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
Lord of Parliament as a Baron Viscount Earl Marquess and Duke for these in respect of Honour and Nobility are not to be sworn on Juries and if neither party will challenge him he Propter honoris respectum may challenge himself for by Magna Charta it is provided Quod nec super eum ibimus nec super cum mittemus nisi per legale judicium parium suorum aut per legem terrae Now A Peer may challenge himself the Common Law hath divided all the subjects into Lords of Parliament and into the Commons of the Realm The Peers Peers and Commons of the Realm are divided into Barons Viscounts Earls Marquesses and Dukes The Commons are divided into Knights Esquires Gentlemen Citizens Yeomen and Burgesses And in Iudgement of Law any of the said degrees of Nobility are Peers to another As if an Earl Marquess or Duke be to be tryed for Treason or Felony a Baron or any other degree of Nobility is his Peer In like manner a Knight Esquire c. shall be tryed per Pares and that is by any of the Commons as Gentlemen Citizens Yeomen or Burgesses so as when any of the Commons is to have a Tryal either at the Kings Suit or between party and party a Peer of the Realm shall not be impannelled in any Case Secondly Propter Defectum Challenge Propter defectum 1. Patriae as Aliens born 2. Libertatis as Villains or Bondmen and so a Champion must be a Freeman 3. Annui sensus i. e. liberi tenementi First what yearly Freehold a Iuror ought to have that passeth upon Tryal of the life See before cap. 7. Quorum quilibet habeat 4. l. c. of a man or in a Plea real or in a Plea personal where the Debt or damage in the Declaration amounteth to 40. Marks Vide Littleton Sect. 464. Secondly this Free-hold must be in his own right in Fee-simple Fee-tail for term of his own life or for another mans life although it be upon condition or in the right of his Wife out of antient Demesne for Freehold within ancient Demesn will not serve but if the debt or Damage amounteth not to 40. Marks any Freehold sufficeth Thirdly he must have Freehold in that County where the cause of the action ariseth and though be hath in another it sufficeth not Fourthly if after his return he selleth away his Land or if Cesty que vie or his Wife dyeth or an entry be made for the condition broken so as his Freehold be determined he may be challenged for sufficiency of Freehold It seems before the Statute 2 H. 5. free-hold of any value was sufficient for there Freehold of 5. s. was sufficient 3. H. 4. 4. by that Statute in all Pleas real and personal where the Debt or damage or both together amount to 40 marks the Juror must have 40. s. Freehold In an Attaint they must be able to expend 20. l. per annum In an accompt upon the Receipt of 100. s. if he count to his damage 200. s. if the Juror hath but 20. s. or under 40. s. 't is sufficient because he shall not recover damages and so this is not within the Statuts 10 H. 6. 18. for the sufficiency of Jurors See Rolls tit Tryal 648. A man seised of the Mannor of Dale enfeoffs a stranger upon condition to pay yearly to J. S. and his Heirs 40. s. Rent J. S. dies seised of this Rent and then his Heir takes it Yet the Heir hath not sufficient Freehold Land to the value of 40. s. is given to Husband and Wife and the Heirs of their two bodies begotten who have issue a son the Husband gives the Land by fine to an estranger and his Heirs and dies the Wife enters and dies seised the son hath not sufficient Freehold to be a Juror A man seised of Land to the value of 40. s. within the County of Mid. and of Land to the value of 12. within the County of Sussex and grants a Rent-charge of 40. s. issuing out of all the said Land to a stranger in fee the Grantee hath sufficient Freehold to be a Juror in both Counties See many speculative cases upon this subject in Williams his Reading upon the Statute 35 H. 8. cap. 6. 4. Hundredorum First by the common Challenges propter defectum hundrrdorum Law in a Plea real mixt and personal there ought to be four of the Hundred where the cause of action ariseth returned for their better notice of the cause for Vicini vicinorum facta praesumuntur scire And now since Littleton wrote in a Plea personal if two Hundredors appear it sufficeth and in an Attaint although the Jury is double yet the Hundredors are not double Secondly If he hath either Freehold in the Hundred though it be to the value but of half an Acre or if he dwell there though he hath no Freehold in it it sufficeth Thirdly if the cause of the action riseth in Hundredors divers Hundreds yet the number shall suffice as if it had come out of one and not several Hundredors out of each Hundred Fourthly if there be divers Hundreds within one Leet or Rape if he hath any Freehold or dwell in any of those Hundreds though not in the proper hundred it sufficeth Fifthly if the Jury come de Corpore Comitatus or de proximo Hundredo where the one party is Lord of the No Hundredors Hundred or the like there need no Hundredors be returned at all Sixthly if a Hundredor after he be returned sell away his Land within that Hundred yet shall he not be challenged for the Hundred for that his notice remains otherwise as hath been said for his insufficiency of Freehold for his fear to offend and to have Lands wasted c. which is one of the Reasons of Law is taken away Seventhly he that challengeth for the Hundred must shew in what Hundred it is and not drive the other party to shew it Eighthly his Challenge for the Hundred is not simpliciter but secundum quid for though it be found that he hath nothing in the Hundred yet shall not he be drawn butremain praeter H. that is besides for the Hundred and albeit he dwelleth or have Land in the Hundred yet must he have sufficient Freehold Note This challenge for want of Hundredors must be given in writing presently and the other party is to demurr thereto if opposed If a challenge be that there is not any Hundredor returned it may be averred to the Court that there is not any sufficient within the Hundred which is not within the Fee of the Plaintiff although this be not returned by the Sheriff and this be found true by Tryors the Array shall be affirmed 45. Ass 1. If the King be made party by aid prayer and sufficient Hundredors do not appear nor are returned yet the Pannel shall not be quashed but a Tales of Hundredors shall be returned But
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 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
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
