And all these points were resolved by all the Judges of England upon Conference between them in the Case of John Arundel Esq indicted for the death of William Parker Where there may be a special Visne the De Corpore Com. Tryal shall never be de Corpore Comitatus Leon. 1 part 109. If a Venire facias ought to be of one or more Vills in certain in a County and this is awarded de Corpore Comitatus This seems to be aided by the Statute of 21 Jac. of Jeofailes for this comes from the Vills out of which it ought to come and from others in as much as it comes de Copore Comitatus Rolls tit Tryal 618. and many other cases touching this matter But in Ejectment of Land called S. and no place is named where the Land lyes and a Venire is awarded de Corpore Com. this is erroneous and too large because there is a place certain where the Land lyes and yet it is not named in the Nar. as it ought to be Hob. 121. But if the issue be taken upon a title of dignity as whether Chivaler or not this may come de Corpore Comitatus because that the lieu lou c. is not material ib If A. by the name of A. of the County of Hamshire bring a Scire facias upon a Recognisance in Chancery in the Countie of Mid. against B. And the Defendant plead that the Plaintiff is Outlawed by the name of A. of the County of Chester to which the Plaintiff replies that he is not una eadem persona this may be by the body of the County of Mid. where the Writ is brought ibidem In a quare impedit for the Church de Uselbee and the Defendant pleads that there is no such Church the Venue shall not come de Corpore Comitatus but de vicineto de Uselbee for this is a place known and it is intended the Church of Uselbee is within the Ville of Uselbee Hob. 325. IN a prohibition if the parties be at issue Wild. upon a custom de non decimando of wood in the Wild of Sussex the Venire facias shall be de Corpore Com. for the Wild is not such a place whereof the Court may have conusance to be sufficient to have a Jury to come stom this for the Wild is a wood by intendment Hob. 348. In a real Action where the Demandant Heir tryed where the Land lies where not demands Land in one County as Heir to his Father and alledges his Birth in another County if it be denyed that he is Heir it shall not be tryed where the Birth is alledged but where the Land lyeth For there the Law presumes it shall be best known who is Heir But if the Defendant make himself Heir to a Woman for that is the surer and more certain side and the Mother is certain when perhaps the Father is incertain and therefore there it shall be tryed where the Birth is alledged because they have more Cro. 3. part 818. Cro. 2. part 303. certain Conusance than where the Land lyeth And so it is where Bastardy is alledged Bastardy the Tryal shall be in like Case Mutatis mutandis If the man plead the Kings Letters Patents Non concessit where the Land lies and the other party plead non concessit it shall not be tryed where the Letters bear date for they cannot be denyed but where the Land lyeth Every Tryal must come out of the Neighbour-hood of a Castle Mannor Town Visne or Hamlet or place known out of a Castle Mannor Town or Hamlet as some Forests and the like as before Every Plea concerning the person Where the Writ is brought at Common-Law Plaintiff c. shall be tryed where the Writ is brought When the matter alledged extendeth into a place at the Common Law and a place within a Franchise it shall be tryed at the Common-Law Matters done beyond Sea may be tryed in England and therefore a Bond made beyond Sea may be alledged to be Matters done beyond Sea how tryable in England Vide cap. 10. made in any place in England if it bear date in no place But if there be a place as at Burdeaux in France then it shall be alledged to be made in quodam loco vocat Burdeaux in France in Islington in the County of Middlesex and from thence shall come the Jury 1 Inst 261. Lach. 4. and 5. So if the Tenant plead that the Demandant is an Alien born under the Obedience of the French King and out of the Legiance Alien of the King of England the Demandant may reply that he was born at such a place in England within the Kings Legiance and hereupon a Jury of 12. men shall be charged and if they have sufficient Evidence that he was born in France or in any other place out of the Realm then shall they find that he was born out of the Kings Legiance And if they have sufficient Evidence that he was born in England or Ireland or Guernsey or Jersey or elsewhere within the Kings Obedience they shall find that he was born within the Kings Legiance And this hath ever been the pleading and manner of Tryal in that Case So of other things done beyond Sea the adverse party may alledge them to be done at Things done beyond Sea such a place in England from whence the Jury shall come and in a Special Verdict they may find the things done beyond Sea Ib. lib. 7. 26. Lib. 7. 