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
Embraceors F. N. 6. Br. 171. So much doth the Law hate that Jurors Fined for taking Money after their Verdict should privately take Money for their Verdict That certain Jurors were fined for taking Money after their Verdict though there was no prâ—ingagement for it 39 Assise p. 19. The practice is otherwise at this day if it were not the Middlesex Iuries would not so Court the Bayliffs to return them especially to Tryals at Barr where 5 l. a man is frequent Gratuity sometimes more If a full Iury appear and some are challenged Issues off so that the Iury remains for default of Iurors the Defaulters shall loose their Issues 4 H. 6. 7. otherwise if a Iury be sworn and one is withdrawn by consent But if there be a joynder of Counties and a Iury of one County appear and not of the other The Defaulters of that County from which enough came shall not loose their Issues because the Inquest doth not remain for their default but for the default of them of the other County 48 Ass 5. Mes quaere If the Iurors at the return of Scire fac Amercement make default yet they shall not be amerced because the parties may be claimed at the first day but at the return of the Habeas Corpora they shall 10 E. 4. 19. 1 E. 3. 12. If any of the Iurors appear the Court Demand sur peine may charge them to inquire if any of the other Iurors were within the Town after the return and if they find they were they shall be demanded upon a Pein and if they come not they shall be amerced Rolls tit Trial. 632. A Juror was challenged and six other Jurors were sworn to try the Challenge who found him indifferent and thereupon the Juror fined for departing when he was challenged Jury was demanded but did not appear for which default he was fined the value of his Lands for a year and the other Jurors inquired of the value c. although the other party then would have challenged him when he was demanded so that he might have béen treit But the Court would not admit this because then the King would have lost his Fine 36 H. 6. 27. If a Juror appear and is adjourned upon Juror adjourned upon pain pain and makes default in this Case because he shall be fined to the value of his Land per annum this shall be inquired by his Companions of the Jury because the Court knows not the value of his Land li. 8. 41. A Verdict was taken from the Fore-man Fined for giving a Verdict before they were agreed of the Jury to which one of them did not assent and damages assessed to 20 s. in Trespass and Assault and afterwards every one of the 11. were fined for giving their Verdict before they were all agreed 40 Assise 10. Where a Iury are to be fined a Fine The fine must not be joynt jointly imposed on them is not legal but they must be severally fined because the offence of one is not the offence of another Et nemo debet puniri pro alieni delicto For then it might be said Rutilius fecit Aemilius plectitur lib. 11. 42. A man stroke a Juror at Westm sitting Punishment for striking a Juror in the Court who passed against him and he was thereof indicted and arraigned at the Kings Suit and attainted his judgment was that he should go to the Tower and stay there in prison all days of his life and that his right hand should be cuâ— off and his Lands seised into the Kings haâ—ds 41 Assise p. 25. and now our Juror sées what punishment it is to strike him in the face of the Court. Let him hold his hands from others least the same Iudgment light on him By the Statute of 27 Eliz. cap. 6. It is Enacted that upon every first Writ of Habeas Corpora or Distringas with a Nisi prius 10 s. shall be returned in Issues upon every person impannelled and upon the second Writ 20 s. and upon the third 30 s. Issues And upon every Writ that shall be further awarded to try any Issue to double the Issues last afore specified until a full Jury be sworn And these Issues being returned upon a Not summoned Tenement in Fée simple in tail or for life of another or himself or in the right of his Wife the Land he then hath will be chargeable for it and any mans Cattel upon this Land may be distrained for it But if the Under Sheriff c. return a Juror summoned who in truth was not legally summoned and therefore doth not appear and so looseth Issues the Vnder-Sheriff shall pay him double the value of the Issues lost Sée the Statutes of 35 H. 8. 6. and the 2 E. 6. 