if it be alledged in a Ward in the City of Bristol c. the Venue shall be of the Ward not de Civitate A Venire facias was awarded from T. Ward and not de vicinet de T. and for this cause resolved to be ill and not amendable Cro. 2. part 399. Bro. tit Ven. fa. 8. If the issue be Si rex concessit per literas De vicinet left out ill patentes The Tryal shall be as hath been said where the Land lies and not where the Patent was made because the Patent is of Record and if it be traversed Where the Land lies it shall be tryed by the Record and therefore the issue being upon non concessit the issue is not upon the Patent but where the issue is upon non concessit or non dimisit of a thing which passeth by Deed the Tryal shall be where the Grant or Demise is alledged But of a Feoffment or Lease for life pleaded the issue being non Feoffavit or non dimisit Livery ought to be made and therefore the Tryal shall be where the Land lies Cro. 2. part 376. 3. part 259. Where the offence is laid in the Count Where the Action is laid in one County and the Justification in another the Tryal shall be where the Justification is to be in one County and the Iustification in another County and the Plaintiff replies de injuria sua propria c. The Visne shall be where the Iustification is alledged As one Example for all to illustrate In an Action upon the Case for words supposed to be spoken at Bridg-North in the County of Salop the Defendant pleads that he spake them as a Witness upon his Oath upon an issue tryed at Chard in the County of Somerset The Plaintiff replies de son tort demesne c And thereupon it was tryed by a Venire facias of Bridg-North And Error thereof assigned because it ought to have been by a Visne of Chard where the Iustification arose and it was held clearly to be a mis-tryal and not aided by the Stat. of Jeofailes wherefore the Iudgment was reversed Cro. 3. part 468. 261. 870. More 410. Replevin taking 2 Horses at such a place in Denford in Com. Northampton the Defendant makes Conâ—sans as Bayliff to the Lord Mountague of his Mannor of S. which Mannor is holden of the Honour of Gloucester and that the place in which c. is within the said Honour and alledges a Custome within the said Honour on which Custome the parties were at issue and the Venire facias was from Denford the place of taking which was moved after Verdict for that the Venue was not so large as the issue which was the Honour and of this opinion was the whole Court of C. B. Pasch 13 Car. 2. Hull vers Bâ—nning But the great question was whence the Venue should arise in this Case and per Bridgman Ch. Just and Just Hide in no Case can a Venue arise from an Honour and Ch. Just said he had caused the Prothonotaries to search for Precedents and they Honours could not find that ever a Venue did arise from an Honour which is but a bundle of services and an incorporeal thing from which no Venue can come and yet an Honour may have demesns as the Honours of Grafton and Hampton have but Gloucester not Ch. Just and Just Hide seemed that the Venue should be de Corpore Comitat. Hob. 266. 249. But when the Court was after moved for their opinion they bad them take a Venire facias at their peril and would give no opinion An action of Debt was brought on a Bond to perform Covenants in an Indenture wherely the Defendant had granted to the Plaintiff a walk called shrob-walk in the Forest of in Com Northampton and Covenanted for peaceable in joyment c. and he was ousted per Earl of Northampton who had right on which Right issue was joyned and the Venire facias was from Shrob-walk Per Cur. It 's not good for it appears by the Record that Shrob-walk is not a Vill but if the Obligation had been laid to be made at Shrob-walk the Venue should arise from thence as a Vill. Inter. Stirt Bales Pasch 19 Car. 2. B. R. The Venue shall follow and be according Out of what County to the issue As for words in Warwick-shire Thou art a Vide â—ic ante postea Thief and stolest my Iron The Defendant justifies says the Plaintiff stole the Iron in Leicester-shire and brought it into Warwick-shire and therefore he spake the words in Warwick-shire If the Plaintiff replies de injuria sua propria absque tali causa the Jury shall come from Leicestershire to which the absque tali causa refers for the words are acknowledged See Rolls tit Tryal 598. 623. When part of the matter to be inquired of is in one County or place and part in another the Tryal shall be there where the best Conusans of the matter may be As in an action upon the Case the Plaintiff declares that the Defendant took the From the place best known Horse of A. at S. and sold him at D. to the Plaintiff as his proper Horse and afterwards A. retook the Horse If the Defendant plead that the property was in him at the sale upon which issue is ioyned The Venue shall be de S. where the taking is supposed for there the property may be best known which is only in question 42. Ass 8. see several cases in Rolls ib. 603. under this head If the issue be whether L. did ride from London to York and from York to London Where the Counties cannot joyn 5 times in six days this may be tryed by London only Although part of the matter to be inquired of was done in each County In an action of Battery in London if the Defendant justifies in defence of his possesâ—on in D. in Essex and the Plaintiff says de son tort demesn sâ—ns tiel cause this ought to be tryed by both Counties if they might joyn because he may be found guilty at another day and therefore because they may not joyn this may be tryed in Essex Of Assises in confinio Com. See 1 Inst 154. In case for words in one County if the Defendant justifie in another County and the Plaintiff reply de son tort demesn c. although the Counties ought to joyn if they could and the Iustification is principally put in issue yet the Tryal may be in either County at the Election of the Plaintiff In Ejectment in London upon a Lease Rolls tit Tryal 620. made there of Land in Mid. if the Defendant plead not guilty this may be tryed in London because the Counties cannot joyn although London cannot joyn with another County 49 E. 3. 20. the Jury ought to enquire of the Ejectment in Mid. and judgement affirmed in a Writ of Error See Rolls tit Tryal 602. Two Counties may