26. So when part of the act is done in England and part out of the Realm that part that is to be performed out of the Realm Part without the Realm and part within if issue be taken thereupon shall be tryed here by 12 men and they shall come out of the place where the Writ or Action is brought Ib. lib. 6. 48. Error for that Iudgment was given by default against the Defendant being an Infant Full age tryed where the Land lies issue was taken that he was of full age And Godfrey moved whether the Tryal should be in Norfolk where the Land was or in Middlesex where the Action was brought And the Court held that it should be tryed in the County where the Land lay and Tanfield said It was so adjudged in the Kings Bench between Throgmorton and Burfind Cro. 3. part 818. Questions of Title of Land except by Where the Land doth ly special order of the Judges in some cases are to be tryed in the County where the Land lies for the Law is that all real and mixt actions as Wast Ejectment c. must be brought in the County where the Land is But Debt Detinue Account Transitory Actions Actions of the Case Battery c. are of their own nature Transitory and yet they ought to be laid and tryed in their proper County where the fact was done unless the Court order the contrary for some Special reasons
Fee and part is found in Tail and part in Fée Iudgment shall be given for the Defendant who pleaded the Seisin in Fée If the Plaintiff declares upon a Demise Ejectment made the first of May to Commence at Michaelmas next if the Iury find a Lease made at any other day before the Feast 't is found for the Plaintiff for the day of making is not material Otherwise of a Lease for years â—n Possession As of a Lease made the 5th of May Habend for thrée years from Lady-day before and the Iury find a Lease made the 15th day of May for three years from the same Lady-day for this is a Lease in Possession In false Imprisonment in Middlesex and Imprisonment the Defendant justifie in London to which the Plaintiff saith the Defendant took him in Middlesex de son Tort demesn and Issue upon this and the Iury find the Defendant took him in Middlesâ—x lawfully upon a Writ yet this is for the Plaintiff for the Issue is upon the place and not upon the Tort for that is confessed by the Pleading if the taking was in Middlesex In Debt for 20 l. and the Iury find 40 l. the Debt Plaintiff shall not have Iudgment the reason séems to be because it cannot be the same Debt which is intire but upon another Contract which is mislaid If the Issue be Payment afâ—er Execution Audita Quaerela and the Iury find payment before yet the Issue is proved for payment before is payment after In Debt upon a Bond bearing date the 25 Obligation of June upon Non est factum if the Iury find it his Déed but that it was delivered 8 days after the â—ate this is found for the Plaintiff If the Issue be that two made the Feoffment Joynt and several or two were Churchwardens c. and the Iury find but one c. the Issue is not found If the breach of Covenant or Wast be Obligation Covenant Wast assigned in cutting 20 Trees and the Iury find but 10 yet the Plaintiff shall have Iudgment If in Replevin c. the Iury find that Totum Pars. part of the Cattel were Levant and Couchâ—nt and part not and the Issue is upon all the Issue is not found In Ejectment for him who pleaded all Ejectment Void in part of 14 Acres and the Iury find guilty of 20 the Plaintiff shall have Iudgment for the 14 and the Verdict is void for the residue In an Information upon an usurious Contract Information Usury by two 't is not sufficient to find a Contract by one Otherwise where the Tort and offence is several as against two upon the Statute 4 E. 6. Pâ—o emptione butiri and selling it by Retail c. and so in an Action upon the Case in Nature of Conspiracy and for words laid twice in one Declaration This will put in Issue the manner as well Modo forma as the matter where the manner is material as the time of the Fact and other Circumstances The Plaintiff replies That W. made a Replevin Lease Lease to him 30 Martii Habend from Lady-day last and Issue Modo foâ—ma and the Iury find a Lease made the 25 Marâ—ii Habâ—ndum Exâ—unc for a year this is good although the time of making and Commencement of the Lease are mistaken inasmuch as Extunc includes the Feast Yet because a sufficient Title and Lease is found for the Plaintiff to put in his Cattel this is sufficient this being the substance and the Modo forma shall not put the Circumstances in Issue So in Trespass if the Defendant justifie the putting in his Cattel for Common which he Claims from Pentecost to a certain time every year which is traversed Modo forma and the Iury find that he had Common in Vigilia Pentecostis in festo and the day next to this to the time this is found for the Defendant But otherwise in these Cases id an Assise of Common because there he ought to recover his Title In Debt for Rent if the Defendant plead an Entry by the Plaintiff before the Rent was due scilicet such a day which was after and Issue upon the Entry Modo forma and the Iury find for the Defendant he shall have Iudgment for the scilicet is void and the Modo forma go to the matter