32. And note the Law hath béen so careful to punish all offenders who would endeavour to byass and corrupt the Iury and to punish the Juries themselves if they receive Money to give their Verdict or any otherwise pre-ingage themselves to any of the parties All which is to the end that a true and honest Verdict may be given What punishment shall that Jury have which gives a false Verdict Such a punishment that as I said before in civil Causes it is without example and surely if the Jurors did bear it in their minds their Verdicts would be always grounded upon their Evidence and not upon their own Interests or any partiality to either of the parties Wherefore if the Jurors give a false Verdict which is perjury of the highest degrée upon an Issue joyned betwéen the parties in any Court of Record and Iudgment thereupon The party grieved may bring his Writ of Attaint in the Kings-Bench or Attaint Common-Pleas upon which 24 of the best men in the County are to be the Jurors who are to hear the same Evidence which was given to the Petite Iury and as much as can be brought in affirmance of the Verdict but no other against it And if these 24. who are called the Grand Iuâ—y find it a false Verdict then followeth â—â—is terrible and heavy Iudgment at Common Law upon the Petite Iury. 1. That they shall loose liberam legem for Judgment in Attaint ever that is they shall be so infamous as they shall never be received to be a Witness or of any Jury 2. That they shall forfeit all their Goods and Chattels 3. That their Lands and Tenements shall be taken into the Kings hands 4. That their Wives and Children shall be thrown out of doors 5. That their Houses shall be rased and thrown down 6. That their Trées shall be rooted up 7. That their Meadow-grounds shall be ploughed up 8. That their Bodies shall be cast into the Goal and the party shall be restored to all that he lost by reason of the unjust Verdict So odious is Perjury in this Case in the eye of the Common-Law And the severity of this
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
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
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
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
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
per medietatem linguae he cannot challenge the Array for this cause at the Tryal if the Iury be all Denizens notwithstanding Stamford's Opinion to the contrary and the Books cited by him fol. 159. pl. Cor. For the Alien at his peril should pray a Venire facias per medietatem linguae Dyer 357. Vide Rolls tit Trial. 643. If the Plaintiff be an Alien he must suggest it before the awarding of the Venire facias but if the Defendant be an Alien the Plaintiff is allowed to surmise that before or after the Venire facias because the Defendants quality may not be known to him before 27 H. 7. 32. CHAP. XIII The Learning of General Verdicts Special Verdicts Privy Verdicts and Verdicts in open Court and where the Inquest shall be taken by default Inquests of Office c. Arrest of Judgment Variance betwixt the Nar. and the Verdict c. VErdit or Verdict In Latine Vere dictum Verdict quasi dictum veritatis As Judicium est quasi Juris dictum Is the Answer and Resolution of those 12 men concerning the matter of fact referred to them by the Court upon the Issue of the parties And this is the foundation upon which the Iudgment of the Court is built for â—x facto jus oritur the Law ariseth from â—he fact Wherefore it is no wonder that the Law hath ever béen so curious and cautelous as â—ot to believe the matter of fact until it is sworn by 12 sufficient men of the Neighbourhood where the fact was done whom the Law supposeth to have most cognisance of the truth or falsehood thereof which being sworn for the words are Juratores predict The Credit of Verdicts dicunt super sacruÌ„m suum c. is the Verdict whereof we now treat And such credit doth the Law give to Verdicts that no proof will be admitted to impeach the verity thereof so long as the Verdict stands not reversed by Attaint And therefore upon an Attaint no Supersedeas is grantable by Law Plo. Com. 496. And it is worth our observation that the Law seems to take more care of the fact than of her self for the Major part of the Iudges give the Iudgement of the Law though the other Iudges dissent But every one of the 12 Iurors must agrée together of the fact before there can be a Verdict which must be delivered by the first man of the Iury. 29 Assise pl. 27. And this Verdict is of two kinds viz. one General or special general and the other special or at large The general Verdict is positively either General Verdict in the Affirmative or Negative as in Trespass upon Not guilty pleaded The Iury find Guilty or Not guilty And so in an Assize of Novel disseisin brought by A. against B. The Plaintiff makes his plaint Quod B. disseisivit eum de 20 acris terrae cum pertinentiis The Tenant pleads Quod ipse nullam injuriam seu disseisinam prefato A. inde fecit c. The Recognitors of the Assize do find Quod predict B. in juste sinâ— judicio disseisivit predict A. de predict 20 acris terrae cum pertinentiis c. This is a general Verdict 1 Inst 228. A Special Verdict or Verdict at large is Special Verdict so called because it findeth the special matter at large and leaveth the Iudgment of the Law thereupon to the Court of which 1 Instit 226. kind of Verdict it is said Omnis Conclusio boni veri judicii sequitur ex bonis veris premissis dictis Juratorum And as a Special Verdict may be found in Common-Pleas so may it also be found in Pleas of the Crown or Criminal Causes that concern life or member And it is to be observed that the Court The Court cannot refuse it cannot refuse a Special Verdict if it be pertinent to the matter in Issue 1 Inst 228. It hath béen questioned whether the Iury A special Verdict may be found upon any Issue as upon an absque hoc c. could find a Special Verdict upon a special point in Issue or no as they might upon the general Issue But this question hath been fully resolved in many of our Books first in Plo. Com. 92. It is resolved That the Iury may give a special Vardict and find the matter at large en chescâ—n issue en le monde so that the matter found at large tend only to the Issue joyned and contain the certainty and verity thereof lib. 9. 