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
good witness in his own action against the Hundred for he is not bound nay is to be blamed to tell any one what charge he carries with him and if he should not testifie the Law would be often fruitless for want of Evidence or else more Robberies committed by the parties discovering his money In the Case of Brereton and Tatam Mich. 1656. B. R. Glyn. Ch. Just Cited the Lord Chandoi's Case in this Court where one Gates an Executor was produced to prove the Will as a witness to which he as Counsel excepted because of his Executorship It was answered that he had fully administred He replied the Assets might afterward come to his hand but the â—ourt resolved that it would not be presumed to barr his Testimony which was allowed in the principal Case being in â—jâ—ctment It 's no good exception to a Witness that he hath common per cause of Vicinage in the Lands in question because it s but an excuse of Trespass and no interest Clapham's case Mich. 1657. B. R. The same of common of Shacke If Obliâ—ee devises the debt to the Obligor and 〈◊〉 Executors deliver up the Bond in satâ—â—â—â—action of the Legacy which is cancell'd and after the validity of the Will is questioned viz. whether the Testator was compos c. the Obligor is a good witness for the will because by the cancelling of the Bond his debt was discharged But Contr. in case of a Mortgage for though the deed be cancelled if it be no good will he must pay the mony Goodman vers Turbervill Mich. 1657. B. R. An Action was brought by the Corporation of the Weavers of Norwich for a penalty against a Weaver for workign in his Trade in Harvest time contrary to an Ordinance by them made And Atkins Just allowed one of the Corporation to be a witness though one moiety of the penalty was due to the Corporation Lent Assise 1657. In a Tryal at Bar where an Estate for Life is limited to I. S. remainder to the poor of the Parish of Greenwich by Will the Inhabitants of Greenwich were allowed to be witnesses to prove the Will Townsend and Roane Mich. 1658. B. R. An Action of Debt was brought Summer Ass Suff. 1669. by the Town of Ipswich for 50 â— a Fine set on one chosen Common Council Man called their prime Constable for refusing to renounce the Covenant c. And the Town-Clerk though a Freeman was allowed a witness to prove Election Refusal c. and the Fine set which is for necessity for that none other are or ought to be present at those Acts. Rainsford Just Per Hale Ch. Just Norf. Summer Ass 1668. A Freeman of Lynn is not an allowable witness to prove the custom of Foreign bought and Foreign sold in that Town Harwich vers Twels As to Witnesses priviledges One was sub-poena'd ad testificandum and prayed a priviledge from being arrested which was granted and per Cur. it will supersede an Arrest on mean process but not upon an Execution yet the Sheriff in that Case may be committed for his Contempt Hen. Nevil's case Mich. 15 Car. 2. B. R. Detaining of Witnesses Sir Jo. Jackson was Convict on an Information for preventing of Evidence to be given on an Indictment of Perjury against Fenwick and Holt who had been witneâ—â—es for Sir J. J. he arrested some witnesseâ— and gave mony to others and so they wâ—re acquitted He was fined 1000 Marks 1 â—â—â—ths imprisonment behaviour for 12 months Hill 1663. B. R. Proofs to determine matter of Fact and Prooâ—s to be offered to a Judge and Jury are of two sorts First Living as by Witnesses and to a Jury one witness is sufficient And Dead as matters of Record as Letters Patents Fines Recoveries Inrollments c. Writings sealed and delivered as Feoffments Leases Releases c. And without Seal as Court-Rolls Accounts c. And if the Case be between the King and a Prisoner he is first to say what he can himself and then all that can say any thing against him are to be heard upon Oath and then others may be heard for him but not upon Oath And according to this Evidence on both sides or without any Evidence at all the Jury are to give their Verdict according to their knowledge and Oaths Such persons as are infamous as are persons attainted of Felony or of a false Verdict or of a Conspiracy or of Perjury or of Forgery upon the Statute of 5 Eliz. cap. 14. and not upon the Statute of 1 H. 5. 3. and such as have had Iudgment to lose their Ears or stand on the Pillory or Tumbrel or have been stigmatized or branded and Infidels Men not of sound memory or not of discretion or such as are interested in the cause or have benefit are not competent witnesses Co. 1. Inst 6. but we see Jews are daily admitted witnesses An account given to and allowed by the Plenâ— Administravit Ordinary is not good Evidence nor a Pedigree by a Herald of Arms to prove an Pedigree Heir but it must be proved by Deeds Records or Witnesses If the issue be a Recognizance or not a Recognisance Recognizance with a defeasance is good Evidence Plo. 14. So of an Agreement Agreement a special Agreement will prove it Plo. 8. A Licence to alien Land or a pardon for alienation of Land was held by a common Tenure in Caâ—ite presumption to be a good proof that the Land was held in capite A thing which is concluded in the Ecclesiastical Ecclesiastical proceedings Court which doth concern Lands is not to be given in Evidence for the Courts of Common Law are not to be guided by their proceedings Ancient Deeds may be given in Evidence Ancient Deeds although the execution of them cannot be proved He that takes out a Copy of part of a Record Copy of a Record must at least take out so much as concerns the matter in question or else the Court will not permit it to be read If one produce â— Lease made upon an Outlawry Outlawry in Evidence to a Jury to prove a Title he must also produce the Outlawry it self To prove a Feoffment a Deed of Feoffment Feoffment is shewed but no Livery is indorsed if possession has gone with the Deed it is good Evidence Rolls Reports 1. part 132. Vpon Not Guilty to an Information upon Proviso a penal Law a Proviso to excuse him may be given in Evidence Jones Reports 320. If a man prescribe in a non decimando Non decimando generally he cannot give a Bull in Evidence Palmers Reports 38. A Deed with the Seals torn off was admitted Deed. to declare uses Palmers Reports 403 405. Records prove themselves and cannot be Records proved by Witnesses but Copies of them must and are good Evidence and so may any thing done in the County-Court Court-Baron or Hundred-Court c. be proved by Witnesses A
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