the Lands were parcel of the possessions of the Priory of Christs Church in Canterbury and the said Prior and his Predecessors had held it discharged of Tythes tempore dissolutionis and pleaded the Statute of 31 H. 8. The Defendant pleads that the Prior and A non decimando his Predecessors did not hold them discharged and upon issue joyned thereon the evidence was that the Prior or his Predecessors time out of mind c never paid Tythes but no cause was shewn either by unity of possession real composition or other cause to shew it discharged In nil debet upon the Statute for tythes a Lay person cannot give a Non decimando in evidence so may the King and any other spiritual persons li. 2 B. of Winchesters Case Cook said it was no evidence for it is a prescription in non decimando Curia contra For a spiritual man may prescribe in non decimando and by the Statute of 31 H. 8. he shall hold it discharged as the Prior held it and if he held it discharged non refeit by what means for it shall be intended by lawful means and the Jury afterwards found for the Plaintiff Cro. 3. part 2. 6. Vpon non assumpsit in a general Indebitatus Indebitatus assumsit assumpsit the Defendant may give in evidence payment at any time before the Action brought but upon a special promise to pay money c. it is otherwise Causa patet for in the first case if there be no Debt the Law will infer no promise If a Church-book or any thing else is given A Church-Book is no evidence Brownlow 1. part 207. Postea 26. Assise pl. 4. in evidence which ought not to be allowed the Court above cannot quash the Verdict except it be certified and returned with the Postea Brownlow 1 part 207. But the Court may order a new Tryal upon cause shewed as for excessive damages c. The Court will not permit the Jury to carry any Writings out with them but what are proved and under Seal But here I recollect my self and consider that this Chapter is of greatest use to our Circuit practiser and therefore I shall go no further in scatter'd instances but digest my further Collections into a method more beneficial which may be improved by any Practiser as other matter shall occur Quare defendens Crimen feloniae ei imposuit Action of tâ—e Câ—sâ— c. the Plaintiff cannot give in evidence words only but Acts as arresting charging or conventing him before Justice of Peace for felony Sanders vers Edwards Mich. 14 Car. 2. B. R. If any action arises on request as in Trover or special promise the Statute of limitation goes only to the request Juy's case Mich. 1652. C. B. v. 1 Cro. 139. Declaration for words spoken in the presence of A. B. and others in evidence it sufficeth that they were spoken in the presence of others only Wingfield and Coote Lent Assises Norf. 1662. per Hale Ch. Baron In Indebitatus for carrying of Herrings the evidence was he was a Porter at Yarmouth and when Herring-Ships came home he went of his own head and carried up to the Defendants house with other Porters so many Herrings and Good by Twisden Judge of Assise Norf. Summer 1662. Jermin vers Lucas In action for hindring to sit in a Pew claimed by prescription repaired c. ought to be given in evidence and one may prescribe to sit in the uppermost seat in a Pew Buckston and Bateman Mich. 14 Car. 2. B. R. In action for executing an illegal Warrant c. It 's good evidence to prove the Just of Peace acted as such without shewing his Commissâ—on so on the Statute of Hue and Cry Constables case Norf. Lent Assises per Hale Chief Baron Action for stopping up lights c. One had a piece of Ground and builds an house on part and Leases it then he sells the other part of the Ground to one who builds on it and stops up the lights of the first house the Lessee has a good action But if two owe two pieces of Ground and one builds the other may also build and stop up his lights Palmer vers Flesher Mich. 15 Car. 2. B. R. If a Master always gives his servant money to buy his Markets with it is good evidence to discharge the Master in an action brought against him for goods taken up on Trust by that servant Per Glyn Ch. Just Mich. 1658. at Guild-Hall Sr. Tho. Rouses case A water course runs through my Ground to the Grounds of J. S. where is a pit that time out of mind used to be filled with that water I may stop the water in my Ground and use it as I will so I do not turn the course another way but when I have done with it let it fall into its own course Per St. John Ch. Just C. B. Suff. Summer Assises 1657. Smart and Tystead Action for words You forswore your self in your answer in Chancery Defendant justifies Plaintiff replies de Injurià suà propriâ absque tali causa per Hale Summer Assise Suff. It 's a good replication and a small mistake in an answer shall not convict of perjury for the Councel may mistake or his Clerk Action for not scouring a Ditch by which the water overflowed his Land c. and declare quod quidam Rivus run there c. Vpon evidence it appeared only a Land-floud and good by name of Rivus though it be dry great part of the year and it was held the best pleading of the course of this River to put a place from whence it comes so to the Plaintiffs Land without mentioning mean places by which it passes which may be many and must be proved if laid per Whitfield 1641. York Clayton 96. Souldiers lying in an Inn 14 days are guests within the Custom of England Harlands Case per Whitfield 1647. The Plaintiff in action of the case intitles himself by prescription to a Fold course for Sheep upon all the Lands in such a Field on Mich. day and so to Lady day the Lands being unsown and for that the Defendant put on Sheep c. before Mich. day and after and thereby fed the grounds c. the Plantiff could not take so good feed actio inde 1. The owner may put on Sheep and feed his own grounds before Mich. unless a Custom be to the contrary which ought to be laid in the declaration Contrà of a stranger 2. It appearing that part of the Lands c. had been the Lands of the Plaintiff who was Lord of the Mannor and prescribed as such and there being no exception of those Lands in the prescription the Plaintiff was nonsuit for as to those Lands the prescription was gone by unity of possession Per Hale Ch. Baron Norf. Summer Assises 1668. Branthwait vers Hunt Assumpsit In Indebitatus covenant to pay is no evidence 2 Cro. 505. nor money due for rent by
was intended for damages and how much for costs so that there may be more damages than the Plaintiff declared for or less and so the Court knows not how to increase the cost wherefore he shall have Iudgment but for 20 marks by reason of the incertainty Where a special Verdict is not entred according Verdict amended by the Notes to the Notes the Record may be amended and made agrée with the Notes at any time though it be 3 or 4 c. Terms after it is entred lib. 4. 52. lib. 8. 162. Cro. 1 part 145. In the Case of Turnor and Thalgate Mich. 1658. B. R. It was said per Cur ' That special Verdicts may be amended by the Notes but the Notes cannot be amended or inlarged by any Averment or Affidavit for that were to fâ—â—d a Verdict by the Court. Yet in that Case where the Notes were that the Iudgment c. was vacated pro ut per Rule the Verdict was amended vacated per Cur ' pro ut per Rule for so is implied in the Notes See a Verdict amended by the Notes after Iudgment and Error brought Rolls 1 part Reports 82. If the matter and substance of the Issue Form Hob. 54. be found it is sufficient for precise forms are not required by Law in special Verdicts which are the finding of Lay-men as in Pleadings which are made by men learned in the Law and therefore intendment in many Cases shall help a special Verdict as much as a Testament Arbitrament c. And therefore he which makes a Deputy ought to do it by Escript but when the Iury find generally that A. was Deputy to B. all necessary incidents are found by this and upon the matter they find that he was made Deputy by Déed because it doth tantamount lib. 9. 