12. And in 2 Inst 425. upon Collection of many Authors it is said That it hath béen resolved that in all Actions real personal and mixt and upon all Issues joyned general or special the Iury might find the special matter of fact pertinent and tending onely to the Issue joyned and thereupon pray the discretion of the Court for the Law And this the Iurors might do at Common Law not only in Cases between party and party but also in Pleas of the Crown at the Kings Suit which is a proof of the Common Law And the Statute of Westm the 2d cap. 30. is but an affirmative of the Common Law And as this spetial Verdict is the safest for A Free-hold upon Condition without Deed may be found by Verdict though it cannot be pleaded the Iury 1 Inst 228. so in many Cases it is most advantagious to the party and helps him where his own pleading cannot As for example saith Littleton Sect. 366 367 368. Albeit a man cannot in any Action plead a Condition which toucheth and concerns a Freehold without shewing writing of this yet a man may be ayded upon such a Condition by the Verdict of 12 men taken at large in an Assize of Novel dissâ—isin or in any other Action where the Iustices will take the Verdict of 12 Iurors at large As put the case a man seized of certain Land in Fée letteth the same Land to another for term of life without Deed upon Condition to render to the Lessor a certain Rent and for default of payment a Re-entry c. By force whereof the Lessee is seised as of Fréehold and after the Rent is behind by which the Lessor entreth into the Land and after the Lessée arraign an Assize of Novel disseisin of the Land against the Lessor who pleads that he did no wrong nor Dissesin And upon this an Assize is taken In this case the Recognitors of the Assize may say and render to the Iustices their Verdict at large upon the whole matter as to say that the Defendant was seized of the Land in his Demesne as of Fée and so seized let the same Land to the Plaintiff for term of his life rendring to the Lessor such a yearly Rent payable at such a Feast c. Vpon such Condition that if the Rent were behind at any such Feast at which it ought to be paid then it should be lawful for the Lessor to enter c. By force of which Lease
if a Release be pleaded in a Foreign County and tryed there for the Plaintiff there also shall damages be assessed by the same Iury. For where the 21 Ass 14. principal is tryed there also shall the Accessary and incidents be inquired of I need use no other instances to illustrate this than the case abovesaid They may find a Condition to defeat a What things the Jury may find Freehold of Land although it be not pleaded but of things in grant they must also find the Déed of the Condition Vpon Traverse of a Lease Modo forma the Iury may find a Lease of another date Modo forma although the date be mistaken in the Pleading but not a Lease made by another than from whom was pleaded for this is out of the issue in matter and form In an Assise of Rent the Iury may find Rent that the Rent was granted with an Atturnment although no specialty be shewed A Fine or Recovery may be found by the Matter of Record Iury without shewing of it under Seal The Iury cannot find against what is admitted by the Record They may find a Divorce which is a Record Divorce in the Spiritual Court but not by our Law Attainder of Felony not pleaded cannot be Attainder found unless Sub pede sigilli 26 Ass 2. The Iury is not to inquire of this which is agréed by the parties As in Dower if the Tenant says he has Dower been always ready to render Dower and the issue be if the Husband dyed seised the Iury is not to inquire if the Estate was dowaable for this is confessed If the Defendant doth not deny the Wast Wast but Pleads another matter scilicet nul tiel vill lou c. the Iury is not to inquire of the Wast but give damages although no Wast be made In Debt upon a Bond with a Condition Award to perform an Award and the Defendant Plead Nullum fecit Arbitrium and the Plaintiff reply fecit Arbitrium and sets it forth and the Defendant rejoyn Nul tiel award the Iury cannot find any matter dehors to make the Award void in Law which doth not appear within the Award pleaded As that the release awarded would discharge the Bond of the Submission for nothing is in issue but whether such an Award was made in fâ—it as is alledged neither could this matter be alledged by any Rejoynder for it would have béen a departure from the Plea and â— Iury cannot find that which would have béen a departure because out of their issue But in this Case if the Defendant would have took advantage of it he ought to have Pleaded all this matter in his Barr and not have said Nullum fecit Arbitrium