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
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
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
Will given in evidence was A. H. shall have all my inheritance if the Law will allow it and held sufficient to maintain the Issue Hob. 2. so upon Ne unques receiver per maines J. S. a delivery from J. D. by the appointment of J. S. Account to the Plaintiffs use is good evidence Hob. 36. Issue whether A. was taken by a Capias ad sat at the suit of B. and evidence of a taking at the suit of C. Arrest and then a delivery of a Capias ad sat at the suit of B. to the Sheriff is good Hob. 55. But a taking upon a Cap. utlagat or cap. pro fine with a prayer of the Plaintiff that he may remain for his satisfaction is not ibid. In a Consimili casu where the demandant counts Consimili casu Substance of an alienation in Fee yet the Defendant shall make his Traverse to the alienation modo forma and then the demandant shall maintain the Issue by an Alienation in Fee or in Taile or for Life for they are all alike material Hob. 105. In an Assise the Defendant pleaded the Deed of Warranty the Brother of the Plaintiff with Warranty A Deed of the Father with Warranty will not maintain the Defendants Issue Hob. 55. In Bennets Case Stiles 223. In a Tryal at Barr It was Juror said by the Court that if either of the parties to a Tryal desire that a Juror may give evidence of some thing of his own knowledge to the rest of the Jurors that the Court will examine him openly in Court upon his Oath and he ought not to be examined in private by his Companions And it was also said that if a Robbery be done in Crepusculo the Hundred shall Robbery not be charged but if it be done by clear day light whether it be before Sun rise or after Sun set it is all one and the Hundred shall be charged In an action of the Case for digging a hole in the Demurrer upon evidence High-way into which his Gelding fell c. upon Not Guilty this evidence was given that the Plaintiffs servant was driving the Plaintiffs Gelding in the way and that by reason of the hole he fell c. Upon which it was demurred because it was not proved that there was such a High-way nor who Action sur Case digged the hole Roll Chief Justice This evidence is no more than a special Verdict and it ought to find the way and the hole digged and all the matter conducing to the Issue and therefore it is not good as it is and a venire de novo was awarded Stiles 335. In Trover and conversion there was a Demurrer Demurrer upon evidence joyned upon the evidence and thereupon the Court directed the Jury to find Damages for the Plaintiff if upon the argument of the Demurrer the Law should be adjudged for him and then the parties desired the Jury might be discharged and referred the matter to the Judges to determine the Law upon the evidence In this Case Roll Justice took this difference If a record be pleaded it must be sub pede sigilli or else the Judges cannot judge of it But it may be given in evidence and the Jury may find Record it though it be not sub pede sigilli And the Court advised the parties for their own expedition to let a venire facias de novo be Issued out and to wave the Demurrer upon the evidence because it was not good nor could not bring the matter in question before them that they might determine it for one party saith there is a Writ and the other saith there is not a Writ which is bare matter of fact for the Jury to determine and not for the Court and the Demurrer ought to have been whether the Writ be good or bad and should have admitted that there was a Writ tiel quel and then had the whole matter come legally before the Court to wit whether the evidence given to the Jury be sufficient for them to find a verdict for the Plantiff upon the Issue joyned or not-For the matter of fact ought to be agreed in a Demurrer to an evidence otherwise the Court cannot proceed upon the Demurrer And he said if a Deed be pleaded the party must shew it in Court but in Deed. evidence 't is not absolutely necessary to shew it if it can otherwise be proved to the Jury and so it is of a Record and concluded that the Demurrer was Record not good and that there ought to be a venire facias de novo to try the matter again Bacon Justice said there ought not to be a venire facias de novo but that judgment ought to be given against one party to wit the Defendant for ill joyning in the Demurrer to the intent the party that is not in fault may be dismissed and the parties here have waved the Tryal per pays by joyning in Demurrer But Roll answered that no judgment at all could be given for both parties be in fault one by tendring the Demurrer and the other by joyning in it and the Defendant might have chosen whether he would have joyned or not but might have prayed the judgment of the Court whether he ought to join The Court advised to search Precedents for a venire facias de novo after a Demurrer upon an evidence and if there be any they hold that the same Jury ought to come again and not another Roll said if a special Verdict be found insufficient a new venire facias ought to Issue and he saw no difference betwixt that and this Case Wright and Pindars Case Stiles 22. and 34. In Debt for Servants Wages viz. 20 s. or a robe Debt yearly The Defendant may plead payment of the robe and shall not be put to the general Issue Servants wages where the payment is of another thing than money but of money he must plead nil deb and give the payment in evidence And the Defendant may plead that the Plaintiff departed out of his service and shall not be forced to the general Issue 9 E. 4. 36. Though surely that may be given in evidence upon nil deb for the Plaintiff must prove he served so indebitatus Assumpsit non Assumpsit upon the promise in Law an extinguishment by taking a Bond Extinguishment being a matter of a higher nature for the Debt may be given in evidence And Note if an Infant buy Goods and afterwards give a Bond and this Bond be avoided by Infancy Yet it seems the Contract shall not be revived Sed dubitatur Rolls tit Extinguishment 604. for now this Bond which was voidable is become void and a void thing shall not have such effect But a personal action once suspended is gone for ever But acceptance of a Bond shall not extinguish Rent nor arrerages of an account before an Auditor of Record because these are of a
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