51. And in the 5th Report Goodale's Case It was resolved That all matters in a special Verdict shall be intended and supplyed but only that which the Iury refer to the Consideration of the Court. In all Cases where the Iury find the matter Ill conclusion committed to their charge at large and over more conclude against Law the Verdict is good and the conclusion ill li. 4 42. and More 105. 269. the Iudges of the Law will give â—udgment upon the special matter according to the Law without having regard to the conclusion of the Iury who ought not to take upon them Iudgment of the Law li. 11. 10. Vide Devant Where the Declaration in Trespass is As general as the Narr Cum aliquibus averiis of a number uncertain and the Verdict is as general as the Declaration cum aliquibus averiis there the Verdict is good Cro. 2. part 662. In Ejectione firme where the Plaintiff declared of a Messuage and 300 Acres of Pasture in D. per nomina of the Mannor of Monkhall and five Closes per nomina c. upon Not guilty the Iury gave a special Verdict viz. quoad four Closes of Pasture containing by Estimation 2000 Acres of Pasture that the Defendant was Not guilty Quoad residuum they found matter in Law And it was moved by Yelverton That this Verdict was imperfect in all For when the Quoad Residuum incertain Iury find that the Defendant was Not guilty of four Closes of Pasture containing by estimation 2000 Acres of Pasture it is incertain and doth not appear of how much they acquit him And then when they find quoad residuum tne special matter it is incertain what that Residue is so there cannot be any Iudgment given and of that Opinion was all the Court wherefore they awarded a Venire facias de novo to try that Issue Cro. 2 part 1â—3 Ejectione firmae of 30 Acres of Land in D. and S. The Defendant was found guilty of 10 Acres and Quoad Residuum not guilty Quoad Resisiduum and it was moved in arrest of Iudgment That it is uncertain in which of the Vills this Land lay and therefore no Iudgment can be given sed non allocatur and it was adjudged for the Plaintiff for the Sheriff shall take his Information from the party for what ten Acres the Verdict was Cro. last part 465. diversitas apparet Where the Iury find Circumstances upon Circumstances an Evidence given to incite them to find fraud c. yet the same is not sufficient matter upon which the Court can judge the same to be fraud c. Brownlow 2. part 187. Yet in many Cases the Iury may find Circumstances and presumptions upon which the Court ought to judge As to find that the Husband delivered Goods devised by the Wife Vpon this the Court adjudged that More 192. the Husband assented to the devise at first Where a Verdict is certainly given at the Postea amended how Tryal and uncertainly returned by the Clerk of the Assizes c. The Postea may be amended upon the Iudges certifying the truth how the Verdict was given Cro. 1. pâ—rt 338. In many Cases a Verdict may make an ill Ill Plea made good by Verdict Plea or Issue good As in an Action for words Thou wast perjured and hast much to answer for it before God Exception after Verdict for the Plaintiff in arrest of Iudgment For that it is not laid in the Declaration that he spake the words in auditu complurimorum or of any one according to the usual form sed non allocatur for being found by the Verdict that he spake them it is not material although he doth not say in auditu plurimorum whereupon it was adjudged for the Plaintiff Cro. 1. part 199. Sée Cro. last part 116. Where the Barr was ill because no place of payment was alledged yet the payment being found by Verdict it was adjudged well enough for a payment in one place is a payment in all places Trespass by Baron and feme de clauso fracto of the Barons And for the battery of the feme ad dampnum ipsorum the Defendant Quoad the Clausum fregit pleaded Not guilty Quoad the Battery justifies And for the first Issue it was found for the Defendant And for the second for the Plaintiff and now moved in arrest of Iudgment that the Declaration is not good because the Baron joyns the feme with him in Trespass Baron Feme de clauso fracto of the Barons which ought not to be But for the Battery of the feme they may joyn whereto all the Court agréed But it was moved That in regard it was found against the Plaintiffs for this Issue in which they ought not to joyn and the Defendant is thereof acquitted and the Issue is found against the Defendant for that part wherein they ought to joyn This Verdict hath discharged the Declaration for that part which is ill and is good for the residue As in 9 E. 4. 51. Trespass by Baron and Feme for the Battery of both The Defendant pleaded Not guilty and found guilty and damages assessed
Fee and part is found in Tail and part in Fée Iudgment shall be given for the Defendant who pleaded the Seisin in Fée If the Plaintiff declares upon a Demise Ejectment made the first of May to Commence at Michaelmas next if the Iury find a Lease made at any other day before the Feast 't is found for the Plaintiff for the day of making is not material Otherwise of a Lease for years â—n Possession As of a Lease made the 5th of May Habend for thrée years from Lady-day before and the Iury find a Lease made the 15th day of May for three years from the same Lady-day for this is a Lease in Possession In false Imprisonment in Middlesex and Imprisonment the Defendant justifie in London to which the Plaintiff saith the Defendant took him in Middlesex de son Tort demesn and Issue upon this and the Iury find the Defendant took him in Middlesâ—x lawfully upon a Writ yet this is for the Plaintiff for the Issue is upon the place and not upon the Tort for that is confessed by the Pleading if the taking was in Middlesex In Debt for 20 l. and the Iury find 40 l. the Debt Plaintiff shall not have Iudgment the reason séems to be because it cannot be the same Debt which is intire but upon another Contract which is mislaid If the Issue be Payment afâ—er Execution Audita Quaerela and the Iury find payment before yet the Issue is proved for payment before is payment after In Debt upon a Bond bearing date the 25 Obligation of June upon Non est factum if the Iury find it his Déed but that it was delivered 8 days after the â—ate this is found for the Plaintiff If the Issue be that two made the Feoffment Joynt and several or two were Churchwardens c. and the Iury find but one c. the Issue is not found If the breach of Covenant or Wast be Obligation Covenant Wast assigned in cutting 20 Trees and the Iury find but 10 yet the Plaintiff shall have Iudgment If in Replevin c. the Iury find that Totum Pars. part of the Cattel were Levant and Couchâ—nt and part not and the Issue is upon all the Issue is not found In Ejectment for him who pleaded all Ejectment Void in part of 14 Acres and the Iury find guilty of 20 the Plaintiff shall have Iudgment for the 14 and the Verdict is void for the residue In an Information upon an usurious Contract Information Usury by two 't is not sufficient to find a Contract by one Otherwise where the Tort and