for 't is a departure in the Rejoynder to acknowledge an Award which was denyed in the Plea In Debt for 20 s. and the Issue be solvit How the Jury ought to find their Verdict and what shall be intended ad diem and the Verdict be quod debet the 20 s. this is not good because it is not direct but by Argument In Debt upon an Obligation if the Defendant say That he is a Lay-man not lettered and 't was read as an Acquittance Nient lettered Et issint nient son fait if the Iury find he knew what he did and that it was a Bond and he was willing to be bound this is no good Verdict because they ought precisely to find if it was his Déed or not If the Issue be whether where a Copyhold is granted to thrée for the lives of two if he which dye seised c. ought by Custom to Custom pay a Heriot or not and the Iury find that there was never any such Estate granted in the Mannor this is not good for the reasons aforesaid So if the Issue be if by Custom an Estate tayle may be granted and the Iurâ— find that it may be granted in Fée which is greater yet 't is not good In Trespass for taking and cutting his Trespass Leather if the Defendant justifie as a Searcher and cut it for the better search More scrutatorum without any other damage and the Plaintiff reply De injuria sua propria Absque hoc that he cut it More scrutatorum upon which Traverse issue is joyned and the Iury find that the Defendant cut it as the Plaintiff has alledged this is no good Verdict because 't is not any answer to the issue but by Argument In Trespass and Battery in A. to find Battery not guilty in A. is not good for it ought to be generally not guilty Vpon this Plea if the Plaintiff reply Riens per Descent that he hath divers Lands in D. per descent and the Iury find he had divers Lands by descent this is good without finding what for 't is Incertain not material in regard upon this false Plea a general Iudgment is to be without having respect to the Assets Of 5 Acres if they find the Defendant Ejectment guilty in 8 pieces de terre parcel tenementorum predict 't is a void Verdict because uncertain and no Execution can be made of peices In case upon non Assumpsit Pleaded if Verdict Special the Iury find that the Defendant non Assumpsit yet if two Witnesses say true then we find that he did Assume The first shall stand for the Defendant and the last words are void and Surplusage shall not vitiate Surplusage If upon a Lease of 20 Acres and the Defendant Ejectment plead Non dimisit and the Iury find quod dimisit 10 Acres tantum and the Conclusion of the Verdict is Et si super totam materiam Curiae videbitur quod Defendant dimisit 20 Acres then they find for the Plaintiff and if not then for the Defendant this is repugnant and so the Verdict is void in all To Assess Damages incertainly is void Certain As to say we Assess 40 l. if we must by Law if not then but 3 l. this is void Indelitatus assumpsit to Assess Damages occasione debiti predicti is good although it ought to be occasione non performationis c. In an Information upon the Statute Information 39 El. ca. 11. for Dying with Logwood by which he lost 20 l. for every Offence upon Not guilty if the Iury find him Guilty for using this against the Statute for 40 days by which he lost this is not good because he forfeits 20 l. for every time and the number of times do not appear If the Iury find the words in the Will and yet do not find the Will the Verdict is not good If they first find the Special Matter and then find the Issue generally the Special Matter is hereby waved If the Iury find that J. S. was seised in Where a Special Verdict shall be good by Intendment Fée and Devised the Land to J. D. although they do not find
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
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
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
English County to cause the Jury to come de propinquiori Visne of his County to the Visne in Wales adjoyning For the Court shall not be ousted of the Plea Fitz. Abridg. tit Visne 8. Jurisdict 24. In an action against a Hundred the Venire facias may come from the next Hundred generally In Trespass if the Defendant plead not guilty to part and to the residue a Plea which causes the Tryal of that to be by a Jury de Prochein Hundred The Venire shall be awarded al Prochein Hundred for both issues because there ought not to be two Venire facias in one action vide Rolls tit Tryal 596. In an Appeal of murder committed in the Cinque Ports although the King be concerned yet because this is betwixt common persons the Venire facias to the next adjoyning Vill. ibidem If the issue be joyned of a matter in Ireland Ireland this shall be tryed by a Jury of the next County in England ib. If the issue be to be tryed by the Venue of Prochein Hundred a Mannor and the Plaintiff suggests that he is Lord of the Hundred in which the Mannor is and that all within the Hundred are within his Distress if the Defendant acknowledge this the Venue shall not be de Corpore Comitatus but of the next Hundred for if it should be de Corpore Comitatus this should be tryed by the Tenants of the Mannor