will and if he levies a Fine it 's no disseisin by him continuing in possession still because after the Will determin'd he is Tenant at sufferance Per Hale Ch. Baron Bedford Summer Ass 1669. Declaration on a Lease made 14 Jan. 30. Eliz. evidence of a Lease Sealed 13 Jan. good for if it was a Lease 13. it was a Lease made 14. 4. Leon 14. Feoffments of 40 years standing and possession going accordingly you need not prove Livery it may be intended per Jury Roll. rep 132. The Common Rock on which so many have split is laying the Lease to be à die datus and the Entry the same day which is a disseisin not purged by the Commencement of the Lease for where an interest passes à is exclusive and so the entry the same day is before the Lease was to Commence is a disseisin but in cases of Obligation where no interest passes it is contra quod nota Trespass Count of Trespass done in one acre evidence of Trespass done but in half that acre good 2 Cro. Winkworths Case The Lady Hatton brought Trespass for breaking her Close and taking away her Horse c. against two Defendants they plead Not guilty as to the taking of Her Horse as to the rest they say that the Horse of one of the Defndants was in the Close c. and they took him out doing as little damage as they could quae est
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
a Witness to prove the delivery of the money to the Servant before the Robbery Rolls tit Tryal 686. A thing which is concluded in the Ecclesiastical Proceedings in Ecclesiastical Courts Court concerning Lands is not to be given in evidence to Juries for the Courts of Common Law are not to be guided by their proceedings Mich. 22 Car. B. R. Matter in Law is not to be given in Matter in Law evidence for the Jury are only to try matters of fact An ancient writing that is proved to Ancient Writings have been found amongst Deeds and evidences of Land may be given in evidence although the executing of it cannot be proved for 't is hard to prove ancient things and finding them in such a place by presumption they were honestly and fairly obtained and preserved for use and are free from suspicion of dishonesty 24 Car. B. R. A writing or answer permitted to be read Totum pars in part may be read in toto A Copy of part of a Record cannot be Copy of Records given in evidence unless 't is proved that the part shewed in evidence is all concerning the matter in question A transcript of a Record or Enrollment Transcript Enrollment of a Deed may be given in evidence for they are things to be credited being made by Officers of trust The Council of that party who doth begin Council to maintain the issue whether of Plaintiff or Defendant ought to conclude A Juror who is a Witness must be Juror also sworn in open Court to give evidence if he be called for a Witness for the Court and Council are to hear the evidence as well as the Jury The Jury may carry from the Bar an Exemplification exemplification under the Great Seal of Depositions in Chancery but if they are not exemplified the Jury can only look upon them at the Bar but not have them with them out of Court If one produce a Lease made upon an Lease upon an Outlawry Outlawry to prove a title he must also produce the Outlawry it self but if it be to prove other matter he needs not shew the Outlawry And so it is of an Extent without shewing the Statute or Iudgement on which the Extent is grounded By Rolls an Office found after the Office death of a Tenant in Capite of Lands in another County may be given in evidence to try the title of those Lands if there was a special Livery granted unto the Heir If a Witness be Bayl upon motion the Court will give leave to alter the Bayl. Bail Stiles 385. Debt for 10 l. against a Witness upon the Statute 5 Eliz. doth not lie unless Charges the Witness hath his charges and he is not bound to come without his Charges first paid but if he accepts of 12 d. and a promise for the rest at the tryal he is bound and an action lieth against him if he doth not come Cro. 1 part 522. 