offence is several as against two upon the Statute 4 E. 6. Pâ—o emptione butiri and selling it by Retail c. and so in an Action upon the Case in Nature of Conspiracy and for words laid twice in one Declaration This will put in Issue the manner as well Modo forma as the matter where the manner is material as the time of the Fact and other Circumstances The Plaintiff replies That W. made a Replevin Lease Lease to him 30 Martii Habend from Lady-day last and Issue Modo foâ—ma and the Iury find a Lease made the 25 Marâ—ii Habâ—ndum Exâ—unc for a year this is good although the time of making and Commencement of the Lease are mistaken inasmuch as Extunc includes the Feast Yet because a sufficient Title and Lease is found for the Plaintiff to put in his Cattel this is sufficient this being the substance and the Modo forma shall not put the Circumstances in Issue So in Trespass if the Defendant justifie the putting in his Cattel for Common which he Claims from Pentecost to a certain time every year which is traversed Modo forma and the Iury find that he had Common in Vigilia Pentecostis in festo and the day next to this to the time this is found for the Defendant But otherwise in these Cases id an Assise of Common because there he ought to recover his Title In Debt for Rent if the Defendant plead an Entry by the Plaintiff before the Rent was due scilicet such a day which was after and Issue upon the Entry Modo forma and the Iury find for the Defendant he shall have Iudgment for the scilicet is void and the Modo forma go to the matter Sée after In Debt upon a Bond and the Defendant Non est factum plead Non est factum and the Iury find the Bond made joyntly by another with the Defendant the Plaintiff shall have Iudgment for the Defendant should have pleaded this If a Devise be pleaded Absolute if the Devise Iury find a Devise upon a Condition Precedent 't is not good In Debt against A. as Daughter and Riens per Discent Heir to B. and the Defendant plead Riens per discent of B. and the Iury find that B. was seised in Fée and dyed having Issue the Defendant his Daughter and his Wife with Child of a Boy who was afterwards born alive and dyed one hour after this Issue is found against the Plaintiff because the Defendant had the Land as Heir to her Brother who was last seised and not to the Father and so the Defendant had not the Land by Discent from the Father but from the Brother and yet this is Asseâ—s in her hands if it had béen specially pleaded In a Writ of Error brought by him in remainder Error in Tail to reverse a Fine if the Defendant plead in Barr of the Writ of Error a Common recovery by the Tenant in Tail to which the Plaintiff replies That at the time of the Recovery suffered he himself was Tenant to the Praecipe and so the Recovery void Vpon which Issue is joyned Part. and the Iury find that he was Tenant of part but not of other part This Issue is partly found for the Plaintiff and partly for the Defendant so the Court shall procéed to the Examination of the Error for that whereof he was found no Tenant but 't is a good bar of the Writ of Error for that whereof he is found Tenant to the Praecipe In Assumpsit to pay Money upon request Promise and issue upon this if the Iury find the Plaintiff promised to pay the Money but do not say upon request nor Modo forma 't is not found for the Plaintiff In Ejectment of a Manner if the Iury If the Substance of the Issue be found 't is sufficient Manner find that there were no Fréeholders and so 't is no Manner in Law yet being a Manner by Reputation and so the Tenements pass by the Lease Therefore this Verdict is found for him who pleads the Lease of the Manner for the substance is whether any thing was demised or not In an Information of Extortion against Goal the Gaoler of the Goal a Prison of the Castle of Maidston the Iury found there was no
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
the Residue the Court may direct the Tryal of the Issue or judge the demurrer first at their Latch 4. pleasure though by the opinion of Dodrige It is the best way to give Iudgment upon the Demurrer first because when the issue comes afterwards to be tryed the Jury may assess Damages damages for the whole A Scire facias was brought on a Recognisance in Chancery the Terre-tenants pleaded several Pleas the Plaintiff demurred to one and took issue on the other the Record was sent into B. R. to try the issue and it was tryed and Verdict pro Plaintiff the demurrer not being argued and it was adjudged per R. B. that Iudgment ought to be given on both by that Court Jeffreyson and Dâ—wson's Case Hill 21 22 Car. 2. B. R. vide for these things 1. Roll. abr 534 535. Roll. rep 287. and in the principal Case 4 Inst 80. was denied to be Law An Immaterial issue joyned which will Immaterial issue not bring the matter in question to be tryed is not helped after Verdict by the Statute of Jeofailes but there must be a Repleader because this is matter of substance for if there were no issue there could be no Verdict and so it is as if nothing had béen done in the cause In an Action against two the one pleads Plea to the Writ in abatement of the Writ the other to the Action the Plea to the Writ shall be first tryed for if that be found all the whole Writ shall abate and make an end of the business for the Plaintiff ought not to recover upon a false Writ 1 Inst 125. In a Plea personal against divers Defendants Plea to the whole first tryed the one Defendant pleads in barr to parcel or which extendeth only to him that pleadeth it And the other pleads a Plea which goeth to the whole the Plea that goeth to the whole that is to both Defendants shall be first tryed because the other Defendant shall have advantage thereof For in a personal Action the discharge of one is the discharge of both As for example if one of the Defendants Release in Trespass pleads a Release to himself which in Law extends to both and the other pleads not guilty which extends but Rolls tit Tryal 628. to himself or if one pleads a Plea which excuseth himself only and the other pleads another Plea which goeth to the whole the Plea which goeth to the whole shall be first tryed for if that be found it maketh an end of all And the other Defendant shall take advantage hereof because the discharge of one is the discharge of both Discharge of one dischargeth both But in a Plea real it is otherwise for every Tenant may lose his part of the Land as if a Praecipe be brought as Heir to his Father against two and one pleads a Plea which extendeth but to himself and the other pleads a Plea which extends to both as Bastardy in the Demandant and it is found for him yet the other issue shall be tryed for he shall not take advantage of the Plea of the other because one Ioyntenant may lose his part by his misplea Brown and Stamford Iustices consulted with Grammarians in things of Grammar and Hulls a Batchelor of Law Tempore Hen. 6. was called into Court to shew the difference between precise and causative Compulsion Vide Plow 122. 