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
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
betwixt Common persons in such cases the Pannel shall be quashed and this shall not be only a challenge to the heads 25 E. 3. 43. If the Sheriff return quod non sunt plures del Hundred he shall take of the Hundred adjoyning which shall be sufficient 19 H. 6. 48. If the Juror hath sufficient Land within the Hundred although he doth not dwell within the Hundred yet he is a sufficient Hundredor 9 H. 6. 66. nay though he dwell in another County If he be not Hundredor at the return of the Venire but be at the return of the Distringas yet this doth not take away the challenge After four are sworn or after a challenge At what time the Challenge must be to the Polls there can be no challenge for the Hundred Rolls tit Tryal 636. Who shall be a sufficient Hundredor See Williams his reading aforesaid If he dwell or have Assets within the Leet Rape Franchise or Vill where the Venue is he is a sufficient Hundredor If he hath Assets in Rent Common of any sort Market Fair Piscary Toll passage Leet Office of Bayliwick c. he is a sufficient Hundredor otherwise of an advowson c. 3. Propter affectum this is of two sorts either working a principal challenge or to Challenges propteraffectum the favour And again a principal challenge is of two sorts either by Iudgement of Law without any Act of his or by Iudgment of Law upon his own Act. And it is said that a principal challenge is when there is express favour or express Principal Challenge malice First without any Act of his as if the Juror be of blood or kindred to either party Consanguineus which is compounded ex Con sanguine quasi eodem sanguine natus as it were issued from the same blood and this is a principal challenge for that the Law presumeth that one Kinsman Kindred doth favour another before a stranger and how far remote soever he is of kindred yet the challenge is good And if the Plaintiff challenge a Juror for kindred to the Defendant it is no Counterplea to say that he is of kindred also to the Plaintiff though he be in a nearer degree For the words of the Venire facias forbid the Juror to be of kindred to either party If a body politick or incorporate sole or Bodies Politick aggregate of many bring any action that concerns their body politick or incorporate if the Juror be of kindred to any that is of that body although the body politick or incorporate can have no kindred yet for that those bodies consist of natural persons it is a principal challenge A Bastard cannot be of kindred to any and therefore it can be no principal challenge And here it is to be known that Affinitas Affinity Affinity hath in Law two senses In its proper sense it is taken for that nearness that is gotten by marriage Cum duae cognationes inter se divisae per nuptias copulantur altera ad alterius fines accedit inde dicitur Affinis In a larger sense Affinitas is taken also for Consanguinity and kindred as in the Writ of Venire facias and other-where Affinity or Alliance by Marriage is a principal challenge and equivalent for Consanguinity when it is between either of the parties as if the Palintiff or Defendant marry the Daughter or Cousin of the Juror or the Juror marry the Daughter or Cousin of the Plaintiff or Defendant and the same continues or issue be had But if the Son of the Juror hath married the Daughter of the Plaintiff this is no principal challenge but to the favour because it is not between the parties Much more may be said hereof sed summa sequor fastigia rerum As if he hath formerly tryed the cause although Peremptory Challenge upon Record reversed by Error or upon the same title if the Record be not shewed this challenge is not peremptory For he that grounds a challenge upon a Record c. ought to have the Record ready 33 H. 6. 55. The Record ought to be exemplified 21 E. 4. 74. 'T is a good challenge to say the Juror was attainted in an Attaint or Writ of Conspiracy but attainder in a Writ of Forgery of false Deeds upon the Statute 1 H. 5. 3. but 't is upon 5 Eliz. 14. is not because this Attainder is given of late time by the Statute 33 H. 6. 55. In a Writ of Conspiracy 't is a principal challenge that the Juror was one of the Indictors and although the Tryal is now of the Conspiracy and not upon the first point viz. the Felony In Trespass if one justifie as Master and the other as Servant 't is not a principal challenge to say the Juror passed in the first issue for the Master but he ought to conclude issint favourable 18 E. 4. 