Sée after In Debt upon a Bond and the Defendant Non est factum plead Non est factum and the Iury find the Bond made joyntly by another with the Defendant the Plaintiff shall have Iudgment for the Defendant should have pleaded this If a Devise be pleaded Absolute if the Devise Iury find a Devise upon a Condition Precedent 't is not good In Debt against A. as Daughter and Riens per Discent Heir to B. and the Defendant plead Riens per discent of B. and the Iury find that B. was seised in Fée and dyed having Issue the Defendant his Daughter and his Wife with Child of a Boy who was afterwards born alive and dyed one hour after this Issue is found against the Plaintiff because the Defendant had the Land as Heir to her Brother who was last seised and not to the Father and so the Defendant had not the Land by Discent from the Father but from the Brother and yet this is Asseâ—s in her hands if it had béen specially pleaded In a Writ of Error brought by him in remainder Error in Tail to reverse a Fine if the Defendant plead in Barr of the Writ of Error a Common recovery by the Tenant in Tail to which the Plaintiff replies That at the time of the Recovery suffered he himself was Tenant to the Praecipe and so the Recovery void Vpon which Issue is joyned Part. and the Iury find that he was Tenant of part but not of other part This Issue is partly found for the Plaintiff and partly for the Defendant so the Court shall procéed to the Examination of the Error for that whereof he was found no Tenant but 't is a good bar of the Writ of Error for that whereof he is found Tenant to the Praecipe In Assumpsit to pay Money upon request Promise and issue upon this if the Iury find the Plaintiff promised to pay the Money but do not say upon request nor Modo forma 't is not found for the Plaintiff In Ejectment of a Manner if the Iury If the Substance of the Issue be found 't is sufficient Manner find that there were no Fréeholders and so 't is no Manner in Law yet being a Manner by Reputation and so the Tenements pass by the Lease Therefore this Verdict is found for him who pleads the Lease of the Manner for the substance is whether any thing was demised or not In an Information of Extortion against Goal the Gaoler of the Goal a Prison of the Castle of Maidston the Iury found there was no
eadem c. The Plaintiff replies de injuriâ suâ propriâ c. The evidence was that the Plaintiff as Lady of the Mannor took the Horse as an Estray and it was Cryed and Marked c. that the Defendants refused to pay for the meat and took him away before the year and a day was out 1. Per Wadh. Wyndham Just d'assize A Lord may detain an Estray for meat yet no Trespass lies if the owner takes him but an action of the Case lies for the meat 2. If the action had been brought against the servant only he must justifie c. But being brought against Master and Servant this joynt-justification is good Cambr. Summer Assises 1667. Lady Hatton against Cotes and al. In Trespass the evidence for the Defendant was that the Defendant had a Barn and purschased a way over the Plaintiffs Land to that Barn after the Defendant bought other Lands lying contiguous to that Barn on the one side and to a Haven on the other side and carried Carriages by that way to the Barn and through it over his own new purchased Land to the Haven Per Hale Ch. Baron If I purchase a general way to such a place I may go from thence on my own ground whither I please though I purchase the ground after the way purchased Summer Assises Norf. 1665. Heynsworth vers Bird. Trespass was brought against many by a School-mistress for taking away a child her Scholar with a Scarfe of the Mistresses per Keeling Ch. Just In Trespass for taking things all are principals that are present and consenting Contra in taking persons and this action lies not by the Mistress for the child but for the Scarfe only Lent Norf. Ass 1663. Mary Coopers case Trespass lies for Lessee in Ejectment on a fictitious Lease to recover mean profits during the continuance of that Lease mentioned on Record And the Recovery shall maintain it Otherwise if brought by the Lessor for he is no party to the action Trespass lies not for pulling down a Pew in a Church fastned to a pillar with a Chain Contra had it been fixed by nails driven into the pillar per Glyn Ch. Just Trevors case Trespass quare fregit liberam Warrenam suam and took his Conies In evidence it appeared that the Plaintiff had liberty of chase in the place which though it includes Warren yet a general Trespass lies not but an action of the case E. of Arundels case Pasch 1658. B. R. Per Earl Sergeant if Beasts be impounded and the Key lost the Officer by Replevin may break the pound and deliver the Cattle per Stat. Marlebridge 52 H. 3. 