127 128. Pasch 16 Car. 2. B. R. An action of Trover c. was brought de sex Capitalibus fibulatis Anglice 6 laced Coifs after Verdict for the Plaintist it was moved in Arrest of Iudgement that the Latine words were both Adjective and so not certain but it was answered that Capaital is a Substantive and the Nomenclator of Westminster School was produced to warrant it and it was adjudged for the Plaintiff accordingly and the Court allowed that authority before Rider's Dictionary CAP. III. Of a Venire facias To whom it shall be directed when to the Sheriff when to the Coroners when to Esliors and when to Bayliffs When well awarded c. HAving given you the Epitome of what Tryals are allowed by the Common Law and what shall be tryed per pais and what not we shall now apply our selves more particularly to the Tryal by Juries And because a Venire facias is the foundation and Causa sine qua non of a Jury I mean in Civil Causes for in Criminals as upon Indictments the Justices of Gaol Delivery give a general Command to the Sheriff to cause the Country to come against their coming and take the Pannels of the Sheriff without any process directed to him yet process may be made against the Jury though it is not much used Stamford Plees del Corone 155. I will first recite the Writ in terminis the rather because I intend to order my Discourse according to the method of the Writ Rex c. Vic. B. Salutem Praecipimus tibi Venire facias quod venire facias coram Just ciariis nostris de Banco apud Westm tali die duodecim liberos legales homines de vicinet de C. quoâ—um quilibet habeat quatuor libras terrae tenement vel reddit per annum ad minus per quos rei veritas melius sciri poterit Et qui nec D. E. nec F. G. aliqua affinitate attingunt Ad faciend quandam Jur. patriae inter partes praedict de placito c. quia tam idem D. quam praedict F. inter quos inde contentio est posuer se in Jur. illam Et habeas ibi nomina Jur. illorum hoc breve T. c. This is one of those Latine Letters as Finch terms them fo 237. which the King sends with Salutation to the Sheriff But withall Commands him that he cause to come twelve free and lawful men of his County to resolve the question of the fact in dispute between the parties upon the issue and it is a Iudicial Writ issuing out of the Record for Plaintiff or Defendant after they have put themselves upon the Country for upon the words Et de hoc ponit se super patriam by the Defendant Or Et hoc petit quod inquiratur per paâ—riam by the Plaintiff and issue joyned thereupon the Court awardeth the Venire faciâ—s vid Ideo fiat inde Jurat And if they come not at the day of the Writ returned then shall go forth against them an Habeas Corpora and Distringas to bring them in to try the matter The which two last Writs are usually made with this clause Nisi prius Justiciarii venerint c. and are returnable after the time of the Judges coming their Circuit And first you see it is directed Vicecomiti Sheriff i. e. to one who is Vicecomes and hath the Regiment of the County instead of the Earl of that County to whom once it did belong as we are taught in the Mirror Chap. 1. Sect. 3. scil That it appeareth by the
abate Littleton Sect. 485. Also in a Writ of Trespass for Battery The Verdict may find the Defendant guilty of the Trespass at another day or place or for Goods carried away if the Defendant plead not guilty in manner as the Plaintiff suppose and it is found that the Defendant is guilty in another Town or at another day then the Plaintiff suppose yet he shall recover So the Iury may find the Conspiracy at Conspiracy another day for the day is but form In Battery if the Defendant justifie at Battery another day with a Traverse Devant apres he may be found guilty at another day If the Defendant by this Plea agrée with Son assault Demesn the Plaintiff in the day year and place and the Plaintiff reply De son tort demesn sans ties cause and the Defendant prove an Assault by the Plaintiff the Plaintiff shall not give in Evidence a Battery at another day Rolls tit Tryal 687. Vide devant cap. 11. And so in many other cases these words scil in manner as the Demandant or the Plaintiff hath supposed do not make any matter of substance of the Issue Littleton Sect 485. And 't is a Rule That where the Issue taken Modo forma when words of form goeth to the point of the Writ or Action there Modo forma are but words of form as in the cases aforesaid But when a Collateral point in pleading When of substance must be found by the Verdict is traversed as if a Feoffment be alledged by two and this is traversed Modo forma And it is found the Feoffment of one there Modo forma is material So if a Feoffment So in non assumpsit modo forma upon an Indebitatus assumpsit there modo forma were not material Secus when the Action is upon a Collateral promise be pleaded by Deed and it is traversed Absque hoc quod feoffavit Modo forma upon this Collateral issue Modo forma are so essential as the Jury cannot find a Feoffment without Déed Co. Littleton 282. But here is a diversity to be observed That albeit the Issue be upon a Collateral point yet if by the finding of part of the Issue it shall appear to the Court that no such Action lyeth for the Plaintiff no more than if the whole had béen found there Modo forma Trespass Quare vi armis lies not against the Lord for distraining his Tenant without cause are but words of form as in the aforesaid case of the Lord and Tenant it plainly appears for it was all one whether the Tenant held by fealty only or by fealty and Rent because if either was true the Tenant could have no Trespas Quare vi armis against the Lord in that case by the Statute of Marlbridge cap. 3. Vide hic Devant After the Verdict recorded the Jury cannot Jury cannot Vary from their Verdict when it is recorded not vary from it but before it is recorded they may vary from the first offer of their Verdict And that Verdict which is recorded shall stand 1 Inst 227. Plo. Com. 212. There is also a Verdict given in open Court and a privy Verdict given out of Court before any of the Iudges of the Court Open Verdict and privy Verdict so called because it ought to be kept secret and privy from each of the parties before it be affirmed in Court Because the Jury may vary from their The Jury may vary from a private Verdict private Verdict as if that find for the Plaintiff the open Verdict may be for the Defendant and this shall stand and the private Verdict shall not be deemed a Verdict for the Jury are charged openly in Court and in Court their Verdict ought to be received and this which they pronounce openly in Court shall be adjudged their Verdict And although it is usual to take the Verdict secretly when the Jurors are agreed yet this is not of necessity of Law but of courtesie of Law for the ease of the Jurors and in this case their saying shall not be their Verdict till it is openly pronounced in the Court for when they come in the Court the Plaintiff shall be demanded and then may be non-suited But when they give their Verdict secretly the Plaintiff is not demandable nor can be then non-suited but he may be non-suited when the Verdict of right ought to be