540. Goodwin against West A Counsellor may be examined as a Counsellor Witness against his Client so far as it is of his own knowledge not what his Client reveals to him and he knows only by his Clients information In Criminal causes against the King Criminal causes Witnesses may be sworn unless the Crime be Capital Tenant at Will of part of the Lands Tenant at Will was admitted to prove Livery of seisin and the execution of a Feoffment under which he held Bulst 1 part 202. If one be attainted of Felony and pardoned Attainted of Felony he shall not afterwards be sworn of a Jury for Poena mori potest culpa perennis erit and therefore is not fit to serve on the Inquest nor yet to be an indifferent Witness and two such persons proving a suggestion were rejected and the prohibition disallowed Brown against Crasham Bulst 2 part 154. In Trespass with a simul cum if nothing Simul cum be proved against them in the simul cum they may be examined as Witnesses Stiles Reports 401. CAP. XII The Juries Oath why called Recognitors in an Assise and Jurors in a Jury of the Tryal per medietatem linguae when to be prayed and when grantable Of a tryal betwixt two Aliens by all English Of the Venire facias per medietatem linguae and of Challenges to such Juries THe Iury having heard their Evidence Assise Enquest and Proof are taken for the word Jury Vide 28 E. 3. 13. let them now consider of their Verdict But first they must remember their Oath which in effect is To find according to their Evidence and therefore they should have had it before the Evidence but that the form and order of the Venire facias which I have tyed my self to follow leads me to it after their Evidence in these words Ad faciend quandam Juratam I have already shewed the derivation of this word Jurata See Chap. 1. and what is the legal acceptation of it only observe with our great Master Littleton That the word Assize is sometimes taken 1 Inst 154. for a Jury so as the Learned Commentator doth well paraphrase That the word Assise is Nomen Aequivocum Aequivocans because Assiza for Jurata sometime it signifieth a Jury sometime the Writ of Assise and sometime an Ordinance or Statute But Jurata is Nomen Aequivocum Aequivocatum because we always understand that woâ—d according to the aforesaid definition to be a Iury of twelve men so called by reason of the Oath they take The Juries Oath Truly to try the Suit of Nifi prius between party and party according to their Evâ—dence And as in an Assise the Jurors are called Why called Recognitors in an Assise and Jurors in a Jury Recognitors from these words in the Writ of Assise sacere Recognitionem so upon a Nisi prius they are called Juratores from these words in the Venire facias Ad faciend quandam Juratam In ancient time the Jury as well in Common 12 Knights Pleas as in Pleas of the Crown were 12 Knights as appears by Glanvâ—l lib. 2. cap. 14. and Bracton fol. 116. The next words of the Venire facias are Inter partes prâ—dictas In the fourth Chapter I have instanced That in some Cases a Iury shall be awarded betwixt the party and a stranger to the Writ and Issue I will now shew what the Iury shall be when one of the parties is an Alien the other a Denizen and when both parties to the Issue are Aliens This Tryal is called in Latine Triatio Jury per medietatem linguae bâ—linguis or per medietatem linguae And this Tryal by the Common Law was wont to be obtained of the King by his Grant made to any Company of strangers as to the Company of Lumbards or Almaignes or to any other Company that when any of them was impleaded the moyety of the Inquest should be of their own tongue
Castle but that there was a Goal this was for the Plaintiff because Goal is the Substance If the Issue be whether the Defendant had Accompted before R. and W. Auditors Accompt assigned by the Plaintiff and the Iury find an Accompt before R. only the Issue is found for the Defendant for the Accompt is the effect of the Issue Vide Rolls tit Trial. 707. c. If 11 agrée and the 12th will not the Verdict of the 11 cannot be taken but the Court Jury agree may carry the Iurors with them in Carts until they are agréed 41 Ass 11. A privy Verdict may be altered in open Verdict altered Court In an Extendi fac upon a Statute if the Iury deliver their Verdict in Writing they may afterwards make it more formal but they cannot alter it in substance for it is a compleat Verdict by the delivery So of Presentments c. A Fine pleaded in Barr and that after Fine and Non-claim the death of A. scil 1 August 3. Car. B. Father of the Plaintiff was alive in plena vita remansit infra hoc Regnum infra quatuor Maria c. apud W. in Com. D. and no Entry or Claim within five years after and the Plaintiff replies and takes Issue què Modo forma il non fuit remansit infra hoc Regnum Angliae modo forma c. And the Iury find quod non fuit remansit infra hoc Regnum Angliae 1 August 3 Car. but that he was there 1 Maii 4. Car. and remained there a Month and refer to the Court Au fuit remansit infra hoc Regnum modo forma c. This Issue is found for the Defendant for the matter and substance of the Plea is whether he was within the Realm after the death of A. and five years before Entry or Claim per him or the Plaintiff and modo forma shall not make the day material Roll. tit Trial. 