21. Tenants in Common must joyn in Trespass done against them so Avowry Lead and Lamsteads case 7 Car. B. R. cited by Finch in Argument Or Tenant in Common surviving shall have Trespass In Trespass the Defendant sets forth a conditional Feoffment for payment of money at such a day and place and that he paid it accordingly issue joyned on the payment at the day and place evidence of payment before the day is not good Contra had the special matter been pleaded with acceptance More 47. In Trespass with Continuando to recover mean profits an Entry and possession of the Land before the Trespass must be proved and also another Entry after the Trespass In Trespass the Defendant prescribes to dig in the Common for Clay to repair antient houses holden of that Mannor and good Berney vers Stafford Norf. Lent Assises 1667. In Trespass they were at issue on Not Guilty and at the Assises the Defendant left his former plea and pleaded an accord with satisfaction the Iudge would have had it replied to and tryed presently but the Councel refused whereupon the Jury was sworn and the Plaintiff nonsuited Bedford Assises Lent 1667. Green vers Reynolds But this was contrary to the opinion of Sir Orlando Bridgeman at the same Assises and Contr. to 10 H. 7. 21. and 1 Bul. 92. Trespass lies by Recoveror in Erroneous Iudgement for a mean Trespass because the Plaintiff in Writ of Error recovers all mean profits and the Law by fiction of relation will not make a wrong doer dispunishable 13. rep Co. 22. but Contra where Act of Parliament restores c. Trespass for assault and wounding in Suff. the Defendant as to vi armis non Cul. As to the other justification of molliter Manus c. in Norf. and several Tryals Per Hale Ch. Baron Suff. Ass Summer 1668. the vi armis can't be tryed till the other be tryed Contr. If the first issue of non Cul. was as to the wounding and by him evidence of Livery of seisin generally shall be intended for life only The Hogs of B. were put into the yard of A. and broke into the Land of C. and did Trespass action lies against A. though the servant of B. did look to them and serve them by which the owner had the special possession of them So if Agisted Cattle do Trespass the Agistor shall answer Dawtry vers Huggins Clayton 33. per Barkley 11 Car. York A. by Indent of uses raised an Estate to B. in Fee who regrants Turbary to A. by another Deed and after A. levies a fine to confirm the Estate and uses abovesaid declared this doth not touch the Turbary per Vernon 11 Car. York Clayton 42. Any one imployed by an Officer is an Officer within 7 Jac. 5. to plead general issue and give the special matter in evidence Clayton 54. Prescription to tether Equos Boves upon such a balk c. Mares and Cowes good evidence within that prescription Per Barkley Clayton 54. Per Hale A Corporation may bargain and sell though it has been thought an use upon use they being seised to the use of their house But I think it rather a trust than an use If a Just of P. send his Warrant to I. S. who is no Officer to bring one before him if I. S. be no Officer he is not bound to execute it yet if he does execute it it 's good and he may execute it in any part of the County And so a Constable of one Town may execute a Warrant in any other Town in the same County and any such Warrant is as large as the Justices Commission is per Hale Norf. Summer Assises 1668. Wrongries case In Trespass against one for Gleaning on his ground per Hale Norf. Sum. Assises 1668. The Law gives licence to the poor to glean c. by the general Custom of England but the licence must be pleaded specially and can't be given in evidence on non Cul. Trover The Citizens of London gave in evidence their Custom to take Toll Jones 240. In Trover for an Horse proved of 15 l. value the Jury gave but 3 l. damages upon mistake they thinking that the Plaintiff had his Horse again Per Wadh. Wyndham if the Jury had not been gone they should have mended their Verdict but a new action of
the administration purges his wrong and although he shall not abate the Writ by taking out Letters of administration yet he may plead this in Barr. Stiles Reports 338. In a Replevin the taking was supposed in R. The No evidence to be given against what is admitted upon the Record Defendant said that the place where is 40 acres parcel of the Mannor of R. which is his Freâ—hold and avowed for Damage seasant The Plaintiff said that the place where is parcel of the Mannor of R. in R. and conveyed title to himself in that Absque hoc that the Mannor of R. unde was the Freehold of the Defendant It was the opinion of the Justices that the Plaintiff is estopped to give evidence that the Defendant Note Leon 3. part 210. If the parties admit a thing per nient dedire the Jury is not bound by it but where upon the pleading a special matter is confessed the Jury shall be bound by it Impropriation had not any Mannor of R. for the words absque hoc and unde imply he had such a Mannor but he ought to have taken it by protestation that the Defendant had no such Mannor of R. in R. absque hoc that the 40 acres was the Freehold of the Defendant Dyer 183. Trespass concerning the Rectory of Norton Pinkney which belongs to Oriel Colledge in Oxford The Issue was if there was a Vicaridge indowed there or only a stipendiary Curat 1. All agreed that if a Vicaridge be erected