rendred Ergo the force is in the giving of the Verdict in the Court and not elsewhere And also in the Court it self if they pronounce Bro. tit Verdict 12. their Verdict they may change it if they be mistaken or it be not full in Law or for some other reasonable cause immediately perceived Therefore if they may vary and contradict their first Verdict given in open Court A fortiori upon better advisement they may do so when their first Verdâ—ct was given out of Court and they not discharged for they be in the Custody of the Baily till they be discharged in Court Plo. Com. 211. More 33. The Jury having once given their Verdict Jury shall give but one Verdict in the same cause although it be imperfect shall never be sworn again upon the same Issue unless it be in case of Assise when the party is to recover by view of the Jurors But there must be a Venire facias de novo Cro. 2. part 210. If a Verdict be good in part and naught Verdict good in part in another part it shall stand in part and a new Inquest shall be for the rest Bro. tit Verdict 89. For the Juries direction in their Verdict What permitted in Pleading for the Juries direction in their Verdict greater liberty is permitted in pleading a matter doubtful in Law for a Traverse for this Reason may be omitted As in debt against an Executor It is a good plea to say Administration was committed to him and therefore he should be named Administrator and not Executor without traversing that he is not Executor for the lay-people know no difference betwéen one administrating as Executor and one administrating as Administrator 9 E. 4. 33. For this Reason likewise the special matter may be pleaded together with the general Issue c. As that the Obligation put in suit was sealed by him and delivered to A. to kéep till certain Indentures were made A Special non est factum betwéen the Plaintiff and him before which Indentures made the Plaintiff took the Obligation out of the possession of A. so is not his Déed This is good and yet by this general conclusion the matter precedent shall not be waved for it were perillous to put the special matter in the mouth of Lay-people 9 H. 6. 38. Damages * Where the Issue upon a collateral Matter is tryed in a foreign County Hundred c. where the Principal and Accessary shall be tryed In Trespass
What evidence the Jury may carry with them 427. 479 Debt 194. 483 492 497 Payment 404. 498 Plene administravit 483. 491 What upon the general issue 483. 484 485 486 508 509 Evidence contrary to the issue 487 Which proves the substance good 487 489 495 Not against what is admitted on Record 492 Hors de son fee. 492 Entry 511 Estray 510. 512. Extinguishment 497 Embâ—ements 489 Executor 491. de son tort ibid. Estoppel 494 F. Â Fine 479. 501 503 c. 506 507. Feoffment 484 Felony 510 False Imprisonment 511 G. Â Grant 501 H. Â Hostler 498 I. Â Jury what they may find and upon what evidence 480 General Issue 483. 485 c. 490 Juâ—â—ifications in Trespass 486. 508 Forwords 490 Imprisonment 488. 511 Indictments 489 Impropriation 492 Juror a Witness 495 Infancy 497 Issue imperfect 498 L. Â Lunacy 508. 512 M. Â Maintenance 487 Master and Servant 488 Murther 490 O. Â Outlawry 510 P. Â Pleading 479. 483 Justifications 486. 490 Payment 404. 232 494 498 499 Proviso in Statutes 229 Prescription 488 Plea puis darrein Continuance 499 Presumption 505 Partioin 505 Park 511 R. Â Recovery Record Rolâ—s 480. 496 504 Release 483 Rescous 484 Replevin 485 Rent Reparations 492. 497 498 Robbery 495 Retorn of Writs 504 Relation 511 S. Â Slander 490 Surplusage 494 Servants wages 497 Seisure and condemnation 498 T. Â Trespass 193. 195 196 484 485 487 488 489 499 508 509 510 Trover 200. 194 485 498 499 Tenancy at sufferance at Will 485 Totum pars 490 Tenant in Common 509. 510 Trespass with a continuando 510 Ab initio 511. 512 Tender of amends 512 V. Â View 171 Villain 484 Viccaridge 492 Vse 500. 506 W. Â Witnesses 87. 495 Warranty 483. 495 501 Wast 483 Will. 494. 504. Warrant 511 ERRATA IN the Preface Pag. 1. l. 9. r. piece p. 3. l. 14. r. Joachimus Fortius Ringelbergius l. 20. r. leaves p. 4. l. 1. Demosthenes p. 191. l. 20. for Agreement r. a Grant p. 193. l. 12. r. Inst 282. to maintain the action p. 72. r. Amercement p. 491. in the Margin r. for to give evidence to have evidence THE TABLE A. APpeal 17. Account 227. Ancient Demesne 18. Administrations 18. where in Trover the Administration must be shewn and where not 225. Admission 24 25. Ability 25. Attorny 27 76 434. Letter of Attorny 214 213. Almanack 27. Assisa 352. Appearance 24. Amercements 436. Ambidexter 434. Attaint 439 442. Action of the Case for words 203 205. 501 503. Quare defendens crimen feloniae ei imposuit 202. for stopping up Lights 204. for stopping a Water-course 204 205. for feeding on his Fold-course 206. for not restoring a Horse hired 207. Indebitatus Assumpsit 206 207 200 209. Award 211. B. BAstardy 19 25 104. Battail 21 28 22. Baron Feme 25 382 211. 213. Bishop 25. Bayley 27. 47. 208. Bill of Exception to Evidence 470. Bankrupt 229. Bail 246. C. CRiminal Causes 9 19 22. 107. 247 Civil Causes 8. Certificate 10 11. 27. 89. Customs 14. 20. of Courts 14. 18. of London 20. Courts 18. Inferior Courts 111. 177. Coverture 25. Confession 30. Coroners 38 c. Challenges 46. 71. 77. Cap. 9. per tot To the Array to the Poll 131. 140. Principal and to the favour 132. 139. how and when to be made 136. 167. 166. 149. 156. 157. 160. 163. 171. where the King is Party 137 139. 140. 142. 157. 165. 3 4 Peremptory Challenge 141. 151. 155. 4 No Challenge of Peers 142. 144. Principal Challenge to the Poll 142 143. 152. Propter honoris respectum 143. Propter defectum 144. 3 Propter defectum Hundredorum 147. 1 for want of Freehold 144. 172. Propter affectum 150. 154 155. 164. Deins distress 153. 160. Principal for Consanguinity 153. In what Inquest a Challenge may be 158. Tryal and Triors of Challenges 258 159. 169 170. 2 where for one shall serve for others c. 159 160. 168. Witness Infant Godfather 161. Challenges arising from the Jurors own act 161 162. Propter delictum 165. Demurrer to a Challenge 168. 1 Arbitrator Comissioner Counsel Eat and Drink Actions of Malice 162. Parson Parish Fellow Servant 163. Rules concerning Challenges 170. 1 3 4 A wrong Name 172. Challenge lost 171. Precedents and forms of Challenges 449 c. 476. The King must shew the cause of Challenge 2 The King or Party may release their Challenge 3 How proved 4 Circumstances 381. Condition 179. Counsellors 435. 245. 247. Copyholder 198. 215 216. Corporation 223. 1 4 Constable 224. D. DIvorce 25. Dowres 26. 110. 239. Demurrer 32. Distringas 37. Detinue 55. Disceit Writ of Disceit 23. Deed Pleaded to be delivered after the date not before 366. Of a Deed 194. 176. 221. 240 234. 230. Damages by the first Inquest 369. 370. 372. veral Damages 370. Se 371. Writ of Inquiry 372 373. 375. 230. Damages released 375 374. 376. Damages and Costs 376 377. 402. Damages in real and personal Actions 377. 230. Decree 179. Default Inquest by Default 505. 415. 217. Demurrer to Evidence 469. 