713. Iudgment upon a Demurrer and a Writ Judgment Arrest at what time of Inquiry executed at the return the party may shew any thing in Arrest of Iudgment for Iudgment is not compleat until the last Iudgment The first is but an Award A man may plead any thing in Arrest of Iudgment after a Verdict which will make Error if the Iudgment be given In Debt upon a simple Contract against an Executor if he will not plead in Abatement but other Matter which is found against him he shall not afterwards alledge that he is not chargeable in Arrest of Iudgment So in Debt against Executors upon Arrearages of Accompt where they are not chargeable That which appears ill upon the same Record What may be alledged but not a maâ—â—er of Fact which doth not appear upon the Record because the parties cannot by the Issue As that a Iuror was challenged and yet served on the Tales for this cannot appear without alledging matter of Fact Nor that the Defendants Attorney had no Warrant But if there be any irregular or foul practice this may be offered to set aside a Iudgment If any thing be omitted in the Declaration Variance between the Verdict and the Declaration or if more be put into the Declaration than is found by the Iury if it make a material Variance betwixt the Nar. and the Verdict the Action shall abate These following are adjudged material Variances If the Declaration be for these words Thou procuredst eight or Ten of thy Neighbours Words to Perjure themselves and the Iury find that he said Thou hast caused eight or 10 c. for he might be a remote Cause scilicet causa sine qua non without Procurement Nar. He is a Bankrupt Verdict He will be a Bankrupt within two days Nar. He is a Thief Ver. He stole a Horse Nar. Thou art a Murderer Ver. He is c. Nar. I know him to be a Thief Ver. I think him to be a Thief So it is a material Variance if a special Promise be laid to be upon Request and the Verdict find it without Request So if the Promise Declaration be upon a Lease made by two or by Baron and feme and the Iury find that one of them had nothing in the Land or that the Baron only made the Lease or that the two were Tenants in Common and so several Leases otherwise if they were Coparteners So in Case that the Testator was indebted to the Plaintiff in 55 l. and the Defendant being Administrator in consideratione c. Promise to pay this upon non Assumpsit if the Verdict find the Promise to be to pay 30 l. part of the 55 l. So in Ejectment If the Nar. be of a Lease Eje ment of thrée Acres a Lease of a Moiety will not maintain the Nar. So in Wast for Cutting Trees and the Wast Verdict find that he eradicated the Trées but did not cut them A Prescription in modo decimandi That Prescription every one who hath seven Lambs or under seven shall pay to the person ob for every Lamb and the Iury find that and further That if he had more than seven Lambs he should pay a Lamb and that the Parson should pay the Parishioner ob This is not the same Prescription but makes a Variance But if there be a Variance between the Variance Verdict and the Nar. either by way of Surplus or Defect but if this matter of Variance be not material in the extenuation of the Action or Damages the Action shall lye notwithstanding the Variance These ensuing are adjudged not to be material Nar. Strong Thief Verdict Thief Nar. I say c. Ver. I affirm or I doubt not Nar. The Plaintiff will do such a thing Ver. I think in my Conscience he will c. Nar. Of a Lease by a Parson for five years if he tam diu should be Parson tam diu viveret And the Verdict find the Lease to be for five years if he tam diu viveret without the words and should continue Parson for the Law implyeth That if he be deprived or resign that the Lease Determines Nar. He is a Murderer Ver. He was a Murderer for when he says He is a Murderer 't is not intended that he did the Act in presenti but before So in Trespasses or Actions upon Torts and wrongs which are several If the Verdict find part 't is no material Variance and the Plaintiff in these Cases shall have Iudgment Roll. tit Tryal 720. A Jury of Middlesâ—x was demanded in Enquest by default the Common-Pleas the first day of the Term and some appeared and some not so that there was not a full Jury and neither the Defendant nor his Attorney did appear and therefore the Plaintiff prayed that the Inquest might be awarded by default and by the opinion of Welsh and Dyer his prayer shall be granted and the Custos Brevium and all the Prothonotaries said the