per medietatem linguae he cannot challenge the Array for this cause at the Tryal if the Iury be all Denizens notwithstanding Stamford's Opinion to the contrary and the Books cited by him fol. 159. pl. Cor. For the Alien at his peril should pray a Venire facias per medietatem linguae Dyer 357. Vide Rolls tit Trial. 643. If the Plaintiff be an Alien he must suggest it before the awarding of the Venire facias but if the Defendant be an Alien the Plaintiff is allowed to surmise that before or after the Venire facias because the Defendants quality may not be known to him before 27 H. 7. 32. CHAP. XIII The Learning of General Verdicts Special Verdicts Privy Verdicts and Verdicts in open Court and where the Inquest shall be taken by default Inquests of Office c. Arrest of Judgment Variance betwixt the Nar. and the Verdict c. VErdit or Verdict In Latine Vere dictum Verdict quasi dictum veritatis As Judicium est quasi Juris dictum Is the Answer and Resolution of those 12 men concerning the matter of fact referred to them by the Court upon the Issue of the parties And this is the foundation upon which the Iudgment of the Court is built for â—x facto jus oritur the Law ariseth from â—he fact Wherefore it is no wonder that the Law hath ever béen so curious and cautelous as â—ot to believe the matter of fact until it is sworn by 12 sufficient men of the Neighbourhood where the fact was done whom the Law supposeth to have most cognisance of the truth or falsehood thereof which being sworn for the words are Juratores predict The Credit of Verdicts dicunt super sacruÌ„m suum c. is the Verdict whereof we now treat And such credit doth the Law give to Verdicts that no proof will be admitted to impeach the verity thereof so long as the Verdict stands not reversed by Attaint And therefore upon an Attaint no Supersedeas is grantable by Law Plo. Com. 496. And it is worth our observation that the Law seems to take more care of the fact than of her self for the Major part of the Iudges give the Iudgement of the Law though the other Iudges dissent But every one of the 12 Iurors must agrée together of the fact before there can be a Verdict which must be delivered by the first man of the Iury. 29 Assise pl. 27. And this Verdict is of two kinds viz. one General or special general and the other special or at large The general Verdict is positively either General Verdict in the Affirmative or Negative as in Trespass upon Not guilty pleaded The Iury find Guilty or Not guilty And so in an Assize of Novel disseisin brought by A. against B. The Plaintiff makes his plaint Quod B. disseisivit eum de 20 acris terrae cum pertinentiis The Tenant pleads Quod ipse nullam injuriam seu disseisinam prefato A. inde fecit c. The Recognitors of the Assize do find Quod predict B. in juste sinâ— judicio disseisivit predict A. de predict 20 acris terrae cum pertinentiis c. This is a general Verdict 1 Inst 228. A Special Verdict or Verdict at large is Special Verdict so called because it findeth the special matter at large and leaveth the Iudgment of the Law thereupon to the Court of which 1 Instit 226. kind of Verdict it is said Omnis Conclusio boni veri judicii sequitur ex bonis veris premissis dictis Juratorum And as a Special Verdict may be found in Common-Pleas so may it also be found in Pleas of the Crown or Criminal Causes that concern life or member And it is to be observed that the Court The Court cannot refuse it cannot refuse a Special Verdict if it be pertinent to the matter in Issue 1 Inst 228. It hath béen questioned whether the Iury A special Verdict may be found upon any Issue as upon an absque hoc c. could find a Special Verdict upon a special point in Issue or no as they might upon the general Issue But this question hath been fully resolved in many of our Books first in Plo. Com. 92. It is resolved That the Iury may give a special Vardict and find the matter at large en chescâ—n issue en le monde so that the matter found at large tend only to the Issue joyned and contain the certainty and verity thereof lib. 9. 12. And in 2 Inst 425. upon Collection of many Authors it is said That it hath béen resolved that in all Actions real personal and mixt and upon all Issues joyned general or special the Iury might find the special matter of fact pertinent and tending onely to the Issue joyned and thereupon pray the discretion of the Court for the Law And this the Iurors might do at Common Law not only in Cases between party and party but also in Pleas of the Crown at the Kings Suit which is a proof of the Common Law And the Statute of Westm the 2d cap. 30. is but an affirmative of the Common Law And as this spetial Verdict is the safest for A Free-hold upon Condition without Deed may be found by Verdict though it cannot be pleaded the Iury 1 Inst 228. so in many Cases it is most advantagious to the party and helps him where his own pleading cannot As for example saith Littleton Sect. 366 367 368. Albeit a man cannot in any Action plead a Condition which toucheth and concerns a Freehold without shewing writing of this yet a man may be ayded upon such a Condition by the Verdict of 12 men taken at large in an Assize of Novel dissâ—isin or in any other Action where the Iustices will take the Verdict of 12 Iurors at large As put the case a man seized of certain Land in Fée letteth the same Land to another for term of life without Deed upon Condition to render to the Lessor a certain Rent and for default of payment a Re-entry c. By force whereof the Lessee is seised as of Fréehold and after the Rent is behind by which the Lessor entreth into the Land and after the Lessée arraign an Assize of Novel disseisin of the Land against the Lessor who pleads that he did no wrong nor Dissesin And upon this an Assize is taken In this case the Recognitors of the Assize may say and render to the Iustices their Verdict at large upon the whole matter as to say that the Defendant was seized of the Land in his Demesne as of Fée and so seized let the same Land to the Plaintiff for term of his life rendring to the Lessor such a yearly Rent payable at such a Feast c. Vpon such Condition that if the Rent were behind at any such Feast at which it ought to be paid then it should be lawful for the Lessor to enter c. By force of which Lease
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
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