467. Day of Nisi prius and day in Bank all one to some purposes 466. Debt 210 211 212 213. Demand 210. Deprivation disables to make a Lease 217. Date 218. Dower 226 227. E. ENtry 214. 221. Escheator 23. 27. Elifors 38 c. 168. 3 Error by death of one Defendant 59. what 501. 3 Extortion 233. Exemption from serving on Juries 91. Escape 239. Estoppel 365 366. 178. Estray 218 219. 225. Evidence Quid 181 cap. 11. pro tot What is good Evidence in many particular Cases see there 188 189. 197. 211. 233 234 235. usque 248. What is Evidence upon the general Issue 192 193 194 195. 198 199 200. 238 240. Upon a special Issue 236 c. What Evidence the Jury may carry with them 423. 202. 242. What Misdemeanour in taking Evidence spoils their Verdict 423 424 425 426 427 428 418. Juror gives Evidence in open Court 428 245. Shop Book 195. Presumption 196. 182. In Trespess 195 196. 200. 193. 218. usque 224. 234. 242. 237. Church Book 202. In Trover 200. 194. 224. Deed lost 196. 189 190. 216. 228. 230 231 232. 234. 239. 244. Evidence cannot be pleaded 197. Covin 198. 211 212. 241. Acâ—ompt 195 192. Action upon the Case 202. usque 206. Doomesday book 198. Attaint 198. Debt 210 211 212. 213. 234. 236. Riens per Discent 211. 241. Ne unques Executor 211 112. 197. Ejectment 213. usque 218. 220. Evidence after default in Ejectment 217. Will 215 216. 235. Payment 198. 221. 231. Recital Acquittance 231. 235. Will 216. 215. 240. Court Rolls and Copyholders 198. 215. Statutes Pardons 199. 229. Plene administravit 194. 188. 190. 192. 211. 212. 235. 242. Wast 193. 240. Non est factum 193. Proofs 187. 182. Pedegree 188. 242. Agreement 180. 191. Recognisance 188. Tenure in Capite 188. Ecclesiastical Proceedings 189 190. 236. 244. Copy of Records 189 190. 229. 230.
Castle but that there was a Goal this was for the Plaintiff because Goal is the Substance If the Issue be whether the Defendant had Accompted before R. and W. Auditors Accompt assigned by the Plaintiff and the Iury find an Accompt before R. only the Issue is found for the Defendant for the Accompt is the effect of the Issue Vide Rolls tit Trial. 707. c. If 11 agrée and the 12th will not the Verdict of the 11 cannot be taken but the Court Jury agree may carry the Iurors with them in Carts until they are agréed 41 Ass 11. A privy Verdict may be altered in open Verdict altered Court In an Extendi fac upon a Statute if the Iury deliver their Verdict in Writing they may afterwards make it more formal but they cannot alter it in substance for it is a compleat Verdict by the delivery So of Presentments c. A Fine pleaded in Barr and that after Fine and Non-claim the death of A. scil 1 August 3. Car. B. Father of the Plaintiff was alive in plena vita remansit infra hoc Regnum infra quatuor Maria c. apud W. in Com. D. and no Entry or Claim within five years after and the Plaintiff replies and takes Issue què Modo forma il non fuit remansit infra hoc Regnum Angliae modo forma c. And the Iury find quod non fuit remansit infra hoc Regnum Angliae 1 August 3 Car. but that he was there 1 Maii 4. Car. and remained there a Month and refer to the Court Au fuit remansit infra hoc Regnum modo forma c. This Issue is found for the Defendant for the matter and substance of the Plea is whether he was within the Realm after the death of A. and five years before Entry or Claim per him or the Plaintiff and modo forma shall not make the day material Roll. tit Trial. 713. Iudgment upon a Demurrer and a Writ Judgment Arrest at what time of Inquiry executed at the return the party may shew any thing in Arrest of Iudgment for Iudgment is not compleat until the last Iudgment The first is but an Award A man may plead any thing in Arrest of Iudgment after a Verdict which will make Error if the Iudgment be given In Debt upon a simple Contract against an Executor if he will not plead in Abatement but other Matter which is found against him he shall not afterwards alledge that he is not chargeable in Arrest of Iudgment So in Debt against Executors upon Arrearages of Accompt where they are not chargeable That which appears ill upon the same Record What may be alledged but not a maâ—â—er of Fact which doth not appear upon the Record because the parties cannot by the Issue As that a Iuror was challenged and yet served on the Tales for this cannot appear without alledging matter of Fact Nor that the Defendants Attorney had no Warrant But if there be any irregular or foul practice this may be offered to set aside a Iudgment If any thing be omitted in the Declaration Variance between the Verdict and the Declaration or if more be put into the Declaration than is found by the Iury if it make a material Variance betwixt the Nar. and the Verdict the Action shall abate These following are adjudged material Variances If the Declaration be for these words Thou procuredst eight or Ten of thy Neighbours Words to Perjure themselves and the Iury find that he said Thou hast caused eight or 10 c. for he might be a remote Cause scilicet causa sine qua non without Procurement Nar. He is a Bankrupt Verdict He will be a Bankrupt within two days Nar. He is a Thief Ver. He stole a Horse Nar. Thou art a Murderer Ver. He is c. Nar. I know him to be a Thief Ver. I think him to be a Thief So it is a material Variance if a special Promise be laid to be upon Request and the Verdict find it without Request So if the Promise Declaration be upon a Lease made by two or by Baron and feme and the Iury find that one of them had nothing in the Land or that the Baron only made the Lease or that the two were Tenants in Common and so several Leases otherwise if they were Coparteners So in Case that the Testator was indebted to the Plaintiff in 55 l. and the Defendant being Administrator in consideratione c. Promise to pay this upon non Assumpsit if the Verdict find the Promise to be to pay 30 l. part of the 55 l. So in Ejectment If the Nar. be of a Lease Eje ment of thrée Acres a Lease of a Moiety will not maintain the Nar. So in Wast for Cutting Trees and the Wast Verdict find that he eradicated the Trées but did not cut them A Prescription in modo decimandi That Prescription every one who hath seven Lambs or under seven shall pay to the person ob for every Lamb and the Iury find that and further That if he had more than seven Lambs he should pay a Lamb and that the Parson should pay the Parishioner ob This is not the same Prescription but makes a Variance But if there be a Variance between the Variance Verdict and the Nar. either by way of Surplus or Defect but if this matter of Variance be not material in the extenuation of the Action or Damages the Action shall lye notwithstanding the Variance These ensuing are adjudged not to be material Nar. Strong Thief Verdict Thief Nar. I say c. Ver. I affirm or I doubt not Nar. The Plaintiff will do such a thing Ver. I think in my Conscience he will c. Nar. Of a Lease by a Parson for five years if he tam diu should be Parson tam diu viveret And the Verdict find the Lease to be for five years if he tam diu viveret without the words and should continue Parson for the Law implyeth That if he be deprived or resign that the Lease Determines Nar. He is a Murderer Ver. He was a Murderer for when he says He is a Murderer 't is not intended that he did the Act in presenti but before So in Trespasses or Actions upon Torts and wrongs which are several If the Verdict find part 't is no material Variance and the Plaintiff in these Cases shall have Iudgment Roll. tit Tryal 720. A Jury of Middlesâ—x was demanded in Enquest by default the Common-Pleas the first day of the Term and some appeared and some not so that there was not a full Jury and neither the Defendant nor his Attorney did appear and therefore the Plaintiff prayed that the Inquest might be awarded by default and by the opinion of Welsh and Dyer his prayer shall be granted and the Custos Brevium and all the Prothonotaries said the