Rolls ib. 667. If the Visne is in some part mis-awarded or Visne mis-awarded in part sued out of more places or fewer than it ought to be so as some place be right named this is aided by the Stat. of Jeofailes which hath ended the differences in many cases reported in our Books concerning this point wherefore I purposely omit them Error for that the Iudgment was given Infamy where the Land lies by default against the Defendant being an Infant upon issue that he was of full age adjudged that the Tryal should be in Norfolk where the Land was and not in Middlesex where the Action was brought Cro. 3. part 818. If the Visne cometh from a wrong place May be out of a wrong place by Consent yet if it be per assensum partium and so entred of Record it shall stand for Omnis Consensus tollit errorem 1 Inst 125. Holmes vers Sanders Hill 22 23 Car. B. R. Error to reverse a Iudgement given in the Kings Bench in Ireland in Debt for Rent brought by the Assignes of a reversion the Plaintiff declared of a Lease of Land in such a Parish in the Suburbs of Dublin on nil debet pleaded the Venire facias was from the said Parish in Civitate Dublin and Iudgement there per Plaintiff it was assign'd for Error because the Land lies in the Suburbs of the City and the Venire facias was from a Parish in the City Per Cur. It is all one for the Suburbs are always within the Franchise of the City as Fleetstreet is within the Suburbs of London but the Strand not though so reputed Note It was adjudged Error in an Inferior Court that the Venire facias was awarded secundum consuetudinem Curiae which ought to be per Curiam Reader vers More Mich. 1650. B. R. CAP. IX Challenges YOu have already seen of what Visne the Jury ought to be The next thing to be considered is concerning Challenges Challenge is a word common as well to the English as to the French and sometimes Challenge signifieth to claim and the Latine word is vendicare sometime in respect of revenge to challenge into the field and then it is called in Latine vindicare or provocare Sometime in respect of partiality or insufficiency to challenge in Court persons returned on a Jury And seeing there is no proper Latine word to signifie this particular kind of challenge they have framed a word anciently written Chalumniare and Columpniare and Calumpniare and now written Calumniare and hath no affinity with the verb Calomnior or Calumnia which is derived of that for that is of a quite other sense signifying a false accuser and in that sense Bracton useth Calumniator to Calumnâ—ator be a false accuser but is derived of the old word Caloir or Chaloir which in one signification is to care for or foresee And for that to challenge Jurors is the mean to care for or foresee that an indifferent Tryal be had it is called Calumniare to challenge that is to except against them that are returned to be Jurors and this is his proper signification But sometimes a Summons Sommonitio is said to be Calumniata and a Count to be challenged but this is improperly And forasmuch as mens Lives Fames Lands and Goods are to be tryed by Jurors it is most necessary that they be Omni exceptione majores and therefore I will handle this matter the more largely A Challenge to Jurors is twofold either Challenge is twofold to the Array or to the Polls to the Array of the principal Pannel and to the Array of the Tales And herein you shall To the Array understand that the Jurors names are ranked in the Pannel one under another which order or ranking the Jury is called the Array and the Verb to Array the Jury and so we say in common speech Battail Array for the order of the Battail Array And this Array we call Arraiamentum and to make the Array Arraiare derived of the French word Arroier so as to challenge the Array of the Pannel is at once to challenge or except against all the persons so Arrayed or Impannelled in respect of the Partiality or default of the Sheriff Coroner or other Officer that made the Return And it is to be known that there is a principal Principal Challenges cause of challenge to the Array a challenge to the favour principal in respect of partiality as first if the Sheriff or other Officers be of kindred or affinity to the Plaintiff or Defendant if the affinity continue Secondly If any one or more of the Jury be returned at the denomination of the party Plaintiff or Defendant the whole Array shall be quashed So it is if the Sheriff return any one that he be more favourable to the one than to the other all the Array shall be quashed Thirdly if the Plaintiff or Defendant have an Action of Battery against the Sheriff or the Sheriff against either party this is a good cause of challenge So if the Plaintiff or Defendant have an action of Debt against the Sheriff but otherwise it is if the Sheriff have an action of Debt against either party or if the Sheriff have parcel of the Land depending upon the same Title or if the Sheriff or his Bayliff which returned the Jury be under the distress of either party or if the Sheriff or his Bayliff be either of Counsel Attorney Officer in fee or of Robes or servant of either party Gossip or Arbitrator in the same