12. If two plead not guilty and first one issue is tryed and then the other is tryed 't is no challenge to say the Juror tryed the other issue and gave Damages of which Damages he shall be charged if he be attainted in an Attaint for perhaps the Defendant will be found not guilty That the Juror is within the distress of any Deins distress of the parties is a good cause of challenge And so it is if he be within the distress of any person concerned although no party to the action As within the distress of A. the Master of the Defendant who justifies as servant to A. by reason of his Freehold and the issue is sur le franktenemenâ— So for him in reversion received within the distress of the Tenant for life And so in an Action by the Tenant for life within the distress of him in reversion these are good challenges So in an Action by Dean and Chapter within the distress of the Chapter or one of the Chapter are good challenges Consanguinity of the half blood is a principal Principal for Consanguinity challenge If the Juror be at the ninth degree if it can be shewed it is good In an Action by the Dean and Chapter or Major and Commonalty Brother to one of the Comonalty or to one of the Commons is a good challenge So to any person concerned in interest although no party to the action As Cousin to the Patron of the Parson c. so in Attaint to one of the petit Jury But in an Ejectment and Not Guilty pleaded 't is no challenge to the Array that the Sheriff is Cousin to the Lessor of the Plaintiff For it doth not appear that the Title of him in Reversion shall be in question and he in Reversion is no party to the action See it so adjudged upon Demurrer Rolls tit Tryal 653. But now in our feigned Ejectments it is otherwise because the Title of the Lessor is only in question 'T is a good challenge that the Juror Princâ—pal for Affinity is Gossâ—p to the Plaintiff
Juror shall be drawn in favour to the life of man And yet in a Prâ—cipe quod reddat by two and the Tenant challenge the Array because the Sheriff is Gossip to one of the Demandants and one Demandant acknowledge the challenge the other may say that this is not so and have it tryed Rolls tit Tryal 662. c. In Gager de ley none shall be challenged Ley gager for favour or insufficiency c. If there be a challenge for Cosinage he Cosinage that taketh the challenge must shew how the Juror is Cousin But yet if the Cosinage that is the effect and substance be found it sufficeth for the Law preferreth that which is material before that which is formal If the Juror have part of the Land that Dependingon the same Title dependeth upon the same Title If a Juror be within the Hundred Leet or any way within the Seigniory immediately or mediately or any other distress of Distress either party this is a principal challenge But if either party be within the distress of the Juror this is no principal challenge but to the favour If a Witness named in the Deed be returned Witness of the Jury it is a good cause of challenge of him So if one within age Infant of one and twenty be returned it is a good cause of challenge Vpon his own Act as if the Juror hath Challenges arising from the Jurors own Act. given a Verdict before for the same cause albeit it be reversed by Writ of Error or if after Verdict Iudgment were arrested So if he hath given a former Verdict upon the Former Verdict same Title or matter though between other persons But it is to be observed that I may speak once for all that in this or other like Cases he that taketh the challenge must shew the Record if he will have it take place as a principal challenge otherwise he must conclude to the favour unless it be a Record of the same Court and then he must shew the day and term So likewise one may be challenged that he was Indictor of the Plaintiff or Defendant Indictment either of Treason Felony Misprision Trespass or the like in the same cause If the Juror be Godfather to the Child of God father the Plaintiff or Defendant or è converso this is allowed to be a good challenge in our books If a Juror hath been an Arbitrator chosen Arbitrator by the Plaintiff or Defendant in the same cause and have been informed of or treated of the matter this is a principal challenge Otherwise if he were never informed nor treated thereof and otherwise if he were indifferently chosen by either of the parties though he treated thereof But a Commissioner Commissioner chosen by one of the parties for examination of Witnesses in the same cause is no principal cause of challenge for he is made by the King under the great Seal and not by the party as the Arbitrator is but he may upon cause be challenged for favour Arbitrator in another matter is no cause of challenge If he be of counsel Servant or of Robes Counsel or Fee or of either party it is a principal challenge If any after he be returned do eat and Eat or drink at the parties charge drink at the charge of either party it is a principal cause of Challenge otherwise it is of a Tryor after he be sworn Action brought either by the Juror against Actions of malice either of the parties or by either of the parties against him which may imply malice or displeasure are causes of principal challenge unless they be brought by Covin either before or after the return for if Covin be found then it is no cause of challenge other Actions which do not imply malice or displeasure are but to the favour as an action of debt c. More 3. In a cause where the Parson of a Parish Parson and Parishes is party and the right of the Church cometh in debate a Parishioner is a principal challenge Otherwise it is in debt or any other Action where the right of the Church cometh not in