it may be supplied by matter ex post facto and how And for this know that if damages be left out of a Vide hic cap. 6. Verdict this omission cannot be supplied by Writ of Inquiry of damages for this would prevent the Defendant of his Remedy by Attaint which would be very mischievous for then such omission might be on purpose to deprive the Plaintiff of his Attaint li. 10. 119. And the Rule is That when the Court ex officio ought to inquire of any thing upon which no Attaint lies There the omission of this may be supplyed by â— Writ of Inquiry of damages as in a Quar impedit if the Jury omit to enquire of these 4 things that is to say de plenitudine ex cujus presentatione si tempus semestre transierit and the value of the Church per annum there the Plaintiff may have a Writ to inquire of these points Dyer 241. 260. because of these no Attaint lies as it is holden in 11 H. 4. 80. because that as to these the Inquest is but of Office But in all cases where any point is omitted whereof on Attaint lyeth there this shall not be supplyed by Writ of Inquiry upon which no Attaint lyeth And therefore in Detinue if the Jury find Damages and Cost and no value as they ought this shall not be supplyed by Writ of Inquiry of damages for the Reason aforesaid Ib. Et sic in similibus But how then What shall the Plaintiff Verdict set aside because the damages not well assessed loose the benefit of his Verdict because the Jury assessed no damages or did insufficiently assess them Certes in such Cases where damages only are to be recovered he must loose the whole benefit of his Verdict but where any thing else is to be recovered besides damages as in Debt Ejectment c. he may release his damages and have Iudgment Release Damages upon his Verdict as to the rest And so where damages are to be recovered if part of them are assessed insufficiently and part well he may have Iudgment for those damages well assessed And oftentimes the insufficiencâ— Verdict set aside in part of the Declaration shall set aside the Verdict as if an Action upon the Case be brought upon two promises and one of For insufficiency in the Declaration them be insufficiently laid and the Verdict give intire damages this is naught for the whole But if the Damages had been severally assessed upon the several promises then the Verdict as to the promise well laid should have stood In the 11th Report fo 56. Marsh brought a Writ of Annuity against Bentham and the parties discended to issue which was tryed for the Plaintiff and the Arrerages found c. But the Iurors did not assess any damages or Cost which Verdict was insufficient and could not be supplyed by Writ of Inquiry of damages wherefore Release of damages where none were assessed the Plaintiff released his damages and costs and upon this had Iudgment upon which the Defendant brought a Writ of Error and assigned the Error aforesaid scil the insufficiency of the Verdict fed Judicium affirmatur because the Plaintiff had released his damages and costs which is for the benefit of the Defendant In Detinue of Charters or non detinet Verdict for the Plaintiff and Damages but the Iury did not find the value of the Déeds and a Writ of Inquiry was awarded to that purpose and returned and ruled good and by Twisden Just Debt against Executor who pleads plenè c. and it 's fouâ—d against him and the Iury give no damages that can't be aided by Writ of Inquiry Burton versus Robinson Pasch 17 Car. 2. B. R. In Dyer 22 Eliz. 369. 370. In a Wri Release of damages where they were not well assessed of Ejectione Custodiae terrae haeredis the Iurors assessed damages intirely which was insufficient for it lay not for the Heir yet the Plaintiff released his damages and had Iudgment for the Land And Note that insufficient assessment of damages and no assessing is all one The Iury ought to assess no more damages Damages and Costs pro injdria illata than the Plaintiff declares for But they may assess so much and moreover give cost which is called Expensae litis though in the proper and general signification Dampnum also comprehends Costs of Suit as the Entry reciting both damages and costs well affirms scil Quae dampna in toto se attingunt cum c. But if the Iury do assess more damages More damages than the Plaintiff declares for then the Plaintiff declares for the Plaintiff may remit the overplus and pray Iudgment for the residue as in the 10th Report fol. 115. in Trespass the Plaintiff declared ad dampnum c. 40 l. at the tryal the Iury assessed damages occasione transgressionis prâ—dict ad 49 l. and for costs of Suit 20 s. upon which Verdict the Plaintiff at the day in Bank remitted 9 l. parcel of the said 49 l. assessed for damages and prayed Iudgement for 40 l. Damages remitted to which damage he had counted with increase of costs of suit and had 9 l. de Incremento added by the Court which in all amounted to 50 l. and had his Iudgment accordingly upon which a Writ of Error was brought and the Iudgment affirmed For as in real Actions the Demandant shall not count to Damages c. because it is incertain to what sum the damages will amount by reason he is to recover damages pendant le briefe so in the ease of Costs he shall recover for the expences depending the suit which being uncertain cannot be comprehended in the Count because the Count extends to damages past and not to expences of Suit For in personal Actions he counts Damages in real and personal Actions to damages because he shall recover damages only for the wrong done before the Writ brought and shall not recover damages for any thing pendant le briefe But in real Actions the Demandant never counts to damages because he is to recover damages also pendant le briefe which are incertain The Iury may if they will assess the damages Damages and Costs intirely assessed and costs intirely together without making any distinction 18 E. 4. 23. But then they must not assess more damages and costs than the damages are which the Plaintiff counts to for if they do the Plaintiff shall recover only so much as he hath declared for without any increase of cost because the Court cannot distinguish how much they intended for cost and how much for damages As in 13 H. 7. 16. 17. One Darrel brought a Writ of Trespass and counted to his damage 20 marks the Defendant pleaded not guilty and the Iury taxed the damages and costs of suit joyntly to 22 marks and the Verdict was held to be good for 20 marks and void for the residue because it doth not appear how much
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
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