Elegit and of Hab. Corp. from a Mayor c. But if the retorn is not definitive as upon a Rescous c. an averment doth ly and upon this it may go to Tryal So if it be a return to indanger a mans Life or his Inheritance an averment may be had against it Dyer 348. 177. So it lyeth against the returns of Bayliffs of Franchises so that the Lords be not prejudiced in their Franchises thereby Goldsb 139. 129. pl. 23. An action for a false return an averment doth ly against the Sheriff return Winch 100. and so it doth Upon or against a Will or Administration it lyeth although they be under Seal of the Court. in any other action than in that the retorn was in Any averment may be upon a Will or any part of it that may help to expound it and of such a thing that may stand with the Will and may be collected out of the words As which Son he meant c. lib. 8. 31. 41. But no averment against or besides that which is expressed in the Will or which cannot be gathered to be the mind from the words nor of any thing that doth not cohere with the Will especially if it be about Lands As in the Lord Cheyneys Case lib. 5. 68. A devise to A. and the Heirs of his body the remainder to B. and the Heirs Males of his Body on condition that he or they or any of them shall not align c. no averment shall be taken to prove by Witnesses or other evidence that the Devisor intended to include A. within this condition by the words â—e or they for the construction of Wills ought to be collected out of the words of the Will in wriing and not by any averment or proof out of it It lyes against the Rolls or Records of County Against Court Rolls or upon them Courts Hundred Courts Courts Baron As that there is no such Record or it is not as it is certified 34 H. 6. 42. 9 E. 4. 4. No Averment or proof is to be admitted against Against common presumption or reason common presumption as that there was more Rent behind when the acquittance of the last Rent was made 1. Inst 373. Nor against common reason as that Land doth belong to Land or to a messuage Plo. 170. lib. 437. If the matter contained in an award and the matter Upon an award in the submission do not agree it will hardly be supplied by an averment Dyer 242. 52. If the Defeasance of a Recognisance be dated before Date the Recognisance it may be averred to be delivered at or before the time of the Recog entred into Perkins Case 147. Things apparent or necessarily intendable by Law need not be averred manifesta non probatione indigent Quod constat clare non debet verificari lib. 11. 25. Plo. 8. Chief Justice Anderson held Godbolt 131. that if Devise one devise Lands to the Heirs of J. S. and the Clerk writes it to J. S. and his Heir that the same may be holpen by averment because the intent of the Devisor is written and more and it shall be naught for that which was against his Will and good for the residue But if a Devise be to J. S. and his Heirs and it is written but to the Heirs of J. S. there an averment shall not make it good to J. S. because it is not in writing which the Law requires And so an averment to take away any surplusage is good but not to increase that which is defective in the Will of the Testator But with submission if the Law should admit of such averments it would be as mischievous one way as the other and no man could know by the words of the Will what construction to make nor what advice to give but this shall be controlled by collateral averments out of the Will and instead of proving the Testators Will it would be the destroying of it If the partition be by Writ although it be unequal Partition yet it shall not be avoided by averment but shall bind the Feme Coverts And such averment against the retorn of the Sheriff shall not be good 1. Inst 171. A valuable consideration in a Bargain and Sale Consideration not expressed may be averred 2. Inst 672. A consideration which consists with the Deed and not repugnant may be averred as in a Bargain and Sale if a particular consideration be expressed and the general clause of other good causes and considerations or without that general clause yet other considerations may be shewed so if the particular consideration be love and affection yet payment of money may be shewed so a precedent intent of uses and Uses to levy a fine may be shewed to guide the use of the fine Rolls tit uses 790. As if I covenant by Deed to purchase Land and then to levy a fine or make a Feoffment thereof to the use of another and afterwards purchase and levy a fine or make a Feoffment this use shall rise For the Deed is an evidence of the precedent intent and the uses of a fine or Feoffment may be directed by the precedent intent and yet such intent is countermandable But a covenant to purchase and stand seised of Lands to uses shall not raise the use after the purchase because the use is to rise by the Deed and at the time when the Deed was made there was no Estate in the Land ibidem So if one joyntenant covenant to stand seised of his Companions part if he survive yet no use shall rise if he did survive because at the time of the Covenant he could not grant nor charge the Land ibid. 'T is true that a fine sur grant and render unless it Fine sur grant and render use be in special cases cannot be averred by parol to be to any other use or intent than what is expressed in the fine Feoffment or other conveyance But there is a diversity betwixt a use and consideration for when a fine Feoffment or other conveyance import an express consideration a man may aver by word another consideration which may stand with the consideration expressed but the parties cannot by parol aver any other use than is contained in the same coveyance Also no averment shall be against the consideration expressed But yet in some cases a fine Sur grant and render may be ruled and directed in part by averment per parol and this is when the original Bargain and Contract betwixt the parties is by Indenture or other Deed As where it is agreed by Indenture that a Fine shall be levyed of certain Lands by the name of a certain number of Acres to divers persons and that they shall grant and render the Land again in fee simple which shall be to certain uses the Fine is levyed of the Land but there is some variance betwixt the number of Acres comprised in the Fine or the Fine is levyed