question If either party labour the Juror and give To labour the Jury him any thing to give his Verdict this is a principal challenge But if either party labour the Juror to appear and to do his Conscience this is no challenge at all but lawful for him to do it That the Juror is a Fellow Servant with Fellow Servant either party is no principal challenge but to the favour Neither of the parties can take that challenge to the Polls which he might have had To the Polls to the Array Note if the Defendant may have a principal cause of challenge to the Array if the Sheriff return the Jury the Plaintiff in that Venire facias to the Coroners case may for his own expedition alledge the same and pray Process to the Coroners which he cannot have unless the Defendant will confess it but if the Defendant will not confess it then the Plaintiff shall have a Venire facias to the Sheriff and the Defendant shall never take any challenge for that cause and so in like cases But on the part of the Defendant any such matter shall not be alledged and Process prayed to the Coroners because he may challenge the Jury for that cause and can be at no prejudice Challenge concluding to the favour when Challenges to the favour either party cannot take any principal challenge but sheweth causes of favour which must be left to the conscience and discretion of the Tryors upon hearing their evidence to find him favourable or not favourable But yet some of them come neerer to a principal challenge than other As if the Juror be of kindred or under the distress of him in the reversion or remainder or in whose right the Avowry or Iustification is made or the like These be in principal challenges because he in Reversion remainder or in whose right the Avowry or Iustification is is not party to the Record otherwise it is if they were made parties by aid Receipt or Voucher and yet the cause of favour is apparent so it is of all principal causes if they were party to the Record Now the causes of favour Favour are infinite and thereof somewhat may be gathered of that which hath been said and the rest I purposely leave the Reader to the reading of in our books concerning that matter For all which the rule of Law is that he must stand indifferent as he stands unsworn The Subject may challenge the Polls King where the King is party And if a man be out-lawed of Treason or Felony at the Suit of the King and the party for avoiding thereof alledgeth imprisonment or the like at the time of the Outlawry though the issue be joyned upon a collateral point yet shall the party have such
for the Battery of the Baron by its self and for the Battery of the Feme by its self and Iudgment was given for the damages for the batâ—ery of the feme and the Writ abated for the residue And of that Opinion was Lea Chief Justice and Doderidge al. contra And the same Law I conceive if the Iury had found the Defendant Not guilty of the battery to the Palmer's Reports 338. Husband but guilty to the Wife Cro. 2. part 655. Rochel and his Wife brought an Action of Trespass and Assault in the Exchequer Rochel and his Wife against Steel Hill 1659. against Steel and others who pleaded Not guilty and the Verdict found Steel guilty of the Battery to the Wife but found nothing concerning the Husband Wherefore Iudgment was stayd but the Barons held That if the Iury had found the Defendants not guilty as to the Husband then the Verdict had helped the Declaration and the Plaintiff should have had Iudgment for the Damages for the Battery of the Wife The Iury may find any thing that may be Of what a Verdict may be given in Evidence to them as Records either Patent Statute or Iudgment Things Plo. Com 411. done in another County or Country for which sée Evidence before Hob. 227. And of those things they ought to have Conusance they are to have Conusance also of all Incidents and dependants thereupon for an Incident is a thing necessarily depending Incidents upon another Co. Littleton 227. b. If the Verdict may by any ways be construed How construed good a construction to destroy it ought not to be made If one of the Iury be Outlawed when the Verdict is found the Verdict is not good but Outlaw may be reversed by Error In a special Verdict the case in Fact must be found clear to a Common intent without Equivocation Vaughan's Reports 78. If the Iury collect the Contents of a Contents of a Deed. Deed and also find the Déed in haec verba the Court is not to Iudge upon their Collection but upon the Déed it self The Iury may find the Contents of a Déed or Will proved by Witnesses Ibidem Trespass for disturbing him of his Common Common belonging to 100 Acres and the Iury find Common for 50. this is for the Plaintiff otherwise upon an Avoury or Quod permittat which are founded upon the right but the Trespass is for Damages Palmer's Rep. 289. If the matter and substance of the Issue The Verdict may be against the Letters of the Issue so the substance is found be found it is sufficient though it be against the Letter of the Issue As in the first Institutes fo 114. b. A Modus decimandi was alledged by prescription time out