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
good for that it is a debt every where and not like a debt that ariseth by matter collateral But Twisden â—ust doubted Whitehead vers Browne Pasch 15 Car. 2. B. R. The Jury may find Estoppels as the taking Estoppels When the Estoppel is found the â—ourt may judge according to the eâ—pecial matter of a Lease of a man 's own Land by Deed indented or the delivery of a Deed before the date as in Debt by an Administrator upon a Bond dated 4 Aprilis 24 Eliz The Defendant pleaded that the Intestate dyed before the date of the Obligation and isint nient son fait upon which they were at Issue and adjudged that the Jury might find that the Bond was delivered the 3d of April because they are sworn ad veritatem dicenâ—um though the parties are estopped to plead a Deed was delivered before the date but they may plead a delivery after the date because it shall never be intended that a Deed was delivered before the date but after it may But if the Estoppel or admittance be Estoppels within the same Record in which Issue is joyned then the Jurors cannot find â—ny thing contrary to this which the parties have affirmed and admitted of Record though it be not true For the Court may give judgment upon matters confessed by the parties and the Jurors are not to be charged with any such thing but only with such in which the parties vary li. 2. 4. li. 4. 53. Co. Lit. 227. A Decree in Chancery shall be tryed by a Decree Jury and not by it self for it is not a Record but a Decree Recorded The Chancery as it is a Court of Equity is not a Court of Record But touching things agitated in the Petty Bag Office it is a Court of Record The Jury may find Deeds or matter of Records not shewed Record if they will though not shewed in Evidence Finch 400. They may inquire of things done before the memory of man lib. 9. 34. Null tiel Record is not to be tryed by a Jury but upon the general issue c. they may find a Record The Jury may find a Warranty being Warranty given in Evidence though it be not pleaded Nay the â—ury may find that which cannot be pleaded as in Trespass upon not guilty The Jury may find that the Defendant leased Lands for life upon Condition Condition and entred for the Condition broken Tho. this cannot be pleaded without Deed yet the Jury may find it Lit. Sect. 366. Where a Collateral Warranty binds this may well be given in Evidence For although it doth not give a right yet in Law this shall bar and bind a Right Lib. 10. 97. But this matter comes more properly under the Title Evidence wherefore we will proceed to that See also in Chap. 13. CAP. XI Evidence and Witnesses EVidence Evidentia This word in legal Evidence understanding saith Coke 1. Inst 283. doth not only contain matters of Record as Letters Patents Fines Recoveries Inrollments and the like and writings under Seal as Charters and Deeds and other Writings without Seal as Court-Rolls Accounts and the like which are called Evidences Instrumenta But in a larger sense it containeth also Testimonia the Testimony of Witnesses and other proofs to be produced and given to a Jury for the finding of any Issue joyned between the parties And it is called Evidence because thereby the point in Issue is to be made evident to the Jury Probationes debent esse evidentes id est perspicuè facile intelligitur And this Evidence with Bracton we may term probatio duplex viz. viva as Witnesses vivâ voce and Mortua as by Deeds Writings and Instruments and violenta praesumptio in many cases is plenâ— probatio and therefore if all the Witnesses to a Deed be dead then the Deed shall receive Credit per collationem sigillorum scripturae Presumption c. but especially if there hath been a continual and quiet possession which is a violent presumption 1 Inst 6. for no man can keep his Witnesses alive If a thing be generally referred to proof Proof this shall be intended proof by Jury but if other manner of proof be agreed upon that shall take away the proof which the Law generally intends by Jury Hob. 127. As if I promise to pay what mony you prove B. borrowed this may be proved in the same action brought upon the promise Vide Rolls tit tryal 594 595. Men that are so branded with Infamy Witnesses that they cannot be Jurors for which see before who may be Jurors cannot be Witnesses yet per Glyn Ch. Just and Newdigate Just Mich. 1657. B. R. Conviction of common Barretry hinders not from being a witness but Maynard Sergeant held strongly against it At Lent Assises Suff. 1657. St. John Ch. Just C. B. would not allow one who had been whipped for petty Larceny to be a Witness but Earl Sergeant said they ought to be stigmatici that are disabled from being Witnesses Yet per Roll. Ch. Just one burned in the hand for Felony may be a Witness for he is in capacity to purchase Lands and his fault is purged by his punishment Stiles 388. The Wife cannot be a Witness for or Who may be Witnesses against her Husband 1 Inst 6. that is in case of a common person between party and party but between the King and the party on an Indictment she may although it concerns the Feme her self as in the Lord Audley's Case Hutt 116. So she may have the Peace against her Husband And so it was resolved in John Browne's Case Trin. 25 Car. 2. B. R. on the Stat. of 3 H. 7. cap. 2. vid. 1 Cro. 492. The King cannot be a witness by his Letters under his Signet manual One attained of Piracy cannot be a witness to prove another guilty If he accused another before he was attainted and afterwards confesses he wronged him this confession shall be rejected because he is attainted A woman cannot be a witness to prove a man to be a Villain Co. Lit. 6. 8. Neither can the party to the usurious Contract be a Witness against the Vsurer in an Information upon the Statute of Vsury But Kinsmen never so near Tenants Servants Masters Counsellors and Attorneys c. may be Witnesses A Counsellor may be a Witness to the Agreement c. but not to validity of an assurance nor to the Counsel he gave March Rep. 43. If a Witness being served with Process and having money sufficient to bear his charges or less if he accept it do not appear to give his testimony he forfeits 10 l. to the party damnified and must recompence his damages 5 Eliz. 9. If a Witness commit wilful perjury he loseth 20 l. shall be imprisoned 6. months without bail stand in the Pillory and be disabled to be a Witness so shall the suborner who procures the perjury 5 Eliz 9. A party robbed is allowed a
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