and established if there was no Endowment de facto of the Vicaridge the Vicar could not claim any thing 2. There was shewed an Impropriation by the Licence of the Pope made in the time of E. 2 Dodderidge said that was not good Jones è contra And it will be perillous to such ancient impropriations if now the consent of the King must be shewed and at that time it was taken good by the assent of the Pope without the King Dod. denyed that the Pope without the King at that time could make an impropriation with the Ordinary and Patron But Crew agreed with Jones And in things of such antiquity omnia praesumuntur solempniter acta and said that so it was ruled in a case before And Jones said it was nothing to the Vicar for the Vicaridge may be endowed without the consent of the King and 't is not Mortmain Palmers Reports 427. Erasmus Copes Case against Bedford Where hors de son fee is pleaded a release of the Seigniory is good evidence 8 E. 2. Fol. Hors de son fee. 262. In debt for Rent upon a Lease for years the Issue being joyned if the Rent was paid or not the Defendant gave in evidence for part of the Rent That the Plaintiff was by covenant to repair the House and did it not and thereupon he expended the Rent Debt for rent in repairing the house and the question was if this evidence will maintain the Issue Gawdy conceived it did for the Law giveth this liberty to the Lessee to expend the Rent in reparations and recoup the Rent V. 12 H. 8. 1. Fitz. tit Bar. 242. 14 H. 4. 27. Fenner It is no evidence for if the Lessor will not repair it the Lessee may have his covenant against him Cleâ—ch seemed he might well expend the Rent in reparations but he ought to have pleaded it and cannot give it evidence upon the general Issue and thereupon they moved the Jury to find the special matter So that it seemed to the Justices that the Defendant had liberty to expend the Rent in the reparations they being to be done at the Plaintiffs cost but then that he ought to have pleaded this matter as it was done in almost the like case Fitz. tit Bar. 242. Yet why might he not give it in evidence upon the general Issue for if the Law allows this to amount to a payment of the Rent then the Defendant own nothing which maintains nil debet and I think the other book of 14 H. 4. 27. rejects this sort of special plea upon this reason that the Plea amounted to the general Issue But there indeed the Rent was pleaded to be laid out at the Plaintiffs command here only by authority in â—aw I should be glad if any one would reconcile those two Books better I know there is another reason in the Book and assigned by Rolls in his Abridgment of the Case why the Plea was rejected viz. that the duty was acknowledged by the Plea and therefore the matter of the plea not good without shewing a Deed of it but I should have been better pleased with him if he had assigned the other reason viz. that it amounted to the general Issue Which made Cheyne that he durst not joyn in demurrer For 't is not pretended in either Case that the Deed ordered the Rent to be laid out in the repâ—irs And in that Case in F. where there was no express order of the Plaintiff it may be the Judges allowed the special matter to be pleaded because the Jury should not be intrusted with the Law upon the general Issue which may be said for the special pleading this matter in our Case although it may amount to the general Issue But as to the residue the Defendant shewed he paid Reparations Vide the Cases of Recouper lib. 5. 30. it to others by the Plaintiffs order which was held clearly good for what is paid by the Lessors appointment is a payment to himself Cro. Eliz. 223. Taylor against Beal vide Rolls tit Debt 605. 34 H. 6. 17. Bro. Debt 27. Where a man is Estopped in pleading to speak Estoppel against his own deed yet he shall not in evidence As in Isehams Case against Morris Cro. 4 Car. 109. upon evidence at Barr It was held by all the Justices of the Common Pleas That where one makes a Lease for years of Land by Indenture and hath nothing in the Land and afterwards purchaseth the Land and aliens it although it be a good Lease for years by Estoppel against him and his Allence by way of pleading and shall bind them yet it shall not bind the Jury but they may find the truth and if they find the truth the Court shall adjudge it to be a void Lease vide tamen Rawlin's Case lib. 4. 53. Sutâ—on and Dickens Case Leon. 1. part fol. 206. 1 Inst 47. 227. Edwards against Omellhallum Marsh 64. James and Landons Case Cro. 27. Eliz. fol. 36. Leon. 3. part 210. Bulstr 2. part 41. Note That if a Demurrer be made upon the evidence the evidence ought to be entred verbatim Keiâ—way 77. Where in account against one generally as Bayliff the evidence that charged him specially by reason of his Tenure to collect c. was upon Demurrer held not good Matter of Surplusage shewed in evidence shall not Surplusage hurt Keilway 166. Issue was upon a devise to A. Harding and her Will. Heirs modo forma and the
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