of mind for Tythes of Lambs And thereupon Issue joyned And the Iury found that before twenty years then last past there was such a prescription and that for these twenty Prescription years he had payd Tythe Lamb in specie And it was objected first That the Issue was found against the Plaintiff for that the prescription was general for all the time of the prescription and 20 years fail thereof 2. That the party by payment of Tythes in specie had waved the prescription or custom But it was adjudged for the Plaintiff for albeit the modus decimandi had not been paid by the space of twenty years yet the prescription being found the substance of the Issue is found for the Plaintiff In Assiise of Darrein Presentment if the Avoydance Plaintiff alledge the avoydance of the Church by privation and the Jury find the voydance by death the Plaintiff shall have Iudgment for the manner of voydance is not the title of the Plaintiff but the voydance is the matter 1 Instit 282. If a Gardein of an Hospital bring an Assise against the Ordinary he pleadeth that Deprivation in his Visitation he deprived him as Ordinary whereupon Issue is taken and it is found that he deprived him as Patron the Ordinary shall have judgment for the deprivation is the substance of the matter Ib. The Lessee Covenants with the Lessor not to cut down any Trées c. and binds himself in a Bond of 40 pounds for the performance of Covenants The Lessee cut down 10 Trees the Lessor bringeth an Action Breach of 20 Trees cut down for 10. of Debt upon the Bond and assigneth a breach that the Lessée cut down 20 Trées whereupon Issue is joyned and the Jury find that the Lessée cut down ten Iudgment shall be given for the Plaintiff for sufficient matter of Issue is found for the Plaintiff to forfeit the Bond. Ib. And this Rule holds in Criminal Causes For if A. be appealed or indicted of Murder viz. that he of malice prepensed killed J. A. pleadeth that he is not guilty Modo forma yet the Jury may find the Defendant Indictment of Murder and Verdict finds Manslaughter guilty of Man-slaughter without malice prepensed because the killing of J. is the matter and mâ—lice prepensed is but a Circumstance Plo. Com. 101. And generally where modo forma are Modo forma not of the substance of the Issue but words of form there it sufficeth though the Verdict doth not find the precise Issue As if a man bring a Writ of Entry in câ—su proviso of the Alienation made by the Tenant in Dower to his disinheritance and counteth of the Alienation made in Fee and the Tenant saith that he did not Alien in Manner as the Demandant hath declared Alienation and upon this they are at Issue and it is found by Verdict that the Tenant aliened in tail or for term of another mans life The Demandant shall recover yet the Alienation was not in manner as the Demandant hath declared Littleton Sect. 483. Also if there be Lord and Tenant and the Tenant hold of the Lord by fealty only and the Lord distrain the Tenant for Rent and the Tenant bringeth a Writ of Trespass against his Lord for his Cattel so taken Trespass by the Tenant against the Lord. and the Lord plead that the Tenant holds of him by fealty and certain Rent and for that Rent behind he came to distrain c. And demand Iudgment of the Writ brought against him Quare vi armis c. And the other saith That he doth not hold of him in manner as he supposed and upon this they are at Issue And it is found by Vâ—rdict that he holdeth of him by fealty only in this case the Writ shall abate and yet he doth not hold of him in manner as the Lord hath said For the matter of the Issue is Whether the Tenant holdeth of him or no for if he holdeth of him although that the Lord distrain the Tenant for other services which he ought not to have yet such Writ of Trespass Quare vi armis c. doth not lye against the Lord but shall
man fells all his Woods standing growing c. upon the prâ—misses to hold during the life of the Vendor rendring Rent The Vendee cuts down all Where Tenants in Common shall joyn in an action and where not what actions the one shall have against the other See 1. Inst 107 200. c. Woods Trover against a Carriers Copyholder Estray Continuâ—ndo the Trees if he cutts wood afterwards growing in the same place the Vendor may have Trespass Leon. 3. part 7. If a Carrier lose goods a special action of the Case lies against him but not Trover Roll. Abridg. 6. so of a common Carrier by Boat Noy 114. Trespass lies for a Copy-holder against the Lord for cuâ—ting down Trees that he the Tenant ought to have for repairs Godbâ—lt 173. By seisure of an Estray the Lord hath but the Custody and not the property and therefore if he works the Horse Trespass lies Yelverton 96 97. Trespass with a continuando cannot be for taking a Horse nor 10. Trees c. nor without a re-entry of the disâ—eisâ—d unless his re-entry be taken away by the act of God or the Estate be determined so that he cannâ—â— enter as if Tenant per auter vie be disseised and cestuivie que dâ— for there his entry is taken away by the act of God otherwise if it be taken away by his own act as if he release to the Disseisor c. 19 H. 6. 28. General Trespass for breaking his Park and taking Park Warren his Deer c. doth not ly at Common Law but a Writ is given by the Statute Westm 1. cap. 20. so if A. have a free Warren in the soil of B. A. shall not have Trespass but case for entring the Warren and stopping the holes c. A Commoner cannot have Trespass for the Grass Commoner False Imprisonment After a supersedeas shewed to the Bayliffs false imprisonment lies against them not against the Sheriff so against the Bayliff of a Franchise if he takes other mens goods in execution upon the Sheriffs warrant not against the Sheriff nor against the party unless he procure the Bayliff to take the wrong He that hath the Freehold in Law unless he hath Possession Entry Relation actual possession cannot have Trespass Therefore the Heir cannot have Trespass against the abater nor against Tenant at sufferance before he hath entred and only from that time but an Executor or Administrator shall by relation have Trespass from the death of the Intestate c. But a disseissee after entry shall have an action for all mean Trespasses from the disseism even against strangers for he is restored to the possession ab initio Trespasses cannot be maintained against him who comes to the goods lawfully as by the Plaintiffs delivery Trespass or under that or by act in Law c. but detinue But Trespass lies against Tenant at will or him that I lend my goods to who destroys them for thereby the privity is determined It lies against a Miller for taking Toll where none is due For taking my Servant out of my service for rescuing one taken at my suit out of the Bayliffs hands for the Bayliff is my servant For beating my Wife or Servant per quod c. Not against him that J. S. sells my Horse to or has my goods from the Sheriff although the Sheriff took them wrongfully It lies for hunting a â—ox c. in my ground Against Church-Wardens who act by the Justices of the Peace's Warrant if the Warrant be not good For digging so near my ground that it fell into the Defendants piâ—t But not that my house fell into the pitt for 't was my fâ—ult to build so near another mans ground for entring my ground to take out his Falcon which flew thither after Game For killing my Tumbler in his Warren Although I sell the goods it lies for a Trespass done Time before Tender of sufficient amends before the action brought is a good Bar for a negligent Trespass Bar. not for a voluntary one If a man enter into a place by authority of Law Ab initio and abuse this authority he is a Trespasser ab initio for his first 〈◊〉 shall be intended for this purpose As if the Lâ—ssor eâ—ter to view Wast and stays there all night If the Kings â—urveyor sells my goods If the searcher abusâ—â— mâ— stuffs If a man will stay in a Tavern all night 〈◊〉 he detains a distress after amends tendred befor◠〈◊〉 â—â—ounding If a Bayliff refuse Bail Trespass doth 〈◊〉 against him ab initio but case for the Sheriff or Undersheriff not he ought to take Bail not against â—he party nor Bayliff or person in aid if the Sheriff doth not return his Writ of Latitat or makes a false return but it doth against the Sheriff So of an Officer of an inferior Court If the Lord work an Estray Distress c. Or Executors find a Bond and cancel it thinking it was discharged and it was not They are Trespassers ab initio although they came lawfully to the possession at first Rolls tit Trespass 563. The Lunatick and not the person to whon he is Lunatick committed must bring the action in his name for a Trespass done in the Land Brownl 1. part 197. The knowledge of evidence is so beneficial and Note the Chapter of Verdicts gives much light to know what evidence is good and what not necessary for all Practicers in the Law That none can know too much be too well versed or too often conversant in it Therefore to compleat this Treatise especially in this particular I have drained the Law-books oâ— all or the most principal Cases relating to it and have added some observations very fit for the unlearned to know and I hope not fit for the learned to reject FINIS A Table to the Precedents c. A  AGreemenâ— 482 Attaint 480 Abattement of the writ for the residue 383. Asserts 192 Attornment 484 Avowry 484 Account 485. 494 Administrator 491. 504 Arrest 495 Action of the Case 495 Assumpsit 498 Acceptance 498 Averments of upon or against whaâ— 500 c. Award 505 Assault 518 B  Bâ—rron and Feme 175. 191 483 505 507 Bail-bond 487 C.  Common 406. 403 385 487 Cessavâ—t 485 Circumstance 489 Copyhold 490 510 Consimili casu 495 Condition Collateral 499 Consideration 500. 506 507 Certificate 503 Carrier 510 Commoner 511 Continuando 510 D.  Demurrer see Evidence  Deed. 482. 487 490 496 497 Damages 223. 487 Disseisin 483 Dower 488 Discontinuance 501 Date 505 Devise 505 E.  Evidence Demurrer upon evidence 476. 477 478 479 480 481 482 49â— 495 496 The Evidencer needs shew no more of a Will c. than what makes for him 479. 481 The fact is admitted by a Demuâ—rer 480 probable though not certain maâ—ter is good evidence 481. 483. Rules concerning evidence 482. 483 485 487 Non est factum 482. 487